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Mary Grace Natividad S. Poe-Llamanzares v. COMELEC, G. R. Nos. 221697 & 221698-700, March 8, 2016
Decision, Perez [J]
Concurring Opinion, Sereno [J]
Concurring Opinion, Velasco Jr. [J]
Concurring Opinion, Leonen [J]
Concurring Opinion, Jardeleza [J]
Separate Concurring Opinion, Caguioa [J]
Dissenting Opinion, Carpio [J]
Dissenting Opinion, Brion [J]
Dissenting Opinion, Del Castillo [J]
Dissenting Opinion, Perlas-Bernabe [J]
Separate Dissenting Opinion, Leonardo-De Castro [J]

EN BANC

March 8, 2016

G.R. No. 221697

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,


vs.
COMELEC AND ESTRELLA C. ELAMPARO Respondents.

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

G.R. No. 221698-700

MARY GRACE NATIVIDAD S. POE-LLAMANZARES, Petitioners,


vs.
COMELEC, FRANCISCO S. TATAD, ANTONIO P. CONTRERAS AND AMADO D. VALDEZ Respondents.

DECISION

PEREZ, J.:

Before the Court are two consolidated petitions under Rule 64 in relation to Rule 65 of the Rules of Court with extremely urgent application for an ex parte issuance of
temporary restraining order/status quo ante order and/or writ of preliminary injunction assailing the following: (1) 1 December 2015 Resolution of the Commission on
Elections (COMELEC) Second Division; (2) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-001 (DC); (3) 11 December 2015 Resolution of the
COMELEC First Division; and ( 4) 23 December 2015 Resolution of the COMELEC En Banc, in SPA No. 15-002 (DC), SPA No. 15-007 (DC) and SPA No. 15-139 (DC)
for having been issued without jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.

The Facts

Mary Grace Natividad S. Poe-Llamanzares (petitioner) was found abandoned as a newborn infant in the Parish Church of Jaro, Iloilo by a certain Edgardo Militar
(Edgardo) on 3 September 1968. Parental care and custody over petitioner was passed on by Edgardo to his relatives, Emiliano Militar (Emiliano) and his wife. Three
days after, 6 September 1968, Emiliano reported and registered petitioner as a foundling with the Office of the Civil Registrar of Iloilo City (OCR-Iloilo). In her Foundling
Certificate and Certificate of Live Birth, the petitioner was given the name "Mary Grace Natividad Contreras Militar." 1

When petitioner was five (5) years old, celebrity spouses Ronald Allan Kelley Poe (a.k.a. Fenando Poe, Jr.) and Jesusa Sonora Poe (a.k.a. Susan Roces) filed a petition
for her adoption with the Municipal Trial Court (MTC) of San Juan City. On 13 May 1974, the trial court granted their petition and ordered that petitioner's name be
changed from "Mary Grace Natividad Contreras Militar" to "Mary Grace Natividad Sonora Poe." Although necessary notations were made by OCR-Iloilo on petitioner's
foundling certificate reflecting the court decreed adoption,2 the petitioner's adoptive mother discovered only sometime in the second half of 2005 that the lawyer who
handled petitioner's adoption failed to secure from the OCR-Iloilo a new Certificate of Live Birth indicating petitioner's new name and the name of her adoptive
parents. 3 Without delay, petitioner's mother executed an affidavit attesting to the lawyer's omission which she submitted to the OCR-Iloilo. On 4 May 2006, OCR-Iloilo
issued a new Certificate of Live Birth in the name of Mary Grace Natividad Sonora Poe.4

Having reached the age of eighteen (18) years in 1986, petitioner registered as a voter with the local COMELEC Office in San Juan City. On 13 December 1986, she
received her COMELEC Voter's Identification Card for Precinct No. 196 in Greenhills, San Juan, Metro Manila. 5

On 4 April 1988, petitioner applied for and was issued Philippine Passport No. F927287 6 by the Department of Foreign Affairs (DFA). Subsequently, on 5 April 1993 and
19 May 1998, she renewed her Philippine passport and respectively secured Philippine Passport Nos. L881511 and DD156616. 7

Initially, the petitioner enrolled and pursued a degree in Development Studies at the University of the Philippines 8but she opted to continue her studies abroad and left for
the United States of America (U.S.) in 1988. Petitioner graduated in 1991 from Boston College in Chestnuts Hill, Massachusetts where she earned her Bachelor of Arts
degree in Political Studies.9

On 27 July 1991, petitioner married Teodoro Misael Daniel V. Llamanzares (Llamanzares), a citizen of both the Philippines and the U.S., at Sanctuario de San Jose
Parish in San Juan City. 10 Desirous of being with her husband who was then based in the U.S., the couple flew back to the U.S. two days after the wedding ceremony or
on 29 July 1991. 11

While in the U.S., the petitioner gave birth to her eldest child Brian Daniel (Brian) on 16 April 1992. 12 Her two daughters Hanna MacKenzie (Hanna) and Jesusa Anika
(Anika) were both born in the Philippines on 10 July 1998 and 5 June 2004, respectively. 13

14
On 18 October 2001, petitioner became a naturalized American citizen. She obtained U.S. Passport No. 017037793 on 19 December 2001. 15

On 8 April 2004, the petitioner came back to the Philippines together with Hanna to support her father's candidacy for President in the May 2004 elections. It was during
this time that she gave birth to her youngest daughter Anika. She returned to the U.S. with her two daughters on 8 July 2004. 16

After a few months, specifically on 13 December 2004, petitioner rushed back to the Philippines upon learning of her father's deteriorating medical condition. 17 Her father
slipped into a coma and eventually expired. The petitioner stayed in the country until 3 February 2005 to take care of her father's funeral arrangements as well as to
assist in the settlement of his estate.18

According to the petitioner, the untimely demise of her father was a severe blow to her entire family. In her earnest desire to be with her grieving mother, the petitioner
and her husband decided to move and reside permanently in the Philippines sometime in the first quarter of 2005. 19 The couple began preparing for their resettlement
including notification of their children's schools that they will be transferring to Philippine schools for the next semester; 20 coordination with property movers for the
relocation of their household goods, furniture and cars from the U.S. to the Philippines; 21 and inquiry with Philippine authorities as to the proper procedure to be followed
in bringing their pet dog into the country.22 As early as 2004, the petitioner already quit her job in the U.S. 23

Finally, petitioner came home to the Philippines on 24 May 200524 and without delay, secured a Tax Identification Number from the Bureau of Internal Revenue. Her three
(3) children immediately followed25 while her husband was forced to stay in the U.S. to complete pending projects as well as to arrange the sale of their family home
there.26

The petitioner and her children briefly stayed at her mother's place until she and her husband purchased a condominium unit with a parking slot at One Wilson Place
Condominium in San Juan City in the second half of 2005.27 The corresponding Condominium Certificates of Title covering the unit and parking slot were issued by the
Register of Deeds of San Juan City to petitioner and her husband on 20 February 2006.28 Meanwhile, her children of school age began attending Philippine private
schools.

On 14 February 2006, the petitioner made a quick trip to the U.S. to supervise the disposal of some of the family's remaining household belongings. 29 She travelled back
to the Philippines on 11 March 2006.30

In late March 2006, petitioner's husband officially informed the U.S. Postal Service of the family's change and abandonment of their address in the U.S. 31 The family
home was eventually sold on 27 April 2006.32 Petitioner's husband resigned from his job in the U.S. in April 2006, arrived in the country on 4 May 2006 and started
working for a major Philippine company in July 2006.33

In early 2006, petitioner and her husband acquired a 509-square meter lot in Corinthian Hills, Quezon City where they built their family home 34 and to this day, is where
the couple and their children have been residing.35 A Transfer Certificate of Title covering said property was issued in the couple's name by the Register of Deeds of
Quezon City on 1June 2006.

On 7 July 2006, petitioner took her Oath of Allegiance to the Republic of the Philippines pursuant to Republic Act (R.A.) No. 9225 or the Citizenship Retention and Re-
acquisition Act of 2003.36 Under the same Act, she filed with the Bureau of Immigration (BI) a sworn petition to reacquire Philippine citizenship together with petitions for
derivative citizenship on behalf of her three minor children on 10 July 2006.37 As can be gathered from its 18 July 2006 Order, the BI acted favorably on petitioner's
petitions and declared that she is deemed to have reacquired her Philippine citizenship while her children are considered as citizens of the Philippines. 38 Consequently,
the BI issued Identification Certificates (ICs) in petitioner's name and in the names of her three (3) children. 39

Again, petitioner registered as a voter of Barangay Santa Lucia, San Juan City on 31 August 2006.40 She also secured from the DFA a new Philippine Passport bearing
the No. XX4731999.41 This passport was renewed on 18 March 2014 and she was issued Philippine Passport No. EC0588861 by the DFA. 42

On 6 October 2010, President Benigno S. Aquino III appointed petitioner as Chairperson of the Movie and Television Review and Classification Board (MTRCB). 43 Before
assuming her post, petitioner executed an "Affidavit of Renunciation of Allegiance to the United States of America and Renunciation of American Citizenship" before a
notary public in Pasig City on 20 October 2010,44 in satisfaction of the legal requisites stated in Section 5 of R.A. No. 9225.45 The following day, 21 October 2010
petitioner submitted the said affidavit to the BI46 and took her oath of office as Chairperson of the MTRCB.47 From then on, petitioner stopped using her American
passport.48

On 12 July 2011, the petitioner executed before the Vice Consul of the U.S. Embassy in Manila an "Oath/Affirmation of Renunciation of Nationality of the United
States."49 On that day, she accomplished a sworn questionnaire before the U.S. Vice Consul wherein she stated that she had taken her oath as MTRCB Chairperson on
21 October 2010 with the intent, among others, of relinquishing her American citizenship. 50 In the same questionnaire, the petitioner stated that she had resided outside of
the U.S., specifically in the Philippines, from 3 September 1968 to 29 July 1991 and from May 2005 to present. 51

On 9 December 2011, the U.S. Vice Consul issued to petitioner a "Certificate of Loss of Nationality of the United States" effective 21 October 2010. 52

On 2 October 2012, the petitioner filed with the COMELEC her Certificate of Candidacy (COC) for Senator for the 2013 Elections wherein she answered "6 years and 6
months" to the question "Period of residence in the Philippines before May 13, 2013." 53 Petitioner obtained the highest number of votes and was proclaimed Senator on
16 May 2013. 54

55
On 19 December 2013, petitioner obtained Philippine Diplomatic Passport No. DE0004530.

On 15 October 2015, petitioner filed her COC for the Presidency for the May 2016 Elections. 56 In her COC, the petitioner declared that she is a natural-born citizen and
that her residence in the Philippines up to the day before 9 May 2016 would be ten (10) years and eleven (11) months counted from 24 May 2005. 57 The petitioner
attached to her COC an "Affidavit Affirming Renunciation of U.S.A. Citizenship" subscribed and sworn to before a notary public in Quezon City on 14 October 2015. 58

Petitioner's filing of her COC for President in the upcoming elections triggered the filing of several COMELEC cases against her which were the subject of these
consolidated cases.

Origin of Petition for Certiorari in G.R. No. 221697

A day after petitioner filed her COC for President, Estrella Elamparo (Elamparo) filed a petition to deny due course or cancel said COC which was docketed as SPA No.
15-001 (DC) and raffled to the COMELEC Second Division.59She is convinced that the COMELEC has jurisdiction over her petition.60 Essentially, Elamparo's contention is
that petitioner committed material misrepresentation when she stated in her COC that she is a natural-born Filipino citizen and that she is a resident of the Philippines for
at least ten (10) years and eleven (11) months up to the day before the 9 May 2016 Elections.61

On the issue of citizenship, Elamparo argued that petitioner cannot be considered as a natural-born Filipino on account of the fact that she was a foundling. 62 Elamparo
claimed that international law does not confer natural-born status and Filipino citizenship on foundlings. 63 Following this line of reasoning, petitioner is not qualified to
apply for reacquisition of Filipino citizenship under R.A. No. 9225 for she is not a natural-born Filipino citizen to begin with. 64 Even assuming arguendo that petitioner was
a natural-born Filipino, she is deemed to have lost that status when she became a naturalized American citizen. 65 According to Elamparo, natural-born citizenship must
be continuous from birth.66

On the matter of petitioner's residency, Elamparo pointed out that petitioner was bound by the sworn declaration she made in her 2012 COC for Senator wherein she
indicated that she had resided in the country for only six ( 6) years and six ( 6) months as of May 2013 Elections. Elamparo likewise insisted that assuming arguendo that
petitioner is qualified to regain her natural-born status under R.A. No. 9225, she still fell short of the ten-year residency requirement of the Constitution as her residence
could only be counted at the earliest from July 2006, when she reacquired Philippine citizenship under the said Act. Also on the assumption that petitioner is qualified to
reacquire lost Philippine Citizenship, Elamparo is of the belief that she failed to reestablish her domicile in the Philippines. 67

Petitioner seasonably filed her Answer wherein she countered that:

(1) the COMELEC did not have jurisdiction over Elamparo's petition as it was actually a petition for quo warranto which could only be filed if Grace
Poe wins in the Presidential elections, and that the Department of Justice (DOJ) has primary jurisdiction to revoke the BI's July 18, 2006 Order;

(2) the petition failed to state a cause of action because it did not contain allegations which, if hypothetically admitted, would make false the
statement in her COC that she is a natural-born Filipino citizen nor was there any allegation that there was a willful or deliberate intent to
misrepresent on her part;

(3) she did not make any material misrepresentation in the COC regarding her citizenship and residency qualifications for:

a. the 1934 Constitutional Convention deliberations show that foundlings were considered citizens;

b. foundlings are presumed under international law to have been born of citizens of the place where they are found;

c. she reacquired her natural-born Philippine citizenship under the provisions of R.A. No. 9225;

d. she executed a sworn renunciation of her American citizenship prior to the filing of her COC for President in the May 9, 2016 Elections
and that the same is in full force and effect and has not been withdrawn or recanted;

e. the burden was on Elamparo in proving that she did not possess natural-born status;

f. residence is a matter of evidence and that she reestablished her domicile in the Philippines as early as May 24, 2005;

g. she could reestablish residence even before she reacquired natural-born citizenship under R.A. No. 9225;

h. statement regarding the period of residence in her 2012 COC for Senator was an honest mistake, not binding and should give way to
evidence on her true date of reacquisition of domicile;

i. Elamparo's petition is merely an action to usurp the sovereign right of the Filipino people to decide a purely political question, that is,
should she serve as the country's next leader.68

After the parties submitted their respective Memoranda, the petition was deemed submitted for resolution.

On 1 December 2015, the COMELEC Second Division promulgated a Resolution finding that petitioner's COC, filed for the purpose of running for the President of the
Republic of the Philippines in the 9 May 2016 National and Local Elections, contained material representations which are false. The fallo of the aforesaid Resolution
reads:

WHEREFORE, in view of all the foregoing considerations, the instant Petition to Deny Due Course to or Cancel Certificate of Candidacy is hereby GRANTED.
Accordingly, the Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace
Natividad Sonora Poe Llamanzares is hereby CANCELLED.69

Motion for Reconsideration of the 1 December 2015 Resolution was filed by petitioner which the COMELEC En Banc resolved in its 23 December 2015 Resolution by
denying the same.70

Origin of Petition for Certiorari in G.R. Nos. 221698-700

This case stemmed from three (3) separate petitions filed by Francisco S. Tatad (Tatad), Antonio P. Contreras (Contreras) and Amado D. Valdez (Valdez) against
petitioner before the COMELEC which were consolidated and raffled to its First Division.

In his petition to disqualify petitioner under Rule 25 of the COMELEC Rules of Procedure, 71 docketed as SPA No. 15-002 (DC), Tatad alleged that petitioner lacks the
requisite residency and citizenship to qualify her for the Presidency. 72

Tatad theorized that since the Philippines adheres to the principle of jus sanguinis, persons of unknown parentage, particularly foundlings, cannot be considered natural-
born Filipino citizens since blood relationship is determinative of natural-born status. 73 Tatad invoked the rule of statutory construction that what is not included is
excluded. He averred that the fact that foundlings were not expressly included in the categories of citizens in the 193 5 Constitution is indicative of the framers' intent to
exclude them.74 Therefore, the burden lies on petitioner to prove that she is a natural-born citizen.75

Neither can petitioner seek refuge under international conventions or treaties to support her claim that foundlings have a nationality. 76 According to Tatad, international
conventions and treaties are not self-executory and that local legislations are necessary in order to give effect to treaty obligations assumed by the Philippines. 77 He also
stressed that there is no standard state practice that automatically confers natural-born status to foundlings. 78

Similar to Elamparo's argument, Tatad claimed that petitioner cannot avail of the option to reacquire Philippine citizenship under R.A. No. 9225 because it only applies to
former natural-born citizens and petitioner was not as she was a foundling.79

Referring to petitioner's COC for Senator, Tatad concluded that she did not comply with the ten (10) year residency requirement. 80 Tatad opined that petitioner acquired
her domicile in Quezon City only from the time she renounced her American citizenship which was sometime in 2010 or 2011. 81 Additionally, Tatad questioned petitioner's
lack of intention to abandon her U.S. domicile as evinced by the fact that her husband stayed thereat and her frequent trips to the U.S. 82

In support of his petition to deny due course or cancel the COC of petitioner, docketed as SPA No. 15-139 (DC), Valdez alleged that her repatriation under R.A. No. 9225
did not bestow upon her the status of a natural-born citizen.83 He advanced the view that former natural-born citizens who are repatriated under the said Act reacquires
only their Philippine citizenship and will not revert to their original status as natural-born citizens. 84

He further argued that petitioner's own admission in her COC for Senator that she had only been a resident of the Philippines for at least six (6) years and six (6) months
prior to the 13 May 2013 Elections operates against her. Valdez rejected petitioner's claim that she could have validly reestablished her domicile in the Philippines prior to
her reacquisition of Philippine citizenship. In effect, his position was that petitioner did not meet the ten (10) year residency requirement for President.

Unlike the previous COMELEC cases filed against petitioner, Contreras' petition, 85 docketed as SPA No. 15-007 (DC), limited the attack to the residency issue. He
claimed that petitioner's 2015 COC for President should be cancelled on the ground that she did not possess the ten-year period of residency required for said candidacy
and that she made false entry in her COC when she stated that she is a legal resident of the Philippines for ten (10) years and eleven (11) months by 9 May
2016.86 Contreras contended that the reckoning period for computing petitioner's residency in the Philippines should be from 18 July 2006, the date when her petition to
reacquire Philippine citizenship was approved by the BI.87 He asserted that petitioner's physical presence in the country before 18 July 2006 could not be valid evidence
of reacquisition of her Philippine domicile since she was then living here as an American citizen and as such, she was governed by the Philippine immigration laws. 88

In her defense, petitioner raised the following arguments:

First, Tatad's petition should be dismissed outright for failure to state a cause of action. His petition did not invoke grounds proper for a disqualification case as
enumerated under Sections 12 and 68 of the Omnibus Election Code.89 Instead, Tatad completely relied on the alleged lack of residency and natural-born status of
petitioner which are not among the recognized grounds for the disqualification of a candidate to an elective office. 90

Second, the petitions filed against her are basically petitions for quo warranto as they focus on establishing her ineligibility for the Presidency.91 A petition for quo
warranto falls within the exclusive jurisdiction of the Presidential Electoral Tribunal (PET) and not the COMELEC. 92

Third, the burden to prove that she is not a natural-born Filipino citizen is on the respondents. 93 Otherwise stated, she has a presumption in her favor that she is a natural-
born citizen of this country.

Fourth, customary international law dictates that foundlings are entitled to a nationality and are presumed to be citizens of the country where they are
found.94 Consequently, the petitioner is considered as a natural-born citizen of the Philippines.95

Fifth, she claimed that as a natural-born citizen, she has every right to be repatriated under R.A. No. 9225 or the right to reacquire her natural-born status. 96 Moreover, the
official acts of the Philippine Government enjoy the presumption of regularity, to wit: the issuance of the 18 July 2006 Order of the BI declaring her as natural-born citizen,
her appointment as MTRCB Chair and the issuance of the decree of adoption of San Juan RTC.97 She believed that all these acts reinforced her position that she is a
natural-born citizen of the Philippines.98

Sixth, she maintained that as early as the first quarter of 2005, she started reestablishing her domicile of choice in the Philippines as demonstrated by her children's
resettlement and schooling in the country, purchase of a condominium unit in San Juan City and the construction of their family home in Corinthian Hills. 99

Seventh, she insisted that she could legally reestablish her domicile of choice in the Philippines even before she renounced her American citizenship as long as the three
determinants for a change of domicile are complied with.100 She reasoned out that there was no requirement that renunciation of foreign citizenship is a prerequisite for
the acquisition of a new domicile of choice.101

Eighth, she reiterated that the period appearing in the residency portion of her COC for Senator was a mistake made in good faith. 102

In a Resolution103 promulgated on 11 December 2015, the COMELEC First Division ruled that petitioner is not a natural-born citizen, that she failed to complete the ten
(10) year residency requirement, and that she committed material misrepresentation in her COC when she declared therein that she has been a resident of the
Philippines for a period of ten (10) years and eleven (11) months as of the day of the elections on 9 May 2016. The COMELEC First Division concluded that she is not
qualified for the elective position of President of the Republic of the Philippines. The dispositive portion of said Resolution reads:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the Petitions and cancel the Certificate of Candidacy of MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.

Petitioner filed a motion for reconsideration seeking a reversal of the COMELEC First Division's Resolution. On 23 December 2015, the COMELEC En Banc issued a
Resolution denying petitioner's motion for reconsideration.

Alarmed by the adverse rulings of the COMELEC, petitioner instituted the present petitions for certiorari with urgent prayer for the issuance of an ex parte temporary
restraining order/status quo ante order and/or writ of preliminary injunction. On 28 December 2015, temporary restraining orders were issued by the Court enjoining the
COMELEC and its representatives from implementing the assailed COMELEC Resolutions until further orders from the Court. The Court also ordered the consolidation of
the two petitions filed by petitioner in its Resolution of 12 January 2016. Thereafter, oral arguments were held in these cases.

The Court GRANTS the petition of Mary Grace Natividad S. Poe-Llamanzares and to ANNUL and SET ASIDE the:

1. Resolution dated 1 December 2015 rendered through its Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares.

2. Resolution dated 11 December 2015, rendered through its First Division, in the consolidated cases SPA No. 15-002 (DC)
entitled Francisco S. Tatad, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P.
Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez,
petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent.

3. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 1 December 2015 Resolution of the Second Division.

4. Resolution dated 23 December 2015 of the Commission En Banc, upholding the 11 December 2015 Resolution of the First Division.

The procedure and the conclusions from which the questioned Resolutions emanated are tainted with grave abuse of discretion amounting to lack of jurisdiction. The
petitioner is a QUALIFIED CANDIDATE for President in the 9 May 2016 National Elections.

The issue before the COMELEC is whether or not the COC of petitioner should be denied due course or cancelled "on the exclusive ground" that she made in the
certificate a false material representation. The exclusivity of the ground should hedge in the discretion of the COMELEC and restrain it from going into the issue of the
qualifications of the candidate for the position, if, as in this case, such issue is yet undecided or undetermined by the proper authority. The COMELEC cannot itself, in the
same cancellation case, decide the qualification or lack thereof of the candidate.

We rely, first of all, on the Constitution of our Republic, particularly its provisions in Article IX, C, Section 2:

Section 2. The Commission on Elections shall exercise the following powers and functions:

(1) Enforce and administer all laws and regulations relative to the conduct of an election, plebiscite, initiative, referendum, and recall.

(2) Exercise exclusive original jurisdiction over all contests relating to the elections, returns, and qualifications of all elective regional,
provincial, and city officials, and appellate jurisdiction over all contests involving elective municipal officials decided by trial courts of
general jurisdiction, or involving elective barangay officials decided by trial courts of limited jurisdiction.

Decisions, final orders, or rulings of the Commission on election contests involving elective municipal and barangay offices shall be final,
executory, and not appealable.

(3) Decide, except those involving the right to vote, all questions affecting elections, including determination of the number and location of
polling places, appointment of election officials and inspectors, and registration of voters.

(4) Deputize, with the concurrence of the President, law enforcement agencies and instrumentalities of the Government, including the
Armed Forces of the Philippines, for the exclusive purpose of ensuring free, orderly, honest, peaceful, and credible elections.

(5) Register, after sufficient publication, political parties, organizations, or coalitions which, in addition to other requirements, must present
their platform or program of government; and accredit citizens' arms of the Commission on Elections. Religious denominations and sects
shall not be registered. Those which seek to achieve their goals through violence or unlawful means, or refuse to uphold and adhere to this
Constitution, or which are supported by any foreign government shall likewise be refused registration.

Financial contributions from foreign governments and their agencies to political parties, organizations, coalitions, or candidates related to
elections constitute interference in national affairs, and, when accepted, shall be an additional ground for the cancellation of their
registration with the Commission, in addition to other penalties that may be prescribed by law.

(6) File, upon a verified complaint, or on its own initiative, petitions in court for inclusion or exclusion of voters; investigate and, where
appropriate, prosecute cases of violations of election laws, including acts or omissions constituting election frauds, offenses, and
malpractices.

(7) Recommend to the Congress effective measures to minimize election spending, including limitation of places where propaganda
materials shall be posted, and to prevent and penalize all forms of election frauds, offenses, malpractices, and nuisance candidacies.

(8) Recommend to the President the removal of any officer or employee it has deputized, or the imposition of any other disciplinary action,
for violation or disregard of, or disobedience to its directive, order, or decision.

(9) Submit to the President and the Congress a comprehensive report on the conduct of each election, plebiscite, initiative, referendum, or
recall.

Not any one of the enumerated powers approximate the exactitude of the provisions of Article VI, Section 17 of the same basic law stating that:

The Senate and the House of Representatives shall each have an Electoral Tribunal which shall be the sole judge of all contests relating to the
election, returns, and qualifications of their respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom shall be
Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six shall be Members of the Senate or the House of
Representatives, as the case may be, who shall be chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the Electoral Tribunal shall be its Chairman.

or of the last paragraph of Article VII, Section 4 which provides that:

The Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-
President, and may promulgate its rules for the purpose.

The tribunals which have jurisdiction over the question of the qualifications of the President, the Vice-President, Senators and the Members of the House of
Representatives was made clear by the Constitution. There is no such provision for candidates for these positions.

Can the COMELEC be such judge?

The opinion of Justice Vicente V. Mendoza in Romualdez-Marcos v. Commission on Elections,104 which was affirmatively cited in the En Banc decision in Fermin v.
COMELEC105 is our guide. The citation in Fermin reads:

Apparently realizing the lack of an authorized proceeding for declaring the ineligibility of candidates, the COMELEC amended its rules on February 15, 1993 so as to
provide in Rule 25 1, the following:

Grounds for disqualification. - Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution
or by existing law or who commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a
candidate.

The lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule. Such an act is equivalent to the creation of a cause of action
which is a substantive matter which the COMELEC, in the exercise of its rule-making power under Art. IX, A, 6 of the Constitution, cannot do it. It is noteworthy that the
Constitution withholds from the COMELEC even the power to decide cases involving the right to vote, which essentially involves an inquiry into qualifications based
on age, residence and citizenship of voters. [Art. IX, C, 2(3)]

The assimilation in Rule 25 of the COMELEC rules of grounds for ineligibility into grounds for disqualification is contrary to the evident intention of the law. For not only in
their grounds but also in their consequences are proceedings for "disqualification" different from those for a declaration of "ineligibility." "Disqualification" proceedings, as
already stated, are based on grounds specified in 12 and 68 of the Omnibus Election Code and in 40 of the Local Government Code and are for the purpose of
barring an individual from becoming a candidate or from continuing as a candidate for public office. In a word, their purpose is to eliminate a candidate from the
race either from the start or during its progress. "Ineligibility," on the other hand, refers to the lack of the qualifications prescribed in the Constitution or the statutes
for holding public office and the purpose of the proceedings for declaration of ineligibility is to remove the incumbent from office.
Consequently, that an individual possesses the qualifications for a public office does not imply that he is not disqualified from becoming a candidate or continuing as a
candidate for a public office and vice versa. We have this sort of dichotomy in our Naturalization Law. (C.A. No. 473) That an alien has the qualifications prescribed in 2
of the Law does not imply that he does not suffer from any of [the] disqualifications provided in 4.

Before we get derailed by the distinction as to grounds and the consequences of the respective proceedings, the importance of the opinion is in its statement that "the
lack of provision for declaring the ineligibility of candidates, however, cannot be supplied by a mere rule". Justice Mendoza lectured in Romualdez-Marcos that:

Three reasons may be cited to explain the absence of an authorized proceeding for determining before election the qualifications of a candidate.

First is the fact that unless a candidate wins and is proclaimed elected, there is no necessity for determining his eligibility for the office. In contrast, whether an individual
should be disqualified as a candidate for acts constituting election offenses (e.g., vote buying, over spending, commission of prohibited acts) is a prejudicial question
which should be determined lest he wins because of the very acts for which his disqualification is being sought. That is why it is provided that if the grounds for
disqualification are established, a candidate will not be voted for; if he has been voted for, the votes in his favor will not be counted; and if for some reason he has been
voted for and he has won, either he will not be proclaimed or his proclamation will be set aside.

Second is the fact that the determination of a candidates' eligibility, e.g., his citizenship or, as in this case, his domicile, may take a long time to make, extending beyond
the beginning of the term of the office. This is amply demonstrated in the companion case (G.R. No. 120265, Agapito A. Aquino v. COMELEC) where the determination of
Aquino's residence was still pending in the COMELEC even after the elections of May 8, 1995. This is contrary to the summary character proceedings relating to
certificates of candidacy. That is why the law makes the receipt of certificates of candidacy a ministerial duty of the COMELEC and its officers. The law is satisfied if
candidates state in their certificates of candidacy that they are eligible for the position which they seek to fill, leaving the determination of their qualifications to be made
after the election and only in the event they are elected. Only in cases involving charges of false representations made in certificates of candidacy is the COMELEC given
jurisdiction.

Third is the policy underlying the prohibition against pre-proclamation cases in elections for President, Vice President, Senators and members of the House of
Representatives. (R.A. No. 7166, 15) The purpose is to preserve the prerogatives of the House of Representatives Electoral Tribunal and the other Tribunals as "sole
judges" under the Constitution of the election, returns and qualifications of members of Congress of the President and Vice President, as the case may be.106

To be sure, the authoritativeness of the Romualdez pronouncements as reiterated in Fermin, led to the amendment through COMELEC Resolution No. 9523, on 25
September 2012 of its Rule 25. This, the 15 February1993 version of Rule 25, which states that:

Grounds for disqualification. -Any candidate who does not possess all the qualifications of a candidate as provided for by the Constitution or by existing law or who
commits any act declared by law to be grounds for disqualification may be disqualified from continuing as a candidate. 107

was in the 2012 rendition, drastically changed to:

Grounds. - Any candidate who, in action or protest in which he is a party, is declared by final decision of a competent court, guilty of, or found by the Commission to be
suffering from any disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to Declare a Candidate as a Nuisance
Candidate, or a combination thereof, shall be summarily dismissed.

Clearly, the amendment done in 2012 is an acceptance of the reality of absence of an authorized proceeding for determining before election the qualifications of
candidate. Such that, as presently required, to disqualify a candidate there must be a declaration by a final judgment of a competent court that the candidate sought to be
disqualified "is guilty of or found by the Commission to be suffering from any disqualification provided by law or the Constitution."

Insofar as the qualification of a candidate is concerned, Rule 25 and Rule 23 are flipsides of one to the other. Both do not allow, are not authorizations, are not vestment
of jurisdiction, for the COMELEC to determine the qualification of a candidate. The facts of qualification must beforehand be established in a prior proceeding before an
authority properly vested with jurisdiction. The prior determination of qualification may be by statute, by executive order or by a judgment of a competent court or tribunal.

If a candidate cannot be disqualified without a prior finding that he or she is suffering from a disqualification "provided by law or the Constitution," neither can the
certificate of candidacy be cancelled or denied due course on grounds of false representations regarding his or her qualifications, without a prior authoritative finding that
he or she is not qualified, such prior authority being the necessary measure by which the falsity of the representation can be found. The only exception that can be
conceded are self-evident facts of unquestioned or unquestionable veracity and judicial confessions. Such are, anyway, bases equivalent to prior decisions against which
the falsity of representation can be determined.

The need for a predicate finding or final pronouncement in a proceeding under Rule 23 that deals with, as in this case, alleged false representations regarding the
candidate's citizenship and residence, forced the COMELEC to rule essentially that since foundlings 108 are not mentioned in the enumeration of citizens under the 1935
Constitution,109 they then cannot be citizens. As the COMELEC stated in oral arguments, when petitioner admitted that she is a foundling, she said it all. This borders on
bigotry. Oddly, in an effort at tolerance, the COMELEC, after saying that it cannot rule that herein petitioner possesses blood relationship with a Filipino citizen when "it is
certain that such relationship is indemonstrable," proceeded to say that "she now has the burden to present evidence to prove her natural filiation with a Filipino parent."
The fact is that petitioner's blood relationship with a Filipino citizen is DEMONSTRABLE.

At the outset, it must be noted that presumptions regarding paternity is neither unknown nor unaccepted in Philippine Law. The Family Code of the Philippines has a
whole chapter on Paternity and Filiation.110 That said, there is more than sufficient evider1ce that petitioner has Filipino parents and is therefore a natural-born Filipino.
Parenthetically, the burden of proof was on private respondents to show that petitioner is not a Filipino citizen. The private respondents should have shown that both of
petitioner's parents were aliens. Her admission that she is a foundling did not shift the burden to her because such status did not exclude the possibility that her parents
were Filipinos, especially as in this case where there is a high probability, if not certainty, that her parents are Filipinos.

The factual issue is not who the parents of petitioner are, as their identities are unknown, but whether such parents are Filipinos. Under Section 4, Rule 128:

Sect. 4. Relevancy, collateral matters - Evidence must have such a relation to the fact in issue as to induce belief in its existence or no-existence. Evidence on collateral
matters shall not be allowed, except when it tends in any reasonable degree to establish the probability of improbability of the fact in issue.

The Solicitor General offered official statistics from the Philippine Statistics Authority (PSA) 111 that from 1965 to 1975, the total number of foreigners born in the Philippines
was 15,986 while the total number of Filipinos born in the country was 10,558,278. The statistical probability that any child born in the Philippines in that decade is
natural-born Filipino was 99.83%. For her part, petitioner presented census statistics for Iloilo Province for 1960 and 1970, also from the PSA. In 1960, there were
962,532 Filipinos and 4,734 foreigners in the province; 99.62% of the population were Filipinos. In 1970, the figures were 1,162,669 Filipinos and 5,304 foreigners,
or 99.55%. Also presented were figures for the child producing ages (15-49). In 1960, there were 230,528 female Filipinos as against 730 female foreigners or 99.68%. In
the same year, there were 210,349 Filipino males and 886 male aliens, or 99.58%. In 1970, there were 270,299 Filipino females versus 1, 190 female aliens,
or 99.56%. That same year, there were 245,740 Filipino males as against only 1,165 male aliens or 99.53%. COMELEC did not dispute these figures. Notably,
Commissioner Arthur Lim admitted, during the oral arguments, that at the time petitioner was found in 1968, the majority of the population in Iloilo was Filipino. 112

Other circumstantial evidence of the nationality of petitioner's parents are the fact that she was abandoned as an infant in a Roman Catholic Church in Iloilo
City.1wphi1 She also has typical Filipino features: height, flat nasal bridge, straight black hair, almond shaped eyes and an oval face.

There is a disputable presumption that things have happened according to the ordinary course of nature and the ordinary habits of life. 113 All of the foregoing evidence,
that a person with typical Filipino features is abandoned in Catholic Church in a municipality where the population of the Philippines is overwhelmingly Filipinos such that
there would be more than a 99% chance that a child born in the province would be a Filipino, would indicate more than ample probability if not statistical certainty, that
petitioner's parents are Filipinos. That probability and the evidence on which it is based are admissible under Rule 128, Section 4 of the Revised Rules on Evidence.

To assume otherwise is to accept the absurd, if not the virtually impossible, as the norm. In the words of the Solicitor General:

Second. It is contrary to common sense because foreigners do not come to the Philippines so they can get pregnant and leave their newborn babies behind. We do not
face a situation where the probability is such that every foundling would have a 50% chance of being a Filipino and a 50% chance of being a foreigner. We need to frame
our questions properly. What are the chances that the parents of anyone born in the Philippines would be foreigners? Almost zero. What are the chances that the parents
of anyone born in the Philippines would be Filipinos? 99.9%.

According to the Philippine Statistics Authority, from 2010 to 2014, on a yearly average, there were 1,766,046 children born in the Philippines to Filipino parents, as
opposed to 1,301 children in the Philippines of foreign parents. Thus, for that sample period, the ratio of non-Filipino children to natural born Filipino children is 1:1357.
This means that the statistical probability that any child born in the Philippines would be a natural born Filipino is 99.93%.

From 1965 to 1975, the total number of foreigners born in the Philippines is 15,986 while the total number of Filipinos born in the Philippines is 15,558,278. For this
period, the ratio of non-Filipino children is 1:661. This means that the statistical probability that any child born in the Philippines on that decade would be a natural born
Filipino is 99.83%.

We can invite statisticians and social anthropologists to crunch the numbers for us, but I am confident that the statistical probability that a child born in the Philippines
would be a natural born Filipino will not be affected by whether or not the parents are known. If at all, the likelihood that a foundling would have a Filipino parent might
even be higher than 99.9%. Filipinos abandon their children out of poverty or perhaps, shame. We do not imagine foreigners abandoning their children here in the
Philippines thinking those infants would have better economic opportunities or believing that this country is a tropical paradise suitable for raising abandoned children. I
certainly doubt whether a foreign couple has ever considered their child excess baggage that is best left behind.

To deny full Filipino citizenship to all foundlings and render them stateless just because there may be a theoretical chance that one among the thousands of these
foundlings might be the child of not just one, but two, foreigners is downright discriminatory, irrational, and unjust. It just doesn't make any sense. Given the statistical
certainty - 99.9% - that any child born in the Philippines would be a natural born citizen, a decision denying foundlings such status is effectively a denial of their birthright.
There is no reason why this Honorable Court should use an improbable hypothetical to sacrifice the fundamental political rights of an entire class of human beings. Your
Honor, constitutional interpretation and the use of common sense are not separate disciplines.

As a matter of law, foundlings are as a class, natural-born citizens. While the 1935 Constitution's enumeration is silent as to foundlings, there is no restrictive language
which would definitely exclude foundlings either. Because of silence and ambiguity in the enumeration with respect to foundlings, there is a need to examine the intent of
the framers. In Nitafan v. Commissioner of Internal Revenue,114 this Court held that:
The ascertainment of that intent is but in keeping with the fundamental principle of constitutional construction that the intent of the framers of the
organic law and of the people adopting it should be given effect. The primary task in constitutional construction is to ascertain and thereafter assure
the realization of the purpose of the framers and of the people in the adoption of the Constitution. It may also be safely assumed that the people in
ratifying the Constitution were guided mainly by the explanation offered by the framers.115

As pointed out by petitioner as well as the Solicitor General, the deliberations of the 1934 Constitutional Convention show that the framers intended foundlings to be
covered by the enumeration. The following exchange is recorded:

Sr. Rafols: For an amendment. I propose that after subsection 2, the following is inserted: "The natural children of a foreign father and a Filipino mother not recognized by
the father.

xxxx

President:
[We] would like to request a clarification from the proponent of the amendment. The gentleman refers to natural children or to any kind of illegitimate children?

Sr. Rafols:
To all kinds of illegitimate children. It also includes natural children of unknown parentage, natural or illegitimate children of unknown parents.

Sr. Montinola:
For clarification. The gentleman said "of unknown parents." Current codes consider them Filipino, that is, I refer to the Spanish Code wherein all children of unknown
parentage born in Spanish territory are considered Spaniards, because the presumption is that a child of unknown parentage is the son of a Spaniard. This may be
applied in the Philippines in that a child of unknown parentage born in the Philippines is deemed to be Filipino, and there is no need ...

Sr. Rafols:
There is a need, because we are relating the conditions that are [required] to be Filipino.

Sr. Montinola:
But that is the interpretation of the law, therefore, there is no [more] need for amendment.

Sr. Rafols:
The amendment should read thus:
"Natural or illegitimate of a foreign father and a Filipino mother recognized by one, or the children of unknown parentage."

Sr. Briones:
The amendment [should] mean children born in the Philippines of unknown parentage.

Sr. Rafols:
The son of a Filipina to a Foreigner, although this [person] does not recognize the child, is not unknown.

President:
Does the gentleman accept the amendment or not?

Sr. Rafols:
I do not accept the amendment because the amendment would exclude the children of a Filipina with a foreigner who does not recognize the child. Their parentage is not
unknown and I think those of overseas Filipino mother and father [whom the latter] does not recognize, should also be considered as Filipinos.

President:
The question in order is the amendment to the amendment from the Gentleman from Cebu, Mr. Briones.

Sr. Busion:
Mr. President, don't you think it would be better to leave this matter in the hands of the Legislature?

Sr. Roxas:
Mr. President, my humble opinion is that these cases are few and far in between, that the constitution need [not] refer to them. By international law the principle that
children or people born in a country of unknown parents are citizens in this nation is recognized, and it is not necessary to include a provision on the subject
exhaustively.116

Though the Rafols amendment was not carried out, it was not because there was any objection to the notion that persons of "unknown parentage" are not citizens but
only because their number was not enough to merit specific mention. Such was the account,117 cited by petitioner, of delegate and constitution law author Jose Aruego
who said:

During the debates on this provision, Delegate Rafols presented an amendment to include as Filipino citizens the illegitimate children with a foreign
father of a mother who was a citizen of the Philippines, and also foundlings; but this amendment was defeated primarily because the Convention
believed that the cases, being too few to warrant the inclusion of a provision in the Constitution to apply to them, should be governed by statutory
legislation. Moreover, it was believed that the rules of international law were already clear to the effect that illegitimate children followed the
citizenship of the mother, and that foundlings followed the nationality of the place where they were found, thereby making unnecessary the
inclusion in the Constitution of the proposed amendment.

This explanation was likewise the position of the Solicitor General during the 16 February 2016 Oral Arguments:

We all know that the Rafols proposal was rejected. But note that what was declined was the proposal for a textual and explicit recognition of foundlings as Filipinos. And
so, the way to explain the constitutional silence is by saying that it was the view of Montinola and Roxas which prevailed that there is no more need to expressly declare
foundlings as Filipinos.

Obviously, it doesn't matter whether Montinola's or Roxas' views were legally correct. Framers of a constitution can constitutionalize rules based on assumptions that are
imperfect or even wrong. They can even overturn existing rules. This is basic. What matters here is that Montinola and Roxas were able to convince their colleagues in
the convention that there is no more need to expressly declare foundlings as Filipinos because they are already impliedly so recognized.

In other words, the constitutional silence is fully explained in terms of linguistic efficiency and the avoidance of redundancy. The policy is clear: it is to recognize
foundlings, as a class, as Filipinos under Art. IV, Section 1 (3) of the 1935 Constitution. This inclusive policy is carried over into the 1973 and 1987 Constitution. It is
appropriate to invoke a famous scholar as he was paraphrased by Chief Justice Fernando: the constitution is not silently silent, it is silently vocal. 118

The Solicitor General makes the further point that the framers "worked to create a just and humane society," that "they were reasonable patriots and that it would be
unfair to impute upon them a discriminatory intent against foundlings." He exhorts that, given the grave implications of the argument that foundlings are not natural-born
Filipinos, the Court must search the records of the 1935, 1973 and 1987 Constitutions "for an express intention to deny foundlings the status of Filipinos. The burden is
on those who wish to use the constitution to discriminate against foundlings to show that the constitution really intended to take this path to the dark side and inflict this
across the board marginalization."

We find no such intent or language permitting discrimination against foundlings. On the contrary, all three Constitutions guarantee the basic right to equal protection of the
laws. All exhort the State to render social justice. Of special consideration are several provisions in the present charter: Article II, Section 11 which provides that the "State
values the dignity of every human person and guarantees full respect for human rights," Article XIII, Section 1 which mandates Congress to "give highest priority to the
enactment of measures that protect and enhance the right of all the people to human dignity, reduce social, economic, and political inequalities x x x" and Article XV,
Section 3 which requires the State to defend the "right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect,
abuse, cruelty, exploitation, and other conditions prejudicial to their development." Certainly, these provisions contradict an intent to discriminate against foundlings on
account of their unfortunate status.

Domestic laws on adoption also support the principle that foundlings are Filipinos. These laws do not provide that adoption confers citizenship upon the adoptee. Rather,
the adoptee must be a Filipino in the first place to be adopted. The most basic of such laws is Article 15 of the Civil Code which provides that "[l]aws relating to family
rights, duties, status, conditions, legal capacity of persons are binding on citizens of the Philippines even though living abroad." Adoption deals with status, and a
Philippine adoption court will have jurisdiction only if the adoptee is a Filipino. In Ellis and Ellis v. Republic,119 a child left by an unidentified mother was sought to be
adopted by aliens. This Court said:

In this connection, it should be noted that this is a proceedings in rem, which no court may entertain unless it has jurisdiction, not only over the subject matter of the case
and over the parties, but also over the res, which is the personal status of Baby Rose as well as that of petitioners herein. Our Civil Code (Art. 15) adheres to the theory
that jurisdiction over the status of a natural person is determined by the latter's nationality. Pursuant to this theory, we have jurisdiction over the status of Baby Rose, she
being a citizen of the Philippines, but not over the status of the petitioners, who are foreigners.120 (Underlining supplied)

Recent legislation is more direct. R.A. No. 8043 entitled "An Act Establishing the Rules to Govern the Inter-Country Adoption of Filipino Children and For Other Purposes"
(otherwise known as the "Inter-Country Adoption Act of 1995"), R.A. No. 8552, entitled "An Act Establishing the Rules and Policies on the Adoption of Filipino Children
and For Other Purposes" (otherwise known as the Domestic Adoption Act of 1998) and this Court's A.M. No. 02-6-02-SC or the "Rule on Adoption," all expressly refer to
"Filipino children" and include foundlings as among Filipino children who may be adopted.

It has been argued that the process to determine that the child is a foundling leading to the issuance of a foundling certificate under these laws and the issuance of said
certificate are acts to acquire or perfect Philippine citizenship which make the foundling a naturalized Filipino at best. This is erroneous. Under Article IV, Section 2
"Natural-born citizens are those who are citizens of the Philippines from birth without having to perform any act to acquire or perfect their Philippine citizenship." In the
first place, "having to perform an act" means that the act must be personally done by the citizen. In this instance, the determination of foundling status is done not by the
child but by the authorities.121 Secondly, the object of the process is the determination of the whereabouts of the parents, not the citizenship of the child. Lastly, the
process is certainly not analogous to naturalization proceedings to acquire Philippine citizenship, or the election of such citizenship by one born of an alien father and a
Filipino mother under the 1935 Constitution, which is an act to perfect it.

In this instance, such issue is moot because there is no dispute that petitioner is a foundling, as evidenced by a Foundling Certificate issued in her favor. 122 The Decree of
Adoption issued on 13 May 1974, which approved petitioner's adoption by Jesusa Sonora Poe and Ronald Allan Kelley Poe, expressly refers to Emiliano and his wife,
Rosario Militar, as her "foundling parents," hence effectively affirming petitioner's status as a foundling. 123

Foundlings are likewise citizens under international law. Under the 1987 Constitution, an international law can become part of the sphere of domestic law either by
transformation or incorporation. The transformation method requires that an international law be transformed into a domestic law through a constitutional mechanism
such as local legislation.124 On the other hand, generally accepted principles of international law, by virtue of the incorporation clause of the Constitution, form part of the
laws of the land even if they do not derive from treaty obligations. Generally accepted principles of international law include international custom as evidence of a general
practice accepted as law, and general principles of law recognized by civilized nations.125 International customary rules are accepted as binding as a result from the
combination of two elements: the established, widespread, and consistent practice on the part of States; and a psychological element known as the opinionjuris sive
necessitates (opinion as to law or necessity). Implicit in the latter element is a belief that the practice in question is rendered obligatory by the existence of a rule of law
requiring it.126 "General principles of law recognized by civilized nations" are principles "established by a process of reasoning" or judicial logic, based on principles which
are "basic to legal systems generally,"127 such as "general principles of equity, i.e., the general principles of fairness and justice," and the "general principle against
discrimination" which is embodied in the "Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, the International
Convention on the Elimination of All Forms of Racial Discrimination, the Convention Against Discrimination in Education, the Convention (No. 111) Concerning
Discrimination in Respect of Employment and Occupation."128 These are the same core principles which underlie the Philippine Constitution itself, as embodied in the due
process and equal protection clauses of the Bill of Rights.129

Universal Declaration of Human Rights ("UDHR") has been interpreted by this Court as part of the generally accepted principles of international law and binding on the
State.130 Article 15 thereof states:

1. Everyone has the right to a nationality.

2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

The Philippines has also ratified the UN Convention on the Rights of the Child (UNCRC). Article 7 of the UNCRC imposes the following obligations on our country:

Article 7

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to
know and be cared for by his or her parents.

2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in
this field, in particular where the child would otherwise be stateless.

In 1986, the country also ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 24 thereof provide for the right of every child "to acquire a
nationality:"

Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right, to such measures of
protection as are required by his status as a minor, on the part of his family, society and the State.

2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

The common thread of the UDHR, UNCRC and ICCPR is to obligate the Philippines to grant nationality from birth and ensure that no child is stateless. This grant of
nationality must be at the time of birth, and it cannot be accomplished by the application of our present naturalization laws, Commonwealth Act No. 473, as amended, and
R.A. No. 9139, both of which require the applicant to be at least eighteen (18) years old.

The principles found in two conventions, while yet unratified by the Philippines, are generally accepted principles of international law. The first is Article 14 of the 1930
Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws under which a foundling is presumed to have the "nationality of the country of birth,"
to wit:

Article 14

A child whose parents are both unknown shall have the nationality of the country of birth. If the child's parentage is established, its nationality shall be determined by the
rules applicable in cases where the parentage is known.
A foundling is, until the contrary is proved, presumed to have been born on the territory of the State in which it was found. (Underlining supplied)

The second is the principle that a foundling is presumed born of citizens of the country where he is found, contained in Article 2 of the 1961 United Nations Convention on
the Reduction of Statelessness:

Article 2

A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within the territory of parents
possessing the nationality of that State.

That the Philippines is not a party to the 1930 Hague Convention nor to the 1961 Convention on the Reduction of Statelessness does not mean that their principles are
not binding. While the Philippines is not a party to the 1930 Hague Convention, it is a signatory to the Universal Declaration on Human Rights, Article 15(1)
ofwhich131effectively affirms Article 14 of the 1930 Hague Convention. Article 2 of the 1961 "United Nations Convention on the Reduction of Statelessness" merely "gives
effect" to Article 15(1) of the UDHR.132 In Razon v. Tagitis, 133 this Court noted that the Philippines had not signed or ratified the "International Convention for the
Protection of All Persons from Enforced Disappearance." Yet, we ruled that the proscription against enforced disappearances in the said convention was nonetheless
binding as a "generally accepted principle of international law." Razon v. Tagitis is likewise notable for declaring the ban as a generally accepted principle of international
law although the convention had been ratified by only sixteen states and had not even come into force and which needed the ratification of a minimum of twenty states.
Additionally, as petitioner points out, the Court was content with the practice of international and regional state organs, regional state practice in Latin America, and State
Practice in the United States.

Another case where the number of ratifying countries was not determinative is Mijares v. Ranada, 134 where only four countries had "either ratified or acceded to"135 the
1966 "Convention on the Recognition and Enforcement of Foreign Judgments in Civil and Commercial Matters" when the case was decided in 2005. The Court also
pointed out that that nine member countries of the European Common Market had acceded to the Judgments Convention. The Court also cited U.S. laws and
jurisprudence on recognition of foreign judgments. In all, only the practices of fourteen countries were considered and yet, there was pronouncement that recognition of
foreign judgments was widespread practice.

Our approach in Razon and Mijares effectively takes into account the fact that "generally accepted principles of international law" are based not only on international
custom, but also on "general principles of law recognized by civilized nations," as the phrase is understood in Article 38.1 paragraph (c) of the ICJ Statute. Justice,
fairness, equity and the policy against discrimination, which are fundamental principles underlying the Bill of Rights and which are "basic to legal systems
generally,"136 support the notion that the right against enforced disappearances and the recognition of foreign judgments, were correctly considered as "generally
accepted principles of international law" under the incorporation clause.

Petitioner's evidence137 shows that at least sixty countries in Asia, North and South America, and Europe have passed legislation recognizing foundlings as its citizen.
Forty-two (42) of those countries follow the jus sanguinis regime. Of the sixty, only thirty-three (33) are parties to the 1961 Convention on Statelessness; twenty-six (26)
are not signatories to the Convention. Also, the Chief Justice, at the 2 February 2016 Oral Arguments pointed out that in 166 out of 189 countries surveyed (or 87.83%),
foundlings are recognized as citizens. These circumstances, including the practice of jus sanguinis countries, show that it is a generally accepted principle of international
law to presume foundlings as having been born of nationals of the country in which the foundling is found.

Current legislation reveals the adherence of the Philippines to this generally accepted principle of international law. In particular, R.A. No. 8552, R.A. No. 8042 and this
Court's Rules on Adoption, expressly refer to "Filipino children." In all of them, foundlings are among the Filipino children who could be adopted. Likewise, it has been
pointed that the DFA issues passports to foundlings. Passports are by law, issued only to citizens. This shows that even the executive department, acting through the
DFA, considers foundlings as Philippine citizens.

Adopting these legal principles from the 1930 Hague Convention and the 1961 Convention on Statelessness is rational and reasonable and consistent with the jus
sanguinis regime in our Constitution. The presumption of natural-born citizenship of foundlings stems from the presumption that their parents are nationals of the
Philippines. As the empirical data provided by the PSA show, that presumption is at more than 99% and is a virtual certainty.

In sum, all of the international law conventions and instruments on the matter of nationality of foundlings were designed to address the plight of a defenseless class which
suffers from a misfortune not of their own making. We cannot be restrictive as to their application if we are a country which calls itself civilized and a member of the
community of nations. The Solicitor General's warning in his opening statement is relevant:

.... the total effect of those documents is to signify to this Honorable Court that those treaties and conventions were drafted because the world community is concerned
that the situation of foundlings renders them legally invisible. It would be tragically ironic if this Honorable Court ended up using the international instruments which seek
to protect and uplift foundlings a tool to deny them political status or to accord them second-class citizenship. 138

The COMELEC also ruled139 that petitioner's repatriation in July 2006 under the provisions of R.A. No. 9225 did not result in the reacquisition of natural-born citizenship.
The COMELEC reasoned that since the applicant must perform an act, what is reacquired is not "natural-born" citizenship but only plain "Philippine citizenship."

The COMELEC's rule arrogantly disregards consistent jurisprudence on the matter of repatriation statutes in general and of R.A. No. 9225 in particular.
140
In the seminal case of Bengson Ill v. HRET, repatriation was explained as follows:

Moreover, repatriation results in the recovery of the original nationality. This means that a naturalized Filipino who lost his citizenship will be restored to his prior status as
a naturalized Filipino citizen. On the other hand, if he was originally a natural-born citizen before he lost his Philippine citizenship, he will be restored to his former status
as a natural-born Filipino.

R.A. No. 9225 is a repatriation statute and has been described as such in several cases. They include Sobejana-Condon v. COMELEC141 where we described it as an
"abbreviated repatriation process that restores one's Filipino citizenship x x x." Also included is Parreno v. Commission on Audit,142 which cited Tabasa v. Court of
Appeals,143where we said that "[t]he repatriation of the former Filipino will allow him to recover his natural-born citizenship. Parreno v. Commission on Audit144 is
categorical that "if petitioner reacquires his Filipino citizenship (under R.A. No. 9225), he will ... recover his natural-born citizenship."

The COMELEC construed the phrase "from birth" in the definition of natural citizens as implying "that natural-born citizenship must begin at birth and remain
uninterrupted and continuous from birth." R.A. No. 9225 was obviously passed in line with Congress' sole prerogative to determine how citizenship may be lost or
reacquired. Congress saw it fit to decree that natural-born citizenship may be reacquired even if it had been once lost. It is not for the COMELEC to disagree with the
Congress' determination.

More importantly, COMELEC's position that natural-born status must be continuous was already rejected in Bengson III v. HRET145 where the phrase "from birth" was
clarified to mean at the time of birth: "A person who at the time of his birth, is a citizen of a particular country, is a natural-born citizen thereof." Neither is "repatriation" an
act to "acquire or perfect" one's citizenship. In Bengson III v. HRET, this Court pointed out that there are only two types of citizens under the 1987 Constitution: natural-
born citizen and naturalized, and that there is no third category for repatriated citizens:

It is apparent from the enumeration of who are citizens under the present Constitution that there are only two classes of citizens: (1) those who are natural-born and (2)
those who are naturalized in accordance with law. A citizen who is not a naturalized Filipino, ie., did not have to undergo the process of naturalization to obtain Philippine
citizenship, necessarily is a natural-born Filipino. Noteworthy is the absence in said enumeration of a separate category for persons who, after losing Philippine
citizenship, subsequently reacquire it. The reason therefor is clear: as to such persons, they would either be natural-born or naturalized depending on the reasons for the
loss of their citizenship and the mode prescribed by the applicable law for the reacquisition thereof. As respondent Cruz was not required by law to go through
naturalization proceedings in order to reacquire his citizenship, he is perforce a natural-born Filipino. As such, he possessed all the necessary qualifications to be elected
as member of the House of Representatives.146

The COMELEC cannot reverse a judicial precedent. That is reserved to this Court. And while we may always revisit a doctrine, a new rule reversing standing doctrine
cannot be retroactively applied. In Morales v. Court of Appeals and Jejomar Erwin S. Binay, Jr.,147 where we decreed reversed the condonation doctrine, we cautioned
that it "should be prospective in application for the reason that judicial decisions applying or interpreting the laws of the Constitution, until reversed, shall form part of the
legal system of the Philippines." This Court also said that "while the future may ultimately uncover a doctrine's error, it should be, as a general rule, recognized as good
law prior to its abandonment. Consequently, the people's reliance thereupon should be respected."148

Lastly, it was repeatedly pointed out during the oral arguments that petitioner committed a falsehood when she put in the spaces for "born to" in her application for
repatriation under R.A. No. 9225 the names of her adoptive parents, and this misled the BI to presume that she was a natural-born Filipino. It has been contended that
the data required were the names of her biological parents which are precisely unknown.

This position disregards one important fact - petitioner was legally adopted. One of the effects of adoption is "to sever all legal ties between the biological parents and the
adoptee, except when the biological parent is the spouse of the adoptee." 149 Under R.A. No. 8552, petitioner was also entitled to an amended birth certificate "attesting to
the fact that the adoptee is the child of the adopter(s)" and which certificate "shall not bear any notation that it is an amended issue." 150 That law also requires that "[a]ll
records, books, and papers relating to the adoption cases in the files of the court, the Department [of Social Welfare and Development], or any other agency or institution
participating in the adoption proceedings shall be kept strictly confidential."151 The law therefore allows petitioner to state that her adoptive parents were her birth parents
as that was what would be stated in her birth certificate anyway. And given the policy of strict confidentiality of adoption records, petitioner was not obligated to disclose
that she was an adoptee.

Clearly, to avoid a direct ruling on the qualifications of petitioner, which it cannot make in the same case for cancellation of COC, it resorted to opinionatedness which is,
moreover, erroneous. The whole process undertaken by COMELEC is wrapped in grave abuse of discretion.

On Residence

The tainted process was repeated in disposing of the issue of whether or not petitioner committed false material representation when she stated in her COC that she has
before and until 9 May 2016 been a resident of the Philippines for ten (10) years and eleven (11) months.

Petitioner's claim that she will have been a resident for ten (10) years and eleven (11) months on the day before the 2016 elections, is true.

The Constitution requires presidential candidates to have ten (10) years' residence in the Philippines before the day of the elections. Since the forthcoming elections will
be held on 9 May 2016, petitioner must have been a resident of the Philippines prior to 9 May 2016 for ten (10) years. In answer to the requested information of "Period of
Residence in the Philippines up to the day before May 09, 2016," she put in "10 years 11 months" which according to her pleadings in these cases corresponds to a
beginning date of 25 May 2005 when she returned for good from the U.S.

When petitioner immigrated to the U.S. in 1991, she lost her original domicile, which is the Philippines. There are three requisites to acquire a new domicile: 1. Residence
or bodily presence in a new locality; 2. an intention to remain there; and 3. an intention to abandon the old domicile. 152 To successfully effect a change of domicile, one
must demonstrate an actual removal or an actual change of domicile; a bona fide intention of abandoning the former place of residence and establishing a new one and
definite acts which correspond with the purpose. In other words, there must basically be animus manendi coupled with animus non revertendi. The purpose to remain in
or at the domicile of choice must be for an indefinite period of time; the change of residence must be voluntary; and the residence at the place chosen for the new
domicile must be actual.153

Petitioner presented voluminous evidence showing that she and her family abandoned their U.S. domicile and relocated to the Philippines for good. These evidence
include petitioner's former U.S. passport showing her arrival on 24 May 2005 and her return to the Philippines every time she travelled abroad; e-mail correspondences
starting in March 2005 to September 2006 with a freight company to arrange for the shipment of their household items weighing about 28,000 pounds to the Philippines;
e-mail with the Philippine Bureau of Animal Industry inquiring how to ship their dog to the Philippines; school records of her children showing enrollment in Philippine
schools starting June 2005 and for succeeding years; tax identification card for petitioner issued on July 2005; titles for condominium and parking slot issued in February
2006 and their corresponding tax declarations issued in April 2006; receipts dated 23 February 2005 from the Salvation Army in the U.S. acknowledging donation of items
from petitioner's family; March 2006 e-mail to the U.S. Postal Service confirming request for change of address; final statement from the First American Title Insurance
Company showing sale of their U.S. home on 27 April 2006; 12 July 2011 filled-up questionnaire submitted to the U.S. Embassy where petitioner indicated that she had
been a Philippine resident since May 2005; affidavit from Jesusa Sonora Poe (attesting to the return of petitioner on 24 May 2005 and that she and her family stayed with
affiant until the condominium was purchased); and Affidavit from petitioner's husband (confirming that the spouses jointly decided to relocate to the Philippines in 2005
and that he stayed behind in the U.S. only to finish some work and to sell the family home).

The foregoing evidence were undisputed and the facts were even listed by the COMELEC, particularly in its Resolution in the Tatad, Contreras and Valdez cases.

However, the COMELEC refused to consider that petitioner's domicile had been timely changed as of 24 May 2005. At the oral arguments, COMELEC Commissioner
Arthur Lim conceded the presence of the first two requisites, namely, physical presence and animus manendi, but maintained there was no animus non-revertendi.154 The
COMELEC disregarded the import of all the evidence presented by petitioner on the basis of the position that the earliest date that petitioner could have started residence
in the Philippines was in July 2006 when her application under R.A. No. 9225 was approved by the BI. In this regard, COMELEC relied on Coquilla v.
COMELEC,155 Japzon v. COMELEC156 and Caballero v. COMELEC. 157 During the oral arguments, the private respondents also added Reyes v.
COMELEC.158 Respondents contend that these cases decree that the stay of an alien former Filipino cannot be counted until he/she obtains a permanent resident visa or
reacquires Philippine citizenship, a visa-free entry under a balikbayan stamp being insufficient. Since petitioner was still an American (without any resident visa) until her
reacquisition of citizenship under R.A. No. 9225, her stay from 24 May 2005 to 7 July 2006 cannot be counted.

But as the petitioner pointed out, the facts in these four cases are very different from her situation. In Coquilla v. COMELEC,159 the only evidence presented was a
community tax certificate secured by the candidate and his declaration that he would be running in the elections. Japzon v. COMELEC160 did not involve a candidate who
wanted to count residence prior to his reacquisition of Philippine citizenship. With the Court decreeing that residence is distinct from citizenship, the issue there was
whether the candidate's acts after reacquisition sufficed to establish residence. In Caballero v. COMELEC, 161 the candidate admitted that his place of work was abroad
and that he only visited during his frequent vacations. In Reyes v. COMELEC,162 the candidate was found to be an American citizen who had not even reacquired
Philippine citizenship under R.A. No. 9225 or had renounced her U.S. citizenship. She was disqualified on the citizenship issue. On residence, the only proof she offered
was a seven-month stint as provincial officer. The COMELEC, quoted with approval by this Court, said that "such fact alone is not sufficient to prove her one-year
residency."

It is obvious that because of the sparse evidence on residence in the four cases cited by the respondents, the Court had no choice but to hold that residence could be
counted only from acquisition of a permanent resident visa or from reacquisition of Philippine citizenship. In contrast, the evidence of petitioner is overwhelming and taken
together leads to no other conclusion that she decided to permanently abandon her U.S. residence (selling the house, taking the children from U.S. schools, getting
quotes from the freight company, notifying the U.S. Post Office of the abandonment of their address in the U.S., donating excess items to the Salvation Army, her
husband resigning from U.S. employment right after selling the U.S. house) and permanently relocate to the Philippines and actually re-established her residence here on
24 May 2005 (securing T.I.N, enrolling her children in Philippine schools, buying property here, constructing a residence here, returning to the Philippines after all trips
abroad, her husband getting employed here). Indeed, coupled with her eventual application to reacquire Philippine citizenship and her family's actual continuous stay in
the Philippines over the years, it is clear that when petitioner returned on 24 May 2005 it was for good.

In this connection, the COMELEC also took it against petitioner that she had entered the Philippines visa-free as a balikbayan. A closer look at R.A. No. 6768 as
amended, otherwise known as the "An Act Instituting a Balikbayan Program," shows that there is no overriding intent to treat balikbayans as temporary visitors who must
leave after one year. Included in the law is a former Filipino who has been naturalized abroad and "comes or returns to the Philippines." 163 The law institutes
a balikbayan program "providing the opportunity to avail of the necessary training to enable the balikbayan to become economically self-reliant members of society upon
their return to the country"164 in line with the government's "reintegration program."165 Obviously, balikbayans are not ordinary transients.

Given the law's express policy to facilitate the return of a balikbayan and help him reintegrate into society, it would be an unduly harsh conclusion to say in absolute terms
that the balikbayan must leave after one year. That visa-free period is obviously granted him to allow him to re-establish his life and reintegrate himself into the community
before he attends to the necessary formal and legal requirements of repatriation. And that is exactly what petitioner did - she reestablished life here by enrolling her
children and buying property while awaiting the return of her husband and then applying for repatriation shortly thereafter.

No case similar to petitioner's, where the former Filipino's evidence of change in domicile is extensive and overwhelming, has as yet been decided by the Court.
Petitioner's evidence of residence is unprecedented. There is no judicial precedent that comes close to the facts of residence of petitioner. There is no indication
in Coquilla v. COMELEC,166 and the other cases cited by the respondents that the Court intended to have its rulings there apply to a situation where the facts are different.
Surely, the issue of residence has been decided particularly on the facts-of-the case basis.

To avoid the logical conclusion pointed out by the evidence of residence of petitioner, the COMELEC ruled that petitioner's claim of residence of ten (10) years and eleven
(11) months by 9 May 2016 in her 2015 COC was false because she put six ( 6) years and six ( 6) months as "period of residence before May 13, 2013" in her 2012 COC
for Senator. Thus, according to the COMELEC, she started being a Philippine resident only in November 2006. In doing so, the COMELEC automatically assumed as
true the statement in the 2012 COC and the 2015 COC as false.

As explained by petitioner in her verified pleadings, she misunderstood the date required in the 2013 COC as the period of residence as of the day she submitted that
COC in 2012. She said that she reckoned residency from April-May 2006 which was the period when the U.S. house was sold and her husband returned to the
Philippines. In that regard, she was advised by her lawyers in 2015 that residence could be counted from 25 May 2005.

Petitioner's explanation that she misunderstood the query in 2012 (period of residence before 13 May 2013) as inquiring about residence as of the time she submitted the
COC, is bolstered by the change which the COMELEC itself introduced in the 2015 COC which is now "period of residence in the Philippines up to the day before May
09, 2016." The COMELEC would not have revised the query if it did not acknowledge that the first version was vague.

That petitioner could have reckoned residence from a date earlier than the sale of her U.S. house and the return of her husband is plausible given the evidence that she
had returned a year before. Such evidence, to repeat, would include her passport and the school records of her children.

It was grave abuse of discretion for the COMELEC to treat the 2012 COC as a binding and conclusive admission against petitioner. It could be given in evidence against
her, yes, but it was by no means conclusive. There is precedent after all where a candidate's mistake as to period of residence made in a COC was overcome by
evidence. In Romualdez-Marcos v. COMELEC,167 the candidate mistakenly put seven (7) months as her period of residence where the required period was a minimum of
one year. We said that "[i]t is the fact of residence, not a statement in a certificate of candidacy which ought to be decisive in determining whether or not an individual has
satisfied the constitutions residency qualification requirement." The COMELEC ought to have looked at the evidence presented and see if petitioner was telling the truth
that she was in the Philippines from 24 May 2005. Had the COMELEC done its duty, it would have seen that the 2012 COC and the 2015 COC both correctly stated
the pertinent period of residency.

The COMELEC, by its own admission, disregarded the evidence that petitioner actually and physically returned here on 24 May 2005 not because it was false, but only
because COMELEC took the position that domicile could be established only from petitioner's repatriation under R.A. No. 9225 in July 2006. However, it does not take
away the fact that in reality, petitioner had returned from the U.S. and was here to stay permanently, on 24 May 2005. When she claimed to have been a resident for ten
(10) years and eleven (11) months, she could do so in good faith.

For another, it could not be said that petitioner was attempting to hide anything. As already stated, a petition for quo warranto had been filed against her with the SET as
early as August 2015. The event from which the COMELEC pegged the commencement of residence, petitioner's repatriation in July 2006 under R.A. No. 9225, was an
established fact to repeat, for purposes of her senatorial candidacy.

Notably, on the statement of residence of six (6) years and six (6) months in the 2012 COC, petitioner recounted that this was first brought up in the media on 2 June
2015 by Rep. Tobias Tiangco of the United Nationalist Alliance. Petitioner appears to have answered the issue immediately, also in the press. Respondents have not
disputed petitioner's evidence on this point. From that time therefore when Rep. Tiangco discussed it in the media, the stated period of residence in the 2012 COC and
the circumstances that surrounded the statement were already matters of public record and were not hidden.

Petitioner likewise proved that the 2012 COC was also brought up in the SET petition for quo warranto. Her Verified Answer, which was filed on 1 September 2015,
admitted that she made a mistake in the 2012 COC when she put in six ( 6) years and six ( 6) months as she misunderstood the question and could have truthfully
indicated a longer period. Her answer in the SET case was a matter of public record. Therefore, when petitioner accomplished her COC for President on 15 October
2015, she could not be said to have been attempting to hide her erroneous statement in her 2012 COC for Senator which was expressly mentioned in her Verified
Answer.

The facts now, if not stretched to distortion, do not show or even hint at an intention to hide the 2012 statement and have it covered by the 2015 representation.
Petitioner, moreover, has on her side this Court's pronouncement that:

Concededly, a candidate's disqualification to run for public office does not necessarily constitute material misrepresentation which is the sole ground for denying due
course to, and for the cancellation of, a COC. Further, as already discussed, the candidate's misrepresentation in his COC must not only refer to a material fact (eligibility
and qualifications for elective office), but should evince a deliberate intent to mislead, misinform or hide a fact which would otherwise render a candidate ineligible. It must
be made with an intention to deceive the electorate as to one's qualifications to run for public office.168

In sum, the COMELEC, with the same posture of infallibilism, virtually ignored a good number of evidenced dates all of which can evince animus manendi to the
Philippines and animus non revertedi to the United States of America. The veracity of the events of coming and staying home was as much as dismissed as
inconsequential, the focus having been fixed at the petitioner's "sworn declaration in her COC for Senator" which the COMELEC said "amounts to a declaration and
therefore an admission that her residence in the Philippines only commence sometime in November 2006"; such that "based on this declaration, [petitioner] fails to meet
the residency requirement for President." This conclusion, as already shown, ignores the standing jurisprudence that it is the fact of residence, not the statement of the
person that determines residence for purposes of compliance with the constitutional requirement of residency for election as President. It ignores the easily researched
matter that cases on questions of residency have been decided favorably for the candidate on the basis of facts of residence far less in number, weight and substance
than that presented by petitioner.169 It ignores, above all else, what we consider as a primary reason why petitioner cannot be bound by her declaration in her COC for
Senator which declaration was not even considered by the SET as an issue against her eligibility for Senator. When petitioner made the declaration in her COC for
Senator that she has been a resident for a period of six (6) years and six (6) months counted up to the 13 May 2013 Elections, she naturally had as reference the
residency requirements for election as Senator which was satisfied by her declared years of residence. It was uncontested during the oral arguments before us that at the
time the declaration for Senator was made, petitioner did not have as yet any intention to vie for the Presidency in 2016 and that the general public was never made
aware by petitioner, by word or action, that she would run for President in 2016. Presidential candidacy has a length-of-residence different from that of a senatorial
candidacy. There are facts of residence other than that which was mentioned in the COC for Senator. Such other facts of residence have never been proven to be false,
and these, to repeat include:

[Petitioner] returned to the Philippines on 24 May 2005. (petitioner's] husband however stayed in the USA to finish pending projects and arrange the sale of their family
home.

Meanwhile [petitioner] and her children lived with her mother in San Juan City. [Petitioner] enrolled Brian in Beacon School in Taguig City in 2005 and Hanna in
Assumption College in Makati City in 2005. Anika was enrolled in Learning Connection in San Juan in 2007, when she was already old enough to go to school.

In the second half of 2005, [petitioner] and her husband acquired Unit 7F of One Wilson Place Condominium in San Juan. [Petitioner] and her family lived in Unit 7F until
the construction of their family home in Corinthian Hills was completed.

Sometime in the second half of 2005, [petitioner's] mother discovered that her former lawyer who handled [petitioner's] adoption in 1974 failed to secure from the Office of
the Civil Registrar of Iloilo a new Certificate of Live Birth indicating [petitioner's] new name and stating that her parents are "Ronald Allan K. Poe" and "Jesusa L. Sonora."

In February 2006, [petitioner] travelled briefly to the US in order to supervise the disposal of some of the family's remaining household belongings.1a\^/phi1 [Petitioner]
returned to the Philippines on 11 March 2006.

In late March 2006, [petitioner's] husband informed the United States Postal Service of the family's abandonment of their address in the US.

The family home in the US was sole on 27 April 2006.

In April 2006, [petitioner's] husband resigned from his work in the US. He returned to the Philippines on 4 May 2006 and began working for a Philippine company in July
2006.

In early 2006, [petitioner] and her husband acquired a vacant lot in Corinthian Hills, where they eventually built their family home. 170

In light of all these, it was arbitrary for the COMELEC to satisfy its intention to let the case fall under the exclusive ground of false representation, to consider no other
date than that mentioned by petitioner in her COC for Senator.

All put together, in the matter of the citizenship and residence of petitioner for her candidacy as President of the Republic, the questioned Resolutions of the COMELEC
in Division and En Banc are, one and all, deadly diseased with grave abuse of discretion from root to fruits.

WHEREFORE, the petition is GRANTED. The Resolutions, to wit:

1. dated 1 December 2015 rendered through the COMELEC Second Division, in SPA No. 15-001 (DC), entitled Estrella C. Elamparo, petitioner, vs. Mary Grace Natividad
Sonora Poe-Llamanzares, respondent, stating that:

[T]he Certificate of Candidacy for President of the Republic of the Philippines in the May 9, 2016 National and Local Elections filed by respondent Mary Grace Natividad
Sonora Poe-Llamanzares is hereby GRANTED.

2. dated 11 December 2015, rendered through the COMELEC First Division, in the consolidated cases SPA No. 15-002 (DC) entitled Francisco S. Tatad, petitioner, vs.
Mary Grace Natividad Sonora Poe-Llamanzares, respondent; SPA No. 15-007 (DC) entitled Antonio P. Contreras, petitioner, vs. Mary Grace Natividad Sonora Poe-
Llamanzares, respondent; and SPA No. 15-139 (DC) entitled Amado D. Valdez, petitioner, v. Mary Grace Natividad Sonora Poe-Llamanzares, respondent; stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to GRANT the petitions and cancel the Certificate of Candidacy of MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES for the elective position of President of the Republic of the Philippines in connection with the 9 May 2016
Synchronized Local and National Elections.

3. dated 23 December 2015 of the COMELEC En Banc, upholding the 1 December 2015 Resolution of the Second Division stating that:

WHEREFORE, premises considered, the Commission RESOLVED, as it hereby RESOLVES, to DENY the Verified Motion for Reconsideration of SENATOR MARY
GRACE NATIVIDAD SONORA POE-LLAMANZARES. The Resolution dated 11 December 2015 of the Commission First Division is AFFIRMED.
4. dated 23 December 2015 of the COMELEC En Banc, upholding the 11 December 2015 Resolution of the First Division.

are hereby ANNULED and SET ASIDE. Petitioner MARY GRACE NATIVIDAD SONORA POE-LLAMANZARES is DECLARED QUALIFIED to be a candidate for
President in the National and Local Elections of 9 May 2016.

SO ORDERED.

JOSE PORTUGAL PEREZ


Associate Justice

WE CONCUR:

See Concurring Opinion


MARIA LOURDES P.A. SERENO
Chief Justice

See Dissenting Opinion Please see Concurring Opinion


ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice

Please see Separate Dissenting Opinion See Dissenting opinion


TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION
Associate Justice Associate Justice

I join J. Caguioa's Opinion


LUCAS P. BERSAMIN
DIOSDADO M. PERALTA
Associate Justice
Associate Justice

Pls. see Dissenting Opinion


JOSE CATRAL MENDOZA
MARIANO C. DEL CASTILLO
Associate Justice
Associate Justice

(I concur with the Dissenting Opinion of Justice Perlas-Bernabe) See Dissenting Opinion
BIENVENIDO L. REYES ESTELA M. PERLAS-BERNABE
Associate Justice Associate Justice

See Separate Concurring Opinion See Concurring Opinion


MARVIC M.V.F. LEONEN FRANCIS H. JARDELEZA
Associate Justice Associate Justice

See Concurring Opinion


ALFREDO BENJAMIN S. CAGUIOA
Associate Justice

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case
was assigned to the writer of the opinion of the Court.

MARIA LOURDES P.A. SERENO


Chief Justice

Footnotes

1
Petition for Certiorari in G.R. Nos. 221698-700, pp. 15-16; COMELEC First Division Resolution dated 11 December 2015 in SPA No. 15-002 (DC),
SPA No. 15-007 (DC) and SPA No. 15-139 (DC), p. 2.

2
Petition for Certiorari, id. at 16-17;

3
COMELEC First Division Resolution, supra note 1 at 4.

4
Petition for Certiorari, supra note 1 at 22.

5
Id. at 17; Comment (on the Petition for Certiorari in G.R. No. 221697) filed by respondent COMELEC dated 11January 2016, p. 6.

6
Petition for Certiorari, id.; id. at 7.

7
Id. at 18.

8
Supra note 6.

9
Id.

10
COMELEC First Division Resolution, supra note 1 at 3.

11
Petition for Certiorari, supra note 1 at 17.

12
Id. at 18.

13
Id.

14
COMELEC First Division Resolution, supra note 10.

15
Id.

16
Supra note 1 at 17-18.

17
COMELEC First Division Resolution, supra note 10.

18
Id.

19
Id.

20
Petition for Certiorari, supra note 1 at 20.

21
Id.

22
Supra note 3.

23
Supra note 20.

24
Supra note 3.

25
Supra note 20.

26
Supra note 3.

27
Petition for Certiorari, supra note 4.
28
Id.

29
Id. at 23; COMELEC First Division Resolution, supra note 3.

30
Id.; id.

31
Id.; id.

32
Id.; id.

33
Id. at 23-24; COMELEC First Division Resolution, supra note 1 at 5.

34
Id. at 24; id.

35
Id.

36
Supra note 34.

37
Petition for Certiorari, supra note 1 at 25; COMELEC First Division Resolution, supra note 1 at 5.

38
Id. at 25-26; id.

39
Id. at 26; id.

40
Id.; id.

41
Id.; id.

42
Id. at 32; id. at 6.

43
Supra note 39.

44
Petition for Certiorari, supra note 1 at 26-27; COMELEC First Division Resolution, supra note 1 at 5.

45
Section 5, R.A. No. 9225 states:

SEC. 5. Civil and Political Rights and Liabilities. - Those who retain or re-acquire Philippine citizenship under this Act shall enjoy full civil
and political rights and be subject to all attendant liabilities and responsibilities under existing laws of the Philippines and the following
conditions:

xx xx

3. Those appointed to any public office shall subscribe and swear to an oath of allegiance to the Republic of the Philippines and its duly
constituted authorities prior to their assumption of office: Provided, That they renounce their oath of allegiance to the country where they
took that oath;

xx xx

46
Petition for Certiorari, supra note 1 at 27.

47
Id. at 29.

48
Supra note 46; supra note 1 at 6.
49
Petition for Certiorari, supra note 1 at 30; id.

50
Id.

51
Supra note 48.

52
Petition for Certiorari, supra note 1 at 31; COMELEC First Division Resolution, supra note 1 at 6.

53
Comment, supra note 5 at 9.

54
Petition for Certiorari, supra note 1 at 31.

55
Id. at 32; Comment, supra note 53 at 10.

56
Id.; COMELEC First Division Resolution, supra note 1 at 6.

57
Id.; id. at 7.

58
Id.; id.

59
Comment (on the Petition in G.R. No. 221697) filed by respondent Elamparo, dated January 6, 2016, p. 7.

60
COMELEC Second Division Resolution dated December 1, 2015 in SPA No. 15-001 (DC), p. 7.

61
Id. at 7-8.

62
Supra note 60.

63
Id.

64
Id. at 8.

65
Id.

66
Petition for Certiorari in GR. No. 221697, p. 7.

67
Supra note 64.

68
Petition for Certiorari, supra note 65 at 8; COMELEC Second Division Resolution, supra note 60 at 8-11.

69
COMELEC Second Division Resolution, supra note 60 at 34.

70
Comment, supra note 59 at 10.

71
Section 1 of Rule 25 of the COMELEC Rules of Procedure, as amended, states:

Rule 25 - Disqualification of Candidates

Section 1. Grounds. - Any candidate who, in an action or protest in which he is a party, is declared by final decision of a competent court,
guilty of, or found by the Commission to be suffering from any disqualification provided by law or the Constitution.

A Petition to Disqualify a Candidate invoking grounds for a Petition to Deny to or Cancel a Certificate of Candidacy or Petition to Declare a
Candidate as a Nuisance Candidate, or a combination thereof, shall be summarily dismissed.
72
Petition to Disqualify dated 19 October 2015 filed by Tatad in SPA No. 15-002 (DC), p. 9.

73
Id., at 9 and 14.

74
Id. at 10.

75
Id. at 12.

76
Id. at 11.

77
COMELEC First Division Resolution, supra note 1 at 8.

78
Id.

79
Petition to Disqualify, supra note 72 at 11.

80
Id. at 21.

81
Id.

82
Id.

83
Supra note I at 8.

84
Id.

85
Contreras' petition is a petition for cancellation of Grace Poe's COC under Section 78 of the Omnibus Election Code which states that:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. - A verified petition seeking to deny due course or to cancel a
certificate of candidacy may be filed by the 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 due notice and hearing, not later than fifteen days before the election.

86
Petition for Cancellation of Grace Poe's COC dated 17 October 2015 filed by Contreras in SPA No. 15-007 (DC), pp. 2-4.

87
Id. at 3; Petition for Certiorari, supra note l at 13.

88
Id. at 3-4.

89
Sections 12 and 68 of the Omnibus Election Code provide:

Sec. 12. Disqualifications. -Any person who has been declared by competent authority insane or incompetent, or has been sentenced by
final judgment for subversion, insurrection, rebellion or for any offense for which he has been sentenced to a penalty of more than eighteen
months or for a crime involving moral turpitude, shall be disqualified to be a candidate and to hold any office, unless he has been given
plenary pardon or granted amnesty.

This disqualifications to be a candidate herein provided shall be deemed removed upon the declaration by competent authority that said
insanity or incompetence had been removed or after the expiration of a period of five years from his service of sentence, unless within the
same period he again becomes disqualified.

Sec. 68. Disqualifications. - Any candidate who, in an action or protest in which he is a party is declared by final decision of a competent
court guilty of, or found by the Commission of having (a) given money or other material consideration to influence, induce or corrupt the
voters or public officials performing electoral functions; (b) committed acts of terrorism to enhance his candidacy; (c) spent in his election
campaign an amount in excess of that allowed by this Code; (d) solicited, received or made any contribution prohibited under Sections 89,
95, 96, 97 and 104; or (e) violated any of Sections 80, 83, 85, 86 and 261, paragraphs d, e, k, v, and cc, sub-paragraph 6, shall be
disqualified from continuing as a candidate, or if he has been elected, from holding the office. Any person who is a permanent resident of or
an immigrant to a foreign country shall not be qualified to run for any elective office under this Code, unless said person has waived his
status as permanent resident or immigrant of a foreign country in accordance with the residence requirement provided for in the election
laws.

90
COMELEC First Division Resolution, supra note 1 at 12.

91
Id. at 10.

92
Id.

93
Id. at 9.

94
Id.

95
Id.

96
Id.

97
Id.

98
Id.

99
Id.at 9-10.

100
Id.at 10.

101
Id.

102
Id.

103
The 11 December 2015 Resolution of the COMELEC First Division was concurred in by Commissioners Louie Tito F. Guia and Ma. Rowena
Amelia V. Guanzon. Presiding Commissioner Christian Robert S. Lim issued a Separate Dissenting Opinion.

104
318 Phil. 329 (1995).

105
595 Phil. 449 (2008).

106
Romualdez-Marcos v. COMELEC, supra note 104 at 396-397.

107
Id. at 397-398; Fermin v. COMELEC, supra note 105 at 471-472.

108
In A.M. No. 02-6-02-SC, Resolution Approving The Proposed Rule on Adoption (Domestic and Inter-Country), effective 22 August 2002,
"foundling" is defined as "a deserted or abandoned infant or child whose parents, guardian or relatives are unknown; or a child committed to an
orphanage or charitable or similar institution with unknown facts of birth and parentage and registered in the Civil Register as a "foundling."

109
Article IV-Citizenship.

Sec. I. The following are citizens of the Philippines:

(1) Those who are citizens of the Philippine Islands at the time of the adoption of this Constitution,

(2) Those born in the Philippine Islands of foreign parents who, before the adoption of this Constitution, had been elected to
public office in the Philippine Islands.

(3) Those whose fathers are citizens of the Philippines.


(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine citizenship.

(5) Those who are naturalized in accordance with law.

Section 2. Philippine citizenship may be lost or reacquired in the manner provided by law.

110
Article 163 to 182, Title VI of Executive Order No. 209, otherwise known as The Family Code of the Philippines, which took effect on 4 August
1988.

111
Statistics from the PSA or its predecessor agencies are admissible evidence. See Herrera v. COMELEC, 376 Phil. 443 (I 999) and Bagabuyo v.
COMELEC, 593 Phil. 678 (2008). In the latter case, the Court even took judicial notice of the figures.

112
Transcipt of Stenographic Notes, 9 February 2016, p. 40.

113
Section 3 (y), Rule 131.

114
236 Phil. 307 (1987).

115
Id. at314-315.

116
English translation of the Spanish original presented in the petitioner's pleadings before the COMELEC and this Court. The COMELEC and private
respondents have not disputed the accuracy and correctness of the translation.

117
I Jose M. Aruego, The Framing of the Philippine Constitution 209 (1949).

118
TSN, 16 February 2016, pp. 20-21.

119
117 Phil. 976 (1963).

120
Id. at 978-979.

121
See Section 5 of the RA No. 8552: "Location of Unknown Parent(s). - It shall be the duty of the Department or the child-caring agency which has
custody of the child to exert all efforts to locate his/her unknown biological parent(s). If such efforts fail, the child shall be registered as
a foundling and subsequently be the subject of legal proceedings where he/she shall be declared abandoned." (Underlining supplied)

122
See Exhibit "l" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

123
See Exhibit "2" in SPA No. 15-001 (DC) and SPA No. 15-00 (DC).

124
Razon, Jr. v. Tagitis, 621 Phil. 536, 600 (2009) citing Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, 561 Phil. 386, 398
(2007).

125
Article 38.1, paragraphs (b) and (c) of the Statute of the International Court of Justice.

126
Mijares v. Ranada, 495 Phil. 372, 395 (2005).

127
Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, 561 Phil. 386, 400 (2007).

128
International School Alliance of Educators v. Quisumbing, 388 Phil. 661, 672-673 (2000).

129
CONSTITUTION, Art. III, Sec. 1.

130
Rep. of the Philippines v. Sandiganbayan, 454 Phil. 504, 545 (2003).
131
"Everyone has the right to a nationality."

132
See Introductory Note to the United Nations Convention on the Reduction of Statelessness issued by the United Nations High Commissioner on
Refugees.

133
Supra note 124.

134
Supra note 126.

135
Id. at 392; See footnote No. 55 of said case.

136
Pharmaceutical and Health Care Assoc. of the Philippines v. Duque III, supra note 127.

137
See Exhibits 38 and 39-series.

138
Opening Statement of the Solicitor General, p. 6.

139
First Division resolution dated 11 December 2015, upheld in toto by the COMELEC En Banc.

140
409 Phil. 633, 649 (2001).

141
692 Phil. 407, 420 (2012).

142
551 Phil. 368, 381 (2007).

143
53 I Phil. 407, 417 (2006).

144
Supra note 142.

145
Supra note 140 at 646.

146
Id. at 651.

147
G.R. No. 217126-27, 10 November 2015.

148
Id.

149
Implementing Rules and Regulations of Republic Act No. 8552, Art. VI, Sec. 33.

150
Republic Act No. 8552 (1998), Sec. 14.

151
Republic Act No. 8552 (1998), Sec. 15.

152
Fernandez v. House of Representatives Electoral Tribunal, 623 Phil. 628, 660 (2009) citing Japzon v. COMELEC, 596 Phil. 354, 370-372 (2009)
further citing Papandayan, Jr. v. COMELEC, 430 Phil. 754, 768-770 (2002) further further citing Romualdez v. RTC, Br. 7, Tacloban City, G.R. No.
104960, 14 September 1993, 226 SCRA408, 415.

153
Domino v. COMELEC, 369 Phil. 798, 819 (1999).

154
TSN, 16 February 2016, p. 120.

155
434 Phil. 861 (2002).

156
596 Phil. 354 (2009).
157
G.R. No. 209835, 22 September 2015.

158
G.R. No. 207264, 25 June 2013, 699 SCRA 522.

159
Supra note 155.

160
Supra note 156.

161
Supra note 157.

162
Supra note 158.

163
Republic Act No. 6768 (1989), as amended, Sec. 2(a).

164
Republic Act No. 6768 (1989), as amended, Sec. I.

165
Republic Act No. 6768 (1989), as amended, Sec. 6.

166
Supra note 155.

167
Supra note 104 at 326. (Emphasis supplied)

168
Ugdoracion, Jr. v. COMELEC, 575 Phil. 253, 265-266 (2008).

169
In Mitra v. COMELEC, et al., [636 Phil. 753 (2010)], It was ruled that the residence requirement can be complied with through an incremental
process including acquisition of business interest in the pertinent place and lease of feedmill building as residence.

170
COMELEC Resolution dated 11 December2015 in SPA No. 15-002 (DC), pp. 4-5.

The Lawphil Project - Arellano Law Foundation

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.

DECISION

BELLOSILLO, J.:

The Filipino 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 invoked 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 x x x x

b. The Highest Bidder must execute the Stock Purchase and Sale Agreement with GSIS x x x x

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 Berhard 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 managers 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 x x x
x[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) x x x x 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 -

x x x x in case of doubt, the Constitution should be considered self-executing rather than non-self-executing x x x x 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 capital, qualifications on the setting up of other financial structures, et cetera (underscoring
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 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.[25] Tolentino v. Secretary of Finance [26] refers to 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.
[33]
A 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 legislations must be
based. Res ipsa loquitur.

On the other hand, Sec. 10, second par., Art. XII 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 our rich natural resources but also to the
cultural heritage of our 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 1930s. 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.[37] During 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 for their final
stand. Thereafter, in the 1950s and 1960s, 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 etat where 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 the Filipino 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.

xxxx

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]

xxxx

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 GIVE 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 x
x x xThis provision was never found in previous Constitutions x x x x

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 counterproductive 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 and 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 [i]f 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 petitioners 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 x x x x in connection with a temporary injunction issued by the Courts 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 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 nations 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 if Manila Hotel - and all that it stands for - is sold to a non-Filipino? How much of national pride will vanish if
the nations 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 agreements and documents to effect the sale, to issue the necessary
clearances and to do such other acts and deeds as may be necessary for the purpose.

SO ORDERED.

Regalado, Davide, Jr., Romero, Kapunan, Francisco, and Hermosisima, Jr., JJ, concur.
Narvasa, C.J., (Chairman), and Melo, J., joins J. Puno in his dissent.
Padilla, J., see concurring opinion.
Vitug, J., see separate concurring opinion
Mendoza, J., see concurring opinion
Torres, J., with separate opinion
Puno, J., see dissent.
Panganiban J., with separate dissenting opinion.

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 Peoples 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.

DECISION

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 Peoples 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 Peoples 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, [7] Section 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 Peoples 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 peoples initiative to amend the Constitution can only be implemented by law to be passed by Congress. No
such law has been passed; in fact, Senate Bill No. 1290 entitled An Act Prescribing and Regulating Constitutional Amendments by Peoples
Initiative, which petitioner Senator Santiago filed on 24 November 1995, is still pending before the Senate Committee on Constitutional
Amendments.

(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 failed to provide any subtitle on initiative on the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate omission indicates that the matter of peoples initiative to amend the
Constitution was left to some future law.Former Senator Arturo Tolentino stressed this deficiency in the law in his privilege speech delivered
before the Senate in 1994: There is not a single word in that law which can be considered as implementing [the provision on constitutional
initiative]. Such implementing provisions have been obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after publication in print media. This indicates that the Act covers only laws and
not constitutional amendments because the latter take effect only upon ratification and not after publication.

(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to govern the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar as initiative on amendments to the Constitution 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)The peoples initiative is limited to amendments to the Constitution, not to revision thereof. Extending or lifting of term limits constitutes
a revisionand is, therefore, outside the power of the peoples initiative.

(6) Finally, Congress has not yet appropriated funds for peoples initiative; neither the COMELEC nor any other government department, agency,
or office has realigned funds for the purpose.

To justify their recourse to us via the special civil action for prohibition, the petitioners allege that in the event the COMELEC
grants the Delfin Petition, the peoples initiative spearheaded by PIRMA would entail expenses to the national treasury for general re-
registration of voters amounting to at least P180 million, not to mention the millions of additional pesos in expenses which would be
incurred in the conduct of the initiative itself. Hence, the transcendental importance to the public and the nation of the issues raised
demands that this petition for prohibition be settled promptly and definitely, brushing aside technicalities of procedure and calling for
the admission of a taxpayers and legislators suit. [14] Besides, there is no other plain, speedy, and adequate remedy in the ordinary
course of law.

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 immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and private respondents Alberto and Carmen
Pedrosa from conducting a signature drive for peoples initiative to amend the Constitution.

On 2 January 1997, private respondents, through Atty Quadra, filed their Comment[15] on the petition. They argue therein that:

1. IT IS NOT TRUE THAT IT WOULD ENTAIL EXPENSES TO THE NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED EIGHTY MILLION (P180,000,000.00) IF THE COMELEC GRANTS THE
PETITION FILED BY RESPONDENT DELFIN BEFORE THE COMELEC.

2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE PETITION
OF RESPONDENT DELFIN. ALL EXPENSES IN THE SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF RESPONDENT
DELFIN AND HIS VOLUNTEERS PER THEIR PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED TO THE
COMELEC. THE ESTIMATED COST OF THE DAILY PER DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE SIGNATURE
GATHERING TO BE DEPOSITED and TO BE PAID BY DELFIN AND HIS VOLUNTEERS IS P2,571, 200.00;

3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS
DUTY BOUND TO SUPERVISE CLOSELY PURSUANT TO ITS INITIATORY JURISDICTION UPHELD BY THE HONORABLE COURT
IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN AUTHORITY VS. COMELEC, ET
AL. G.R. NO. 125416;

4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE CONSTITUTION. SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 IS
A DUPLICATION OF WHAT ARE ALREADY PROVIDED FOR IN REP. ACT NO. 6735;

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 METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416 WHERE THE HONORABLE COURT SAID: THE COMMISSION ON ELECTIONS CAN DO NO
LESS BY SEASONABLY AND JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR BOTH NATIONAL AND LOCAL USE,
IN IMPLEMENTING OF THESE LAWS.

6. EVEN SENATOR DEFENSOR-SANTIAGOS SENATE BILL NO. 1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
THE POWER TO PROMULGATE SUCH RULES AND REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE PURPOSES OF
THIS ACT. (SEC. 12, S.B. NO. 1290, ENCLOSED AS ANNEX E, PETITION);

7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A REVISION OF THE CONSTITUTION. IT IS ONLY AN AMENDMENT. AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF THE CONSTITUTION. REVISION CONTEMPLATES A RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO 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.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a Comment [16] which starts off with an assertion that
the instant petition is a knee-jerk reaction to a draft Petition for Initiative on the 1987 Constitution ... which is not formally filed
yet. What he filed on 6 December 1996 was an 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, peoples 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 mentions initiative 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
latters 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] A revision 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 peoples 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 peoples initiative. Accordingly, there being no enabling law, the COMELEC has no
jurisdiction to hear Delfins 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 peoples 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 in Intervention. [21] He avers that R.A. No. 6735 is the enabling law
that implements the peoples 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 signed by 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 COMELECs 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 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 Commissions 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.

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 COMELECs failure to act on Rocos 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
COMELECgravely 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 partys 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:

SECTION 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:
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.

xxx

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 of constituent power we have a separate article in the constitution that would
specifically cover the process and the modes of amending the Constitution?

MR. SUAREZ. That is right, Madam President.

MS. AQUINO. Therefore, is the sponsor inclined, as the provisions are drafted now, to again concede to the legislature the process or the
requirement of determining the mechanics of amending the Constitution by people's initiative?

MR. SUAREZ. The matter of implementing this could very well be placed in the hands of the National Assembly, not unless we can incorporate
into this provision the mechanics that would adequately cover all the conceivable situations. [33]
It was made clear during the interpellations that the aforementioned Section 2 is limited to proposals to AMEND -- not to
REVISE -- the Constitution; thus:

MR. SUAREZ. ... This proposal was suggested on the theory that this matter of initiative, which came about because of the extraordinary
developments this year, has to be separated from the traditional modes of amending the Constitution as embodied in Section 1. The committee
members felt that this system of initiative should not extend to the revision of the entire Constitution, so we removed it from the operation of
Section 1 of the proposed Article on Amendment or Revision.[34]

xxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable 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-executing provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the matter of amendment
and should not expand into a revision which contemplates a total overhaul of the Constitution. That was the sense that was conveyed by the
Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1 to include the process
of revision; whereas the process of initiation to amend, which is given to the public, would only apply to amendments?

MR. SUAREZ.That is right. Those were the terms envisioned in the Committee.[35]

Amendments to the proposed Section 2 were thereafter introduced by then Commissioner Hilario G. Davide, Jr., which the
Committee accepted. Thus:

MR. DAVIDE. Thank you Madam President. I propose to substitute the entire Section 2 with the following:

xxx

MR. DAVIDE. Madam President, I have modified the proposed amendment after taking into account the modifications submitted by the sponsor
himself and the honorable Commissioners Guingona, Monsod, Rama, Ople, de los Reyes and Romulo. The modified amendment in substitution
of the proposed Section 2 will now read as follows: "SECTION 2. -- AMENDMENTS 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.

MR. SUAREZ. Madam President, considering that the proposed amendment is reflective of the sense contained in Section 2 of our completed
Committee Report No. 7, we accept the proposed amendment.[36]

The interpellations which ensued on the proposed modified amendment to Section 2 clearly showed that it was a legislative
act which must implement the exercise of the right. Thus:

MR. ROMULO. Under Commissioner Davide's amendment, is it possible for the legislature to set forth certain procedures to carry out the
initiative...?

MR. DAVIDE. It can.

xxx

MR. ROMULO. But the Commissioners 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?

A careful scrutiny of the Act yields a negative answer.

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:

SECTION 2. Statement and Policy. -- The power of the people under a system of initiative and referendum to directly propose, enact, approve or
reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized and guaranteed. (Underscoring supplied).

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 referendum on national laws and local laws, ordinances, and resolutions. That section is
silent as to amendments on the Constitution. As pointed out earlier, initiative on the Constitution is confined only to proposals to
AMEND. The people are not accorded the power to directly propose, enact, approve, or reject, in whole or in part, the Constitution
through the system of initiative. They can only do so with respect to laws, ordinances, or resolutions.

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 for initiative 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. (Underscoring supplied).

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.
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 conspicuous silence as to the latter simply
means that the main thrust of the Act is initiative and referendum on national and local laws. If Congress intended R.A. No. 6735 to
fully provide for the implementation of the initiative on amendments to the Constitution, it could have provided for a subtitle therefor,
considering that in the order of things, the primacy of interest, or hierarchy of values, the right of the people to directly propose
amendments to the Constitution is far more important than the initiative on national and local laws.

We cannot accept the argument that the initiative on amendments to the Constitution is subsumed under the subtitle on
National Initiative and Referendum because it is national in scope. Our reading of Subtitle II (National Initiative and Referendum)
and Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the classification is not based on the scope of the
initiative involved, but on its nature and character. It is national initiative, if what is proposed to be adopted or enacted is 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

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

a.3 Initiative on local legislation which refers to a petition proposing to enact a regional, provincial, city, municipal, or barangay law, resolution or
ordinance. (Underscoring supplied).

Hence, to complete the classification under subtitles there should have been a subtitle on initiative on amendments to the
Constitution.[53]

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:

(b) The proposition in an initiative on the Constitution approved by the majority of the votes cast in the plebiscite shall become effective as to the
day of the plebiscite.

(c) A national or local initiative proposition approved by majority of the votes cast in an election called for the purpose shall become effective
fifteen (15) days after certification and proclamation of the Commission. (Underscoring supplied).

(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the legislative bodies of local governments; thus:

SEC. 11. Indirect Initiative. -- Any duly accredited peoples organization, as defined by law, may file a petition for indirect initiative with the
House of Representatives, and other legislative bodies....

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 petitions for both national and local initiative and referendum.

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.

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;

(c) The submission to the electorate of the proposition and the required number of votes for its approval;

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

(e) The publication of the approved proposition in the Official Gazette or in a newspaper of general circulation in the Philippines; and

(f) The effects of the approval or rejection of the proposition.[55]

As regards local initiative, the Act provides for the following:

(a) The preliminary requirement as to the number of signatures of registered voters for the petition;

(b) The submission of the petition to the local legislative body concerned;

(c) The effect of the legislative bodys failure to favorably act thereon, and the invocation of the power of initiative as a consequence thereof;

(d) The formulation of the proposition;

(e) The period within which to gather the signatures;

(f) The persons before whom the petition shall be signed;

(g) The issuance of a certification by the COMELEC through its official in the local government unit 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. R.A. 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 COMELECs 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 latter knew 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 the 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 on 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 hreby 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 Resolutions 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 against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

Narvasa, C.J., Regalado, Romero, Bellosillo,Kapunan, Hermosisima, Jr. and Torres Jr., JJ., concur.
Padilla, J., took no part; related to a co-petitioner and co-counsel of the petitioners.
Melo and Mendoza, JJ., joins the separate, concurring opinions of Justices Puno, Francisco and Panganiban.
Puno, Vitug, , Francisco and Panganiban, JJ., has separate opinions.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.

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

ALTERNATIVE LAW GROUPS, INC., Intervenor.

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

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE, and CARLOS P. MEDINA, JR., Intervenors.

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

ATTY. PETE QUIRINO QUADRA, Intervenor.

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

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN MUNA represented by its Chairperson Dr. Reynaldo
Lesaca, KILUSANG MAYO UNO represented by its Secretary General Joel Maglunsod, HEAD represented by its Secretary General
Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its
Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its Secretary General Emerenciana de Jesus, GABRIELA
WOMEN'S PARTY represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by Chairperson Eleanor de Guzman,
LEAGUE OF FILIPINO STUDENTS represented by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned
Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of Health Against Charter Change, DR. REGINALD
PAMUGAS of Health Action for Human Rights, Intervenors.

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

LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA HONTIVEROS-BARAQUEL, Intervenors.

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

ARTURO M. DE CASTRO, Intervenor.

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

TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

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

LUWALHATI RICASA ANTONINO, Intervenor.

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

PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M.


TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, Intervenors.

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

RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO BAYA, Intervenors.

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

PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and MR. VICTORINO F. BALAIS, Intervenors.

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

SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR, JR., Intervenor.

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

SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.

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

JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR, and RANDALL
TABAYOYONG, Intervenors.

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

INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE CHAPTERS, Intervenors.

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

SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS SERGIO R. OSMENA III, JAMBY MADRIGAL,
JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO LACSON, Intervenors.

x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.

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

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESURRECCION Z.
BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and John Doe
and Peter Doe,, Respondent.

DECISION

CARPIO, J.:

The Case

These are consolidated petitions on the Resolution dated 31 August 2006 of the Commission on Elections ("COMELEC") denying
due course to an initiative petition to amend the 1987 Constitution.

Antecedent Facts

On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and Erico B. Aumentado ("Lambino Group"), with
other groups1 and individuals, commenced gathering signatures for an initiative petition to change the 1987 Constitution. On 25
August 2006, the Lambino Group filed a petition with the COMELEC to hold a plebiscite that will ratify their initiative petition under
Section 5(b) and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act ("RA 6735").

The Lambino Group alleged that their petition had the support of 6,327,952 individuals constituting at least twelve per centum (12%)
of all registered voters, with each legislative district represented by at least three per centum (3%) of its registered voters. The
Lambino Group also claimed that COMELEC election registrars had verified the signatures of the 6.3 million individuals.

The Lambino Group's initiative petition changes the 1987 Constitution by modifying Sections 1-7 of Article VI (Legislative
Department)4 and Sections 1-4 of Article VII (Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential system to a Unicameral-Parliamentary form of
government. The Lambino Group prayed that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?

On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC indicating modifications in the proposed
Article XVIII (Transitory Provisions) of their initiative.7

The Ruling of the COMELEC

On 31 August 2006, the COMELEC issued its Resolution denying due course to the Lambino Group's petition for lack of an enabling
law governing initiative petitions to amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v. Commission on
Elections8 declaring RA 6735 inadequate to implement the initiative clause on proposals to amend the Constitution. 9

In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari and mandamus to set aside the COMELEC
Resolution of 31 August 2006 and to compel the COMELEC to give due course to their initiative petition. The Lambino Group
contends that the COMELEC committed grave abuse of discretion in denying due course to their petition since Santiago is not a
binding precedent. Alternatively, the Lambino Group claims that Santiago binds only the parties to that case, and their petition
deserves cognizance as an expression of the "will of the sovereign people."

In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent COMELEC Commissioners to show cause
why they should not be cited in contempt for the COMELEC's verification of signatures and for "entertaining" the Lambino Group's
petition despite the permanent injunction in Santiago. The Court treated the Binay Group's petition as an opposition-in-intervention.

In his Comment to the Lambino Group's petition, the Solicitor General joined causes with the petitioners, urging the Court to grant
the petition despite the Santiago ruling. The Solicitor General proposed that the Court treat RA 6735 and its implementing rules "as
temporary devises to implement the system of initiative."

Various groups and individuals sought intervention, filing pleadings supporting or opposing the Lambino Group's petition. The
supporting intervenors10 uniformly hold the view that the COMELEC committed grave abuse of discretion in relying on Santiago. On
the other hand, the opposing intervenors11 hold the contrary view and maintain that Santiago is a binding precedent. The opposing
intervenors also challenged (1) the Lambino Group's standing to file the petition; (2) the validity of the signature gathering and
verification process; (3) the Lambino Group's compliance with the minimum requirement for the percentage of voters supporting an
initiative petition under Section 2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as revisions and not
mere amendments as provided under Section 2, Article XVII of the 1987 Constitution; and (5) the Lambino Group's compliance with
the requirement in Section 10(a) of RA 6735 limiting initiative petitions to only one subject.

The Court heard the parties and intervenors in oral arguments on 26 September 2006. After receiving the parties' memoranda, the
Court considered the case submitted for resolution.

The Issues

The petitions raise the following issues:

1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII of the Constitution on amendments to the
Constitution through a people's initiative;

2. Whether this Court should revisit its ruling in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms
and conditions" to implement the initiative clause on proposals to amend the Constitution; and

3. Whether the COMELEC committed grave abuse of discretion in denying due course to the Lambino Group's petition.

The Ruling of the Court

There is no merit to the petition.

The Lambino Group miserably failed to comply with the basic requirements of the Constitution for conducting a people's initiative.
Thus, there is even no need to revisit Santiago, as the present petition warrants dismissal based alone on the Lambino Group's
glaring failure to comply with the basic requirements of the Constitution. For following the Court's ruling in Santiago, no grave abuse
of discretion is attributable to the Commision on Elections.

1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the Constitution on Direct Proposal by the People

Section 2, Article XVII of the Constitution is the governing constitutional provision that allows a people's initiative to propose
amendments to the Constitution. This section states:

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. x x x x (Emphasis supplied)

The deliberations of the Constitutional Commission vividly explain the meaning of an amendment "directly proposed by the people
through initiative upon a petition," thus:

MR. RODRIGO: Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the
draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign?

MR. SUAREZ: That can be reasonably assumed, Madam President.


MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who
prepares the draft?

MR. SUAREZ: The people themselves, Madam President.

MR. RODRIGO: No, because before they sign there is already a draft shown to them and they are asked whether or not
they want to propose this constitutional amendment.

MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal and pass it around for signature.13 (Emphasis
supplied)

Clearly, the framers of the Constitution intended that the "draft of the proposed constitutional amendment" should be "ready and
shown" to the people "before" they sign such proposal. The framers plainly stated that "before they sign there is already a draft
shown to them." The framers also "envisioned" that the people should sign on the proposal itself because the proponents must
"prepare that proposal and pass it around for signature."

The essence of amendments "directly proposed by the people through initiative upon a petition" is that the entire proposal on its
face is a petition by the people. This means two essential elements must be present. First, the people must author and thus sign the
entire proposal. No agent or representative can sign on their behalf. Second, as an initiative upon a petition, the proposal must be
embodied in a petition.

These essential elements are present only if the full text of the proposed amendments is first shown to the people who express their
assent by signing such complete proposal in a petition. Thus, an amendment is "directly proposed by the people through initiative
upon a petition" only if the people sign on a petition that contains the full text of the proposed amendments.

The full text of the proposed amendments may be either written on the face of the petition, or attached to it. If so attached, the
petition must state the fact of such attachment. This is an assurance that every one of the several millions of signatories to the
petition had seen the full text of the proposed amendments before signing. Otherwise, it is physically impossible, given the time
constraint, to prove that every one of the millions of signatories had seen the full text of the proposed amendments before signing.

The framers of the Constitution directly borrowed14 the concept of people's initiative from the United States where various State
constitutions incorporate an initiative clause. In almost all States15 which allow initiative petitions, the unbending requirement is that
the people must first see the full text of the proposed amendments before they sign to signify their assent, and that the people must
sign on an initiative petition that contains the full text of the proposed amendments.16

The rationale for this requirement has been repeatedly explained in several decisions of various courts. Thus, in Capezzuto v. State
Ballot Commission, the Supreme Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared:

[A] signature requirement would be meaningless if the person supplying the signature has not first seen what it is that he
or she is signing. Further, and more importantly, loose interpretation of the subscription requirement can pose a significant
potential for fraud. A person permitted to describe orally the contents of an initiative petition to a potential signer, without
the signer having actually examined the petition, could easily mislead the signer by, for example, omitting, downplaying, or
even flatly misrepresenting, portions of the petition that might not be to the signer's liking. This danger seems particularly
acute when, in this case, the person giving the description is the drafter of the petition, who obviously has a vested
interest in seeing that it gets the requisite signatures to qualify for the ballot.17 (Boldfacing and underscoring supplied)

Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:

The purposes of "full text" provisions that apply to amendments by initiative commonly are described in similar terms. x x x
(The purpose of the full text requirement is to provide sufficient information so that registered voters can intelligently
evaluate whether to sign the initiative petition."); x x x (publication of full text of amended constitutional provision required
because it is "essential for the elector to have x x x the section which is proposed to be added to or subtracted from. If he
is to vote intelligently, he must have this knowledge. Otherwise in many instances he would be required to vote in the
dark.") (Emphasis supplied)

Moreover, "an initiative signer must be informed at the time of signing of the nature and effect of that which is proposed" and failure
to do so is "deceptive and misleading" which renders the initiative void.19

Section 2, Article XVII of the Constitution does not expressly state that the petition must set forth the full text of the proposed
amendments. However, the deliberations of the framers of our Constitution clearly show that the framers intended to adopt the
relevant American jurisprudence on people's initiative. In particular, the deliberations of the Constitutional Commission explicitly
reveal that the framers intended that the people must first see the full text of the proposed amendments before they sign, and that
the people must sign on a petition containing such full text. Indeed, Section 5(b) of Republic Act No. 6735, the Initiative and
Referendum Act that the Lambino Group invokes as valid, requires that the people must sign the "petition x x x as signatories."

The proponents of the initiative secure the signatures from the people. The proponents secure the signatures in their private
capacity and not as public officials. The proponents are not disinterested parties who can impartially explain the advantages and
disadvantages of the proposed amendments to the people. The proponents present favorably their proposal to the people and do
not present the arguments against their proposal. The proponents, or their supporters, often pay those who gather the signatures.

Thus, there is no presumption that the proponents observed the constitutional requirements in gathering the signatures. The
proponents bear the burden of proving that they complied with the constitutional requirements in gathering the signatures - that the
petition contained, or incorporated by attachment, the full text of the proposed amendments.

The Lambino Group did not attach to their present petition with this Court a copy of the paper that the people signed as their
initiative petition. The Lambino Group submitted to this Court a copy of a signature sheet20 after the oral arguments of 26 September
2006 when they filed their Memorandum on 11 October 2006. The signature sheet with this Court during the oral arguments was the
signature sheet attached21 to the opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-Quadra.

The signature sheet attached to Atty. Quadra's opposition and the signature sheet attached to the Lambino Group's Memorandum
are the same. We reproduce below the signature sheet in full:

Province: City/Municipality: No. of


Legislative District: Barangay:
Verified

Signatures:

PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION,
CHANGING THE FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE GREATER EFFICIENCY, SIMPLICITY AND ECONOMY
IN GOVERNMENT; AND PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO ANOTHER?"

I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature herein which shall form part of the petition for
initiative to amend the Constitution signifies my support for the filing thereof.

Precinct Name Address Birthdate Signature Verification


Number
Last Name, First Name, MM/DD/YY
M.I.
1
2
3
4
5
6
7
8
9
10
_________________ _________________ __________________
Barangay Official Witness Witness
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)

There is not a single word, phrase, or sentence of text of the Lambino Group's proposed changes in the signature sheet. Neither
does the signature sheet state that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino admitted this
during the oral arguments before this Court on 26 September 2006.

The signature sheet merely asks a question whether the people approve a shift from the Bicameral-Presidential to the Unicameral-
Parliamentary system of government. The signature sheet does not show to the people the draft of the proposed changes before
they are asked to sign the signature sheet. Clearly, the signature sheet is not the "petition" that the framers of the Constitution
envisioned when they formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from February to August 2006, the Lambino Group
circulated, together with the signature sheets, printed copies of the Lambino Group's draft petition which they later filed on 25
August 2006 with the COMELEC. When asked if his group also circulated the draft of their amended petition filed on 30 August 2006
with the COMELEC, Atty. Lambino initially replied that they circulated both. However, Atty. Lambino changed his answer and stated
that what his group circulated was the draft of the 30 August 2006 amended petition, not the draft of the 25 August 2006 petition.

The Lambino Group would have this Court believe that they prepared the draft of the 30 August 2006 amended petition almost
seven months earlier in February 2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
"Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August 2006 amended petition, filed with the
COMELEC, states as follows:

I have caused the preparation of the foregoing [Amended] Petition in my personal capacity as a registered voter, for and
on behalf of the Union of Local Authorities of the Philippines, as shown by ULAP Resolution No. 2006-02 hereto attached,
and as representative of the mass of signatories hereto. (Emphasis supplied)

The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the present petition. However, the "Official Website
of the Union of Local Authorities of the Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:

RESOLUTION NO. 2006-02

RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S CONSULTATIVE COMMISSION ON CHARTER


CHANGE THROUGH PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION

WHEREAS, there is a need for the Union of Local Authorities of the Philippines (ULAP) to adopt a common stand on the
approach to support the proposals of the People's Consultative Commission on Charter Change;

WHEREAS, ULAP maintains its unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo
for constitutional reforms as embodied in the ULAP Joint Declaration for Constitutional Reforms signed by the members of
the ULAP and the majority coalition of the House of Representatives in Manila Hotel sometime in October 2005;

WHEREAS, the People's Consultative Commission on Charter Change created by Her Excellency to recommend
amendments to the 1987 Constitution has submitted its final report sometime in December 2005;

WHEREAS, the ULAP is mindful of the current political developments in Congress which militates against the use of the
expeditious form of amending the 1987 Constitution;

WHEREAS, subject to the ratification of its institutional members and the failure of Congress to amend the Constitution as
a constituent assembly, ULAP has unanimously agreed to pursue the constitutional reform agenda through People's
Initiative and Referendum without prejudice to other pragmatic means to pursue the same;

WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED, THAT ALL THE MEMBER-LEAGUES OF THE UNION
OF LOCAL AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE PORPOSALS (SIC) OF THE PEOPLE'S
CONSULATATIVE (SIC) COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE AND
REFERENDUM AS A MODE OF AMENDING THE 1987 CONSTITUTION;

DONE, during the ULAP National Executive Board special meeting held on 14 January 2006 at the Century Park Hotel,
Manila.23 (Underscoring supplied)

ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare the 25 August 2006 petition, or the 30 August
2006 amended petition, filed with the COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the Consulatative
(sic) Commission on Charter Change through people's initiative and referendum as a mode of amending the 1987 Constitution." The
proposals of the Consultative Commission24 are vastly different from the proposed changes of the Lambino Group in the 25 August
2006 petition or 30 August 2006 amended petition filed with the COMELEC.

For example, the proposed revisions of the Consultative Commission affect all provisions of the existing Constitution, from the
Preamble to the Transitory Provisions. The proposed revisions have profound impact on the Judiciary and the National Patrimony
provisions of the existing Constitution, provisions that the Lambino Group's proposed changes do not touch. The Lambino Group's
proposed changes purport to affect only Articles VI and VII of the existing Constitution, including the introduction of new Transitory
Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six months before the filing of the 25 August 2006
petition or the 30 August 2006 amended petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not establish
that ULAP or the Lambino Group caused the circulation of the draft petition, together with the signature sheets, six months before
the filing with the COMELEC. On the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino Group's claim that
they circulated the draft petition together with the signature sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft
petition or to the Lambino Group's proposed changes.

In their Manifestation explaining their amended petition before the COMELEC, the Lambino Group declared:

After the Petition was filed, Petitioners belatedly realized that the proposed amendments alleged in the Petition, more
specifically, paragraph 3 of Section 4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately stated
and failed to correctly reflect their proposed amendments.

The Lambino Group did not allege that they were amending the petition because the amended petition was what they had shown to
the people during the February to August 2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25
August 2006 "inaccurately stated and failed to correctly reflect their proposed amendments."

The Lambino Group never alleged in the 25 August 2006 petition or the 30 August 2006 amended petition with the COMELEC that
they circulated printed copies of the draft petition together with the signature sheets. Likewise, the Lambino Group did not allege in
their present petition before this Court that they circulated printed copies of the draft petition together with the signature sheets. The
signature sheets do not also contain any indication that the draft petition is attached to, or circulated with, the signature sheets.

It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino Group first claimed that they circulated the
"petition for initiative filed with the COMELEC," thus:

[T]here is persuasive authority to the effect that "(w)here there is not (sic) fraud, a signer who did not read the measure
attached to a referendum petition cannot question his signature on the ground that he did not understand the nature of the
act." [82 C.J.S. S128h. Mo. State v. Sullivan, 224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the
signature sheets circulated together with the petition for initiative filed with the COMELEC below, are presumed to have
understood the proposition contained in the petition. (Emphasis supplied)

The Lambino Group's statement that they circulated to the people "the petition for initiative filed with the COMELEC" appears an
afterthought, made after the intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province Chapters) and Atty.
Quadra had pointed out that the signature sheets did not contain the text of the proposed changes. In their Consolidated Reply, the
Lambino Group alleged that they circulated "the petition for initiative" but failed to mention the amended petition. This contradicts
what Atty. Lambino finally stated during the oral arguments that what they circulated was the draft of the amended petition of 30
August 2006.

The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer who did not read the measure attached to a
referendum petition cannot question his signature on the ground that he did not understand the nature of the act." The Lambino
Group quotes an authority that cites a proposed change attached to the petition signed by the people. Even the authority the
Lambino Group quotes requires that the proposed change must be attached to the petition. The same authority the Lambino Group
quotes requires the people to sign on the petition itself.

Indeed, it is basic in American jurisprudence that the proposed amendment must be incorporated with, or attached to, the initiative
petition signed by the people. In the present initiative, the Lambino Group's proposed changes were not incorporated with, or
attached to, the signature sheets. The Lambino Group's citation of Corpus Juris Secundum pulls the rug from under their feet.

It is extremely doubtful that the Lambino Group prepared, printed, circulated, from February to August 2006 during the signature-
gathering period, the draft of the petition or amended petition they filed later with the COMELEC. The Lambino Group are less than
candid with this Court in their belated claim that they printed and circulated, together with the signature sheets, the petition or
amended petition. Nevertheless, even assuming the Lambino Group circulated the amended petition during the signature-gathering
period, the Lambino Group admitted circulating only very limited copies of the petition.

During the oral arguments, Atty. Lambino expressly admitted that they printed only 100,000 copies of the draft petition they filed
more than six months later with the COMELEC. Atty. Lambino added that he also asked other supporters to print additional copies of
the draft petition but he could not state with certainty how many additional copies the other supporters printed. Atty. Lambino could
only assure this Court of the printing of 100,000 copies because he himself caused the printing of these 100,000 copies.

Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the Lambino Group expressly admits that "petitioner
Lambino initiated the printing and reproduction of 100,000 copies of the petition for initiative x x x."25 This admission binds the
Lambino Group and establishes beyond any doubt that the Lambino Group failed to show the full text of the proposed changes to
the great majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with certainty one copy each of the petition,
assuming a 100 percent distribution with no wastage. If Atty. Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have circulated with the petition. Each signature sheet contains space for ten
signatures. Assuming ten people signed each of these 100,000 signature sheets with the attached petition, the maximum number of
people who saw the petition before they signed the signature sheets would not exceed 1,000,000.

With only 100,000 printed copies of the petition, it would be physically impossible for all or a great majority of the 6.3 million
signatories to have seen the petition before they signed the signature sheets. The inescapable conclusion is that the Lambino Group
failed to show to the 6.3 million signatories the full text of the proposed changes. If ever, not more than one million signatories saw
the petition before they signed the signature sheets.

In any event, the Lambino Group's signature sheets do not contain the full text of the proposed changes, either on the face of the
signature sheets, or as attachment with an indication in the signature sheet of such attachment. Petitioner Atty. Lambino admitted
this during the oral arguments, and this admission binds the Lambino Group. This fact is also obvious from a mere reading of the
signature sheet. This omission is fatal. The failure to so include the text of the proposed changes in the signature sheets renders the
initiative void for non-compliance with the constitutional requirement that the amendment must be "directly proposed by the people
through initiative upon a petition." The signature sheet is not the "petition" envisioned in the initiative clause of the Constitution.

For sure, the great majority of the 6.3 million people who signed the signature sheets did not see the full text of the proposed
changes before signing. They could not have known the nature and effect of the proposed changes, among which are:

1. The term limits on members of the legislature will be lifted and thus members of Parliament can be re-elected
indefinitely;26

2. The interim Parliament can continue to function indefinitely until its members, who are almost all the present members
of Congress, decide to call for new parliamentary elections. Thus, the members of the interim Parliament will determine
the expiration of their own term of office; 27

3. Within 45 days from the ratification of the proposed changes, the interim Parliament shall convene to propose further
amendments or revisions to the Constitution.28

These three specific amendments are not stated or even indicated in the Lambino Group's signature sheets. The people who signed
the signature sheets had no idea that they were proposing these amendments. These three proposed changes are highly
controversial. The people could not have inferred or divined these proposed changes merely from a reading or rereading of the
contents of the signature sheets.

During the oral arguments, petitioner Atty. Lambino stated that he and his group assured the people during the signature-gathering
that the elections for the regular Parliament would be held during the 2007 local elections if the proposed changes were ratified
before the 2007 local elections. However, the text of the proposed changes belies this.

The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the amended petition, states:

Section 5(2). The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. x x x x (Emphasis supplied)

Section 5(2) does not state that the elections for the regular Parliament will be held simultaneously with the 2007 local elections.
This section merely requires that the elections for the regular Parliament shall be held simultaneously with the local elections without
specifying the year.

Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed changes, could have easily written the word "next"
before the phrase "election of all local government officials." This would have insured that the elections for the regular Parliament
would be held in the next local elections following the ratification of the proposed changes. However, the absence of the word "next"
allows the interim Parliament to schedule the elections for the regular Parliament simultaneously with any future local elections.

Thus, the members of the interim Parliament will decide the expiration of their own term of office. This allows incumbent members of
the House of Representatives to hold office beyond their current three-year term of office, and possibly even beyond the five-year
term of office of regular members of the Parliament. Certainly, this is contrary to the representations of Atty. Lambino and his group
to the 6.3 million people who signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million signatories, and
even the entire nation.

This lucidly shows the absolute need for the people to sign an initiative petition that contains the full text of the proposed
amendments to avoid fraud or misrepresentation. In the present initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the signature sheets did not contain the full text of the proposed changes.
The result is a grand deception on the 6.3 million signatories who were led to believe that the proposed changes would require the
holding in 2007 of elections for the regular Parliament simultaneously with the local elections.

The Lambino Group's initiative springs another surprise on the people who signed the signature sheets. The proposed changes
mandate the interim Parliament to make further amendments or revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:

Section 4(4). Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy. (Emphasis supplied)

During the oral arguments, Atty. Lambino stated that this provision is a "surplusage" and the Court and the people should simply
ignore it. Far from being a surplusage, this provision invalidates the Lambino Group's initiative.

Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-Presidential to the Unicameral-Parliamentary
system. American jurisprudence on initiatives outlaws this as logrolling - when the initiative petition incorporates an unrelated subject
matter in the same petition. This puts the people in a dilemma since they can answer only either yes or no to the entire proposition,
forcing them to sign a petition that effectively contains two propositions, one of which they may find unacceptable.

Under American jurisprudence, the effect of logrolling is to nullify the entire proposition and not only the unrelated subject matter.
Thus, in Fine v. Firestone,29 the Supreme Court of Florida declared:

Combining multiple propositions into one proposal constitutes "logrolling," which, if our judicial responsibility is to mean
anything, we cannot permit. The very broadness of the proposed amendment amounts to logrolling because the
electorate cannot know what it is voting on - the amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed amendment being voted on. x x x x The
ballot language in the instant case fails to do that. The very broadness of the proposal makes it impossible to state what it
will affect and effect and violates the requirement that proposed amendments embrace only one subject. (Emphasis
supplied)

Logrolling confuses and even deceives the people. In Yute Air Alaska v. McAlpine,30 the Supreme Court of Alaska warned against
"inadvertence, stealth and fraud" in logrolling:

Whenever a bill becomes law through the initiative process, all of the problems that the single-subject rule was enacted to prevent
are exacerbated. There is a greater danger of logrolling, or the deliberate intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity for "inadvertence, stealth and fraud" in the enactment-by-initiative process.
The drafters of an initiative operate independently of any structured or supervised process. They often emphasize particular
provisions of their proposition, while remaining silent on other (more complex or less appealing) provisions, when communicating to
the public. x x x Indeed, initiative promoters typically use simplistic advertising to present their initiative to potential petition-signers
and eventual voters. Many voters will never read the full text of the initiative before the election. More importantly, there is no
process for amending or splitting the several provisions in an initiative proposal. These difficulties clearly distinguish the initiative
from the legislative process. (Emphasis supplied)

Thus, the present initiative appears merely a preliminary step for further amendments or revisions to be undertaken by the interim
Parliament as a constituent assembly. The people who signed the signature sheets could not have known that their signatures
would be used to propose an amendment mandating the interim Parliament to propose further amendments or revisions to the
Constitution.

Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the interim Parliament to amend or revise again the
Constitution within 45 days from ratification of the proposed changes, or before the May 2007 elections. In the absence of the
proposed Section 4(4), the interim Parliament has the discretion whether to amend or revise again the Constitution. With the
proposed Section 4(4), the initiative proponents want the interim Parliament mandated to immediately amend or revise again the
Constitution.

However, the signature sheets do not explain the reason for this rush in amending or revising again so soon the Constitution. The
signature sheets do not also explain what specific amendments or revisions the initiative proponents want the interim Parliament to
make, and why there is a need for such further amendments or revisions. The people are again left in the dark to fathom the nature
and effect of the proposed changes. Certainly, such an initiative is not "directly proposed by the people" because the people do not
even know the nature and effect of the proposed changes.

There is another intriguing provision inserted in the Lambino Group's amended petition of 30 August 2006. The proposed Section
4(3) of the Transitory Provisions states:
Section 4(3). Senators whose term of office ends in 2010 shall be members of Parliament until noon of the thirtieth day of
June 2010.

After 30 June 2010, not one of the present Senators will remain as member of Parliament if the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010. However, there is no counterpart provision for the present members
of the House of Representatives even if their term of office will all end on 30 June 2007, three years earlier than that of half of the
present Senators. Thus, all the present members of the House will remain members of the interim Parliament after 30 June 2010.

The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime Minister exercises all the powers of the
President. If the interim Parliament does not schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will
come only from the present members of the House of Representatives to the exclusion of the present Senators.

The signature sheets do not explain this discrimination against the Senators. The 6.3 million people who signed the signature sheets
could not have known that their signatures would be used to discriminate against the Senators. They could not have known that
their signatures would be used to limit, after 30 June 2010, the interim Parliament's choice of Prime Minister only to members of the
existing House of Representatives.

An initiative that gathers signatures from the people without first showing to the people the full text of the proposed amendments is
most likely a deception, and can operate as a gigantic fraud on the people. That is why the Constitution requires that an initiative
must be "directly proposed by the people x x x in a petition" - meaning that the people must sign on a petition that contains the full
text of the proposed amendments. On so vital an issue as amending the nation's fundamental law, the writing of the text of the
proposed amendments cannot be hidden from the people under a general or special power of attorney to unnamed, faceless, and
unelected individuals.

The Constitution entrusts to the people the power to directly propose amendments to the Constitution. This Court trusts the wisdom
of the people even if the members of this Court do not personally know the people who sign the petition. However, this trust
emanates from a fundamental assumption: the full text of the proposed amendment is first shown to the people before they sign the
petition, not after they have signed the petition.

In short, the Lambino Group's initiative is void and unconstitutional because it dismally fails to comply with the requirement of
Section 2, Article XVII of the Constitution that the initiative must be "directly proposed by the people through initiative upon a
petition."

2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing Revision through Initiatives

A people's initiative to change the Constitution applies only to an amendment of the Constitution and not to its revision. In contrast,
Congress or a constitutional convention can propose both amendments and revisions to the Constitution. Article XVII of the
Constitution provides:

ARTICLE XVII
AMENDMENTS OR REVISIONS

Sec. 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members, or

(2) A constitutional convention.

Sec. 2. Amendments to this Constitution may likewise be directly proposed by the people through initiative x x x.
(Emphasis supplied)

Article XVII of the Constitution speaks of three modes of amending the Constitution. The first mode is through Congress upon three-
fourths vote of all its Members. The second mode is through a constitutional convention. The third mode is through a people's
initiative.

Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny amendment to, or revision of, this Constitution." In
contrast, Section 2 of Article XVII, referring to the third mode, applies only to "[A]mendments to this Constitution." This distinction
was intentional as shown by the following deliberations of the Constitutional Commission:

MR. SUAREZ: Thank you, Madam President.


May we respectfully call the 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:

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. This proposal was suggested on the theory
that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x x

xxxx

MS. AQUINO: [I] am seriously bothered by providing this process of initiative as a separate section in the Article on
Amendment. Would the sponsor be amenable 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-executing provision?

MR. SUAREZ: We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense that was conveyed by the Committee.

MS. AQUINO: In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1
to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ: That is right. Those were the terms envisioned in the Committee.

MS. AQUINO: I thank the sponsor; and thank you, Madam President.

xxxx

MR. MAAMBONG: My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments."
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."

MR. MAAMBONG: Thank you.31 (Emphasis supplied)

There can be no mistake about it. The framers of the Constitution intended, and wrote, a clear distinction between "amendment" and
"revision" of the Constitution. The framers intended, and wrote, that only Congress or a constitutional convention may propose
revisions to the Constitution. The framers intended, and wrote, that a people's initiative may propose only amendments to the
Constitution. Where the intent and language of the Constitution clearly withhold from the people the power to propose revisions to
the Constitution, the people cannot propose revisions even as they are empowered to propose amendments.

This has been the consistent ruling of state supreme courts in the United States. Thus, in McFadden v. Jordan,32 the Supreme Court
of California ruled:

The initiative power reserved by the people by amendment to the Constitution x x x applies only to the proposing and the
adopting or rejecting of 'laws and amendments to the Constitution' and does not purport to extend to a constitutional
revision. x x x x It is thus clear that a revision of the Constitution may be accomplished only through ratification by the
people of a revised constitution proposed by a convention called for that purpose as outlined hereinabove. Consequently
if the scope of the proposed initiative measure (hereinafter termed 'the measure') now before us is so broad that if such
measure became law a substantial revision of our present state Constitution would be effected, then the measure may not
properly be submitted to the electorate until and unless it is first agreed upon by a constitutional convention, and the writ
sought by petitioner should issue. x x x x (Emphasis supplied)

Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33


It is well established that when a constitution specifies the manner in which it may be amended or revised, it can be
altered by those who favor amendments, revision, or other change only through the use of one of the specified means.
The constitution itself recognizes that there is a difference between an amendment and a revision; and it is obvious from
an examination of the measure here in question that it is not an amendment as that term is generally understood and as it
is used in Article IV, Section 1. The document appears to be based in large part on the revision of the constitution drafted
by the 'Commission for Constitutional Revision' authorized by the 1961 Legislative Assembly, x x x and submitted to the
1963 Legislative Assembly. It failed to receive in the Assembly the two-third's majority vote of both houses required by
Article XVII, Section 2, and hence failed of adoption, x x x.

While differing from that document in material respects, the measure sponsored by the plaintiffs is, nevertheless, a
thorough overhauling of the present constitution x x x.

To call it an amendment is a misnomer.

Whether it be a revision or a new constitution, it is not such a measure as can be submitted to the people through the
initiative. If a revision, it is subject to the requirements of Article XVII, Section 2(1); if a new constitution, it can only be
proposed at a convention called in the manner provided in Article XVII, Section 1. x x x x

Similarly, in this jurisdiction there can be no dispute that a people's initiative can only propose amendments to the Constitution since
the Constitution itself limits initiatives to amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million signatures, cannot justify a deviation from the specific
modes prescribed in the Constitution itself.

As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34

It is a fundamental principle that a constitution can only be revised or amended in the manner prescribed by the
instrument itself, and that any attempt to revise a constitution in a manner other than the one provided in the instrument is
almost invariably treated as extra-constitutional and revolutionary. x x x x "While it is universally conceded that the people
are sovereign and that they have power to adopt a constitution and to change their own work at will, they must, in doing
so, act in an orderly manner and according to the settled principles of constitutional law. And where the people, in
adopting a constitution, have prescribed the method by which the people may alter or amend it, an attempt to change the
fundamental law in violation of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis supplied)

This Court, whose members are sworn to defend and protect the Constitution, cannot shirk from its solemn oath and duty to insure
compliance with the clear command of the Constitution that a people's initiative may only amend, never revise, the Constitution.

The question is, does the Lambino Group's initiative constitute an amendment or revision of the Constitution? If the Lambino
Group's initiative constitutes a revision, then the present petition should be dismissed for being outside the scope of Section 2,
Article XVII of the Constitution.

Courts have long recognized the distinction between an amendment and a revision of a constitution. One of the earliest cases that
recognized the distinction described the fundamental difference in this manner:

[T]he very term "constitution" implies an instrument of a permanent and abiding nature, and the provisions contained
therein for its revision indicate the will of the people that the underlying principles upon which it rests, as well as the
substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance
of the term "amendment" implies such an addition or change within the lines of the original instrument as will effect an
improvement, or better carry out the purpose for which it was framed.35 (Emphasis supplied)

Revision broadly implies a change that alters a basic principle in the constitution, like altering the principle of separation of powers or
the system of checks-and-balances. There is also revision if the change alters the substantial entirety of the constitution, as when
the change affects substantial provisions of the constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision generally affects several provisions of the constitution,
while amendment generally affects only the specific provision being amended.

In California where the initiative clause allows amendments but not revisions to the constitution just like in our Constitution, courts
have developed a two-part test: the quantitative test and the qualitative test. The quantitative test asks whether the proposed
change is "so extensive in its provisions as to change directly the 'substantial entirety' of the constitution by the deletion or alteration
of numerous existing provisions."36 The court examines only the number of provisions affected and does not consider the degree of
the change.

The qualitative test inquires into the qualitative effects of the proposed change in the constitution. The main inquiry is whether the
change will "accomplish such far reaching changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a proper subject of inquiry. Thus, "a change in the nature
of [the] basic governmental plan" includes "change in its fundamental framework or the fundamental powers of its Branches." 38 A
change in the nature of the basic governmental plan also includes changes that "jeopardize the traditional form of government and
the system of check and balances."39

Under both the quantitative and qualitative tests, the Lambino Group's initiative is a revision and not merely an amendment.
Quantitatively, the Lambino Group's proposed changes overhaul two articles - Article VI on the Legislature and Article VII on the
Executive - affecting a total of 105 provisions in the entire Constitution.40Qualitatively, the proposed changes alter substantially the
basic plan of government, from presidential to parliamentary, and from a bicameral to a unicameral legislature.

A change in the structure of government is a revision of the Constitution, as when the three great co-equal branches of government
in the present Constitution are reduced into two. This alters the separation of powers in the Constitution. A shift from the present
Bicameral-Presidential system to a Unicameral-Parliamentary system is a revision of the Constitution. Merging the legislative and
executive branches is a radical change in the structure of government.

The abolition alone of the Office of the President as the locus of Executive Power alters the separation of powers and thus
constitutes a revision of the Constitution. Likewise, the abolition alone of one chamber of Congress alters the system of checks-and-
balances within the legislature and constitutes a revision of the Constitution.

By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to a Unicameral-Parliamentary system, involving
the abolition of the Office of the President and the abolition of one chamber of Congress, is beyond doubt a revision, not a mere
amendment. On the face alone of the Lambino Group's proposed changes, it is readily apparent that the changes will radically alter
the framework of government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading member of the Constitutional
Commission, writes:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of an
amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to suppress specific
portions that may have become obsolete or that are judged to be dangerous. In revision, however, the guiding original intention and
plan contemplates a re-examination of the entire document, or of provisions of the document which have over-all implications for the
entire document, to determine how and to what extent they should be altered. Thus, for instance a switch from the presidential
system to a parliamentary system would be a revision because of its over-all impact on the entire constitutional structure. So would
a switch from a bicameral system to a unicameral system be because of its effect on other important provisions of the
Constitution.41 (Emphasis supplied)

In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida State constitution to shift from a bicameral to a
unicameral legislature. The issue turned on whether the initiative "was defective and unauthorized where [the] proposed amendment
would x x x affect several other provisions of [the] Constitution." The Supreme Court of Florida, striking down the initiative as outside
the scope of the initiative clause, ruled as follows:

The proposal here to amend Section 1 of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects
not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of the states of the nation, except one,
since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only radically change the whole pattern of government in
this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities necessary to carry
on government.

xxxx

We conclude with the observation that if such proposed amendment were adopted by the people at the General Election
and if the Legislature at its next session should fail to submit further amendments to revise and clarify the numerous
inconsistencies and conflicts which would result, or if after submission of appropriate amendments the people should
refuse to adopt them, simple chaos would prevail in the government of this State. The same result would obtain from an
amendment, for instance, of Section 1 of Article V, to provide for only a Supreme Court and Circuit Courts-and there could
be other examples too numerous to detail. These examples point unerringly to the answer.

The purpose of the long and arduous work of the hundreds of men and women and many sessions of the Legislature in
bringing about the Constitution of 1968 was to eliminate inconsistencies and conflicts and to give the State a workable,
accordant, homogenous and up-to-date document. All of this could disappear very quickly if we were to hold that it could
be amended in the manner proposed in the initiative petition here.43 (Emphasis supplied)

The rationale of the Adams decision applies with greater force to the present petition. The Lambino Group's initiative not only seeks
a shift from a bicameral to a unicameral legislature, it also seeks to merge the executive and legislative departments. The initiative
in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida Constitution that would be affected by the shift from
a bicameral to a unicameral legislature. In the Lambino Group's present initiative, no less than 105 provisions of the Constitution
would be affected based on the count of Associate Justice Romeo J. Callejo, Sr.44 There is no doubt that the Lambino Group's
present initiative seeks far more radical changes in the structure of government than the initiative in Adams.

The Lambino Group theorizes that the difference between "amendment" and "revision" is only one of procedure, not of substance.
The Lambino Group posits that when a deliberative body drafts and proposes changes to the Constitution, substantive changes are
called "revisions" because members of the deliberative body work full-time on the changes. However, the same substantive
changes, when proposed through an initiative, are called "amendments" because the changes are made by ordinary people who do
not make an "occupation, profession, or vocation" out of such endeavor.

Thus, the Lambino Group makes the following exposition of their theory in their Memorandum:

99. With this distinction in mind, we note that the constitutional provisions expressly provide for both "amendment" and
"revision" when it speaks of legislators and constitutional delegates, while the same provisions expressly provide only for
"amendment" when it speaks of the people. It would seem that the apparent distinction is based on the actual experience
of the people, that on one hand the common people in general are not expected to work full-time on the matter of
correcting the constitution because that is not their occupation, profession or vocation; while on the other hand, the
legislators and constitutional convention delegates are expected to work full-time on the same matter because that is their
occupation, profession or vocation. Thus, the difference between the words "revision" and "amendment" pertain only to
the process or procedure of coming up with the corrections, for purposes of interpreting the constitutional provisions.

100. Stated otherwise, the difference between "amendment" and "revision" cannot reasonably be in the substance or
extent of the correction. x x x x (Underlining in the original; boldfacing supplied)

The Lambino Group in effect argues that if Congress or a constitutional convention had drafted the same proposed changes that the
Lambino Group wrote in the present initiative, the changes would constitute a revision of the Constitution. Thus, the Lambino Group
concedes that the proposed changes in the present initiative constitute a revision if Congress or a constitutional convention had
drafted the changes. However, since the Lambino Group as private individuals drafted the proposed changes, the changes are
merely amendments to the Constitution. The Lambino Group trivializes the serious matter of changing the fundamental law of the
land.

The express intent of the framers and the plain language of the Constitution contradict the Lambino Group's theory. Where the intent
of the framers and the language of the Constitution are clear and plainly stated, courts do not deviate from such categorical intent
and language.45 Any theory espousing a construction contrary to such intent and language deserves scant consideration. More so, if
such theory wreaks havoc by creating inconsistencies in the form of government established in the Constitution. Such a theory,
devoid of any jurisprudential mooring and inviting inconsistencies in the Constitution, only exposes the flimsiness of the Lambino
Group's position. Any theory advocating that a proposed change involving a radical structural change in government does not
constitute a revision justly deserves rejection.

The Lambino Group simply recycles a theory that initiative proponents in American jurisdictions have attempted to advance without
any success. In Lowe v. Keisling,46 the Supreme Court of Oregon rejected this theory, thus:

Mabon argues that Article XVII, section 2, does not apply to changes to the constitution proposed by initiative. His theory
is that Article XVII, section 2 merely provides a procedure by which the legislature can propose a revision of the
constitution, but it does not affect proposed revisions initiated by the people.

Plaintiffs argue that the proposed ballot measure constitutes a wholesale change to the constitution that cannot be
enacted through the initiative process. They assert that the distinction between amendment and revision is determined by
reviewing the scope and subject matter of the proposed enactment, and that revisions are not limited to "a formal
overhauling of the constitution." They argue that this ballot measure proposes far reaching changes outside the lines of
the original instrument, including profound impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens. Plaintiffs assert that, because the proposed ballot measure "will
refashion the most basic principles of Oregon constitutional law," the trial court correctly held that it violated Article XVII,
section 2, and cannot appear on the ballot without the prior approval of the legislature.

We first address Mabon's argument that Article XVII, section 2(1), does not prohibit revisions instituted by initiative.
In Holmes v. Appling, x x x, the Supreme Court concluded that a revision of the constitution may not be accomplished by
initiative, because of the provisions of Article XVII, section 2. After reviewing Article XVII, section1, relating to proposed
amendments, the court said:

"From the foregoing it appears that Article IV, Section 1, authorizes the use of the initiative as a means of amending the
Oregon Constitution, but it contains no similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the only section of the constitution which
provides the means for constitutional revision and it excludes the idea that an individual, through the initiative, may place
such a measure before the electorate." x x x x

Accordingly, we reject Mabon's argument that Article XVII, section 2, does not apply to constitutional revisions proposed
by initiative. (Emphasis supplied)

Similarly, this Court must reject the Lambino Group's theory which negates the express intent of the framers and the plain language
of the Constitution.

We can visualize amendments and revisions as a spectrum, at one end green for amendments and at the other end red for
revisions. Towards the middle of the spectrum, colors fuse and difficulties arise in determining whether there is an amendment or
revision. The present initiative is indisputably located at the far end of the red spectrum where revision begins. The present initiative
seeks a radical overhaul of the existing separation of powers among the three co-equal departments of government, requiring far-
reaching amendments in several sections and articles of the Constitution.

Where the proposed change applies only to a specific provision of the Constitution without affecting any other section or article, the
change may generally be considered an amendment and not a revision. For example, a change reducing the voting age from 18
years to 15 years47 is an amendment and not a revision. Similarly, a change reducing Filipino ownership of mass media companies
from 100 percent to 60 percent is an amendment and not a revision.48 Also, a change requiring a college degree as an additional
qualification for election to the Presidency is an amendment and not a revision.49

The changes in these examples do not entail any modification of sections or articles of the Constitution other than the specific
provision being amended. These changes do not also affect the structure of government or the system of checks-and-balances
among or within the three branches. These three examples are located at the far green end of the spectrum, opposite the far red
end where the revision sought by the present petition is located.

However, there can be no fixed rule on whether a change is an amendment or a revision. A change in a single word of one sentence
of the Constitution may be a revision and not an amendment. For example, the substitution of the word "republican" with
"monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically overhauls the entire structure of government and the
fundamental ideological basis of the Constitution. Thus, each specific change will have to be examined case-by-case, depending on
how it affects other provisions, as well as how it affects the structure of government, the carefully crafted system of checks-and-
balances, and the underlying ideological basis of the existing Constitution.

Since a revision of a constitution affects basic principles, or several provisions of a constitution, a deliberative body with recorded
proceedings is best suited to undertake a revision. A revision requires harmonizing not only several provisions, but also the altered
principles with those that remain unaltered. Thus, constitutions normally authorize deliberative bodies like constituent assemblies or
constitutional conventions to undertake revisions. On the other hand, constitutions allow people's initiatives, which do not have fixed
and identifiable deliberative bodies or recorded proceedings, to undertake only amendments and not revisions.

In the present initiative, the Lambino Group's proposed Section 2 of the Transitory Provisions states:

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim
up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended
to conform with a unicameral parliamentary form of government; x x x x (Emphasis supplied)

The basic rule in statutory construction is that if a later law is irreconcilably inconsistent with a prior law, the later law prevails. This
rule also applies to construction of constitutions. However, the Lambino Group's draft of Section 2 of the Transitory Provisions turns
on its head this rule of construction by stating that in case of such irreconcilable inconsistency, the earlier provision "shall be
amended to conform with a unicameral parliamentary form of government." The effect is to freeze the two irreconcilable provisions
until the earlier one "shall be amended," which requires a future separate constitutional amendment.

Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino readily conceded during the oral arguments
that the requirement of a future amendment is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory
construction so that the later provision automatically prevails in case of irreconcilable inconsistency. However, it is not as simple as
that.

The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory Provisions is not between a provision in
Article VI of the 1987 Constitution and a provision in the proposed changes. The inconsistency is between a provision in Article VI of
the 1987 Constitution and the "Parliamentary system of government," and the inconsistency shall be resolved in favor of a
"unicameral parliamentary form of government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's proposed changes refer to the Bangladeshi,
Singaporean, Israeli, or New Zealand models, which are among the few countries with unicameral parliaments? The proposed
changes could not possibly refer to the traditional and well-known parliamentary forms of government the British, French,
Spanish, German, Italian, Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did the people who
signed the signature sheets realize that they were adopting the Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary
form of government?

This drives home the point that the people's initiative is not meant for revisions of the Constitution but only for amendments. A shift
from the present Bicameral-Presidential to a Unicameral-Parliamentary system requires harmonizing several provisions in many
articles of the Constitution. Revision of the Constitution through a people's initiative will only result in gross absurdities in the
Constitution.

In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision and not an amendment. Thus, the present
initiative is void and unconstitutional because it violates Section 2, Article XVII of the Constitution limiting the scope of a people's
initiative to "[A]mendments to this Constitution."

3. A Revisit of Santiago v. COMELEC is Not Necessary

The present petition warrants dismissal for failure to comply with the basic requirements of Section 2, Article XVII of the Constitution
on the conduct and scope of a people's initiative to amend the Constitution. There is no need to revisit this Court's ruling
in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms and conditions" to cover the system of initiative
to amend the Constitution. An affirmation or reversal of Santiago will not change the outcome of the present petition. Thus, this
Court must decline to revisit Santiago which effectively ruled that RA 6735 does not comply with the requirements of the Constitution
to implement the initiative clause on amendments to the Constitution.

This Court must avoid revisiting a ruling involving the constitutionality of a statute if the case before the Court can be resolved on
some other grounds. Such avoidance is a logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds.51

Nevertheless, even assuming that RA 6735 is valid to implement the constitutional provision on initiatives to amend the Constitution,
this will not change the result here because the present petition violates Section 2, Article XVII of the Constitution. To be a valid
initiative, the present initiative must first comply with Section 2, Article XVII of the Constitution even before complying with RA 6735.

Even then, the present initiative violates Section 5(b) of RA 6735 which requires that the "petition for an initiative on the 1987
Constitution must have at least twelve per centum (12%) of the total number of registered voters as signatories." Section 5(b) of RA
6735 requires that the people must sign the "petition x x x as signatories."

The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended petition of 30 August 2006 filed with the
COMELEC. Only Atty. Lambino, Atty. Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and amended petition as
counsels for "Raul L. Lambino and Erico B. Aumentado, Petitioners." In the COMELEC, the Lambino Group, claiming to act
"together with" the 6.3 million signatories, merely attached the signature sheets to the petition and amended petition. Thus, the
petition and amended petition filed with the COMELEC did not even comply with the basic requirement of RA 6735 that the Lambino
Group claims as valid.

The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating, "No petition embracing more than one (1)
subject shall be submitted to the electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating the interim
Parliament to propose further amendments or revisions to the Constitution, is a subject matter totally unrelated to the shift in the
form of government. Since the present initiative embraces more than one subject matter, RA 6735 prohibits submission of the
initiative petition to the electorate. Thus, even if RA 6735 is valid, the Lambino Group's initiative will still fail.

4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the Lambino Group's Initiative

In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely followed this Court's ruling
in Santiago and People's Initiative for Reform, Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the present petition warrants outright dismissal.
Thus, this Court should reiterate its unanimous ruling in PIRMA:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the
Decisions of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and obedience of all the citizens of this nation. No
one can trivialize the Constitution by cavalierly amending or revising it in blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution itself.

To allow such change in the fundamental law is to set adrift the Constitution in unchartered waters, to be tossed and turned by every
dominant political group of the day. If this Court allows today a cavalier change in the Constitution outside the constitutionally
prescribed modes, tomorrow the new dominant political group that comes will demand its own set of changes in the same cavalier
and unconstitutional fashion. A revolving-door constitution does not augur well for the rule of law in this country.

An overwhelming majority 16,622,111 voters comprising 76.3 percent of the total votes cast53 approved our Constitution in a
national plebiscite held on 11 February 1987. That approval is the unmistakable voice of the people, the full expression of the
people's sovereign will. That approval included the prescribed modes for amending or revising the Constitution.

No amount of signatures, not even the 6,327,952 million signatures gathered by the Lambino Group, can change our Constitution
contrary to the specific modes that the people, in their sovereign capacity, prescribed when they ratified the Constitution. The
alternative is an extra-constitutional change, which means subverting the people's sovereign will and discarding the Constitution.
This is one act the Court cannot and should never do. As the ultimate guardian of the Constitution, this Court is sworn to perform its
solemn duty to defend and protect the Constitution, which embodies the real sovereign will of the people.

Incantations of "people's voice," "people's sovereign will," or "let the people decide" cannot override the specific modes of changing
the Constitution as prescribed in the Constitution itself. Otherwise, the Constitution the people's fundamental covenant that
provides enduring stability to our society becomes easily susceptible to manipulative changes by political groups gathering
signatures through false promises. Then, the Constitution ceases to be the bedrock of the nation's stability.

The Lambino Group claims that their initiative is the "people's voice." However, the Lambino Group unabashedly states in ULAP
Resolution No. 2006-02, in the verification of their petition with the COMELEC, that "ULAP maintains its unqualified support to the
agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms." The Lambino Group thus admits that their
"people's" initiative is an "unqualified support to the agenda" of the incumbent President to change the Constitution. This forewarns
the Court to be wary of incantations of "people's voice" or "sovereign will" in the present initiative.

This Court cannot betray its primordial duty to defend and protect the Constitution. The Constitution, which embodies the people's
sovereign will, is the bible of this Court. This Court exists to defend and protect the Constitution. To allow this constitutionally infirm
initiative, propelled by deceptively gathered signatures, to alter basic principles in the Constitution is to allow a desecration of the
Constitution. To allow such alteration and desecration is to lose this Court's raison d'etre.

WHEREFORE, we DISMISS the petition in G.R. No. 174153.

SO ORDERED.

Panganiban, C.J., Puno, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Austria-Martinez, Corona, Carpio Morales, Callejo, Sr.,
Azcuna, Tinga, Chico-Nazario, Garcia, and Velasco, Jr., JJ., concur.

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO AND ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 REGISTERED VOTERS V. COMMISSION ON
ELECTIONS ET AL.

SEPARATE CONCURRING OPINION

PANGANIBAN, CJ.:

Without the rule of law, there can be no lasting prosperity and certainly no liberty.

Beverley McLachlin 1
Chief Justice of Canada
After a deep reflection on the issues raised and a careful evaluation of the parties' respective arguments -- both oral and written --
as well as the enlightened and enlightening Opinions submitted by my esteemed colleagues, I am fully convinced that the present
Petition must be dismissed.

I write, however, to show that my present disposition is completely consistent with my previous Opinions and votes on the two extant
Supreme Court cases involving an initiative to change the Constitution.

In my Separate Opinion in Santiago v. Comelec,2 I opined "that taken together and interpreted properly and liberally, the Constitution
(particularly Art. XVII, Sec. 2), Republic Act 6735 and Comelec Resolution 2300 provide more than sufficient

__________________

'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.'

"With all due respect, I find the majority's position all too sweeping and all too extremist. It is equivalent to burning the
whole house to exterminate the rats, and to killing the patient to relieve him of pain. What Citizen Delfin wants the
Comelec to do we should reject. But we should not thereby preempt any future effort to exercise the right of initiative
correctly and judiciously. The fact that the Delfin Petition proposes a misuse of initiative does not justify a ban against its
proper use. Indeed, there is a right way to do the right thing at the right time and for the right reason.

Taken Together and Interpreted Properly,


the Constitution, R.A. 6735 and Comelec Resolution
2300 Are Sufficient to Implement Constitutional Initiatives

"While R.A. 6735 may not be a perfect law, it was as the majority openly concedes intended by the legislature to
cover and, I respectfully submit, it contains enough provisions to effectuate an initiative on the Constitution. I completely
agree with the inspired and inspiring opinions of Mr. Justice Reynato S. Puno and Mr. Justice Ricardo J. Francisco that RA
6735, the Roco law on initiative, sufficiently implements the right of the people to initiate amendments to the Constitution.
Such views, which I shall no longer repeat nor elaborate on, are thoroughly consistent with this Court's unanimous en
banc rulings in Subic Bay Metropolitan Authority vs. Commission on Elections, that "provisions for initiative . . . are (to be)
liberally construed to effectuate their purposes, to facilitate and not hamper the exercise by the voters of the rights granted
thereby"; and in Garcia vs. Comelec, that any "effort to trivialize the effectiveness of people's initiatives ought to be
rejected."

"No law can completely and absolutely cover all administrative details. In recognition of this, R.A. 6735 wisely empowered
the Commission on Election "to promulgate such rules and regulations as may be necessary to carry out the purposes of
this Act." And pursuant thereto, the Comelec issued its Resolution 2300 on 16 January 1991. Such Resolution, by its very
words, was promulgated "to govern the conduct of initiative on the Constitution and initiative and referendum on national
and local laws," not by the incumbent Commission on Elections but by one then composed of Acting Chairperson Haydee
B. Yorac, Comms. Alfredo

authority to implement, effectuate and realize our people's power to amend the Constitution."

__________________

E. Abueg, Jr., Leopoldo L. Africa, Andres R. Flores, Dario C. Rama and Magdara B. Dimaampao. All of these
Commissioners who signed Resolution 2300 have retired from the Commission, and thus we cannot ascribe any vile
motive unto them, other than an honest, sincere and exemplary effort to give life to a cherished right of our people.

"The majority argues that while Resolution 2300 is valid in regard to national laws and local legislations, it is void in
reference to constitutional amendments. There is no basis for such differentiation. The source of and authority for the
Resolution is the same law, R.A. 6735.

"I respectfully submit that taken together and interpreted properly and liberally, the Constitution (particularly Art. XVII, Sec.
2), R.A. 6735 and Comelec Resolution 2300 provide more than sufficient authority to implement, effectuate and realize
our people's power to amend the Constitution.

Petitioner Delfin and the Pedrosa


Spouses Should Not Be Muzzled
"I am glad the majority decided to heed our plea to lift the temporary restraining order issued by this Court on 18
December 1996 insofar as it prohibited Petitioner Delfin and the Spouses Pedrosa from exercising their right of initiative.
In fact, I believe that such restraining order as against private respondents should not have been issued, in the first place.
While I agree that the Comelec should be stopped from using public funds and government resources to help them gather
signatures, I firmly believe that this Court has no power to restrain them from exercising their right of initiative. The right to
propose amendments to the Constitution is really a species of the right of free speech and free assembly. And certainly, it
would be tyrannical and despotic to stop anyone from speaking freely and persuading others to conform to his/her beliefs.
As the eminent Voltaire once said, 'I may disagree with what you say, but I will defend to the death your right to say it.'
After all, freedom is not really for the thought we agree with, but as Justice Holmes wrote, 'freedom for the thought that we
hate.'

Epilogue

"By way of epilogue, let me stress the guiding tenet of my Separate Opinion. Initiative, like referendum and recall, is a new
and treasured feature of the Filipino constitutional system. All three are institutionalized legacies of the world-admired
EDSA people power. Like elections and plebiscites, they are hallowed expressions of popular sovereignty. They are
sacred democratic rights of our people to be used as

Six months after, in my Separate Opinion in People's Initiative for Reform, Modernization and Action (PIRMA) v. Comelec,3 I joined
the rest of the members of the Court in ruling "by a unanimous vote, that no grave abuse of discretion could be attributed to the
Comelec in dismissing the petition filed by

__________________

Constitution x x x." While concededly, petitioners in this case were not direct parties in Santiago, nonetheless the Court's
injunction against the Comelec covered ANY petition, not just the Delfin petition which was the immediate subject of said
case. As a dissenter in Santiago, I believed, and still do, that the majority gravely erred in rendering such a sweeping
injunction, but I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio
decidendi. Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its
obedience cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open
to the Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down
as grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies.

Second Issue:
Sufficiency of RA 6735

"I repeat my firm legal position that RA 6735 is adequate to cover initiatives on the Constitution, and that whatever
administrative details may have been omitted in said law are satisfactorily provided by Comelec Resolution 2300. The
promulgation of Resolution 2300 is sanctioned by Section 2, Article IX-C of the Constitution, which vests upon the
Comelec the power to "enforce and administer all laws and regulations relative to the conduct of an election,
plebiscite, initiative, referendum and recall." The Omnibus Election Code likewise empowers the electoral body to
"promulgate rules and regulations implementing the provisions of this Code or other laws which the Commission is
required to enforce and administer x x x." Finally and most relevantly, Section 20 of Ra 6735 specifically authorizes
Comelec "to promulgate rules and regulations as may be necessary to carry out the purposes of this Act."

"In my dissent in Santiago, I wrote that "there is a right way to do the right thing at the right time and for the right reason."
Let me explain further.

The Right Thing

"A people's initiative is direct democracy in action. It is the right thing that citizens may avail themselves of to articulate
their will. It is a new and treasured feature of the Filipino constitutional system. Even the majority implicitly conceded its
value and worth in our legal firmament when it implored Congress "not to tarry any longer in complying with the
constitutional mandate to provide for implementation of the right (of initiative) of the people x x x." Hence, in the en
banc case of Subic Bay Metropolitan Authority vs. Comelec, [G.R. No. 125416, September 26, 1996], this Court
unanimously held that "(l)ike elections, initiative and referendum are powerful and valuable modes of expressing popular

PIRMA therein," since the Commission had "only complied" with the Santiago Decision.

__________________
sovereignty. And this Court as a matter of policy and doctrine will exert every effort to nurture, protect and promote their
legitimate exercise."

The Right Way

"From the outset, I have already maintained the view that "taken together and interpreted properly and liberally, the
Constitution (particularly Art. XVII, Sec. 2), RA 6735 and Comelec Resolution 2300 provide more than sufficient authority
to implement, effectuate and realize our people's power to amend the Constitution." Let me now demonstrate the
adequacy of RA 6735 by outlining, in concrete terms, the steps to be taken the right way to amend the Constitution
through a people's initiative.

"Pursuant to Section 3(f) of the law, the Comelec shall prescribe the form of the petition which shall contain the
proposition and the required number of signatories. Under Sec. 5(c) thereof, the petition shall state the following:

'c.1 contents or text of the [provision or provisions] sought to be x x x amended, x x x;

c.2 the proposition [in full text];

c.3 the reason or reasons therefor [fully and clearly explained];

c.4 that it is not one of exceptions provided herein;

c.5 signatures of the petitioners or registered voters; and

c.6 an abstract or summary proposition in not more than one hundred (100) words which shall be legibly written
or printed at the top of every page of the petition.'

"Section 8(f) of Comelec Resolution 2300 additionally requires that the petition include a formal designation of the duly
authorized representatives of the signatories.

"Being a constitutional requirement, the number of signatures becomes a condition precedent to the filing of the petition,
and is jurisdictional. Without such requisite signatures, the Commission shall motu proprio reject the petition.

"Where the initiators have substantially complied with the above requirements, they may thence file the petition with the
Comelec which is tasked to determine the sufficiency thereof and to verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters' identification cards. In deciding whether the petition is sufficient, the Comelec shall
also determine if the proposition is proper for an initiative, i.e., if it consists of an amendment, not a revision, of the
Constitution. Any decision of the electoral body may be appealed to the Supreme Court within thirty (30) days from notice.

I added "that my position upholding the adequacy of RA 6735 and the validity of Comelec Resolution 2300 will not ipso

__________________

"Within thirty (30) days from receipt of the petition, and after the determination of its sufficiency, the Comelec shall publish
the same in Filipino and English at least twice in newspapers of general and local circulation, and set the date of the
plebiscite. The conduct of the plebiscite should not be earlier than sixty (60) days, but not later than ninety (90) days after
certification by the Comelec of the sufficiency of the petition. The proposition, if approved by a majority of the votes cast in
the plebiscite, becomes effective as of the day of the plebiscite.

"From the foregoing, it should be clear that my position upholding the adequacy of RA 6735 and the validity of Comelec
Resolution 2300 will not ipso facto validate the PIRMA petition and automatically lead to a plebiscite to amend the
Constitution. Far from it. Among others, PIRMA must still satisfactorily hurdle the following searching issues:

1. Does the proposed change the lifting of the term limits of elective officials -- constitute a mere amendment and not a
revision of the Constitution?

2. Which registry of voters will be used to verify the signatures in the petition? This question is relevant considering that
under RA 8189, the old registry of voters used in the 1995 national elections was voided after the barangay elections on
May 12, 1997, while the new list may be used starting only in the elections of May 1998.
3. Does the clamor for the proposed change in the Constitution really emanate from the people who signed the petition for
initiative? Or it is the beneficiaries of term extension who are in fact orchestrating such move to advance their own political
self-interest?

4. Are the six million signatures genuine and verifiable? Do they really belong to qualified warm bodies comprising at least
12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered
voters therein?

"I shall expound on the third question in the next section, The Right Reason. Question Nos. 1 and 2 above, while
important, are basically legal in character and can be determined by argumentation and memoranda. However, Question
No. 4 involves not only legal issues but gargantuan hurdles of factual determination. This to my mind is the crucible, the
litmus test, of a people's petition for initiative. If herein petitioners, led by PIRMA, succeed in proving -- not just alleging --
that six million voters of this country indeed want to amend the Constitution, what power on earth can stop them? Not this
Court, not the Comelec, not even the President or Congress.

facto validate the PIRMA petition and automatically lead to a plebiscite to amend the Constitution. Far from it." I stressed that PIRMA
must show the following, among others:

__________________

"It took only one million people to stage a peaceful revolution at EDSA, and the very rafters and foundations of the martial
law society trembled, quaked and crumbled. On the other hand, PIRMA and its co-petitioners are claiming that they have
gathered six million signatures. If, as claimed by many, these six million signatures are fraudulent, then let them be
exposed and damned for all history in a signature-verification process conducted under our open system of legal
advocacy.

"More than anything else, it is the truth that I, as a member of this Court and as a citizen of this country, would like to seek:
Are these six million signatures real? By insisting on an entirely new doctrine of statutory inadequacy, the majority
effectively suppressed the quest for that truth.

The Right Reason

"As mentioned, the third question that must be answered, even if the adequacy of RA 6735 and the validity of Comelec
Resolution 2300 were upheld by the majority is: Does the clamor for the proposed change to the Constitution really
emanate from the people who signed the petition for initiative? Or is it the beneficiaries of term extension who are in fact
orchestrating such move to advance their own political self-interests? In other words, is PIRMA's exercise of the right to
initiative being done in accordance with our Constitution and our laws? Is such attempted exercise legitimate?

"In Garcia vs. Commission on Elections, we described initiative, along with referendum, as the 'ultimate weapon of the
people to negate government malfeasance and misfeasance.' In Subic Bay, we specified that 'initiative is entirely the work
of the electorate x x x a process of lawmaking by the people themselves without the participation and against the wishes
of their elected representatives.' As ponente of Subic Bay, I stand foursquare on this principle: The right to amend through
initiative belongs only to the people not to the government and its minions. This principle finds clear support from
utterances of many constitutional commissioners like those quoted below:

"[Initiative is] a reserve power of the sovereign people, when they are dissatisfied with the National Assembly x x x [and]
precisely a fallback position of the people in the event that they are dissatisfied." -- Commissioner Ople

"[Initiative is] a check on a legislative that is not responsive [and resorted to] only if the legislature is not as responsive to
the vital and urgent needs of people." -- Commissioner Gascon

(1) The proposed change -- the lifting of term limits of elective officials -- "constitute[s] a mere amendment and not a revision of the
Constitution."

_________________

"[Initiative is an] extraordinary power given to the people [and] reserved for the people [which] should not be frivolously
resorted to." -- Commissioner Romulo

"Indeed, if the powers-that-be desire to amend the Constitution, or even to revise it, our Charter itself provides them other
ways of doing so, namely, by calling a constitutional convention or constituting Congress into a constituent assembly.
These are officialdom's weapons. But initiative belongs to the people.
"In the present case, are PIRMA and its co-petitioners legitimate people's organizations or are they merely fronts for
incumbents who want to extend their terms? This is a factual question which, unfortunately, cannot be judicially answered
anymore, because the Supreme Court majority ruled that the law that implements it, RA 6735, is inadequate or insufficient
insofar as initiatives to the Constitutions are concerned. With such ruling, the majority effectively abrogated a
constitutional right of our people. That is why in my Separate Opinion in Santiago, I exclaimed that such precipitate action
"is equivalent to burning the whole house to exterminate the rats, and to killing the patient to relieve him of pain." I firmly
maintain that to defeat PIRMA's effort, there is no need to "burn" the constitutional right to initiative. If PIRMA's exercise is
not "legitimate," it can be exposed as such in the ways I have discussed short of abrogating the right itself. On the other
hand, if PIRMA's position is proven to be legitimate if it hurdles the four issues I outlined earlier by all means, we
should allow and encourage it. But the majority's theory of statutory inadequacy has pre-empted unnecessarily and
invalidly, in my view any judicial determination of such legitimacy or illegitimacy. It has silenced the quest for truth into
the interstices of the PIRMA petition.

The Right Time

"The Constitution itself sets a time limitation on when changes thereto may be proposed. Section 2 of Article XVII
precludes amendments "within five years following [its] ratification x x x nor oftener than once every five years thereafter."
Since its ratification, the 1987 Constitution has never been amended. Hence, the five-year prohibition is now inoperative
and amendments may theoretically be proposed at any time.

"Be that as it may, I believe given the present circumstances that there is no more time to lift term limits to enable
incumbents to seek reelection in the May 11, 1998 polls. Between today and the next national

(2) The "six million signatures are genuine and verifiable"; and they "really belong to qualified warm bodies comprising at

__________________

elections, less than eight (8) months remain. Santiago, where the single issue of the sufficiency of RA 6735 was resolved,
took this Court three (3) months, and another two (2) months to decide the motion for reconsideration. The instant case,
where the same issue is also raised by the petitioners, took two months, not counting a possible motion for
reconsideration. These time spans could not be abbreviated any further, because due process requires that all parties be
given sufficient time to file their pleadings.

"Thus, even if the Court were to rule now in favor of the adequacy of RA 6735 as I believe it should and allow the
Comelec to act on the PIRMA petition, such eight-month period will not be enough to tackle the four weighty issues I
mentioned earlier, considering that two of them involve tedious factual questions. The Comelec's decision on any of these
issues can still be elevated to this Court for review, and reconsiderations on our decisions on each of those issues may
again be sought.

"Comelec's herculean task alone of verifying each of the six million signatures is enormously time-consuming, considering
that any person may question the authenticity of each and every signature, initially before the election registrar, then
before the Comelec on appeal and finally, before this Court in a separate proceeding. Moreover, the plebiscite itself
assuming such stage can be reached may be scheduled only after sixty (60) but not more than ninety (90) days, from
the time the Comelec and this Court, on appeal, finally declare the petition to be sufficient.

"Meanwhile, under Comelec Resolution 2946, political parties, groups organizations or coalitions may start selecting their
official candidates for President, Vice President and Senators on November 27, 1997; the period for filing certificates of
candidacy is from January 11 to February 9, 1998; the election period and campaign for national officials start on February
10, 1998, while the campaign period for other elective officials, on March 17, 1998. This means, by the time PIRMA's
proposition is ready if ever for submission directly to the voters at large, it will have been overcome by the elections.
Time will simply run out on PIRMA, if the intention is to lift term limits in time for the 1998 elections.

"That term limits may no longer be lifted prior to the 1998 elections via a people's initiative does not detract one whit from
(1) my firm conviction that RA 6735 is sufficient and adequate to implement this constitutional right and, more important,
(2) my faith in the power of the people to initiate changes in local and national laws and the Constitution. In fact, I think the
Court can deliberate on these two items even more serenely and wisely now that the debates will be free from the din and
distraction of the 1998 elections. After all, jurisprudence is not merely for the here and now but, more so, for the hereafter
and the morrow. Let me therefore stress, by way of epilogue, my unbending credo in favor of our people's right to
initiative.

least 12% of the registered voters nationwide, of which every legislative district is represented by at least 3% of the registered voters
therein."

__________________
Epilogue

"I believe in democracy in our people's natural right to determine our own destiny.

"I believe in the process of initiative as a democratic method of enabling our people to express their will and chart their
history. Initiative is an alternative to bloody revolution, internal chaos and civil strife. It is an inherent right of the people
as basic as the right to elect, the right to self-determination and the right to individual liberties. I believe that Filipinos have
the ability and the capacity to rise above themselves, to use this right of initiative wisely and maturely, and to choose what
is best for themselves and their posterity.

"Such beliefs, however, should not be equated with a desire to perpetuate a particular official or group of officials in power.
Far from it. Such perpetuation is anathema to democracy. My firm conviction that there is an adequate law implementing
the constitutional right of initiative does not ipso facto result in the victory of the PIRMA petition or of any proposed
constitutional change. There are, after all, sufficient safeguards to guarantee the proper use of such constitutional right
and to forestall its misuse and abuse. First, initiative cannot be used to revise the Constitution, only to amend
it. Second, the petitioners' signatures must be validated against an existing list of voters and/or voters' identification
cards. Third, initiative is a reverse power of and by the people, not of incumbent officials and their
machinators. Fourth and most important of all, the signatures must be verified as real and genuine; not concocted,
fictitious or fabricated. The only legal way to do this is to enable the Commission on Elections to conduct a nationwide
verification process as mandated by the Constitution and the law. Such verification, it bears stressing, is subject to review
by this Court.

"There were, by the most generous estimate, only a million people who gathered at EDSA in 1986, and yet they changed
the history of our country. PIRMA claims six times that number, not just from the National Capital Region but from all over
the country. Is this claim through the invention of its novel theory of statutory insufficiency, the Court's majority has stifled
the only legal method of determining whether PIRMA is real or not, whether there is indeed a popular clamor to lift term
limits of elected officials, and whether six million voters want to initiate amendments to their most basic law. In
suppressing a judicial answer to such questions, the Court may have unwittingly yielded to PIRMA the benefit of the legal
presumption of legality and regularity. In its misplaced zeal to exterminate the rats, it burned down the whole house. It
unceremoniously divested the people of a basic constitutional right.

In both Opinions, I concluded that we must implement "the right thing [initiative] in the right way at the right time and for the right
reason."

In the present case, I steadfastly stand by my foregoing Opinions in Santiago and PIRMA. Tested against them, the present Petition
of Raul Lambino and Erico Aumentado must be DISMISSED. Unfortunately, the right thing is being rushed in the wrong way and for
the wrong reasons. Let me explain.

No Grave Abuse

of Discretion by Comelec

As in PIRMA, I find no grave abuse of discretion in Comelec's dismissal of the Lambino Petition. After all, the Commission merely
followed the holding in Santiago permanently

____________________

"In the ultimate, the mission of the judiciary is to discover truth and to make it prevail. This mission is undertaken not only
to resolve the vagaries of present events but also to build the pathways of tomorrow. The sum total of the entire process
of adversarial litigation is the verity of facts and the application of law thereto. By the majority cop-out in this mission of
discovery, our country and our people have been deprived not only of a basic constitutional right, as earlier noted, but also
of the judicial opportunity to verify the truth."

enjoining the poll body "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."

Indeed, the Comelec did not violate the Constitution, the laws or any jurisprudence.4 Neither can whim, caprice, arbitrariness or
personal bias be attributed to the Commission.5 Quite the contrary, it prudently followed this Court's jurisprudence
in Santiago and PIRMA. Even assuming arguendo that Comelec erred in ruling on a very difficult and unsettled question of law, this
Court still cannot attribute grave abuse of discretion to the poll body with respect to that action. 6

The present Lambino Petition is in exactly the same situation as that of PIRMA in 1997. The differences pointed out by Justice
Reynato S. Puno are, with due respect, superficial. It is argued that, unlike the present Lambino Petition, PIRMA did not contain
verified signatures. These are distinctions that do not make a difference. Precisely, Justice Puno is urging a remand, because the
verification issue is "contentious" and remains unproven by petitioners. Clearly, both the PIRMA and the Lambino Petitions contain
unverified signatures. Therefore, they both deserve the same treatment: DISMISSAL.

Besides, the only reason given in the unanimous Resolution on PIRMA v. Comelec was that the Commission had "only complied"
with this Court's Decision in Santiago, the same reason given by Comelec in this case. The Separate Opinions in PIRMA gave no
other reason. No one argued, even remotely, that the PIRMA Petition should have been dismissed because the signatures were
unverified.

To stress, I adhere to my Opinion in PIRMA that, "[b]eing a constitutional requirement, the number of signatures becomes a
condition precedent to the filing of the petition, and is jurisdictional.7 Without those signatures, the Comelec shall motu proprio reject
the petition."

So, until and unless Santiago is revisited and changed by this Court or the legal moorings of the exercise of the right are
substantially changed, the Comelec cannot be faulted for acting in accord with this Court's pronouncements. Respondent
Commission has no discretion, under any guise, to refuse enforcement of any final decision of this Court.8 The refusal of the poll
body to act on the Lambino Petition was its only recourse. Any other mode of action would appear not only presumptuous, but also
contemptuous. It would have constituted defiance of the Court and would have surely been struck down as grave abuse of
discretion and contumacious disregard of the supremacy of this Court as the final arbiter of justiciable controversies.

Even assuming further that this Court rules, as I believe it should (for the reasons given in my Opinions in Santiago and PIRMA),
that Republic Act 6735 is indeed sufficient to implement an initiative to amend the Constitution, still, no grave abuse of discretion can
be attributed to the Comelec for merely following prevailing jurisprudence extant at the time it rendered its ruling in question.

Only Amendments,

Not Revisions

I reiterate that only amendments, not revisions, may be the proper subject of an initiative to change the Constitution. This principle is
crystal clear from even a layperson's reading of the basic law.9

I submit that changing the system of government from presidential to parliamentary and the form of the legislature from bicameral to
unicameral contemplates an overhaul of the structure of government. The ponencia has amply demonstrated that the merger of the
legislative and the executive branches under a unicameral-parliamentary system, "[b]y any legal test and under any jurisdiction," will
"radically alter the framework of government as set forth in the Constitution." Indeed, the proposed changes have an overall
implication on the entire Constitution; they effectively rewrite its most important and basic provisions. The prolixity and complexity of
the changes cannot be categorized, even by semantic generosity, as "amendments."

In addition, may I say that of the three modes of changing the Constitution, revisions (or amendments) may be proposed only
through the first two: by Congress or by a constitutional convention. Under the third mode -- people's initiative -- only amendments
are allowed. Many of the justices' Opinions have cited the historical, philosophical and jurisprudential bases of their respective
positions. I will not add to the woes of the reader by reiterating them here.

Suffice it to say that, to me, the practical test to differentiate an amendment from a revision is found in the Constitution itself: a
revision may be done only when the proposed change can be drafted, defined, articulated, discussed and agreed upon after a
mature and democratic debate in a deliberative body like Congress or a Convention. The changes proposed must necessarily be
scrutinized, as their adoption or non-adoption must result from an informed judgment.

Indeed, the constitutional bodies that drafted the 1935, the 1972 and the 1987 Constitutions had to spend many months of
purposeful discussions, democratic debates and rounds of voting before they could agree on the wordings covering the philosophy,
the underlying principles, and the structure of government of our Republic.

Verily, even bills creating or changing the administrative structure of local governments take several weeks or even months of
drafting, reading, and debating before Congress can approve them. How much more when it comes to constitutional changes?

A change in the form of government of our country from presidential-bicameral to parliamentary-unicameral is monumental. Even
the initiative proponents admit this fact. So, why should a revision be rammed down our people's throats without the benefit of
intelligent discussion in a deliberative assembly?

Added to the constitutional mandate barring revisions is the provision of RA 6735 expressly prohibiting petitions for initiative from
"embracing more than one subject matter."10 The present initiative covers at least two subjects: (1) the shift from a presidential to a
parliamentary form of government; and (2) the change from a bicameral to a unicameral legislature.11 Thus, even under Republic Act
6735 -- the law that Justice Puno and I hold to be sufficient and valid -- the Lambino Petition deserves dismissal.
12 Percent and 3 Percent Thresholds
Not Proven by Petitioners

The litmus test of a people's petition for initiative is its ability to muster the constitutional requirement that it be supported by at least
12 percent of the registered voters nationwide, of which at least 3 percent of the registered voters in every legislative district must be
represented. As pointed out by Intervenors One Voice, Inc., et al., however, records show that there was a failure to meet the
minimum percentages required.12

Even Justice Puno concedes that the 12 percent and 3 percent constitutional requirements involve "contentious facts," which have
not been proven by the Lambino Petition. Thus, he is urging a remand to the Comelec.

But a remand is both imprudent and futile. It is imprudent because the Constitution itself mandates the said requisites of an initiative
petition. In other words, a petition that does not show the required percentages is fatally defective and must be dismissed, as the
Delfin Petition was, in Santiago.

Furthermore, as the ponencia had discussed extensively, the present Petition is void and unconstitutional. It points out that the
Petition dismally fails to comply with the constitutional requirement that an initiative must be directly proposed by the people.
Specifically, the ponencia has amply established that petitioners were unable to show that the Lambino Petition contained, or
incorporated by attachment, the full text of the proposed changes.

So, too, a remand is futile. Even if the required percentages are proven before the Commission, the Petition must still be dismissed
for proposing a revision, not an amendment, in gross violation of the Constitution. At the very least, it proposes more than one
subject, in violation of Republic Act 6735.

Summation

Petitioners plead with this Court to hear the voice of the people because, in the words of Justice Puno who supports them, the
"people's voice is sovereign in a democracy."

I, too, believe in heeding the people's voice. I reiterate my Separate Opinion in PIRMA that "initiative is a democratic method of
enabling our people to express their will and chart their history. x x x. I believe that Filipinos have the ability and the capacity to rise
above themselves, to use this right of initiative wisely and maturely, and to choose what is best for themselves and their posterity."

This belief will not, however, automatically and blindly result in an initiative to change the Constitution, because the present Petition
violates the following:

The Constitution (specifically Article XVII, which allows only amendments, not revisions, and requires definite percentages of
verified signatures)

The law (specifically, Republic Act 6735, which prohibits petitions containing more than one subject)

Jurisprudence (specifically, PIRMA v. Comelec, which dismissed the Petition then under consideration on the ground that, by
following the Santiago ruling, the Comelec had not gravely abused its discretion).

I submit further that a remand of the Lambino Petition is both imprudent and futile. More tellingly, it is a cop-out, a hand-
washing already discredited 2000 years ago. Instead of finger-pointing, I believe we must confront the issues head on, because the
people expect no less from this august and venerable institution of supreme justice.

Epilogue

At bottom, the issue in this case is simply the Rule of Law.13 Initiative, like referendum and recall, is a treasured feature of the
Filipino constitutional system. It was born out of our world-admired and often-imitated People Power, but its misuse and abuse must
be resolutely rejected. Democracy must be cherished, but mob rule vanquished.

The Constitution is a sacred social compact, forged between the government and the people, between each individual and the rest
of the citizenry. Through it, the people have solemnly expressed their will that all of them shall be governed by laws, and their rights
limited by agreed-upon covenants to promote the common good. If we are to uphold the Rule of Law and reject the rule of the
mob, we must faithfully abide by the processes the Constitution has ordained in order to bring about a peaceful, just and humane
society. Assuming arguendo that six million people allegedly gave their assent to the proposed changes in the Constitution, they are
nevertheless still bound by the social covenant -- the present Constitution -- which was ratified by a far greater majority almost
twenty years ago.14 I do not denigrate the majesty of the sovereign will; rather, I elevate our society to the loftiest perch, because our
government must remain as one of laws and not of men.
Upon assuming office, each of the justices of the Supreme Court took a solemn oath to uphold the Constitution. Being the protectors
of the fundamental law as the highest expression of the sovereign will, they must subject to the strictest scrutiny any attempt to
change it, lest it be trivialized and degraded by the assaults of the mob and of ill-conceived designs. The Court must single-
mindedly defend the Constitution from bogus efforts falsely attributed to the sovereign people.

The judiciary may be the weakest branch of government. Nonetheless, when ranged against incessant voices from the more
powerful branches of government, it should never cower in submission. On the other hand, I daresay that the same weakness of the
Court becomes its strength when it speaks independently through decisions that rightfully uphold the supremacy of the Constitution
and the Rule of Law. The strength of the judiciary lies not in its lack of brute power, but in its moral courage to perform its
constitutional duty at all times against all odds. Its might is in its being right.15

During the past weeks, media outfits have been ablaze with reports and innuendoes about alleged carrots offered and sticks drawn
by those interested in the outcome of this case.16 There being no judicial proof of these allegations, I shall not comment on them for
the nonce, except to quote the Good Book, which says, "There is nothing hidden that will not be revealed, and nothing secret that
will not be known and come to light."17

Verily, the Supreme Court is now on the crossroads of history. By its decision, the Court and each of its members shall be judged by
posterity. Ten years, fifty years, a hundred years -- or even a thousand years -- from now, what the Court did here, and how each
justice opined and voted, will still be talked about, either in shame or in pride. Indeed, the hand-washing of Pontius Pilate, the
abomination of Dred Scott, and the loathing of Javellana still linger and haunt to this day.

Let not this case fall into the same damnation. Rather, let this Court be known throughout the nation and the world for
its independence, integrity, industry and intelligence.

WHEREFORE, I vote to DISMISS the Petition.

ARTEMIO V. PANGANIBAN
Chief Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, Petitioners,
vs.
THE COMMISSION ON ELECTIONS, ET AL., Respondents.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A. Q. SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, JR. and Commissioners RESURRECCION Z.
BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter
Doe, Respondents.

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

SEPARATE OPINION

YNARES-SANTIAGO, J.:

I agree with the opinion of our esteemed colleague, Justice Reynato Puno, that the Court's ruling in Santiago v. COMELEC1 is not a
binding precedent. However, it is my position that even if Santiago were reversed and Republic Act No. 6735 (R.A. 6735) be held as
sufficient law for the purpose of people's initiative to amend the Constitution, the petition for initiative in this case must nonetheless
be dismissed.
There is absolutely no showing here that petitioners complied with R.A. 6735, even as they blindly invoke the said law to justify their
alleged people's initiative. Section 5(b) of R.A. 6735 requires that "[a] petition for an initiative on the 1987 Constitution must have at
least twelve per centum (12%) of the total number of registered voters as signatories, of which every legislative district must be
represented by at least three per centum (3%) of the registered voters therein." On the other hand, Section 5(c)2 of the same law
requires that the petition should state, among others, the proposition3 or the "contents or text of the proposed law sought to be
enacted, approved or rejected, amended or repealed." If we were to apply Section 5(c) to an initiative to amend the Constitution, as
petitioners submit, the petition for initiative signed by the required number of voters should incorporate therein a text of the proposed
changes to the Constitution. However, such requirement was not followed in the case at bar.

During the oral arguments, petitioner Lambino admitted that they printed a mere 100,000 copies of the text of the proposed changes
to the Constitution. According to him, these were subsequently distributed to their agents all over the country, for attachment to the
sheets of paper on which the signatures were to be affixed. Upon being asked, however, if he in fact knew whether the text was
actually attached to the signature sheets which were distributed for signing, he said that he merely assumed that they were. In other
words, he could not tell the Court for certain whether their representatives complied with this requirement.

The petition filed with the COMELEC, as well as that which was shown to this Court, indubitably establish that the full text of the
proposed changes was not attached to the signature sheets. All that the signature sheets contained was the general proposition and
abstract, which falls short of the full text requirement of R.A. 6735.

The necessity of setting forth the text of the proposed constitutional changes in the petition for initiative to be signed by the people
cannot be seriously disputed. To begin with, Article XVII, Section 2 of the Constitution unequivocally states that "[a]mendments 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." Evidently, for the people to propose amendments to the Constitution, they must, in the first instance, know
exactly what they are proposing. It is not enough that they merely possess a general idea of the proposed changes, as the
Constitution speaks of a "direct" proposal by the people.

Although the framers of the Constitution left the matter of implementing the constitutional right of initiative to Congress, it might be
noted that they themselves reasonably assumed that the draft of the proposed constitutional amendments would be shown to the
people during the process of signature gathering. Thus

MR. RODRIGO. Section 2 of the complete committee report provides: "upon petition of at least 10 percent of the
registered voters." How will we determine that 10 percent has been achieved? How will the voters manifest their desire, is
it by signature?

MR. SUAREZ. Yes, by signatures.

MR. RODRIGO. Let us look at the mechanics. Let us say some voters want to propose a constitutional amendment. Is the
draft of the proposed constitutional amendment ready to be shown to the people when they are asked to sign?

MR. SUAREZ. That can be reasonably assumed, Madam President.

MR. RODRIGO: What does the sponsor mean? The draft is ready and shown to them before they sign. Now, who
prepares the draft?

MR. SUAREZ: The people themselves, Madam President.4

It may thus be logically assumed that even without Section 5(c) of R.A. 6735, the full text of the proposed changes must necessarily
be stated in or attached to the initiative petition. The signatories to the petition must be given an opportunity to fully comprehend the
meaning and effect of the proposed changes to enable them to make a free, intelligent and well-informed choice on the matter.

Needless to say, the requirement of setting forth the complete text of the proposed changes in the petition for initiative is a
safeguard against fraud and deception. If the whole text of the proposed changes is contained in or attached to the petition,
intercalations and riders may be duly avoided. Only then can we be assured that the proposed changes are truly of the people and
that the signatories have been fully apprised of its implications.

If a statutory provision is essential to guard against fraud, corruption or deception in the initiative and referendum process, such
provision must be viewed as an indispensable requirement and failure to substantially comply therewith is fatal. 5 The failure of
petitioners in this case to comply with the full text requirement resultantly rendered their petition for initiative fatally defective.

The petition for initiative is likewise irretrievably infirm because it violates the one subject rule under Section 10(a) of R.A. 6735:
SEC. 10. Prohibited Measures. The following cannot be the subject of an initiative or referendum petition:

(a) No petition embracing more than one subject shall be submitted to the electorate; x x x

The one subject rule, as relating to an initiative to amend the Constitution, has the same object and purpose as the one subject-one
bill rule embodied in Article VI, Section 26(1)6 of the Constitution.7 To elaborate, the one subject-one bill rule was designed to do
away with the practice of inserting two or more unrelated provisions in one bill, so that those favoring one provision would be
compelled to adopt the others. By this process of log-rolling, the adoption of both provisions could be accomplished and ensured,
when neither, if standing alone, could succeed on its own merits.

As applied to the initiative process, the one subject rule is essentially designed to prevent surprise and fraud on the electorate. It is
meant to safeguard the integrity of the initiative process by ensuring that no unrelated riders are concealed within the terms of the
proposed amendment. This in turn guarantees that the signatories are fully aware of the nature, scope and purpose of the proposed
amendment.

Petitioners insist that the proposed changes embodied in their petition for initiative relate only to one subject matter, that is the shift
from presidential to a parliamentary system of government. According to petitioners, all of the other proposed changes are merely
incidental to this main proposal and are reasonably germane and necessary thereto. 8 An examination of the text of the proposed
changes reveals, however, that this is not the case.

The proposed changes to the Constitution cover other subjects that are beyond the main proposal espoused by the petitioners.
Apart from a shift from the presidential to a parliamentary form of government, the proposed changes include the abolition of one
House of Congress,9 and the convening of a constituent assembly to propose additional amendments to the Constitution.10 Also
included within its terms is an omnibus declaration that those constitutional provisions under Articles VI and VII, which are
inconsistent with the unicameral-parliamentary form of government, shall be deemed amended to conform thereto.

It is not difficult to see that while the proposed changes appear to relate only to a shift in the form of government, it actually seeks to
affect other subjects that are not reasonably germane to the constitutional alteration that is purportedly sought. For one, a shift to a
parliamentary system of government does not necessarily result in the adoption of a unicameral legislature. A parliamentary system
can exist in many different "hybrid" forms of government, which may or may not embrace unicameralism.11 In other words, the shift
from presidential to parliamentary structure and from a bicameral to a unicameral legislature is neither the cause nor effect of the
other.

I also fail to see the relation of convening a constituent assembly with the proposed change in our system of government. As a
subject matter, the convening of a constituent assembly to amend the Constitution presents a range of issues that is far removed
from the subject of a shift in government. Besides, the constituent assembly is supposed to convene and propose amendments to
the Constitution after the proposed change in the system of government has already taken place. This only goes to show that the
convening of the constituent assembly is not necessary to effectuate a change to a parliamentary system of government.

The omnibus statement that all provisions under Articles VI and VII which are inconsistent with a unicameral-parliamentary system
of government shall be deemed amended is equally bothersome. The statement does not specify what these inconsistencies and
amendments may be, such that everyone is left to guess the provisions that could eventually be affected by the proposed changes.
The subject and scope of these automatic amendments cannot even be spelled out with certainty. There is thus no reasonable
measure of its impact on the other constitutional provisions.

The foregoing proposed changes cannot be the subject of a people's initiative under Section 2, Article XVII of the Constitution.
Taken together, the proposed changes indicate that the intendment is not simply to effect substantial amendments to the
Constitution, but a revision thereof. The distinction between an amendment and revision was explained by Dean Vicente G. Sinco,
as follows:

"Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention
of an act to amend is not to consider the advisability of changing the entire constitution or of considering that
possibility. The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed
essential on account of changed conditions or to suppressportions of it that seem obsolete, or dangerous, or misleading in
their effect."12
The foregoing traditional exposition of the difference between amendment and revision has indeed guided us throughout our
constitutional history. However, the distinction between the two terms is not, to my mind, as significant in the context of our past
constitutions, as it should be now under the 1987 Constitution. The reason for this is apparent. Under our past constitutions, it was
Congress alone, acting either as a constituent assembly or by calling out a constitutional convention, that exercised authority to
either amend or revise the Constitution through the procedures therein described. Although the distinction between the two terms
was theoretically recognized under both the 1935 and 1973 Constitutions, the need to highlight the difference was not as material
because it was only Congress that could effect constitutional changes by choosing between the two modalities.

However, it is different now under the 1987 Constitution. Apart from providing for the two modes of either Congress constituting itself
as a constituent assembly or calling out for a constitutional convention, a third mode was introduced for proposing changes to the
Constitution. This mode refers to the people's right to propose amendments to the fundamental law through the filing of a petition for
initiative.

Otherwise stated, our experience of what constitutes amendment or revision under the past constitutions is not determinative of
what the two terms mean now, as related to the exercise of the right to propose either amendments or revision. The changes
introduced to both the Constitutions of 1935 and 1973 could have indeed been deemed an amendment or revision, but the authority
for effecting either would never have been questioned since the same belonged solely to Congress. In contrast, the 1987
Constitution clearly limits the right of the people to directly propose constitutional changes to amendments only. We must
consequently not be swayed by examples of constitutional changes effected prior to the present fundamental law, in determining
whether such changes are revisory or amendatory in nature.

In this regard, it should be noted that the distinction laid down by Justice Felix Q. Antonio in Javellana v. Executive
Secretary13 related to the procedure to be followed in ratifying a completely new charter proposed by a constitutional convention.
The authority or right of the constitutional convention itself to effect such a revision was not put in issue in that case. As far as
determining what constitutes "amendments" for the purpose of a people's initiative, therefore, we have neither relevant precedent
nor prior experience. We must thus confine ourselves to Dean Sinco's basic articulation of the two terms.

It is clear from Dean Sinco's explanation that a revision may either be of the whole or only part of the Constitution. The part need not
be a substantial part as a change may qualify as a revision even if it only involves some of the important provisions. For as long as
the intention and plan to be carried out contemplate a consideration of all the provisions of the Constitution "to determine which
should be altered or suppressed, or whether the whole document should be replaced with an entirely new one," the proposed
change may be deemed a revision and not merely an amendment.

Thus, it is not by the sheer number alone of the proposed changes that the same may be considered as either an amendment or
revision. In so determining, another overriding factor is the "original intention and plan authorized to be carried out" by the proposed
changes. If the same relates to a re-examination of the entire document to see which provisions remain relevant or if it has far-
reaching effects on the entire document, then the same constitutes a revision and not a mere amendment of the Constitution.

From the foregoing, it is readily apparent that a combination of the quantitative and qualitative test is necessary in assessing what
may be considered as an amendment or revision. It is not enough that we focus simply on the physical scope of the proposed
changes, but also consider what it means in relation to the entire document. No clear demarcation line can be drawn to distinguish
the two terms and each circumstance must be judged on the basis of its own peculiar conditions. The determination lies in
assessing the impact that the proposed changes may have on the entire instrument, and not simply on an arithmetical appraisal of
the specific provisions which it seeks to affect.

In McFadden v. Jordan,14 the California Supreme Court laid down the groundwork for the combination of quantitative and qualitative
assessment of proposed constitutional changes, in order to determine whether the same is revisory or merely amendatory. In that
case, the McFadden court found the proposed changes extensive since at least 15 of the 25 articles contained in the California
Constitution would either be repealed in their entirety or substantially altered, and four new topics would be introduced. However, it
went on to consider the qualitative effects that the proposed initiative measure would have on California's basic plan of government.
It observed that the proposal would alter the checks and balances inherent in such plan, by delegating far-reaching and mixed
powers to an independent commission created under the proposed measure. Consequently, the proposal in McFadden was not only
deemed as broad and numerous in physical scope, but was also held as having a substantive effect on the fundamental
governmental plan of the State of California.

The dual aspect of the amendment/revision analysis was reiterated by the California Supreme Court in Raven v.
Deukmeijan.15 Proposition 115, as the initiative in that case was called, would vest in the United States Supreme Court all judicial
interpretative powers of the California courts over fundamental criminal defense rights in that state. It was observed that although
quantitatively, the proposition did "not seem so extensive as to change directly the substantial entirety of the Constitution by the
deletion or alteration of numerous existing provisions," the same, nonetheless, "would substantially alter the substance and integrity
of the state Constitution as a document of independent force and effect." Quoting Amador Valley Joint Union High School District v.
State Board of Equalization,16 the Raven court said:

". . . apart from a measure effecting widespread deletions, additions and amendments involving many constitutional
articles, 'even a relatively simple enactment may accomplish such far reaching changes in the nature of our basic
governmental plan as to amount to a revision also[A]n enactment which purported to vest all judicial power in the
Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of
existing articles or sections affected by such change.'" (Underscoring supplied and citations omitted)

Thus, in resolving the amendment/revision issue, the California Court examines both the quantitative and qualitative effects of a
proposed measure on its constitutional scheme. Substantial changes in either respect could amount to a revision. 17

I am persuaded that we can approach the present issue in the same manner. The experience of the courts in California is not far
removed from the standards expounded on by Dean Sinco when he set out to differentiate between amendment and revision. It is
actually consistent, not only with our traditional concept of the two terms, but also with the mindset of our constitutional framers
when they referred to the disquisition of Justice Antonio in Javellana.18 We must thus consider whether the proposed changes in this
case affect our Constitution in both its substantial physical entirety and in its basic plan of government.

The question posed is: do the proposed changes, regardless of whether these are simple or substantial, amount to a revision as to
be excluded from the people's right to directly propose amendments to the fundamental law?

As indicated earlier, we may apply the quantitative/qualitative test in determining the nature of the proposed changes. These tests
are consistent with Dean Sinco's traditional concept of amendment and revision when he explains that, quantitatively, revision "may
result in the rewriting either of the whole constitution, or the greater part of it, or perhaps only some of its provisions." In any case,
he continues, "the factor that characterizes it as an act of revision is the original intention and plan authorized to be carried out."
Unmistakably, the latter statement refers to the qualitative effect of the proposed changes.

It may thus be conceded that, quantitatively, the changes espoused by the proponents in this case will affect only two (2) out of the
eighteen (18) articles of the 1987 Constitution, namely, Article VI (Legislative Department) and Article VII (Executive Department), as
well as provisions that will ensure the smooth transition from a presidential-bicameral system to a parliamentary-unicameral
structure of government. The quantitative effect of the proposed changes is neither broad nor extensive and will not affect the
substantial entirety of the 1987 Constitution.

However, it is my opinion that the proposed changes will have serious qualitative consequences on the Constitution. The initiative
petition, if successful, will undoubtedly alter, not only our basic governmental plan, but also redefine our rights as citizens in relation
to government. The proposed changes will set into motion a ripple effect that will strike at the very foundation of our basic
constitutional plan. It is therefore an impermissible constitutional revision that may not be effected through a people's initiative.

Petitioners' main proposal pertains to the shifting of our form of government from the presidential to the parliamentary system. An
examination of their proposal reveals that there will be a fusion of the executive and legislative departments into one parliament that
will be elected on the basis of proportional representation. No term limits are set for the members of parliament except for those
elected under the party-list system whose terms and number shall be provided by law. There will be a President who shall be the
head of state, but the head of government is the Prime Minister. The latter and his cabinet shall be elected from among the
members of parliament and shall be responsible to parliament for the program of government.

The preceding proposal indicates that, under the proposed system, the executive and legislature shall be one and the same, such
that parliament will be the paramount governing institution. What this implies is that there will be no separation between the law-
making and enforcement powers of the state, that are traditionally delineated between the executive and legislature in a presidential
form of government. Necessarily, the checks and balances inherent in the fundamental plan of our U.S.-style presidential system will
be eliminated. The workings of government shall instead be controlled by the internal political dynamics prevailing in the parliament.

Our present governmental system is built on the separation of powers among the three branches of government. The legislature is
generally limited to the enactment of laws, the executive to the enforcement of laws and the judiciary to the application of laws. This
separation is intended to prevent a concentration of authority in one person or group that might lead to an irreversible error or abuse
in its exercise to the detriment of our republican institutions. In the words of Justice Laurel, the doctrine of separation of powers is
intended to secure action, to forestall overaction, to prevent despotism and obtain efficiency.19

In the proposed parliamentary system, there is an obvious lack of formal institutional checks on the legislative and executive powers
of the state, since both the Prime Minister and the members of his cabinet are drawn from parliament. There are no effective limits
to what the Prime Minister and parliament can do, except the will of the parliamentary majority. This goes against the central
principle of our present constitutional scheme that distributes the powers of government and provides for counteraction among the
three branches. Although both the presidential and parliamentary systems are theoretically consistent with constitutional democracy,
the underlying tenets and resulting governmental framework are nonetheless radically different.

Consequently, the shift from presidential to parliamentary form of government cannot be regarded as anything but a drastic change.
It will require a total overhaul of our governmental structure and involve a re-orientation in the cardinal doctrines that govern our
constitutional set-up. As explained by Fr. Joaquin Bernas, S.J., a switch from the presidential system to a parliamentary system
would be a revision because of its over-all impact on the entire constitutional structure.20 It cannot, by any standard, be deemed as a
mere constitutional amendment.
An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of
an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document
which have over-all implications for the entire document, to determine how and to what extent they should be
altered.21 (Underscoring supplied)

The inclusion of a proposal to convene a constituent assembly likewise shows the intention of the proponents to effect even more
far-reaching changes in our fundamental law. If the original intent were to simply shift the form of government to the parliamentary
system, then there would have been no need for the calling out of a constituent assembly to propose further amendments to the
Constitution. It should be noted that, once convened, a constituent assembly can do away and replace any constitutional provision
which may not even have a bearing on the shift to a parliamentary system of government. The inclusion of such a proposal reveals
the proponents' plan to consider all provisions of the constitution, either to determine which of its provisions should be altered or
suppressed or whether the whole document should be replaced with an entirely new one.

Consequently, it is not true that only Articles VI and VII are covered by the alleged people's initiative. The proposal to convene a
constituent assembly, which by its terms is mandatory, will practically jeopardize the future of the entire Constitution and place it on
shaky grounds. The plan of the proponents, as reflected in their proposed changes, goes beyond the shifting of government from
the presidential to the parliamentary system. Indeed, it could even extend to the "fundamental nature of our state as a democratic
and republican state."

To say that the proposed changes will affect only the constitution of government is therefore a fallacy. To repeat, the combined effect
of the proposed changes to Articles VI and VII and those pertaining to the Transitory Provisions under Article XVIII indubitably
establish the intent and plan of the proponents to possibly affect even the constitutions of liberty and sovereignty. Indeed, no valid
reason exists for authorizing further amendments or revisions to the Constitution if the intention of the proposed changes is truly
what it purports to be.

There is no question here that only amendments to the Constitution may be undertaken through a people's initiative and not a
revision, as textually reflected in the Constitution itself. This conclusion is inevitable especially from a comparative examination of
Section 2 in relation to Sections 1 and 4 of Article XVII, which state:

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.

SECTION 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.

xxxx

SECTION 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission of Elections of
the sufficiency of the petition. (Underscoring supplied)

It is clear that the right of the people to directly propose changes to the Constitution is limited to amendments and does not include a
revision thereof. Otherwise, it would have been unnecessary to provide for Section 2 to distinguish its scope from the rights vested
in Congress under Section 1. The latter lucidly states that Congress may propose both amendments and a revision of the
Constitution by either convening a constituent assembly or calling for a constitutional convention. Section 2, on the other hand,
textually commits to the people the right to propose only amendments by direct action.

To hold, therefore, that Section 2 allows substantial amendments amounting to revision obliterates the clear distinction in scope
between Sections 1 and 2. The intention, as may be seen from a cursory perusal of the above provisions, is to provide differing
fields of application for the three modes of effecting changes to the Constitution. We need not even delve into the intent of the
constitutional framers to see that the distinction in scope is definitely marked. We should thus apply these provisions with a
discerning regard for this distinction. Again, McFadden22 is instructive:

". . . The differentiation required is not merely between two words; more accurately it is between two procedures and
between their respective fields of application. Each procedure, if we follow elementary principles of statutory construction,
must be understood to have a substantial field of application, not to be x x x a mere alternative procedure in the same
field. Each of the two words, then, must be understood to denote, respectively, not only a procedure but also a field of
application appropriate to its procedure. The people of this state have spoken; they made it clear when they adopted
article XVIII and made amendment relatively simple but provided the formidable bulwark of a constitutional convention as
a protection against improvident or hasty (or any other) revision, that they understood that there was a real difference
between amendment and revision. We find nothing whatsoever in the language of the initiative amendment of 1911 (art.
IV, 1) to effect a breaking down of that difference. On the contrary, the distinction appears to be x x x scrupulously
preserved by the express declaration in the amendment x x x that the power to propose and vote on "amendments to the
Constitution" is reserved directly to the people in initiative proceedings, while leaving unmentioned the power and the
procedure relative to constitutional revision, which revisional power and procedure, it will be remembered, had already
been specifically treated in section 2 of article XVIII. Intervenors' contention--that any change less than a total one is but
amendatory--would reduce to the rubble of absurdity the bulwark so carefully erected and preserved. Each situation
involving the question of amendment, as contrasted with revision, of the Constitution must, we think, be resolved upon its
own facts."

Thus, our people too have spoken when they overwhelmingly ratified the 1987 Constitution, with the provisions on amendments and
revisions under Article XVII. The voice and will of our people cannot be any clearer when they limited people's initiative to mere
amendments of the fundamental law and excluded revisions in its scope. In this regard, the task of the Court is to give effect to the
people's voice, as expressed unequivocally through the Constitution.

Article XVII on amendments and revisions is called a "constitution of sovereignty" because it defines the constitutional meaning of
"sovereignty of the people." It is through these provisions that the sovereign people have allowed the expression of their sovereign
will and have canalized their powers which would otherwise be plenary. By approving these provisions, the sovereign people have
decided to limit themselves and future generations in the exercise of their sovereign power.23 They are thus bound by the
constitution and are powerless, whatever their numbers, to change or thwart its mandates, except through the means prescribed by
the Constitution itself.24

It is thus misplaced to argue that the people may propose revisions to the Constitution through people's initiative because their
representatives, whose power is merely delegated, may do so. While Section 1 of Article XVII may be considered as a provision
delegating the sovereign powers of amendment and revision to Congress, Section 2, in contrast, is a self-limitation on that sovereign
power. In the words of Cooley:

x x x Although by their constitutions the people have delegated the exercise of sovereign powers to the several
departments, they have not thereby divested themselves of the sovereignty. They retain in their own hands, so far as they
have thought it needful to do so, a power to control the governments they create, and the three departments are
responsible to and subject to be ordered, directed, changed or abolished by them. But this control and direction must be
exercised in the legitimate mode previously agreed upon. The voice of the people, acting in their sovereign capacity, can
be of legal force only when expressed at the times and under the conditions which they themselves have prescribed and
pointed out by the Constitution, or which, consistently with the Constitution, have been prescribed and pointed out for
them by statute; and if by any portion of the people, however large, an attempt should be made to interfere with the
regular working of the agencies of government at any other time or in any other mode than as allowed by existing law,
either constitutional or statutory, it would be revolutionary in character, and must be resisted and repressed by the officers
who, for the time being, represent legitimate government.25 (Underscoring supplied)

Consequently, there is here no case of "the spring rising above its source." Nor is it one where the people's sovereign power has
been relegated to a lesser plane than that of Congress. In choosing to exercise self-limitation, there is no absence or lack of even a
fraction of the sovereign power of the people since self-limitation itself is an expression of that sovereign power. The people have
chosen to delegate and limit their sovereign power by virtue of the Constitution and are bound by the parameters that they
themselves have ordained. Otherwise, if the people choose to defy their self-imposed constitutional restraints, we will be faced with
a revolutionary situation.26

It has repeatedly been emphasized that ours is a democratic and republican state.27 Even as we affirm, however, that aspect of
direct democracy, we should not forget that, first and foremost, we are a constitutional democracy. To uphold direct democracy at the
expense of the fundamental law is to sanction, not a constitutional, but an extra-constitutional recourse. This is clearly beyond the
powers of the Court who, by sovereign mandate, is the guardian and keeper of the Constitution.

IN VIEW OF THE FOREGOING, I vote to DISMISS the petition in G.R. No. 174153.

CONSUELO YNARES-SANTIAGO
Associate Justice

____________________

EN BANC

G.R. NO. 174153

RAUL L. LAMBINO AND ENRICO B. AUMENTADO TOGETHER WITH 6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), petitioners-intervenors,
RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, petitioners-intervenors,
SULONGBAYAN MOVEMENT FOUNDATION, INC., petitioner-intervenor,
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) AND VICTORINO F. BALAIS, petitioners-
intervenors,
ONEVOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V.
OPLE AND CARLOS P. MEDINA, JR., oppositors-intervenors,
ALTERNATIVE LAW GROUPS, INC., oppositor-intervenor,
ATTY. PETE QUIRINO-QUADRA, oppositor-intervenor,
BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FROUM, MIGRANTE, GABRIELA, GABRIELA
WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,LEONARDO SAN JOSE, JOJO PINEDA, DR. DARBY
SANTIAGO, AND DR. REGINALD PAMUGAS, oppositors-intervenors,
LORETA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESA HONTIVEROS-BARAQUEL, oppositors-intervenors,
LUWALHATI ANTONINO, oppositor-intervenor,
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.ESTRELLA, TOMAS C. TOLEDO, MARIANO M.
TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS AND AMADO GAT INCION, oppositors-
intervenors,
SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR. AND SENATORS SERGIO R. OSMENA III, JAMBY A.S. MADRIGAL,
LUISA P. EJERCIRO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM, AND PANFILO M. LACSON, oppositors-intervenors,
JOSEPH EJERCITO ESTRADA AND PWERSA NG MASANG PILIPINO, oppositors-intervenors,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY AND CEBU CHAPTER, oppositors-intervenors,
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA TANYA KARINA A. LAT, ANTONIO L. SALVADOR AND RANDALL C.
TABAYOYONG, oppostors-intervenors,
SENATE OF THE PHILIPPINES, REPRESENTED BY ITS PRESIDENT, MANUEL VILLAR, JR., oppositor-intervenor;

G.R. NO. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. AND RENE A. Q. SAGUISAG, petitioners,
vs.
COMMISSION ON ELECTIONS, REPRESENTED BY CHAIRMAN BENJAMIN S. ABALOS, SR. AND COMMISSIONERS
RESSURRECCION Z. BORRA, FLORENTINO A. TUASON, JR. ROMEO A. BRAWNER, RENE V. SARMIENTO AND JOHN DOE
AND PETER DOE, respondents.

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

CONCURRING OPINION

SANDOVALGUTIERREZ, J.:

Vox populi vox Dei -- the voice of the people is the voice of God. Caution should be exercised in choosing one's battlecry, lest it
does more harm than good to one's cause. In its original context, the complete version of this Latin phrase means exactly the
opposite of what it is frequently taken to mean. It originated from a holy man, the monk Alcuin, who advised Charlemagne, "nec
audiendi qui solent dicere vox populi vox Dei quum tumultuositas vulgi semper insaniae proxima sit," meaning, "And those people
should not be listened to who keep on saying, 'The voice of the people is the voice of God,' since the riotousness of the crowd is
always very close to madness."1 Perhaps, it is by providence that the true meaning of the Latin phrase is revealed upon petitioners
and their allies that they may reflect upon the sincerity and authenticity of their "people's initiative."

History has been a witness to countless iniquities committed in the name of God. Wars were waged, despotism tolerated and
oppressions justified all these transpired as man boasted of God's imprimatur. Today, petitioners and their allies hum the same
rallying call, convincing this Court that the people's initiative is the "voice of the people" and, therefore, the "voice of God." After a
thorough consideration of the petitions, I have come to realize that man, with his ingenuity and arrogance, has perfected the craft of
imitating the voice of God. It is against this kind of genius that the Court must guard itself.
The facts of the case are undisputed.

In 1996, the Movement for People's Initiative sought to exercise the power of initiative under Section 2, Article XVII of the
Constitution which reads:

Section 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.

The exercise was thwarted by a petition for prohibition filed with this Court by Senator Miriam Defensor Santiago, et al., entitled
"Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin, petitioners, v. Commission on Elections (COMELEC), Jesus
Delfin, Alberto Pedrosa and Carmen Pedrosa, in their capacities as founding members of the People's Initiative for Reforms,
Modernization and Action (PIRMA), respondents."2 The case was docketed as G.R. No. 127325. On March 19, 1997, this Court
rendered its Decision in favor of petitioners, holding that Republic Act No. 6735 (R.A. No. 6735), An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, is "incomplete, inadequate, or wanting in essential terms and
conditions insofar as initiative on amendments to the Constitution is concerned." A majority of eight (8) Justices fully concurred with
this ruling, while five (5) subscribed to the opposite view. One (1) opined that there is no need to rule on the adequacy of R.A. No.
6735.

On motion for reconsideration, two (2) of the eight (8) Justices reconsidered their positions. One (1) filed an inhibition and the other
one (1) joined the minority opinion. As a consequence, of the thirteen (13) Justices who participated in the deliberation, six (6) voted
in favor of the majority opinion, while the other six (6) voted in favor of the minority opinion. 3

A few months thereafter, or on September 23, 1997, the Court dismissed a similar case, entitled People's Initiative for Reform,
Modernization and Action (PIRMA) v. Commission on Elections4 on the ground that the COMELEC did not commit grave abuse of
discretion when it dismissed PIRMA's Petition for Initiative to Propose Amendments to the Constitution "it appearing that that it only
complied with the dispositions in the Decision of the Court in G.R. no. 127325 (Santiago v. COMELEC) promulgated on March 19,
1997, and its Resolution of June 10, 1997." Seven (7) Justices voted that there was no need to re-examine its ruling, as regards the
issue of the sufficiency of R.A. No. 6735. Another Justice concurred, but on the different premise that the case at bar is not the
proper vehicle for such re-examination. Five (5) Justice opined otherwise.

This time, another group known as Sigaw ng Bayan, in coordination with the Union of Local Authorities of the Philippines (ULAP),
have gathered signatures in support of the proposed amendments to the Constitution, which entail a change in the form of
government from bicameral-presidential to unicameral-parliamentary, thus:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed
of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and
cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day
of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his
district for a term of five years without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from
the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime
Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of
Parliament from among themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows:
Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the
thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a
vote of two thirds of all the members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of
both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad
seriatium up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be
amended to conform with a unicameral parliamentary form of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of Parliament"
and any and all references to the "President" and/or "Acting President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby be amended and Sections 7, 8, 9, 10, 11 and 12
which are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament;" that any and all references therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of
Representatives" shall be changed to read as "Member(s) of Parliament" and any and all references to the "President"
and/or "Acting President" shall be changed to read "Prime Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are
heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament
and shall preside over its sessions for the election of the interim Prime Minister and until the Speaker shall have been
elected by a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June
2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament which shall be synchronized and
held simultaneously with the election of all local government officials. The duty elected Prime Minister shall continue to
exercise and perform the powers, duties and responsibilities of the interim Prime Minister until the expiration of the term of
the incumbent President and Vice President.

Sigaw ng Bayan prepared signature sheets, and written on its upper right hand portion is the abstract of the proposed amendments,
quoted as follows:

Abstract: Do you approve of the amendment of Article VI and VII of the 1987 Constitution, changing the form of
government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to
achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions
for the orderly shift from one system to another?
On August 25, 2006, Raul L. Lambino and Enrico B. Aumentado, herein petitioners, filed with the COMELEC a Petition for Initiative
to Amend the Constitution.5 Five (5) days thereafter, they filed an Amended Petition alleging that they are filing the petition in their
own behalf and together with some 6.3 million registered voters who have affixed their signatures on the signature sheets attached
thereto. They claimed that the signatures of registered voters appearing on the signature sheets, constituting at least twelve per
cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per cent (3%) of all
the registered voters, were verified by their respective city or municipal election officers.

Several organizations opposed the petition. 6

In a Resolution dated August 31, 2006, the COMELEC denied due course to the petition, citing as basis this Court's ruling
in Santiago, permanently enjoining it "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."

Hence, the present petition for certiorari and mandamus praying that this Court set aside the COMELEC Resolution and direct the
latter tocomply with Section 4, Article XVII of the Constitution, which provides:

Sec. 4 x x x

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.

I vote to dismiss the petition of Lambino, et al. in G.R. No. 174153 and grant the petition of Mar-len Abigail Binay, et al. in G.R. No.
174299. Here, petitioners pray that the COMELEC Chairman and Commissioners be required to show why they should not be
punished for contempt7 of court for disregarding the permanent injunction issued by this Court in Santiago.

I
Respondent COMELEC did not act with grave abuse of discretion

Without necessarily brushing aside the other important issues, I believe the resolution of the present petition hinges on this singular
issue -- did the COMELEC commit grave abuse of discretion when it denied Lambino, et al.'s petition for initiative to amend the
Constitution on the basis of this Court's Decision in Santiago v. COMELEC?

In other words, regardless of how the other remaining issues are resolved, still, the ultimate yardstick is the attendance of "grave
abuse of discretion" on the part of the COMELEC.

Jurisprudence teaches that an act of a court or tribunal may only be considered as committed in grave abuse of discretion when the
same was performed in a capricious or whimsical exercise of judgment. The abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to 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 personal hostility.8

The Resolution of respondent COMELEC denying due course to the petition for initiative on the basis of a case (Santiago) decided
by this Court cannot, in any way, be characterized as "capricious or whimsical," "patent and gross," or "arbitrary and despotic." On
the contrary, it was the most prudent course to take. It must be stressed that in Santiago, this Court permanently enjoins respondent
COMELEC "from entertaining or taking cognizance of any petition for initiative on amendments to the Constitution until a sufficient
law shall have been validly enacted." It being a fact that Congress has not enacted a sufficient law, respondent COMELEC has no
alternative but to adhere to Santiago. Otherwise, it is vulnerable to a citation for contempt. As succinctly stated by Chief Justice
Artemio V. Panganiban (then Associate Justice) in his Separate Opinion in the subsequent case of PIRMA vs. COMELEC:9

x x x I cannot fault the Comelec for complying with the ruling even if it, too, disagreed with said decision's ratio decidendi.
Respondent Comelec was directly enjoined by the highest Court of the land. It had no choice but to obey. Its obedience
cannot constitute grave abuse of discretion. Refusal to act on the PIRMA petition was the only recourse open to the
Comelec. Any other mode of action would have constituted defiance of the Court and would have been struck down as
grave abuse of discretion and contumacious disregard of this Court's supremacy as the final arbiter of justiciable
controversies.

It need not be emphasized that in our judicial hierarchy, this Court reigns supreme. All courts, tribunals and administrative bodies
exercising quasi-judicial functions are obliged to conform to its pronouncements. It has the last word on what the law is; it is the final
arbiter of any justifiable controversy. In other words, there is only one Supreme Court from whose decisions all other courts should
take their bearings.10 As a warning to lower court judges who would not adhere to its rulings, this Court, in People v. Santos,11 held:

Now, if a judge of a lower Court feels, in the fulfillment of his mission of deciding cases, that the application of a doctrine
promulgated by this Superiority is against his way of reasoning, or against his conscience, he may state his opinion on the
matter, but rather than disposing of the case in accordance with his personal views he must first think that it is his duty to
apply the law as interpreted by the Highest Court of the Land, and that any deviation from a principle laid down by the
latter would unavoidably cause, as a sequel, unnecessary inconveniences, delays and expenses to the litigants. And if
despite of what is here said, a Judge still believes that he cannot follow Our rulings, then he has no other alternative than
to place himself in the position that he could properly avoid the duty of having to render judgment on the case concerned
(Art. 9, C.C.), and he has only one legal way to do that.

Clearly, respondent COMELEC did not gravely abuse its discretion in dismissing the petition of Lambino, et al. for it merely followed
this Court's ruling in Santiago.

Significantly, in PIRMA vs. COMELEC,12 a unanimous Court implicitly recognized that its ruling in Santiago is the established
doctrine and that the COMELEC did not commit grave abuse of discretion in invoking it, thus:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions of this
Court in G.R. No. 127325 promulgated on March 19, 1997, and its resolution on June 10, 1997.

Indeed, I cannot characterize as a "grave abuse of discretion" the COMELEC's obedience and respect to the pronouncement of this
Court in Santiago.

II
The doctrine of stare decisis
bars the re-examination of Santiago

It cannot be denied that in Santiago, a majority of the members of this Court or eight (8) Justices (as against five (5) Justices)
concurred in declaring R.A. No. 6735 an insufficient law. When the motion for reconsideration was denied via an equally-divided
Court or a 6-6 vote, it does not mean that the Decision was overturned. It only shows that the opposite view fails to muster enough
votes to modify or reverse the majority ruling. Therefore, the original Decision was upheld.13 In Ortigas and Company
Limited Partnership vs. Velasco,14 this Court ruled that the denial of a motion or reconsideration signifies that the ground relied upon
have been found, upon due deliberation, to be without merit, as not being of sufficient weight to warrant a modification of the
judgment or final order.

With Santiago being the only impediment to the instant petition for initiative, petitioners persistently stress that the doctrine of stare
decisis does not bar its re-examination.

I am not convinced. The maxim stare decisis et non quieta movere translates "stand by the decisions and disturb not what is
settled."15 As used in our jurisprudence, it means that "once this Court has laid down a principle of law as applicable to a certain
state of facts, it would adhere to that principle and apply it to all future cases in which the facts are substantially the same as in the
earlier controversy."16

There is considerable literature about whether this doctrine of stare decisis is a good or bad one, but the doctrine is usually justified
by arguments which focus on the desirability of stability and certainty in the law and also by notions of justice and fairness. Justice
Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:

It will not do to decide the same question one way between one set of litigants and the opposite way between another. 'If
a group of cases involves the same point, the parties expect the same decision. It would be a gross injustice to decide
alternate cases on opposite principles. If a case was decided against me yesterday when I was a defendant, I shall look
for the same judgment today if I am plaintiff. To decide differently would raise a feeling of resentment and wrong in my
breast; it would be an infringement, material and moral, of my rights." Adherence to precedent must then be the rule
rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts. 17

That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation of American
philosopher William K. Frankena as to what constitutes injustice:

The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of them
is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible agent or
group; and unless that agent or group can establish that there is some relevant dissimilarity after all between the
individuals concerned and their circumstances, he or they will be guilty as charged.18

Although the doctrine of stare decisis does not prevent re-examining and, if need be, overruling prior decisions, "It is x x x a
fundamental jurisprudential policy that prior applicable precedent usually must be followed even though the case, if considered
anew, might be decided differently by the current justices. This policy x x x 'is based on the assumption that certainty, predictability
and stability in the law are the major objectives of the legal system; i.e., that parties should be able to regulate their conduct and
enter into relationships with reasonable assurance of the governing rules of law.19 Accordingly, a party urging overruling a precedent
faces a rightly onerous task, the difficulty of which is roughly proportional to a number of factors, including the age of the precedent,
the nature and extent of public and private reliance on it, and its consistency or inconsistency with other related rules of law. Here,
petitioners failed to discharge their task.

Santiago v. COMELEC was decided by this Court on March 19, 1997 or more than nine (9) years ago. During that span of time, the
Filipino people, specifically the law practitioners, law professors, law students, the entire judiciary and litigants have recognized this
Court's Decision as a precedent. In fact, the Santiago doctrine was applied by this Court in the subsequent case of PIRMA. Even
the legislature has relied on said Decision, thus, several bills have been introduced in both Houses of Congress to cure the
deficiency. I cannot fathom why it should be overturned or set aside merely on the basis of the petition of Lambino, et al. Indeed, this
Court's conclusion in Santiago 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 remains a precedent and must be upheld.

III
The proposed constitutional changes constitute revisions and not mere amendments

Article XVII of the 1987 Constitution lays down the means for its amendment and revision. Thus:

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or

(2) A Constitutional Convention.

Section 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 votes, of which every legislative district must be
represented by at least three per centum of the registered voters therein. x x x. (Emphasis supplied)

At the outset, it must be underscored that initiative and referendum, as means by which the people can directly propose changes to
the Constitution, were not provided for in the 1935 and 1973 Constitutions. Thus, under these two (2) Constitutions, there was no
demand to draw the distinction between an amendment and a revision, both being governed by a uniform process. This is not so
under our present Constitution. The distinction between an amendment and a revision becomes crucial because only amendments
are allowed under the system of people's initiative. Revisions are within the exclusive domain of Congress, upon a vote of three-
fourths of all its members, or of a Constitutional Convention.

The deliberations of the 1986 Constitutional Commission is explicit that Section 2, Article XVII covers only amendments, thus:

The sponsor, Commissioner Suarez, is recognized.

MR. SUAREZ: Thank you, Madam President.

May we respectfully call the attention of the Members of the Commission that pursuant to the mandate given us last night,
we submitted this afternoon a complete Committee Report No. 7 which embodies the proposed provision governing
initiative. This is now covered by Section 2 of the complete committee report. With the permission of the Members, may I
quote Section 2:

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. This proposal was suggested on the theory
that this matter of initiative which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision.

xxx xxx xxx

MR. MAAMBONG: Madam President, will the distinguished proponent of the amendment yield to a few questions?

MR. DAVIDE: With pleasure, Madam President.


MR. MAAMBONG: My first question, Commissioner Davide's proposed amendment on line I refers to "amendments."
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"

MR. MAAMBONG: Thank you.20

Considering that the initiative on the Constitution only permits amendments, it is imperative to examine whether petitioners'
proposed changes partake of the nature of amendments, not revisions.

The petition for initiative filed with the COMELEC by Lambino, et al. sought to amend the following provisions of the 1987
Constitution: Sections 1, 2, 3, 4, 5, 6, and 7 of Article VI (The Legislative Department); Sections 1, 2, 3 and 4 of Article VII (The
Executive Department). It further includes Article XVIII (Transitory Provisions) for the purpose of insuring an orderly transition from
the bicameral-presidential to a unicameral-parliamentary form of government.

Succinctly, the proposals envision a change in the form of government, from bicameral-presidential to unicameral-parliamentary;
conversion of the present Congress of the Philippines to an Interim National Assembly; change in the terms of Members of
Parliament; and the election of a Prime Minister who shall be vested with executive power.

Petitioners contend that the proposed changes are in the nature of amendments, hence, within the coverage of a "people's
initiative."

I disagree.

The noted constitutionalist, Father Joaquin G. Bernas, S.J., who was also a member of the 1986 Constitutional Commission,
characterized an amendment and a revision to the Constitution as follows:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of
an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision however, the
guiding original intention and plan contemplates a re-examination of the entire document, or of provisions of the document
which have over-all implications for the document to determine how and to what extent they should be altered.21

Obviously, both "revision" and amendment" connote change; any distinction between the two must be based upon the degree of
change contemplated. In Kelly v. Laing,22 the Supreme Court of Michigan made the following comparison of the two terms:

"Revision" and "amendment" have the common characteristics of working changes in the charter, and are sometimes
used in exactly the same sense but there is an essential difference between them.

"Revision" implies a reexamination of the whole law and a redraft without obligation to maintain the form, scheme, or
structure of the old. As applied to fundamental law, such as a constitution or charter, it suggests a convention to examine
the whole subject and to prepare and submit a new instrument whether the desired changes from the old are few or
many. Amendment implies continuance of the general plan and purpose of the law, with corrections to better accomplish
its purpose. Basically, revision suggests fundamental change, while amendment is a correction of detail.

Although there are some authorities which indicate that a change in a city's form of government may be accomplished by a process
of "amendment," the cases which so hold seem to involve statutes which only distinguish between amendment and totally new
charters.23 However, as in Maine law, where the statute authorizing the changes distinguishes between "charter amendment" and
"charter revision," it has been held that "(a) change in the form of government of a home rule city may be made only by revision of
the city charter, not by its amendment."24

In summary, it would seem that any major change in governmental form and scheme would probably be interpreted as a "revision"
and should be achieved through the more thorough process of deliberation.

Although, at first glance, petitioners' proposed changes appear to cover isolated and specific provisions only, however, upon careful
scrutiny, it becomes clear that the proposed changes will alter the very structure of our government and create multifarious
ramifications. In other words, the proposed changes will have a "domino effect" or, more appropriately, "ripple effect" on other
provisions of the Constitution.
At this juncture, it must be emphasized that the power reserved to the people to effect changes in the Constitution includes the
power to amend anysection in such a manner that the proposed change, if approved, would "be complete within itself, relate to one
subject and not substantially affect any other section or article of the Constitution or require further amendments to the Constitution
to accomplish its purpose."25 This is clearly not the case here.

Firstly, a shift from a presidential to a parliamentary form of government affects the well-enshrined doctrine of separation of powers
of government, embodied in our Constitution, by providing for an Executive, Legislative and Judiciary Branches. In a Parliamentary
form of government, the Executive Branch is to a certain degree, dependent on the direct or indirect support of the Parliament, as
expressed through a "vote of confidence." To my mind, this doctrine of separation of powers is so interwoven in the fabric of our
Constitution, that any change affecting such doctrine must necessarily be a revision.

In McFadden vs. Jordan,26 the California Supreme Court ruled as follows:

It is thus clear that that a revision of the Constitution may be accomplished only through ratification by the people of a
revised constitution proposed by a convention called for that purpose x x x. Consequently, if the scope of the proposed
initiative measure now before us is so broad that if such measure became law a substantial revision of our present state
Constitution would be effected, then the measure may not properly be submitted to the electorate until and unless it is first
agreed upon by a constitutional convention. x x x.

Secondly, the shift from a bicameral to a unicameral form of government is not a mere amendment, but is in actuality a revision, as
set forth in Adams v. Gunter27:

The proposal here to amend Section I of Article III of the 1968 Constitution to provide for a Unicameral Legislature affects
not only many other provisions of the Constitution but provides for a change in the form of the legislative branch of
government, which has been in existence in the United States Congress and in all of the states of the nation, except one,
since the earliest days. It would be difficult to visualize a more revolutionary change. The concept of a House and a
Senate is basic in the American form of government. It would not only radically change the whole pattern of the
government in this state and tear apart the whole fabric of the Constitution, but would even affect the physical facilities
necessary to carry on government.

Thirdly, the proposed changes, on their face, signify revisions rather than amendments, especially, with the inclusion of the following
"omnibus provision":

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamnetary form of
government, there shall be a new Article XVIII, entitled "Transitory Provisions" which shall read, as follows:

xxxxxxxxx

Section 3. Upon the expiration of the term of the incumbent President and Vice-President, with the exceptions of Section
1,2,3 and 4 of Article VII of the 1987 Constitution which are hereby amended x x x x x x and all other Sections of Article VII
shall be retained and numbered sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with
Section 1 hereof, in which case they shall be deemed amended so as to conform to a unicameral Parliamentary system of
government x x x x x x .

xxxxxxxxx

Section 4. (1) x x x

(3) Within forty-five days from ratification of these amendments, the Interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution, consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.

The above provisions will necessarily result in a "ripple effect" on the other provisions of the Constitution to make them conform to
the qualities of unicameral-parliamentary form of government. With one sweeping stroke, these proposed
provisions automatically revise some provisions of the Constitution. In McFadden, the same practice was considered by the Court to
be in the nature of substantial revision, necessitating a constitutional convention. I quote the pertinent portion of its ruling, thus:

There is in the measure itself, no attempt to enumerate the various and many articles and sections of our present
Constitution which would be affected, replaced or repealed. It purports only to add one new article but its framers found it
necessary to include the omnibus provision (subdivision (7) of section XII) that "If any section, subsection, sentence,
clause or phrase of the constitution is in conflict with any of the provisions of this article, such section, subsection,
sentence, clause, or phrase is to the extent of such conflict hereby repealed. x x x Consequently, if the scope of the
proposed intitiative measure now before us is so broad that if such measure become law a substantial revision of our
present state Constitution would be be effected, then the measure may not properly be submitted to the electorate until
and unless it is first agreed upon by a constitutional convention.28

Undoubtedly, the changes proposed by the petitioners are not mere amendments which will only affect the Articles or Sections
sought to be changed. Rather, they are in the nature of revisions which will affect considerable portions of the Constitution resulting
in the alteration of our form of government. The proposed changes cannot be taken in isolation since these are connected or
"interlocked" with the other provisions of our Constitution. Accordingly, it has been held that: "If the changes attempted are so
sweeping that it is necessary to include the provisions interlocking them, then it is plain that the plan would constitute a recasting of
the whole Constitution and this, we think, it was intended to be accomplished only by a convention under Section 2 which has not
yet been disturbed."29

I therefore conclude that since the proposed changes partake of the nature of a revision of the Constitution, then they cannot be the
subject of an initiative. On this matter, Father Bernas expressed this insight:

But why limit initiative and referendum to simple amendments? The answer, which one can easily glean from the rather
long deliberation on initiative and referendum in the 1986 Constitutional Commission, is practicality. In other words, who is
to formulate the revision or how is it to be formulated? Revision, as concretely being proposed now, is nothing less than a
rebuilding of the Philippine constitutional structure. Who were involved in formulating the structure? What debates
ensued? What records are there for future use in interpreting the provisions which may be found to be unclear?

In a deliberative body like Congress or a Constitutional Convention, decisions are reached after much purifying debate.
And while the deliberations proceed, the public has the opportunity to get involved. It is only after the work of an
authorized body has been completed that it is presented to the electorate for final judgment. Careful debate is important
because the electorate tends to accept what is presented to it even sight unseen. 30

IV
R.A. No. 6735 is insufficient to implement the People's initiative

Section 2, Article XVII of the 1987 Constitution reads:

Section 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.

On its face, Section 2 is not a self-executory provision. This means that an enabling law is imperative for its implementation. Thus,
Congress enacted R.A. No. 6735 in order to breathe life into this constitutional provision. However, as previously narrated, this Court
struck the law in Santiago for being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on
amendments to the Constitution is concerned.

The passage of time has done nothing to change the applicability of R.A. No. 6735. Congress neither amended it nor passed a new
law to supply its deficiencies.

Notwithstanding so, this Court is being persuaded to take a 360-degree turn, enumerating three (3) justifications why R.A. No. 6735
must be considered a sufficient law, thus:

1) The text of R.A. No. 6735 is replete with references to the right of people to initiate changes to the Constitution;

2) The legislative history of R.A. No. 6735 reveals the clear intent of the lawmakers to use it as instrument to implement
the people's initiative; and

3) The sponsorship speeches by the authors of R.A. No. 6735 demonstrate the legislative intent to use it as instrument to
implement people's initiative.

I regret to say that the foregoing justifications are wanting.

A thorough reading of R.A. No. 6735 leads to the conclusion that it covers only initiatives on national and local legislation. Its
references to initiatives on the Constitution are few, isolated and misplaced. Unlike in the initiatives on national and local legislation,
where R.A. No. 6735 provides a detailed, logical, and exhaustive enumeration on their implementation, 31 however, as regards
initiative on the Constitution, the law merely:
(a) mentions the word "Constitution" in Section 2;32

(b) defines "initiative on the Constitution" and includes it in the enumeration of the three systems of initiative in Section 3; 33

(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;34

(d) reiterates the constitutional requirements as to the number of voters who should sign the petition;35 and

(e) provides the date for the effectivity of the approved proposition.36

In other words, R.A. No. 6735 does not specify the procedure how initiative on the Constitution may be accomplished. This is not the
enabling law contemplated by the Constitution. As pointed out by oppositor-intervenor Alternative Law Groups Inc., since the
promulgation of the Decision in Santiago, various bills have been introduced in both Houses of Congress providing for
a complete and adequate process for people's initiative, such as:

Names, signatures and addresses of petitioners who shall be registered voters;

A statement of the provision of the Constitution or any part thereof sought to be amended and the proposed amendment;

The manner of initiation - in a congressional district through a petition by any individual, group, political party or coalition
with members in the congressional district;

The language used: the petition should be printed in English and translated in the local language;

Signature stations to be provided for;

Provisions pertaining to the need and manner of posting, that is, after the signatures shall have been verified by the
Commission, the verified signatures shall be posted for at least thirty days in the respective municipal and city halls where
the signatures were obtained;

Provisions pertaining to protests allowed any protest as to the authenticity of the signatures to be filed with the
COMELEC and decided within sixty (60) days from the filing of said protest.

None of the above necessary details is provided by R.A. No. 6735, thus, demonstrating its incompleteness and inadequacy.

V
Petitioners are not Proper Parties to
File the Petition for Initiative

VI
The Petition for Initiative Filed with the COMELEC Does not Comply with Section 2, Article XVII of the Constitution and R.A. No.
6735

I shall discuss the above issues together since they are interrelated and inseparable. The determination of whether petitioners are
proper parties to file the petition for initiative in behalf of the alleged 6.3 million voters will require an examination of whether they
have complied with the provisions of Section 2, Article XVII of the Constitution.

To reiterate, Section 2, Article XVII of the Constitution provides:

Section 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. (Underscoring supplied)

The mandate of the above constitutional provisions is definite and categorical. For a people's initiative to prosper, the following
requisites must be present:
1. It is "the people" themselves who must "directly propose" "amendments" to the Constitution;

2. The proposed amendments must be contained in "a petition of at least twelve per centum of the total number of
registered voters;" and

3. The required minimum of 12% of the total number of registered voters "must be represented by at least three per
centum of the registered voters" of "every legislative district."

In this case, however, the above requisites are not present.

The petition for initiative was filed with the COMELEC by petitioners Lambino and Aumentado, two registered voters. As shown in
the "Verification/Certification with Affidavit of Non-Forum Shopping" contained in their petition, they alleged under oath that they
have caused the preparation of the petition in their personal capacity as registered voters "and as representatives" of the supposed
6.3 million registered voters. This goes to show that the questioned petition was not initiated directly by the 6.3 million people who
allegedly comprised at least 12% of the total number of registered voters, as required by Section 2. Moreover, nowhere in the
petition itself could be found the signatures of the 6.3 million registered voters. Only the signatures of petitioners Lambino and
Aumentado were affixed therein "as representatives" of those 6.3 million people. Certainly, that is not the petition for people's
initiative contemplated by the Constitution.

Petitioners Lambino and Aumentado have no authority whatsoever to file the petition "as representatives" of the alleged 6.3 million
registered voters. Such act of representation is constitutionally proscribed. To repeat, Section 2 strictly requires that amendments to
the Constitution shall be "directly proposed by the people through initiative upon a petition of at least twelve per centum of the total
number of registered voters." Obviously, the phrase "directly proposed by the people" excludes any person acting as representative
or agent of the 12% of the total number of registered voters. The Constitution has bestowed upon the people the right
to directly propose amendments to the Constitution. Such right cannot be usurped by anyone under the guise of being the people's
representative. Simply put, Section 2 does not recognize acts of representation. For it is only "the people" (comprising the minimum
of 12% 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) who are the proper parties to initiate a petition proposing amendments to the Constitution. Verily, the
petition filed with the COMELEC by herein petitioners Lambino and Aumentado is not a people's initiative. Necessarily, it must fail.

Cororarilly, the plea that this Court should "hear" and "heed" "the people's voice" is baseless and misleading. There is no people's
voice to be heard and heeded as this petition for initiative is not truly theirs, but only of petitioners Lambino and Aumentado and their
allies.

VII
The issues at bar are not political questions.

Lambino and Aumentado, petitioners in G.R. No. 174153, vehemently argue that: (1) "the validity of the exercise of the right of the
sovereign people to amend the Constitution and their will, as expressed by the fact that over six million registered voters indicated
their support of the Petition for initiative is a purely political question;" and (2) "[t]he power to propose amendments to the
Constitution is a right explicitly bestowed upon the sovereign people. Hence, the determination by the people to exercise their right
to propose amendments under the system of initiative is a sovereign act and falls squarely within the ambit of a political question."

The "political question doctrine" was first enunciated by the US Supreme Court in Luther v. Borden.37 Faced with the difficult
question of whether the Supreme Court was the appropriate institution to define the substantive content of republicanism, the US
Supreme Court, speaking thru Mr. Justice Roger B. Taney, concluded that "the sovereignty in every State resides in the people, as
to how and whether they exercised it, was under the circumstances of the case, a political question to be settled by the political
power." In other words, the responsibility of settling certain constitutional questions was left to the legislative and executive branches
of the government.

The Luther case arose from the so-called "Dorr Rebellion" in the State of Rhode Island. Due to increased migration brought about
by the Industrial Revolution, the urban population of Rhode Island increased. However, under the 1663 Royal Charter which served
as the State Constitution, voting rights were largely limited to residents of the rural districts. This severe mal-apportionment of
suffrage rights led to the "Dorr Rebellion." Despairing of obtaining remedies for their disenfranchisement from the state government,
suffrage reformers invoked their rights under the American Declaration of Independence to "alter or abolish" the government and to
institute a new one. The reformers proceeded to call for and hold an extralegal constitutional convention, drafted a new State
Constitution, submitted the document for popular ratification, and held elections under it. The State government, however, refused to
cede power, leading to an anomalous situation in that for a few months in 1842, there were two opposing state governments
contending for legitimacy and possession of state of offices.

The Rhode Island militia, under the authority of martial law, entered and searched the house of Martin Luther, a Dorr supporter. He
brought suit against Luther Borden, a militiaman. Before the US Supreme Court, Luther's counsel argued that since the State's
archaic Constitution prevented a fair and peaceful address of grievances through democratic processes, the people of Rhode Island
had instead chosen to exercise their inherent right in popular sovereignty of replacing what they saw as an oppressive
government. The US Supreme Court deemed the controversy as non-justiciable and inappropriate for judicial resolution.

In Colgrove v. Green,38 Mr. Justice Felix Frankfurter, coined the phrase "political thicket" to describe situations where Federal courts
should not intervene in political questions which they have neither the competence nor the commission to decide. In Colgrove, the
US Supreme Court, with a narrow 4-3 vote branded the apportionment of legislative districts in Illinois "as a political question and
that the invalidation of the districts might, in requiring statewide elections, create an evil greater than that sought to be remedied."

While this Court has adopted the use of Frankfurter's "political thicket," nonetheless, it has sought to come up with a definition of the
term "political question." Thus, in Vera v. Avelino,39 this Court ruled that properly, political questions are "those questions which,
under the Constitution, are to be decided by the people in their sovereign capacity or in regard to which full discretionary authority
has been delegated to the legislative or executive branch of the government." In Taada and Macapagal v. Cuenco,40 the Court held
that the term political question connotes, in legal parlance, what it means in ordinary parlance, namely, a question of policy. It is
concerned with issues dependent upon the wisdom, not legality, of a particular measure.

In Aquino v. Enrile,41 this Court adopted the following guidelines laid down in Baker v. Carr42 in determining whether a question
before it is political, rather than judicial in nature, to wit:

1) there is a textually demonstrable constitutional commitment of the issue to a coordinate political department; or

2) there is a lack of judicially discoverable and manageable standards for resolving it; or

3) there is the sheer impossibility of deciding the matter without an initial policy determination of a kind clearly for non-
judicial discretion; or

4) there is the sheer impossibility of the Court's undertaking an independent resolution without expressing lack of respect
due the coordinate branches of government; or

5) there is an unusual need for unquestioning adherence to a political decision already made; or

6) there exists the potentiality of embarrassment arising from multifarious pronouncements by various departments on one
question.

None of the foregoing standards is present in the issues raised before this Court. Accordingly, the issues are justiciable. What is at
stake here is the legality and not the wisdom of the act complained of.

Moreover, even assuming arguendo that the issues raised before this Court are political in nature, it is not precluded from resolving
them under its expanded jurisdiction conferred upon it by Section 1, Article VIII of the Constitution, following Daza v. Singson.43 As
pointed out in Marcos v. Manglapus,44 the present Constitution limits resort to the political question doctrine and broadens the scope
of judicial power which the Court, under previous charters, would have normally and ordinarily left to the political departments to
decide.

CONCLUSION

In fine, considering the political scenario in our country today, it is my view that the so-called people's initiative to amend our
Constitution from bicameral-presidential to unicameral-parliamentary is actually not an initiative of the people, but an initiative of
some of our politicians. It has not been shown by petitioners, during the oral arguments in this case, that the 6.3 million registered
voters who affixed their signatures understood what they signed. In fact, petitioners admitted that the Constitutional provisions
sought to be amended and the proposed amendments were not explained to all those registered voters. Indeed, there will be no
means of knowing, to the point of judicial certainty, whether they really understood what petitioners and their group asked them to
sign.

Let us not repeat the mistake committed by this Court in Javellana v. The Executive Secretary.45 The Court then ruled that "This
being the vote of the majority, there is no further judicial obstacle to the new Constitution being considered in force and effect,"
although it had notice that the Constitution proposed by the 1971 Constitutional Convention was not validly ratified by the people in
accordance with the 1935 Constitution. The Court concluded, among others, that the viva voce voting in the Citizens' Assemblies
"was and is null and void ab initio." That was during martial law when perhaps majority of the justices were scared of the dictator.
Luckily at present, we are not under a martial law regime. There is, therefore, no reason why this Court should allow itself to be used
as a legitimizing authority by the so-called people's initiative for those who want to perpetuate themselves in power.
At this point, I can say without fear that there is nothing wrong with our present government structure. Consequent1y, we must not
change it. America has a presidential type of government. Yet, it thrives ideally and has become a super power. It is then safe to
conclude that what we should change are some of the people running the government, NOT the SYSTEM.

According to petitioners, the proposed amendment would effect a more efficient, more economical and more responsive
government.

Is there hope that a new breed of politicians, more qualified and capable, may be elected as members and leaders of the
unicameral-parliament? Or will the present members of the Lower House continue to hold their respective positions with limitless
terms?

Will the new government be more responsive to the needs of the poor and the marginalized? Will it be able to provide homes for the
homeless, food for the hungry, jobs for the jobless and protection for the weak?

This is a defining moment in our history. The issue posed before us is crucial with transcendental significance. And history will judge
us on how we resolve this issue shall we allow the revision of our Constitution, of which we are duty bound to guard and revere,
on the basis of a doubtful people's initiative?

Amending the Constitution involving a change of government system or structure is a herculean task affecting the entire Filipino
people and the future generations. Let us, therefore, entrust this duty to more knowledgeable people elected as members of a
Constitutional Convention.

Yes, the voice of the people is the voice of God. But under the circumstances in this case, the voice of God is not audible.

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299.

ANGELINA SANDOVAL-GUTIERREZ
Associate Justice

____________________

EN BANC

G.R. No. 174153

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
THE COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and JOHN DOE
and PETER DOE, respondents.

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

SEPARATE CONCURRING OPINION

CALLEJO, SR., J.:

I am convinced beyond cavil that the respondent Commission on Elections (COMELEC) did not commit an abuse of its discretion in
dismissing the amended petition before it. The proposals of petitioners incorporated in said amended petition are for the revision of
the 1987 Constitution. Further, the amended petition before the respondent COMELEC is insufficient in substance.

The Antecedents
On August 25, 2006, petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a petition entitled "IN THE
MATTER OF PROPOSING AMENDMENTS TO THE 1987 CONSTITUTION THROUGH A PEOPLE'S INITIATIVE: A SHIFT FROM A
BICAMERAL PRESIDENTIAL TO A UNICAMERAL PARLIAMENTARY GOVERNMENT BY AMENDING ARTICLES VI AND VII; AND
PROVIDING TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM THE PRESIDENTIAL TO THE PARLIAMENTARY
SYSTEM." The case was docketed as EM (LD)-06-01. On August 30, 2006, petitioners filed an amended petition. For brevity, it is
referred to as the petition for initiative.

Petitioners alleged therein, inter alia, that they filed their petition in their own behalf and together with those who have affixed their
signatures to the signature sheets appended thereto who are Filipino citizens, residents and registered voters of the Philippines, and
they constitute at least twelve percent (12%) of all the registered voters in the country, wherein each legislative district is
represented by at least three percent (3%) of all the registered voters therein.

Petitioners further alleged therein that the filing of the petition for initiative is based on their constitutional right to propose
amendments to the 1987 Constitution by way of people's initiative, as recognized in Section 2, Article XVII thereof, which 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."

According to petitioners, while the above provision states that "(T)he Congress shall provide for the implementation of the exercise
of this right," the provisions of Section 5(b) and (c), along with Section 7 of Republic Act (RA) 6735, 1 are sufficient enabling details
for the people's exercise of the power. The said sections of RA 6735 state:

Sec. 5. Requirements. (a) To exercise the power x x x

(b) A petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total number of
registered voters as signatories, of which every legislative district must be represented by at least three per centum (3%)
of the registered voters therein. Initiative on the Constitution may be exercised only after five (5) years from the ratification
of the 1987 Constitution and only once every five (5) years thereafter.

(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 herein;

c.5. signatures of the petitioners or registered voters; and

c.6. an abstract or summary in not more than one hundred (100) words which shall be legibly written or printed
at the top of every page of the petition.

xxxx

Sec. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters identification cards used in the immediately preceding election.

They also alleged that the COMELEC has the authority, mandate and obligation to give due course to the petition for initiative, in
compliance with the constitutional directive for the COMELEC to "enforce and administer all laws and regulations relative to the
conduct of an election, plebiscite, initiative, referendum and recall."2

Petitioners incorporated in their petition for initiative the changes they proposed to be incorporated in the 1987 Constitution and
prayed that the COMELEC issue an order:
1. Finding the Petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the Petition in Filipino and English at least twice in newspapers of general and local
circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by this Honorable
Commission of the sufficiency of this Petition, to allow the Filipino people to express their sovereign will on the
proposition.

Petitioners pray for such other reliefs deemed just and equitable in the premises.

The Ruling of the respondent COMELEC

On August 31, 2006, the COMELEC promulgated the assailed Resolution denying due course and dismissing the petition for
initiative. The COMELEC ruled that:

We agree with the petitioners that this Commission has the solemn Constitutional duty to enforce and administer all laws
and regulations relative to the conduct of, as in this case, initiative.

This mandate, however, should be read in relation to the other provisions of the Constitution particularly on initiative.

Section 2, Article XVII of the 1987 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. x x x.

The Congress shall provide for the implementation of the exercise of this right."

The aforequoted provision of the Constitution being a non-self-executory provision needed an enabling law for its
implementation. Thus, in order to breathe life into the constitutional right of the people under a system of initiative to
directly propose, enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolution, Congress
enacted RA 6735.

However, the Supreme Court, in the landmark case of Santiago v. Commission on Elections struck down the said law for
being incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned

The Supreme Court, likewise, declared that this Commission 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.

Thus, even if the signatures in the instant Petition appear to meet the required minimum per centum of the total number of
registered voters, of which every legislative district is represented by at least three per centum of the registered voters
therein, still the Petition cannot be given due course since the Supreme Court categorically declared RA 6735 as
inadequate to cover the system of initiative on amendments to the Constitution.

This Commission is not unmindful of the transcendental importance of the right of the people under a system of initiative.
However, neither can we turn a blind eye to the pronouncement of the High Court that in the absence of a valid enabling
law, this right of the people remains nothing but an "empty right," and that this Commission is permanently enjoined from
entertaining or taking cognizance of any petition for initiative on amendments to the Constitution. (Citations omitted.)

Aggrieved, petitioners elevated the case to this Court on a petition for certiorari and mandamus under Rule 65 of the Rules of Court.

The Petitioners' Case

In support of their petition, petitioners alleged, inter alia, that:

I.
THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING
TO TAKE COGNIZANCE OF, AND TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE, BECAUSE THE CITED
SANTIAGO RULING OF 19 MARCH 1997 CANNOT BE CONSIDERED THE MAJORITY OPINION OF THE SUPREME
COURT EN BANC, CONSIDERING THAT UPON ITS RECONSIDERATION AND FINAL VOTING ON 10 JUNE 1997, NO
MAJORITY VOTE WAS SECURED TO DECLARE REPUBLIC ACT NO. 6735 AS INADEQUATE, INCOMPLETE AND
INSUFFICIENT IN STANDARD.

II.

THE 1987 CONSTITUTION, REPUBLIC ACT NO. 6735, REPUBLIC ACT NO. 8189 AND EXISTING APPROPRIATION
OF THE COMELEC PROVIDE FOR SUFFICIENT DETAILS AND AUTHORITY FOR THE EXERCISE OF PEOPLE'S
INITIATIVE, THUS, EXISTING LAWS TAKEN TOGETHER ARE ADEQUATE AND COMPLETE.

III.

THE HONORABLE PUBLIC RESPONDENT COMELEC COMMITTED GRAVE ABUSE OF DISCRETION IN REFUSING
TO TAKE COGNIZANCE OF, AND IN REFUSING TO GIVE DUE COURSE TO THE PETITION FOR INITIATIVE,
THEREBY VIOLATING AN EXPRESS CONSTITUTIONAL MANDATE AND DISREGARDING AND CONTRAVENING
THE WILL OF THE PEOPLE.

A.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR
INITIATIVE FILED BY THE PETITIONERS.

1.

THE FRAMERS OF THE CONSTITUTION INTENDED TO GIVE THE PEOPLE THE POWER TO
PROPOSE AMENDMENTS AND THE PEOPLE THEMSELVES ARE NOW GIVING VIBRANT LIFE
TO THIS CONSTITUTIONAL PROVISION

2.

PRIOR TO THE QUESTIONED SANTIAGO RULING OF 19 MARCH 1997, THE RIGHT OF THE
PEOPLE TO EXERCISE THE SOVEREIGN POWER OF INITIATIVE AND RECALL HAS BEEN
INVARIABLY UPHELD

3.

THE EXERCISE OF THE INITIATIVE TO PROPOSE AMENDMENTS IS A POLITICAL QUESTION


WHICH SHALL BE DETERMINED SOLELY BY THE SOVEREIGN PEOPLE.

4.

BY SIGNING THE SIGNATURE SHEETS ATTACHED TO THE PETITION FOR INITIATIVE DULY
VERIFIED BY THE ELECTION OFFICERS, THE PEOPLE HAVE CHOSEN TO PERFORM THIS
SACRED EXERCISE OF THEIR SOVEREIGN POWER.

B.

THE SANTIAGO RULING OF 19 MARCH 1997 IS NOT APPLICABLE TO THE INSTANT PETITION FOR
INITIATIVE FILED BY THE PETITIONERS

C.

THE PERMANENT INJUNCTION ISSUED IN SANTIAGO V. COMELEC ONLY APPLIES TO THE DELFIN
PETITION.

1.
IT IS THE DISPOSITIVE PORTION OF THE DECISION AND NOT OTHER STATEMENTS IN THE
BODY OF THE DECISION THAT GOVERNS THE RIGHTS IN CONTROVERSY.

IV.

THE HONORABLE PUBLIC RESPONDENT FAILED OR NEGLECTED TO ACT OR PERFORM A DUTY MANDATED BY
LAW.

A.

THE MINISTERIAL DUTY OF THE COMELEC IS TO SET THE INITIATIVE FOR PLEBISCITE. 3

Petitioners Failed to Allege and Demonstrate All the Essential


Facts To Establish the Right to a Writ of Certiorari

Section 1, Rule 65 of the Rules of Court reads:

Sec. 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted
without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved
thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be
rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as
law and justice may require.

The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of
all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided
in the third paragraph of Section 3, Rule 46.

A writ for certiorari may issue only when the following requirements are set out in the petition and established:

(1) the writ is directed against a tribunal, a board or any officer exercising judicial or quasi-judicial functions;

(2) such tribunal, board or officer has acted without or in excess of jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction; and

(3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law. x x x4

The Court has invariably defined "grave abuse of discretion," thus:

By grave abuse of discretion is meant such capricious and whimsical exercise of judgment as is equivalent to lack of
jurisdiction, and it must be shown that the discretion was exercised arbitrarily or despotically. For certiorari to lie, there
must be a capricious, arbitrary and whimsical exercise of power, the very antithesis of the judicial prerogative in
accordance with centuries of both civil law and common law traditions.5

There is thus grave abuse of discretion on the part of the COMELEC when it acts in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its judgment amounting to lack of jurisdiction. Mere abuse of discretion is not enough. 6 The only question
involved is jurisdiction, either the lack or excess thereof, and abuse of discretion warrants the issuance of the extraordinary remedy
of certiorari only when the same is grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion,
prejudice or personal hostility. A writ of certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of
judgment.7 An error of judgment is one in which the court may commit in the exercise of its jurisdiction, which error is reversible only
by an appeal.8

In the present case, it appears from the assailed Resolution of the COMELEC that it denied the petition for initiative solely in
obedience to the mandate of this Court in Santiago v. Commission on Elections.9 In said case, the Court En Banc permanently
enjoined the COMELEC 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. When the COMELEC denied the
petition for initiative, there was as yet no valid law enacted by Congress to provide for the implementation of the system.

It is a travesty for the Court to declare the act of the COMELEC in denying due course to the petition for initiative as "capricious,
despotic, oppressive or whimsical exercise of judgment as is equivalent to lack of jurisdiction." In fact, in so doing, the COMELEC
merely followed or applied, as it ought to do, the Court's ruling in Santiago to the effect that Section 2, Article XVII of the Constitution
on the system of initiative is a non self-executory provision and requires an enabling law for its implementation. In relation thereto,
RA 6735 was found by the Court to be "incomplete, inadequate, or wanting in essential terms and conditions" to implement the
constitutional provision on initiative. Consequently, the COMELEC was "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." The decision of the Court En Banc interpreting RA 6735 forms part of the legal
system of the Philippines.10 And no doctrine or principle laid down by the Court En Banc may be modified or reversed except by the
Court En Banc,11 certainly not by the COMELEC. Until the Court En Banc modifies or reverses its decision, the COMELEC is bound
to follow the same.12 As succinctly held in Fulkerson v. Thompson:13

Whatever was before the Court, and is disposed of, is considered as finally settled. The inferior court is bound by the
judgment or decree as the law of the case, and must carry it into execution according to the mandate. The inferior court
cannot vary it, or judicially examine it for any other purpose than execution. It can give no other or further relief as to any
matter decided by the Supreme Court even where there is error apparent; or in any manner intermeddle with it further
than to execute the mandate and settle such matters as have been remanded, not adjudicated by the Supreme Court.

The principles above stated are, we think, conclusively established by the authority of adjudged cases. And any further
departure from them would inevitably mar the harmony of the whole judiciary system, bring its parts into conflict, and
produce therein disorganization, disorder, and incalculable mischief and confusion. Besides, any rule allowing the inferior
courts to disregard the adjudications of the Supreme Court, or to refuse or omit to carry them into execution would be
repugnant to the principles established by the constitution, and therefore void.14

At this point, it is well to recall the factual context of Santiago as well as the pronouncement made by the Court therein. Like
petitioners in the instant case, in Santiago, Atty. Jesus Delfin, the People's Initiative for Reforms, Modernization and Action (PIRMA),
et al., invoked Section 2, Article XVII of the Constitution as they filed with the COMELEC a "Petition to Amend the Constitution, to
Lift Term Limits of Elective Officials, By People's Initiative" (the Delfin petition). They asked the COMELEC to issue an order fixing
the time and date for signature gathering all over the country; causing the necessary publications of said order and their petition in
newspapers of general and local circulation and instructing municipal election registrars in all regions all over the country and to
assist petitioners in establishing signing stations. Acting thereon, the COMELEC issued the order prayed for.

Senator Miriam Santiago, et al. forthwith filed with this Court a petition for prohibition to enjoin the COMELEC from implementing its
order. The Court, speaking through Justice Hilario G. Davide, Jr. (later Chief Justice), granted the petition as it declared:

1. RA 6735 "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned";

2. COMELEC Resolution No. 230015 invalid insofar as it prescribed rules and regulations on the conduct of initiative on amendments
to the Constitution because the COMELEC is without authority to promulgate the 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; and

3. The Delfin petition insufficient as it did not contain the required number of signatures of registered voters.

The Court concluded in Santiago that "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." The dispositive portion of the decision reads:

WHEREFORE, judgment is hereby rendered:

a) GRANTING the instant petition;

b) DECLARING RA 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 December 18, 1996 is made permanent as against the Commission on
Elections, but is LIFTED as against private respondents.16

The Court reiterated its ruling in Santiago in another petition which was filed with the Court by PIRMA and the spouses Alberto and
Carmen Pedrosa (who were parties in Santiago) docketed as PIRMA v. Commission on Elections.17 The said petitioners, undaunted
by Santiago and claiming to have gathered 5,793,213 signatures, filed a petition with the COMELEC praying, inter alia, that
COMELEC officers be ordered to verify all the signatures collected in behalf of the petition and, after due hearing, that it
(COMELEC) declare the petition sufficient for the purpose of scheduling a plebiscite to amend the Constitution. Like the Delfin
petition in Santiago, the PIRMA petition proposed to submit to the people in a plebiscite the amendment to the Constitution on the
lifting of the term limits of elected officials.

The opinion of the minority that there was no doctrine enunciated by the Court in PIRMA has no basis. The COMELEC, in its
Resolution dated July 8, 1997, dismissed the PIRMA petition citing the permanent restraining order issued against it by the Court in
Santiago. PIRMA and the spouses Pedrosa forthwith elevated the matter to the Court alleging grave abuse of discretion on the part
of the COMELEC in refusing to exercise jurisdiction over, and thereby dismissing, their petition for initiative to amend the
Constitution.

The Court dismissed outright, by a unanimous vote, the petition filed by PIRMA and the spouses Albert Pedrosa. The Court declared
that the COMELEC merely complied with the dispositions in the decision of the Court in Santiago and, hence, cannot be held to
have committed a grave abuse of its discretion in dismissing the petition before it:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the
Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case a bar is
not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco, Hermosisima
and Panganiban, JJ., opined that there was need for such a re-examination. x x x

WHEREFORE, the petition is DISMISSED. 18 (Underscoring supplied.)

In the present case, the Office of the Solicitor General (OSG) takes the side of petitioners and argues that the COMELEC should not
have applied the ruling in Santiago to the petition for initiative because the permanent injunction therein referred only to the Delfin
petition. The OSG buttresses this argument by pointing out that the Temporary Restraining Order dated December 18, 1996 that
was made permanent in the dispositive portion referred only to the Delfin petition.

The OSG's attempt to isolate the dispositive portion from the body of the Court's decision in Santiago is futile. It bears stressing that
the dispositive portion must not be read separately but in connection with the other portions of the decision of which it forms a part.
To get to the true intent and meaning of a decision, no specific portion thereof should be resorted to but the same must be
considered in its entirety. Hence, a resolution or ruling may and does appear in other parts of the decision and not merely in
the fallo thereof.19

The pronouncement in the body of the decision in Santiago permanently enjoining the COMELEC "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" is thus as much a part of the Court's decision as its dispositive portion. The ruling of
this Court is of the nature of an in rem judgment barring any and all Filipinos from filing a petition for initiative on amendments to the
Constitution until a sufficient law shall have been validly enacted. Clearly, the COMELEC, in denying due course to the present
petition for initiative on amendments to the Constitution conformably with the Court's ruling in Santiago did not commit grave abuse
of discretion. On the contrary, its actuation is in keeping with the salutary principle of hierarchy of courts. For the Court to find the
COMELEC to have abused its discretion when it dismissed the amended petition based on the ruling of this Court in Santiago would
be sheer judicial apostasy.

As eloquently put by Justice J.B.L. Reyes, "there is only one Supreme Court from whose decisions all other courts should take their
bearings."20 This truism applies with equal force to the COMELEC as a quasi-judicial body for, after all, judicial decisions applying or
interpreting laws or the Constitution "assume the same authority as the statute itself and, until authoritatively abandoned,
necessarily become, to the extent that they are applicable, the criteria which must control the actuations not only of those called
upon to abide thereby but also of those duty bound to enforce obedience thereto." 21

Petitioners Cannot Ascribe


Grave Abuse of Discretion on
the COMELEC Based on the
Minority Opinion in Santiago

It is elementary that the opinion of the majority of the members of the Court, not the opinion of the minority, prevails. As a corollary,
the decision of the majority cannot be modified or reversed by the minority of the members of the Court.
However, to eschew the binding effect of Santiago, petitioners argue, albeit unconvincingly, that the Court's declaration therein on
the inadequacy, incompleteness and insufficiency of RA 6735 to implement the system of initiative to propose constitutional
amendments did not constitute the majority opinion. This contention is utterly baseless.

Santiago was concurred in, without any reservation, by eight Justices,22 or the majority of the members of the Court, who actually
took part in the deliberations thereon. On the other hand, five Justices,23 while voting for the dismissal of the Delfin petition on the
ground of insufficiency, dissented from the majority opinion as they maintained the view that RA 6735 was sufficient to implement
the system of initiative.

Given that a clear majority of the members of the Court, eight Justices, concurred in the decision in Santiago, the pronouncement
therein that RA 6735 is "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to
the Constitution is concerned" constitutes a definitive ruling on the matter.

In the Resolution dated June 10, 1997, the motions for reconsideration of the Santiago decision were denied with finality as only six
Justices, or less than the majority, voted to grant the same. The Resolution expressly stated that the motion for reconsideration
failed "to persuade the requisite majority of the Court to modify or reverse the Decision of 19 March 1977."24 In fine, the
pronouncement in Santiago as embodied in the Decision of March 19, 1997 remains the definitive ruling on the matter.

It bears stressing that in PIRMA, petitioners prayed for the Court to resolve the issue posed by them and to re-examine its ruling as
regards RA 6735. By a vote of seven members of the Court, including Justice Justo P. Torres, Jr. and Justice Jose C. Vitug, the
Court voted that there was no need to resolve the issue. Five members of the Court opined that there was a need for the re-
examination of said ruling. Thus, the pronouncement of the Court in Santiago remains the law of the case and binding on
petitioners.

If, as now claimed by the minorty, there was no doctrine enunciated by the Court in Santiago, the Court should have resolved to set
aside its original resolution dismissing the petition and to grant the motion for reconsideration and the petition. But the Court did not.
The Court positively and unequivocally declared that the COMELEC merely followed the ruling of the Court in Santiago in dismissing
the petition before it. No less than Senior Justice Reynato S. Puno concurred with the resolution of the Court. It behooved Justice
Puno to dissent from the ruling of the Court on the motion for reconsideration of petitioners precisely on the ground that there was
no doctrine enunciated by the Court in Santiago. He did not. Neither did Chief Justice Artemio V. Panganiban, who was a member of
the Court.

That RA 6735 has failed to validly implement the people's right to directly propose constitutional amendments through the system of
initiative had already been conclusively settled in Santiago as well as in PIRMA. Heeding these decisions, several lawmakers,
including no less than Solicitor General Antonio Eduardo Nachura when he was then a member of the House of
Representatives,25 have filed separate bills to implement the system of initiative under Section 2, Article XVII of the Constitution.

In the present Thirteenth (13th) Congress, at least seven (7) bills are pending. In the Senate, the three (3) pending bills are: Senate
Bill No. 119 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator Luisa "Loi" P. Ejercito
Estrada; Senate Bill No. 2189 entitled An Act Providing for People's Initiative to Amend the Constitution introduced by Senator
Miriam Defensor Santiago; and Senate Bill No. 2247 entitled An Act Providing for a System of People's Initiative to Propose
Amendments to the Constitution introduced by Senator Richard Gordon.

In the House of Representatives, there are at least four (4) pending bills: House Bill No. 05281 filed by Representative Carmen Cari,
House Bill No. 05017 filed by Representative Imee Marcos, House Bill No. 05025 filed by Representative Roberto Cajes, and House
Bill No. 05026 filed by Representative Edgardo Chatto. These House bills are similarly entitled An Act Providing for People's
Initiative to Amend the Constitution.

The respective explanatory notes of the said Senate and House bills uniformly recognize that there is, to date, no law to govern the
process by which constitutional amendments are introduced by the people directly through the system of initiative. Ten (10) years
after Santiago and absent the occurrence of any compelling supervening event, i.e., passage of a law to implement the system of
initiative under Section 2, Article XVII of the Constitution, that would warrant the re-examination of the ruling therein, it behooves the
Court to apply to the present case the salutary and well-recognized doctrine of stare decisis. As earlier shown, Congress and other
government agencies have, in fact, abided by Santiago. The Court can do no less with respect to its own ruling.

Contrary to the stance taken by petitioners, the validity or constitutionality of a law cannot be made to depend on the individual
opinions of the members who compose it the Supreme Court, as an institution, has already determined RA 6735 to be
"incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is
concerned" and therefore the same remains to be so regardless of any change in the Court's composition.26 Indeed, it is vital that
there be stability in the courts in adhering to decisions deliberately made after ample consideration. Parties should not be
encouraged to seek re-examination of determined principles and speculate on fluctuation of the law with every change in the
expounders of it.27
Proposals to Revise the Constitution,
As in the Case of the Petitioners'
Proposal to Change the Form of
Government, Cannot be Effected
Through the System of Initiative,
Which by Express Provision of
Section 2, Article XVII of the
Constitution, is Limited to Amendments

Even granting arguendo the Court, in the present case, abandons its pronouncement in Santiago and declares RA 6735, taken
together with other extant laws, sufficient to implement the system of initiative, still, the amended petition for initiative cannot
prosper. Despite the denomination of their petition, the proposals of petitioners to change the form of government from the present
bicameral-presidential to a unicameral-parliamentary system of government are actually for the revision of the Constitution.

Petitioners propose to "amend" Articles VI and VII of the Constitution in this manner:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

"Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be composed
of as many members as may be provided by law, to be apportioned among the provinces, representative districts, and
cities in accordance with the number of their respective inhabitants, with at least three hundred thousand inhabitants per
district, and on the basis of a uniform and progressive ratio. Each district shall comprise, as far as practicable, contiguous,
compact and adjacent territory, and each province must have at least one member.

"(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old on the day
of the election, a resident of his district for at least one year prior thereto, and shall be elected by the qualified voters of his
district for a term of five years without limitation as to the number thereof, except those under the party-list system which
shall be provided for by law and whose number shall be equal to twenty per centum of the total membership coming from
the parliamentary districts."

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:

"Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised by a Prime
Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all the Members of
Parliament from among themselves. He shall be responsible to the Parliament for the program of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon on the
thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless impeached by a
vote of two thirds of all the members of the interim parliament.,

(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the incumbent
Vice President shall succeed as President. In case of death, permanent disability, resignation or removal from office of
both the incumbent President and Vice President, the interim Prime Minister shall assume all the powers and
responsibilities of Prime Minister under Article VII as amended.

Section 2. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and Sections 18 and 24 which
shall be deleted, all other Sections of Article VI are hereby retained and renumbered sequentially as Section 2, ad seriatim
up to 26, unless they are inconsistent with the Parliamentary system of government, in which case, they shall be amended
to conform with a unicameral parliamentary form of government; provided, however, that any and all references therein to
"Congress," "Senate," "House of Representatives" and "House of Congress," "Senator[s] or "Member[s] of the House of
Representatives" and "House of Congress" shall be changed to read "Parliament"; that any and all references therein to
"Member[s] of the House of Representatives" shall be changed to read as "Member[s] of Parliament" and any and all
references to the "President" and or "Acting President" shall be changed to read "Prime Minister."

Section 3. "Upon the expiration of the term of the incumbent President and Vice President, with the exception of Sections
1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9, 10, 11 and 12 which
are hereby deleted, all other Sections of Article VII shall be retained and renumbered sequentially as Section 2, ad
seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which case they shall be deemed amended
so as to conform to a unicameral Parliamentary System of government; provided, however, that any and all references
therein to "Congress," "Senate," "House of Representatives" and "Houses of Congress" shall be changed to read
"Parliament"; that any and all references therein to "Member[s] of Congress," "Senator[s]" or "Member[s] of the House of
Parliament" and any and all references to the "President" and of "Acting President" shall be changed to read "Prime
Minister."

Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall continue
until the Members of the regular Parliament shall have been elected and shall have qualified. It shall be composed of the
incumbent Members of the Senate and the House of Representatives and the incumbent Members of the Cabinet who are
heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day of June
2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the interim Parliament
and shall preside over its session for the election of the interim Prime Minister and until the Speaker shall have been
elected by a majority vote of all the members of the interim Parliament from among themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of June
2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy, decentralization and a
strong bureaucracy.

"Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members of the
interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members thereof. The interim
Prime Minister shall oversee the various ministries and shall perform such powers and responsibilities as may be
delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be synchronized and
held simultaneously with the election of all local government officials. [Thereafter, the Vice-President, as Member of
Parliament, shall immediately convene the Parliament and shall initially preside over its session for the purpose of electing
the Prime Minister, who shall be elected by a majority vote of all its members, from among themselves.] The duly-elected
Prime Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime Minister
until the expiration of the term of the incumbent President and Vice President.28

Petitioners claim that the required number of signatures of registered voters have been complied with, i.e., the signatories to the
petition constitute twelve percent (12%) of all the registered voters in the country, wherein each legislative district is represented by
at least three percent (3%) of all the registered voters therein. Certifications allegedly executed by the respective COMELEC
Election Registrars of each municipality and city verifying these signatures were attached to the petition for initiative. The verification
was allegedly done on the basis of the list of registered voters contained in the official COMELEC list used in the immediately
preceding election.

The proposition, as formulated by petitioners, to be submitted to the Filipino people in a plebiscite to be called for the said purpose
reads:

DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE 1987 CONSTITUTION, CHANGING THE
FORM OF GOVERNMENT FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-PARLIAMENTARY
SYSTEM, AND PROVIDING ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?29

According to petitioners, the proposed amendment of Articles VI and VII would effect a more efficient, more economical and more
responsive government. The parliamentary system would allegedly ensure harmony between the legislative and executive branches
of government, promote greater consensus, and provide faster and more decisive governmental action.

Sections 1 and 2 of Article XVII pertinently read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its Members; or

(2) A constitutional convention.


SECTION 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.

It can be readily gleaned that the above provisions set forth different modes and procedures for proposals for the amendment and
revision of the Constitution:

1. Under Section 1, Article XVII, any amendment to, or revision of, the Constitution may be proposed by

a. Congress, upon a vote of three-fourths of all its members; or

b. A constitutional convention.

2. Under Section 2, Article XVII, amendments to the Constitution may be likewise directly proposed by the people through
initiative.

The framers of the Constitution deliberately adopted the terms "amendment" and "revision" and provided for their respective modes
and procedures for effecting changes of the Constitution fully cognizant of the distinction between the two concepts. Commissioner
Jose E. Suarez, the Chairman of the Committee on Amendments and Transitory Provisions, explained:

MR. SUAREZ. One more point, and we will be through.

We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally agreed to use
the terms "amendment" or "revision" when our attention was called by the honorable Vice-President to the substantial
difference in the connotation and significance between the said terms. As a result of our research, we came up with the
observations made in the famous or notorious Javellana doctrine, particularly the decision rendered by Honorable
Justice Makasiar, wherein he made the following distinction between "amendment" and "revision" of an existing
Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending a
constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the
entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of
the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the
Article governing amendments or revisions to the new Constitution.30

Further, the framers of the Constitution deliberately omitted the term "revision" in Section 2, Article XVII of the Constitution because
it was their intention to reserve the power to propose a revision of the Constitution to Congress or the constitutional convention.
Stated in another manner, it was their manifest intent that revision thereof shall not be undertaken through the system of initiative.
Instead, the revision of the Constitution shall be done either by Congress or by a constitutional convention.

It is significant to note that, originally, the provision on the system of initiative was included in Section 1 of the draft Article on
Amendment or Revision proposed by the Committee on Amendments and Transitory Provisions. The original draft provided:

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

However, after deliberations and interpellations, the members of the Commission agreed to remove the provision on the system of
initiative from Section 1 and, instead, put it under a separate provision, Section 2. It was explained that the removal of the provision
on initiative from the other "traditional modes" of changing the Constitution was precisely to limit the former (system of initiative) to
amendments to the Constitution. It was emphasized that the system of initiative should not extend to revision.

MR. SUAREZ. Thank you, Madam President.

May we respectfully call the 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:

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. This proposal was suggested on the theory
that this matter of initiative, which came about because of the extraordinary developments this year, has to be separated
from the traditional modes of amending the Constitution as embodied in Section 1. The committee members felt that this
system of initiative should be limited to amendments to the Constitution and should not extend to the revision of the entire
Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or Revision. x x x 32

The intention to exclude "revision" of the Constitution as a mode that may be undertaken through the system of initiative was
reiterated and made clear by Commissioner Suarez in response to a suggestion of Commissioner Felicitas Aquino:

MR. SUAREZ. Section 2 must be interpreted together with the provisions of Section 4, except that in Section 4, as it is
presently drafted, there is no take-off date for the 60-day and 90-day periods.

MS. AQUINO. Yes. In other words, Section 2 is another alternative mode of proposing amendments to the Constitution
which would further require the process of submitting it in a plebiscite, in which case it is not self-executing.

MR. SUAREZ. No, not unless we settle and determine the take-off period.

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable 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-executing
provision?

MR SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense conveyed by the Committee.

MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1
to include the process of revision; whereas, the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned by the Committee.33

Then Commissioner Hilario P. Davide, Jr. (later Chief Justice) also made the clarification with respect to the observation of
Commissioner Regalado Maambong:

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendments."
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."34

After several amendments, the Commission voted in favor of the following wording of Section 2:

AMENDMENTS 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.

Sections 1 and 2, Article XVII as eventually worded read:

Article XVII

SECTION 1. Any amendment to, or revision of, this Constitution may be proposed by:

(3) The Congress, upon a vote of three-fourths of all its Members; or

(4) A constitutional convention.

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.

The final text of Article XVII on Amendments or Revisions clearly makes a substantial differentiation not only between the two terms
but also between two procedures and their respective fields of application. Ineluctably, the system of initiative under Section 2,
Article XVII as a mode of effecting changes in the Constitution is strictly limited to amendments not to a revision thereof.

As opined earlier, the framers of the Constitution, in providing for "amendment" and "revision" as different modes of changing the
fundamental law, were cognizant of the distinction between the two terms. They particularly relied on the distinction made by Justice
Felix Antonio in his concurring opinion in Javellana v. Executive Secretary,35the controversial decision which gave imprimatur to the
1973 Constitution of former President Ferdinand E. Marcos, as follows:

There is clearly a distinction between revision and amendment of an existing constitution. Revision may involve a rewriting
of the whole constitution. The act of amending a constitution, on the other hand, envisages a change of only specific
provisions. The intention of an act to amend is not the change of the entire constitution, but only the improvement of
specific parts of the existing constitution of the addition of provisions deemed essential as a consequence of new
conditions or the elimination of parts already considered obsolete or unresponsive to the needs of the times. The 1973
Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental charter embodying
new political, social and economic concepts.36

Other elucidation on the distinction between "amendment" and "revision" is enlightening. For example, Dean Vicente G. Sinco, an
eminent authority on political law, distinguished the two terms in this manner:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention
of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility.
The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their
effect.37

In the United States, the Supreme Court of Georgia in Wheeler v. Board of Trustees38 had the occasion to make the distinction
between the two terms with respect to Ga.L. 1945, an instrument which "amended" the 1877 Constitution of Georgia. It explained
the term "amendment:"

"Amendment" of a statute implies its survival and not destruction. It repeals or changes some provision, or adds
something thereto. A law is amended when it is in whole or in part permitted to remain, and something is added to or
taken from it, or it is in some way changed or altered to make it more complete or perfect, or to fit it the better to
accomplish the object or purpose for which it was made, or some other object or purpose.39

On the other hand, the term "revision" was explained by the said US appellate court:

x x x When a house is completely demolished and another is erected on the same location, do you have a changed,
repaired and altered house, or do you have a new house? Some of the materials contained in the old house may be used
again, some of the rooms may be constructed the same, but this does not alter the fact that you have altogether another
or a new house. We conclude that the instrument as contained in Ga.L. 1945, pp. 8 to 89, inclusive, is not an amendment
to the constitution of 1877; but on the contrary it is a completely revised or new constitution.40

Fairly recently, Fr. Joaquin Bernas, SJ, a member of the Constitutional Commission, expounded on the distinction between the two
terms thus:

An amendment envisages an alteration of one or a few specific and separable provisions. The guiding original intention of
an amendment is to improve specific parts or to add new provisions deemed necessary to meet new conditions or to
suppress specific portions that may have become obsolete or that are judged to be dangerous. In revision, however, the
guiding original intention and plan contemplate a re-examination of the entire document or of provisions of the document
(which have overall implications for the entire document or for the fundamental philosophical underpinnings of the
document) to determine how and to what extent it should be altered. Thus, for instance, a switch from the presidential
system to a parliamentary system would be a revision because of its overall impact on the entire constitutional structure.
So would a switch from a bicameral system to a unicameral system because of its effect on other important provisions of
the Constitution.

It is thus clear that what distinguishes revision from amendment is not the quantum of change in the document. Rather, it
is the fundamental qualitative alteration that effects revision. Hence, I must reject the puerile argument that the use of the
plural form of "amendments" means that a revision can be achieved by the introduction of a multiplicity of amendments! 41

Given that revision necessarily entails a more complex, substantial and far-reaching effects on the Constitution, the framers thereof
wisely withheld the said mode from the system of initiative. It should be recalled that it took the framers of the present Constitution
four months from June 2, 1986 until October 15, 1986 to come up with the draft Constitution which, as described by the venerable
Justice Cecilia Muoz Palma, the President of the Constitutional Commission of 1986, "gradually and painstakingly took shape
through the crucible of sustained sometimes passionate and often exhilarating debates that intersected all dimensions of the
national life."42

Evidently, the framers of the Constitution believed that a revision thereof should, in like manner, be a product of the same extensive
and intensive study and debates. Consequently, while providing for a system of initiative where the people would directly propose
amendments to the Constitution, they entrusted the formidable task of its revision to a deliberative body, the Congress or
Constituent Assembly.

The Constitution is the fundamental law of the state, containing the principles upon which the government is founded, and regulating
the division of sovereign powers, directing to what persons each of those powers is to be confided and the manner in which it is to
be exercised.43 The Philippines has followed the American constitutional legal system in the sense that the term constitution is given
a more restricted meaning, i.e., as a written organic instrument, under which governmental powers are both conferred and
circumscribed.44

The Constitution received its force from the express will of the people. An overwhelming 16,622,111, out of 21,785,216 votes cast
during the plebiscite, or 76.30% ratified the present Constitution on February 2, 1987.45 In expressing that will, the Filipino people
have incorporated therein the method and manner by which the same can be amended and revised, and when the electorate have
incorporated into the fundamental law the particular manner in which the same may be altered or changed, then any course which
disregards that express will is a direct violation of the fundamental law.46

Further, these provisions having been incorporated in the Constitution, where the validity of a constitutional amendment or revision
depends upon whether such provisions have been complied with, such question presents for consideration and determination a
judicial question, and the courts are the only tribunals vested with power under the Constitution to determine such question. 47

Earlier, it was mentioned that Article XVII, by the use of the terms "amendment" and "revision," clearly makes a differentiation not
only between the two terms but also between two procedures and their respective fields of application. On this point, the case
of McFadden v. Jordan48 is instructive. In that case, a "purported initiative amendment" (referred to as the proposed measure) to the
State Constitution of California, then being proposed to be submitted to the electors for ratification, was sought to be enjoined. The
proposed measure, denominated as "California Bill of Rights," comprised a single new article with some 208 subsections which
would repeal or substantially alter at least 15 of the 25 articles of the California State Constitution and add at least four new topics.
Among the likely effects of the proposed measure were to curtail legislative and judicial functions, legalize gaming, completely revise
the taxation system and reduce the powers of cities, counties and courts. The proposed measure also included diverse matters as
ministers, mines, civic centers, liquor control and naturopaths.

The Supreme Court of California enjoined the submission of the proposed measure to the electors for ratification because it was not
an "amendment" but a "revision" which could only be proposed by a convention. It held that from an examination of the proposed
measure itself, considered in relation to the terms of the California State Constitution, it was clear that the proposed initiative
enactment amounted substantially to an attempted revision, rather than amendment, thereof; and that inasmuch as the California
State Constitution specifies (Article XVIII 2 thereof) that it may be revised by means of constitutional convention but does not
provide for revision by initiative measure, the submission of the proposed measure to the electorate for ratification must be enjoined.

As piercingly enunciated by the California State Supreme Court in McFadden, the differentiation required (between amendment and
revision) is not merely between two words; more accurately it is between two procedures and between their respective fields of
application. Each procedure, if we follow elementary principles of statutory construction, must be understood to have a substantial
field of application, not to be a mere alternative procedure in the same field. Each of the two words, then, must be understood to
denote, respectively, not only a procedure but also a field of application appropriate to its procedure.49

Provisions regulating the time and mode of effecting organic changes are in the nature of safety-valves they must not be so
adjusted as to discharge their peculiar function with too great facility, lest they become the ordinary escape-pipes of party passion;
nor, on the other hand, must they discharge it with such difficulty that the force needed to induce action is sufficient also to explode
the machine. Hence, the problem of the Constitution maker is, in this particular, one of the most difficult in our whole system, to
reconcile the requisites for progress with the requisites for safety.50

Like in McFadden, the present petition for initiative on amendments to the Constitution is, despite its denomination, one for its
revision. It purports to seek the amendment only of Articles VI and VII of the Constitution as well as to provide transitory provisions.
However, as will be shown shortly, the amendment of these two provisions will necessarily affect other numerous provisions of the
Constitution particularly those pertaining to the specific powers of Congress and the President. These powers would have to be
transferred to the Parliament and the Prime Minister and/or President, as the case may be. More than one hundred (100) sections
will be affected or altered thereby:

1. Section 19 of Article III (Bill of Rights) on the power of Congress to impose the death penalty for compelling reasons
involving heinous crimes;

2. Section 2 of Article V (Suffrage) on the power of Congress to provide for securing the secrecy and sanctity of the ballot
as well as a system for absentee voting;

3. All 32 Sections of Article VI on the Legislative Department;

4. All 23 Sections of Article VII on the Executive Department;

5. The following Sections of Article VIII (Judicial Department):

- Section 2 on power of Congress to define, prescribe and apportion the jurisdiction of various courts;

- Section 7 on the power of Congress to prescribe the qualifications of judges of lower courts;

- Section 8 on the composition of Judicial Bar Council (JBC) which includes representatives of Congress as ex
officio members and on the power of the President to appoint the regular members of the JBC;

- Section 9 on the power of the President to appoint the members of the Supreme Court and judges of lower
courts;

- Section 16 on duty of Supreme Court to make annual report to the President and Congress.

6. The following Sections of Article IX (Constitutional Commissions);

- (B) Section 3 on duty of Civil Service Commission to make annual report to the President and Congress;

- (B) Section 5 on power of Congress to provide by law for the standardization of compensation of government
officials;
- (B) Section 8 which provides in part that "no public officer shall accept, without the consent of Congress, any
present, emolument, etc. x x x"

- (C) Section 1 on the power of the President to appoint the Chairman and Commissioners of the Commission
on Elections with the consent of the Commission on Appointments;

- (C) Section 2 (7) on the power of the COMELEC to recommend to Congress measures to minimize election
spending x x x;

- (C) Section 2 (8) on the duty of the COMELEC to recommend to the President the removal of any officer or
employee it has deputized, or the imposition of any other disciplinary action x x x;

- (C) Section 2 (9) on the duty of the COMELEC to submit to the President and Congress a report on the
conduct of election, plebiscite, etc.;

- (C) Section 5 on the power of the President, with the favorable recommendation of the COMELEC, to grant
pardon, amnesty, parole, or suspension of sentence for violation of election laws, rules and regulations;

- (C) Section 7 which recognizes as valid votes cast in favor of organization registered under party-list system;

- (C) Section 8 on political parties, organizations or coalitions under the party-list system;

- (D) Section 1 (2) on the power of the President to appoint the Chairman and Commissioners of the
Commission on Audit (COA) with the consent of the Commission of Appointments;

- Section 4 on duty of the COA to make annual report to the President and Congress.

7. The following Sections of Article X (Local Government):

- Section 3 on the power of Congress to enact a local government code;

- Section 4 on the power of the President to exercise general supervision over local government units (LGUs);

- Section 5 on the power of LGUs to create their own sources of income x x x, subject to such guidelines as
Congress may provide;

- Section 11 on the power of Congress to create special metropolitan political subdivisions;

- Section 14 on the power of the President to provide for regional development councils x x x;

- Section 16 on the power of the President to exercise general supervision over autonomous regions;

- Section 18 on the power of Congress to enact organic act for each autonomous region as well as the power of
the President to appoint the representatives to the regional consultative commission;

- Section 19 on the duty of the first Congress elected under the Constitution to pass the organic act for
autonomous regions in Muslim Mindanao and the Cordilleras.

8. The following Sections of Article XI (Accountability of Public Officers):

- Section 2 on the impeachable officers (President, Vice-President, etc.);

- Section 3 on impeachment proceedings (exclusive power of the House to initiate complaint and sole power of
the Senate to try and decide impeachment cases);

- Section 9 on the power of the President to appoint the Ombudsman and his deputies;
- Section 16 which provides in part that "x x x no loans or guaranty shall be granted to the President, Vice-
President, etc.

- Section 17 on mandatory disclosure of assets and liabilities by public officials including the President, Vice-
President, etc.

9. The following Sections of Article XII (National Economy and Patrimony):

- Section 2 on the power of Congress to allow, by law, small-scale utilization of natural resources and power of
the President to enter into agreements with foreign-owned corporations and duty to notify Congress of every
contract;

- Section 3 on the power of Congress to determine size of lands of public domain;

- Section 4 on the power of Congress to determine specific limits of forest lands;

- Section 5 on the power of Congress to provide for applicability of customary laws;

- Section 9 on the power of Congress to establish an independent economic and planning agency to be headed
by the President;

- Section 10 on the power of Congress to reserve to Filipino citizens or domestic corporations(at least 60%
Filipino-owned) certain areas of investment;

- Section 11 on the sole power of Congress to grant franchise for public utilities;

- Section 15 on the power of Congress to create an agency to promote viability of cooperatives;

- Section 16 which provides that Congress shall not, except by general law, form private corporations;

- Section 17 on the salaries of the President, Vice-President, etc. and the power of Congress to adjust the
same;

- Section 20 on the power of Congress to establish central monetary authority.

10. The following Sections of Article XIII (Social Justice and Human Rights):

- Section 1 on the mandate of Congress to give highest priority to enactment of measures that protect and
enhance the right of people x x x

- Section 4 on the power of Congress to prescribe retention limits in agrarian reform;

- Section 18 (6) on the duty of the Commission on Human Rights to recommend to Congress effective
measures to promote human rights;

- Section 19 on the power of Congress to provide for other cases to fall within the jurisdiction of the Commission
on Human Rights.

11. The following Sections of Article XIV (Education, Science and Technology, etc.):

- Section 4 on the power of Congress to increase Filipino equity participation in educational institutions;

- Section 6 which provides that subject to law and as Congress may provide, the Government shall sustain the
use of Filipino as medium of official communication;

- Section 9 on the power of Congress to establish a national language commission;

- Section 11 on the power of Congress to provide for incentives to promote scientific research.
12. The following Sections of Article XVI (General Provisions):

- Section 2 on the power of Congress to adopt new name for the country, new national anthem, etc.;

- Section 5 (7) on the tour of duty of the Chief of Staff which may be extended by the President in times of war
or national emergency declared by Congress;

- Section 11 on the power of Congress to regulate or prohibit monopolies in mass media;

- Section 12 on the power of Congress to create consultative body to advise the President on indigenous
cultural communities.

13. The following Sections of Article XVII (Amendments or Revisions):

- Section 1 on the amendment or revision of Constitution by Congress;

- Section 2 on the duty of Congress to provide for the implementation of the system of initiative;

- Section 3 on the power of Congress to call constitutional convention to amend or revise the Constitution.

14. All 27 Sections of Article XVIII (Transitory Provisions).

The foregoing enumeration negates the claim that "the big bulk of the 1987 Constitution will not be affected." 51Petitioners'
proposition, while purportedly seeking to amend only Articles VI and VII of the Constitution and providing transitory provisions, will,
in fact, affect, alter, replace or repeal other numerous articles and sections thereof. More than the quantitative effects, however, the
revisory character of petitioners' proposition is apparent from the qualitative effects it will have on the fundamental law.

I am not impervious to the commentary of Dean Vicente G. Sinco that the revision of a constitution, in its strict sense, refers to a
consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to particular
provisions to be added to or to be altered in a constitution. 52

For clarity and accuracy, however, it is necessary to reiterate below Dean Sinco's more comprehensive differentiation of the terms:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revisions may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention
of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility.
The intention rather is to improve the specific parts of the existing constitution or to add to it provisions deemed essential
on account of changed conditions or to suppress portions of it that seemed obsolete, or dangerous, or misleading in their
effect.53

A change in the form of government from bicameral-presidential to unicameral-parliamentary, following the above distinction, entails
a revision of the Constitution as it will involve "alteration of different portions of the entire document" and "may result in the rewriting
of the whole constitution, or the greater portion of it, or perhaps only some of its important provisions."

More importantly, such shift in the form of government will, without doubt, fundamentally change the basic plan and substance of the
present Constitution. The tripartite system ordained by our fundamental law divides governmental powers into three distinct but co-
equal branches: the legislative, executive and judicial. Legislative power, vested in Congress which is a bicameral body consisting of
the House of Representatives and the Senate, is the power to make laws and to alter them at discretion. Executive power, vested in
the President who is directly elected by the people, is the power to see that the laws are duly executed and enforced. Judicial power,
vested in the Supreme Court and the lower courts, is the power to construe and apply the law when controversies arise concerning
what has been done or omitted under it. This separation of powers furnishes a system of checks and balances which guards against
the establishment of an arbitrary or tyrannical government.

Under a unicameral-parliamentary system, however, the tripartite separation of power is dissolved as there is a fusion between the
executive and legislative powers. Essentially, the President becomes a mere "symbolic head of State" while the Prime Minister
becomes the head of government who is elected, not by direct vote of the people, but by the members of the Parliament. The
Parliament is a unicameral body whose members are elected by legislative districts. The Prime Minister, as head of government,
does not have a fixed term of office and may only be removed by a vote of confidence of the Parliament. Under this form of
government, the system of checks and balances is emasculated.

Considering the encompassing scope and depth of the changes that would be effected, not to mention that the Constitution's basic
plan and substance of a tripartite system of government and the principle of separation of powers underlying the same would be
altered, if not entirely destroyed, there can be no other conclusion than that the proposition of petitioners Lambino, et al. would
constitute a revision of the Constitution rather than an amendment or "such an addition or change within the lines of the original
instrument as will effect an improvement or better carry out the purpose for which it was framed."54 As has been shown, the effect of
the adoption of the petitioners' proposition, rather than to "within the lines of the original instrument" constitute "an improvement or
better carry out the purpose for which it was framed," is to "substantially alter the purpose and to attain objectives clearly beyond the
lines of the Constitution as now cast."55

To paraphrase McFadden, petitioners' contention that any change less than a total one is amendatory would reduce to the rubble of
absurdity the bulwark so carefully erected and preserved. A case might, conceivably, be presented where the question would be
occasion to undertake to define with nicety the line of demarcation; but we have no case or occasion here.

As succinctly by Fr. Joaquin Bernas, "a switch from the presidential system to a parliamentary system would be a revision because
of its overall impact on the entire constitutional structure. So would a switch from a bicameral system to a unicameral system
because of its effect on other important provisions of the Constitution. It is thus clear that what distinguishes revision from
amendment is not the quantum of change in the document. Rather, it is the fundamental qualitative alteration that effects revision." 56

The petition for initiative on amendments to the Constitution filed by petitioners Lambino, et al., being in truth and in fact a proposal
for the revision thereof, is barred from the system of initiative upon any legally permissible construction of Section 2, Article XVII of
the Constitution.

The Petition for Initiative on


Amendments to the Constitution
is, on its Face, Insufficient in
Form and Substance

Again, even granting arguendo RA 6735 is declared sufficient to implement the system of initiative and that COMELEC Resolution
No. 2300, as it prescribed rules and regulations on the conduct of initiative on amendments to the Constitution, is valid, still, the
petition for initiative on amendments to the Constitution must be dismissed for being insufficient in form and substance.

Section 5 of RA 6735 requires that a petition for initiative on the Constitution must state the following:

1. Contents or text of the proposed law sought to be enacted, approved or rejected, amended or repealed, as the case
may be;

2. The proposition;

3. The reason or reasons therefor;

4. That it is not one of the exceptions provided herein;

5. Signatures of the petitioners or registered voters; and

6. An abstract or summary proposition in not more than one hundred (100) words which shall be legibly written or printed
at the top of every page of the petition.

Section 7 thereof requires that the signatures be verified in this wise:

SEC. 7. Verification of Signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters' identification cards used in the immediately preceding election.

The law mandates upon the election registrar to personally verify the signatures. This is a solemn and important duty imposed on
the election registrar which he cannot delegate to any other person, even to barangay officials. Hence, a verification of signatures
made by persons other than the election registrars has no legal effect.
In patent violation of the law, several certifications submitted by petitioners showed that the verification of signatures was
made, not by the election registrars, but by barangay officials. For example, the certification of the election officer in Lumbatan,
Lanao del Sur reads in full:

LOCAL ELECTION OFFICER'S CERTIFICATION 57

THIS IS TO CERTIFY that based on the verifications made by the Barangay Officials in this City/Municipality, as attested
to by two (2) witnesses from the same Barangays, which is part of the 2ndLegislative District of the Province of Lanao del
Sur, the names appearing on the attached signature sheets relative to the proposed initiative on Amendments to the 1987
Constitution, are those of bonafide resident of the said Barangays and correspond to the names found in the official list of
registered voters of the Commission on Elections and/or voters' affidavit and/or voters' identification cards.

It is further certified that the total number of signatures of the registered voters for the City/Municipality of LUMBATAN,
LANAO DEL SUR as appearing in the affixed signatures sheets is ONE THOUSAND ONE HUNDRED EIGHTY (1,180).

April 2, 2006

IBRAHIM M. MACADATO
Election Officer

(Underscoring supplied)

The ineffective verification in almost all the legislative districts in the Autonomous Region of Muslim Mindanao (ARMM) alone is
shown by the certifications, similarly worded as above-quoted, of the election registrars of Buldon, Maguindanao; 58 Cotabato City
(Special Province);59 Datu Odin Sinsuat, Maguindanao;60 Matanog, Maguindanao;61 Parang, Maguindanao;62 Kabantalan,
Maguindanao;63 Upi, Maguinadano;64 Barira, Maguindanao;65 Sultan, Mastura;66 Ampatuan, Maguindanao;67 Buluan,
Maguindanao;68 Datu Paglas, Maguindanao;69 Datu Piang, Maguindanao;70 Shariff Aguak, Maguindanao;71 Pagalungan,
Maguindanao;72Talayan, Maguindanao;73 Gen. S.K. Pendatun, Maguindanao;74 Mamasapano, Maguindanao;75 Talitay,
Maguindanao;76 Guindulungan, Maguindanao;77 Datu Saudi Ampatuan, Maguindanao;78 Datu Unsay, Maguindanao;79 Pagagawan,
Maguindanao;80 Rajah Buayan, Maguindanao;81 Indanan, Sulu;82 Jolo, Sulu;83Maimbung, Sulu;84 Hadji Panglima, Sulu;85 Pangutaran,
Sulu;86 Parang, Sulu;87 Kalingalan Caluang, Sulu;88Luuk, Sulu;89 Panamao, Sulu;90 Pata, Sulu;91 Siasi, Sulu;92 Tapul, Sulu;93 Panglima
Estino, Sulu;94 Lugus, Sulu;95 and Pandami, Sulu. 96

Section 7 of RA 6735 is clear that the verification of signatures shall be done by the election registrar, and by no one else, including
the barangay officials. The foregoing certifications submitted by petitioners, instead of aiding their cause, justify the outright
dismissal of their petition for initiative. Because of the illegal verifications made by barangay officials in the above-mentioned
legislative districts, it necessarily follows that the petition for initiative has failed to comply with the requisite number of signatures,
i.e., at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be represented by
at least three percent (3%) of the registered voters therein.

Petitioners cannot disclaim the veracity of these damaging certifications because they themselves submitted the same to the
COMELEC and to the Court in the present case to support their contention that the requirements of RA 6735 had been complied
with and that their petition for initiative is on its face sufficient in form and substance. They are in the nature of judicial admissions
which are conclusive and binding on petitioners.97 This being the case, the Court must forthwith order the dismissal of the petition for
initiative for being, on its face, insufficient in form and substance. The Court should make the adjudication entailed by the facts here
and now, without further proceedings, as it has done in other cases.98

It is argued by petitioners that, assuming arguendo that the COMELEC is correct in relying on Santiago that RA 6735 is inadequate
to cover initiative to the Constitution, this cannot be used to legitimize its refusal to heed the people's will. The fact that there is no
enabling law should not prejudice the right of the sovereign people to propose amendments to the Constitution, which right has
already been exercised by 6,327,952 voters. The collective and resounding act of the particles of sovereignty must not be set aside.
Hence, the COMELEC should be ordered to comply with Section 4, Article XVII of the 1987 Constitution via a writ of mandamus.
The submission of petitioners, however, is unpersuasive.

Mandamus is a proper recourse for citizens who act to enforce a public right and to compel the persons of a public duty most
especially when mandated by the Constitution.99 However, under Section 3, Rule 65 of the 1997 Rules of Court, for a petition
for mandamus to prosper, it must be shown that the subject of the petition is a ministerial act or duty and not purely discretionary on
the part of the board, officer or person, and that petitioner has a well-defined, clear and certain right to warrant the grant thereof. A
purely ministerial act or duty is one which an officer or tribunal performs in a given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without regard to or the exercise of his own judgment upon the propriety or
impropriety of the act done. If the law imposes a duty upon a public official and gives him the right to decide how or when the duty
should be performed, such duty is discretionary and not ministerial. The duty is ministerial only when the discharge of the same
requires neither the exercise of an official discretion nor judgment.100
To stress, in a petition for mandamus, petitioner must show a well defined, clear and certain right to warrant the grant thereof.101 In
this case, petitioners failed to establish their right to a writ of mandamus as shown by the foregoing disquisitions.

Remand of the Case to the


COMELEC is Not Authorized by
RA 6735 and COMELEC Resolution No. 2300

The dissenting opinion posits that the issue of whether or not the petition for initiative has complied with the requisite number of
signatures of at least twelve percent (12%) of the total number of registered voters, of which every legislative district must be
represented by at least three percent (3%) of the registered voters therein, involves contentious facts. The dissenting opinion cites
the petitioners' claim that they have complied with the same while the oppositors-intervenors have vigorously refuted this claim by
alleging, inter alia, that the signatures were not properly verified or were not verified at all. Other oppositors-intervenors have alleged
that the signatories did not fully understand what they have signed as they were misled into signing the signature sheets.

According to the dissenting opinion, the sufficiency of the petition for initiative and its compliance with the requirements of RA 6735
on initiative and its implementing rules is a question that should be resolved by the COMELEC at the first instance. It thus remands
the case to the COMELEC for further proceedings.

To my mind, the remand of the case to the COMELEC is not warranted. There is nothing in RA 6735, as well as in COMELEC
Resolution No. 2300, granting that it is valid to implement the former statute, that authorizes the COMELEC to conduct any kind of
hearing, whether full-blown or trial-type hearing, summary hearing or administrative hearing, on a petition for initiative.

Section 41 of COMELEC Resolution No. 2300 provides that "[a]n initiative shall be conducted under the control and supervision of
the Commission in accordance with Article III hereof." Pertinently, Sections 30, 31 and 32 of Article III of the said implementing rules
provide as follows:

Sec. 30. Verification of signatures. The Election Registrar shall verify the signatures on the basis of the registry list of
voters, voters' affidavits and voters' identification cards used in the immediately preceding election.

Sec. 31. Determination by the Commission. The Commission shall act on the findings of the sufficiency or insufficiency
of the petition for initiative or referendum.

If it should appear that the required number of signatures has not been obtained, the petition shall be deemed defeated
and the Commission shall issue a declaration to that effect.

If it should appear that the required number of signatures has been obtained, the Commission shall set the initiative or
referendum in accordance with the succeeding sections.

Sec. 32. Appeal. The decision of the Commission on the findings of the sufficiency and insufficiency of the petition for
initiative or referendum may be appealed to the Supreme Court within thirty (30) days from notice hereof.

Clearly, following the foregoing procedural rules, the COMELEC is not authorized to conduct any kind of hearing to receive any
evidence for or against the sufficiency of the petition for initiative. Rather, the foregoing rules require of the COMELEC to determine
the sufficiency or insufficiency of the petition for initiative on its face. And it has already been shown, by the annexes submitted by
the petitioners themselves, their petition is, on its face, insufficient in form and substance. The remand of the case to the COMELEC
for reception of evidence of the parties on the contentious factual issues is, in effect, an amendment of the abovequoted rules of the
COMELEC by this Court which the Court is not empowered to do.

The Present Petition Presents a


Justiciable Controversy; Hence,
a Non-Political Question. Further,
the People, Acting in their Sovereign
Capacity, Have Bound Themselves
to Abide by the Constitution

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.102 A political question has two aspects: (1) those matters that are to be exercised by the people in their primary political
capacity; and (2) matters which have been specifically designated to some other department or particular office of the government,
with discretionary power to act.103
In his concurring and dissenting opinion in Arroyo v. De Venecia,104 Senior Associate Justice Reynato S. Puno explained the
doctrine of political question vis--vis the express mandate of the present Constitution for the courts to determine whether or not
there has been a grave abuse of discretion on the part of any branch or instrumentality of the Government:

In the Philippine setting, there is more compelling reason for courts to categorically reject the political question defense
when its interposition will cover up abuse of power. For Section 1, Article VIII of our Constitution was intentionally cobbled
to empower courts "... to determine whether or not there has been a grave abuse of discretion amounting to lack or
excess of jurisdiction on the part of any branch or instrumentality of the government." This power is new and was not
granted to our courts in the 1935 and 1972 Constitutions. It was also not xeroxed from the US Constitution or any foreign
state constitution. The CONCOM [Constitutional Commission] granted this enormous power to our courts in view of our
experience under martial law where abusive exercises of state power were shielded from judicial scrutiny by the misuse of
the political question doctrine. Led by the eminent former Chief Justice Roberto Concepcion, the CONCOM expanded and
sharpened the checking powers of the judiciary vis--vis the Executive and the Legislative departments of government. In
cases involving the proclamation of martial law and suspension of the privilege of habeas corpus, it is now beyond dubiety
that the government can no longer invoke the political question defense.

xxxx

To a great degree, it diminished its [political question doctrine] use as a shield to protect other abuses of government by
allowing courts to penetrate the shield with new power to review acts of any branch or instrumentality of the government ".
. . to determine whether or not there has been grave abuse of discretion amounting to lack or excess of jurisdiction."

Even if the present petition involves the act, not of a governmental body, but of purportedly more than six million registered voters
who have signified their assent to the proposal to amend the Constitution, the same still constitutes a justiciable controversy, hence,
a non-political question. There is no doubt that the Constitution, under Article XVII, has explicitly provided for the manner or method
to effect amendments thereto, or revision thereof. The question, therefore, of whether there has been compliance with the terms of
the Constitution is for the Court to pass upon.105

In the United States, in In re McConaughy,106 the State Supreme Court of Minnesota exercised jurisdiction over the petition
questioning the result of the general election holding that "an examination of the decisions shows that the courts have almost
uniformly exercised the authority to determine the validity of the proposal, submission, or ratification of constitutional amendments."
The cases cited were Dayton v. St. Paul,107 Rice v. Palmer,108 Bott v. Wurtz,109 State v. Powell,110 among other cases.

There is no denying that "the Philippines is a democratic and republican State. Sovereignty resides in the people and all government
authority emanates from them."111 However, I find to be tenuous the asseveration that "the argument that the people through
initiative cannot propose substantial amendments to change the Constitution turns sovereignty in its head. At the very least, the
submission constricts the democratic space for the exercise of the direct sovereignty of the people."112 In effect, it is theorized that
despite the unambiguous text of Section 2, Article XVII of the Constitution withholding the power to revise it from the system of
initiative, the people, in their sovereign capacity, can conveniently disregard the said provision.

I strongly take exception to the view that the people, in their sovereign capacity, can disregard the Constitution altogether. Such a
view directly contravenes the fundamental constitutional theory that while indeed "the ultimate sovereignty is in the people, from
whom springs all legitimate authority"; nonetheless, "by the Constitution which they establish, they not only tie up the hands of their
official agencies, but their own hands as well; and neither the officers of the state, nor the whole people as an aggregate body, are at
liberty to take action in opposition to this fundamental law."113 The Constitution, it should be remembered, "is the protector of the
people, placed on guard by them to save the rights of the people against injury by the people." 114 This is the essence of
constitutionalism:

Through constitutionalism we placed limits on both our political institutions and ourselves, hoping that democracies,
historically always turbulent, chaotic and even despotic, might now become restrained, principled, thoughtful and just. So
we bound ourselves over to a law that we made and promised to keep. And though a government of laws did not displace
governance by men, it did mean that now men, democratic men, would try to live by their word.115

Section 2, Article XVII of the Constitution on the system of initiative is limited only to proposals to amend to the Constitution, and
does not extend to its revision. The Filipino people have bound themselves to observe the manner and method to effect the changes
of the Constitution. They opted to limit the exercise of the right to directly propose amendments to the Constitution through initiative,
but did not extend the same to the revision thereof. The petition for initiative, as it proposes to effect the revision thereof,
contravenes the Constitution. The fundamental law of the state prescribes the limitations under which the electors of the state may
change the same, and, unless such course is pursued, the mere fact that a majority of the electors are in favor of a change and
have so expressed themselves, does not work a change. Such a course would be revolutionary, and the Constitution of the state
would become a mere matter of form.116

The very term Constitution implies an instrument of a permanent and abiding nature, and the provisions contained therein for its
revision indicated the will of the people that the underlying principles upon which it rests, as well as the substantial entirety of the
instrument, shall be of a like permanent and abiding nature.117
The Filipino people have incorporated the safety valves of amendment and revision in Article XVII of the Constitution. The Court is
mandated to ensure that these safety valves embodied in the Constitution to guard against improvident and hasty changes thereof
are not easily trifled with. To be sure, by having overwhelmingly ratified the Constitution, the Filipino people believed that it is "a
good Constitution" and in the words of the learned Judge Cooley:

x x x should be beyond the reach of temporary excitement and popular caprice or passion. It is needed for stability and
steadiness; it must yield to the thought of the people; not to the whim of the people, or the thought evolved in excitement
or hot blood, but the sober second thought, which alone, if the government is to be safe, can be allowed efficiency.
Changes in government are to be feared unless the benefit is certain. As Montaign says: "All great mutations shake and
disorder a state. Good does not necessarily succeed evil; another evil may succeed and worse.118

Indisputably, the issues posed in the present case are of transcendental importance. Accordingly, I have approached and grappled
with them with full appreciation of the responsibilities involved in the present case, and have given to its consideration the earnest
attention which its importance demands. I have sought to maintain the supremacy of the Constitution at whatever hazard. I share
the concern of Chief Justice Day in Koehler v. Hill:119"it is for the protection of minorities that constitutions are framed. Sometimes
constitutions must be interposed for the protection of majorities even against themselves. Constitutions are adopted in times of
public repose, when sober reason holds her citadel, and are designed to check the surging passions in times of popular excitement.
But if courts could be coerced by popular majorities into a disregard of their provisions, constitutions would become mere 'ropes of
sand,' and there would be an end of social security and of constitutional freedom. The cause of temperance can sustain no injury
from the loss of this amendment which would be at all comparable to the injury to republican institutions which a violation of the
constitution would inflict. That large and respectable class of moral reformers which so justly demands the observance and
enforcement of law, cannot afford to take its first reformatory step by a violation of the constitution. How can it consistently demand
of others obedience to a constitution which it violates itself? The people can in a short time re-enact the amendment. In the manner
of a great moral reform, the loss of a few years is nothing. The constitution is the palladium of republican freedom. The young men
coming forward upon the stage of political action must be educated to venerate it; those already upon the stage must be taught to
obey it. Whatever interest may be advanced or may suffer, whoever or whatever may be 'voted up or voted down,' no sacrilegious
hand must be laid upon the constitution."120

WHEREFORE, I vote to DISMISS the petition in G.R. No. 174153 and to GRANT the petition in G.R. No. 174299.

ROMEO J. CALLEJO, SR.


Associate Justice

____________________

EN BANC

G.R. No. 174153 (RAUL LAMBINO, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.) and

G.R. No. 174299 (MAR-LEN ABIGAIL BINAY, ET AL. vs. COMMISSION ON ELECTIONS, ET AL.).

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

SEPARATE OPINION

AZCUNA, J.:

"Why, friends, you go to do you know not what."

-- Shakespeare, Julius Caesar, Act III, Sc. 2.

Article XVII of the Constitution states:

AMENDMENTS OR REVISIONS

Section 1. Any amendment to, or revision of, this Constitution may be proposed by:

(1) The Congress, upon a vote of three-fourths of all its members; or


(2) A constitutional convention.

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 votes 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.

Sec. 3. The Congress 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 to the electorate the question of calling such a convention.

Sec. 4. Any amendment to, or revision of, this Constitution under Section 1 hereof shall be valid when ratified by a
majority of the votes cast in a plebiscite which shall be held not earlier than sixty days nor later than ninety days after the
approval of such amendment or revision.

Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.

This Article states the procedure for changing the Constitution.

Constitutions have three parts the Constitution of Liberty, which states the fundamental rights of the people; the Constitution of
Government, which establishes the structure of government, its branches and their operation; and the Constitution of Sovereignty,
which provides how the Constitution may be changed.

Article XVII is the Constitution of Sovereignty.

As a result, the powers therein provided are called constituent powers. So when Congress acts under this provision, it acts not as a
legislature exercising legislative powers. It acts as a constituent body exercising constituent powers.

The rules, therefore, governing the exercise of legislative powers do not apply, or do not apply strictly, to the actions taken under
Article XVII.

Accordingly, since Article XVII states that Congress shall provide for the implementation of the exercise of the people's right directly
to propose amendments to the Constitution through initiative, the act of Congress pursuant thereto is not strictly a legislative action
but partakes of a constituent act.

As a result, Republic Act No. 6735, the act that provides for the exercise of the people of the right to propose a law or amendments
to the Constitution is, with respect to the right to propose amendments to the Constitution, a constituent measure, not a mere
legislative one.

The consequence of this special character of the enactment, insofar as it relates to proposing amendments to the Constitution, is
that the requirements for statutory enactments, such as sufficiency of standards and the like, do not and should not strictly apply. As
long as there is a sufficient and clear intent to provide for the implementation of the exercise of the right, it should be sustained, as it
is simply a compliance of the mandate placed on Congress by the Constitution.

Seen in this light, the provisions of Republic Act No. 6735 relating to the procedure for proposing amendments to the Constitution,
can and should be upheld, despite shortcomings perhaps in legislative headings and standards.

For this reason, I concur in the view that Santiago v. Comelec1 should be re-examined and, after doing so, that the pronouncement
therein regarding the insufficiency or inadequacy of the measure to sustain a people's initiative to amend the Constitution should be
reconsidered in favor of allowing the exercise of this sovereign right.

And applying the doctrine stated in Senarillos v. Hermosisima,2 penned by Justice J.B.L. Reyes, in relation to Article 8 of the Civil
Code, that a decision of this Court interpreting a law forms part of the law interpreted as of the time of its enactment, Republic Act
No. 6735 should be deemed sufficient and adequate from the start.

This next point to address, there being a sufficient law, is whether the petition for initiative herein involved complies with the
requirements of that law as well as those stated in Article XVII of the Constitution.
True it is that ours is a democratic state, as explicitated in the Declaration of Principles, to emphasize precisely that there are
instances recognized and provided for in the Constitution where our people directly exercise their sovereign powers, new features
set forth in this People Power Charter, namely, the powers of recall, initiative and referendum.

Nevertheless, this democratic nature of our polity is that of a democracy under the rule of law. This equally important point is
emphasized in the very Preamble to the Constitution, which states:

". . . the blessings of . . . democracy under the rule of law . . . ."

Such is the case with respect to the power to initiate changes in the Constitution. The power is subject to limitations under the
Constitution itself, thus: The power could not be exercised for the first five years after the Constitution took effect and thereafter can
only be exercised once every five years; the power only extends to proposing amendments but not revisions; and the power needs
an act of Congress providing for its implementation, which act is directed and mandated.

The question, therefore, arises whether the proposed changes in the Constitution set forth in the petition for initiative herein involved
are mere amendments or rather are revisions.

Revisions are changes that affect the entire Constitution and not mere parts of it.

The reason why revisions are not allowed through direct proposals by the people through initiative is a practical one, namely, there
is no one to draft such extensive changes, since 6.3 million people cannot conceivably come up with a single extensive document
through a direct proposal from each of them. Someone would have to draft it and that is not authorized as it would not be a direct
proposal from the people. Such indirect proposals can only take the form of proposals from Congress as a Constituent Assembly
under Article XVII, or a Constitutional Convention created under the same provision. Furthermore, there is a need for such
deliberative bodies for revisions because their proceedings and debates are duly and officially recorded, so that future cases of
interpretations can be properly aided by resort to the record of their proceedings.

Even a cursory reading of the proposed changes contained in the petition for initiative herein involved will show on its face that the
proposed changes constitute a revision of the Constitution. The proposal is to change the system of government from that which is
bicameral-presidential to one that is unicameral-parliamentary.

While purportedly only Articles VI, VII, and XVIII are involved, the fact is, as the petition and text of the proposed changes
themselves state, every provision of the Constitution will have to be examined to see if they conform to the nature of a unicameral-
parliamentary form of government and changed accordingly if they do not so conform to it. For example, Article VIII on Judicial
Department cannot stand as is, in a parliamentary system, for under such a system, the Parliament is supreme, and thus the Court's
power to declare its act a grave abuse of discretion and thus void would be an anomaly.

Now, who is to do such examination and who is to do such changes and how should the changes be worded? The proposed
initiative does not say who nor how.

Not only, therefore, is the proposed initiative, on this score, a prohibited revision but it also suffers from being incomplete and
insufficient on its very face.

It, therefore, in that form, cannot pass muster the very limits contained in providing for the power under the Constitution.

Neither does it comply with Republic Act No. 6735, which states in Section 10 that not more than one subject shall be proposed as
an amendment or amendments to the Constitution. The petition herein would propose at the very least two subjects a unicameral
legislature and a parliamentary form of government. Again, for this clear and patent violation of the very act that provides for the
exercise of the power, the proposed initiative cannot lie.

This does not mean, however, that all is lost for petitioners.

For the proposed changes can be separated and are, in my view, separable in nature a unicameral legislature is one; a
parliamentary form of government is another. The first is a mere amendment and contains only one subject matter. The second is
clearly a revision that affects every article and every provision in the Constitution to an extent not even the proponents could at
present fully articulate. Petitioners Lambino, et al. thus go about proposing changes the nature and extent of which they do not as
yet know exactly what.

The proposal, therefore, contained in the petition for initiative, regarding a change in the legislature from a bicameral or two-
chamber body to that of a unicameral or one-chamber body, is sustainable. The text of the changes needed to carry it out are
perfunctory and ministerial in nature. Once it is limited to this proposal, the changes are simply one of deletion and insertions, the
wordings of which are practically automatic and non-discretionary.
As an example, I attach to this opinion an Appendix "A" showing how the Constitution would read if we were to change Congress
from one consisting of the Senate and the House of Representatives to one consisting only of the House of Representatives. It only
affects Article VI on the Legislative Department, some provisions on Article VII on the Executive Department, as well as Article XI on
the Accountability of Public Officers, and Article XVIII on Transitory Provisions. These are mere amendments, substantial ones
indeed but still only amendments, and they address only one subject matter.

Such proposal, moreover, complies with the intention and rationale behind the present initiative, which is to provide for simplicity and
economy in government and reduce the stalemates that often prevent needed legislation.

the petition, without prejudice to the filing of an appropriate


For the nonce, therefore, I vote to DISMISS
initiative to propose amendments to the Constitution to change Congress into a unicameral body. This is
not say that I favor such a change. Rather, such a proposal would come within the purview of an
initiative allowed under Article XVII of the Constitution and its implementing Republic Act, and should,
therefore, be submitted to our people in a plebiscite for them to decide in their sovereign capacity. After
all is said and done, this is what democracy under the rule of law is about.

ADOLFO S. AZCUNA
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS
vs.
THE COMMISSION ON ELECTIONS

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG


vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and NICODEMO T. FERRER, and
John Doe and Peter Doe

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

"It is a Constitution we are expounding"1

Chief Justice John Marshall

DISSENTING OPINION

PUNO, J.:

The petition at bar is not a fight over molehills. At the crux of the controversy is the critical understanding of the first and foremost of
our constitutional principles "the Philippines is a democratic and republican State. Sovereignty resides in the people and all
government authority emanates from them."2 Constitutionalism dictates that this creed must be respected with deeds; our belief in
its validity must be backed by behavior.

This is a Petition for Certiorari and Mandamus to set aside the resolution of respondent Commission on Elections (COMELEC)
dated August 31, 2006, denying due course to the Petition for Initiative filed by petitioners Raul L. Lambino and Erico B. Aumentado
in their own behalf and together with some 6.3 million registered voters who have affixed their signatures thereon, and praying for
the issuance of a writ of mandamus to compel respondent COMELEC to set the date of the plebiscite for the ratification of the
proposed amendments to the Constitution in accordance with Section 2, Article XVII of the 1987 Constitution.
First, a flashback of the proceedings of yesteryears. In 1996, the Movement for People's Initiative sought to exercise the sovereign
people's power to directly propose amendments to the Constitution through initiative under Section 2, Article XVII of the 1987
Constitution. Its founding member, Atty. Jesus S. Delfin, filed with the COMELEC on December 6, 1996, a "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (Delfin Petition). It proposed to amend Sections 4 and 7 of
Article VI, Section 4 of Article VII, and Section 8 of Article X of the 1987 Constitution by deleting the provisions on the term limits for
all elective officials.

The Delfin Petition stated that the Petition for Initiative would first be submitted to the people and would be formally filed with the
COMELEC after it is signed by at least twelve per cent (12%) of the total number of registered voters in the country. It thus sought
the assistance of the COMELEC in gathering the required signatures by fixing the dates and time therefor and setting up signature
stations on the assigned dates and time. The petition prayed that the COMELEC issue an Order (1) fixing the dates and time for
signature gathering all over the country; (2) causing the publication of said Order and the petition for initiative in newspapers of
general and local circulation; and, (3) instructing the municipal election registrars in all the regions of the Philippines to assist
petitioner and the volunteers in establishing signing stations on the dates and time designated for the purpose.

The COMELEC conducted a hearing on the Delfin Petition.

On December 18, 1996, Senator Miriam Defensor Santiago, Alexander Padilla and Maria Isabel Ongpin filed a special civil action for
prohibition before this Court, seeking to restrain the COMELEC from further considering the Delfin Petition. They impleaded as
respondents the COMELEC, Delfin, and Alberto and Carmen Pedrosa (Pedrosas) in their capacities as founding members of the
People's Initiative for Reforms, Modernization and Action (PIRMA) which was likewise engaged in signature gathering to support an
initiative to amend the Constitution. They argued that the constitutional provision on people's initiative may only be implemented by
a law passed by Congress; that no such law has yet been enacted by Congress; that Republic Act No. 6735 relied upon by Delfin
does not cover the initiative to amend the Constitution; and that COMELEC Resolution No. 2300, the implementing rules adopted by
the COMELEC on the conduct of initiative, was ultra vires insofar as the initiative to amend the Constitution was concerned. The
case was docketed as G.R. No. 127325, entitled Santiago v. Commission on Elections.3

Pending resolution of the case, the Court issued a temporary restraining order enjoining the COMELEC from proceeding with the
Delfin Petition and the Pedrosas from conducting a signature drive for people's initiative to amend the Constitution.

On March 19, 1997, the Court rendered its decision on the petition for prohibition. The Court ruled that the constitutional provision
granting the people the power to directly amend the Constitution through initiative is not self-executory. An enabling law is necessary
to implement the exercise of the people's right. Examining the provisions of R.A. 6735, a majority of eight (8) members of the Court
held that said law was "incomplete, inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to
the Constitution is concerned,"4 and thus voided portions of COMELEC Resolution No. 2300 prescribing rules and regulations on the
conduct of initiative on amendments to the Constitution. It was also held that even if R.A. 6735 sufficiently covered the initiative to
amend the Constitution and COMELEC Resolution No. 2300 was valid, the Delfin Petition should still be dismissed as it was not the
proper initiatory pleading contemplated by law. Under Section 2, Article VII of the 1987 Constitution and Section 5(b) of R.A. 6735, a
petition for initiative on the Constitution must be signed by at least twelve per cent (12%) of the total number of registered voters, of
which every legislative district is represented by at least three per cent (3%) of the registered voters therein. The Delfin Petition did
not contain signatures of the required number of voters. The decision stated:

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 against the Commission on
Elections, but is LIFTED as against private respondents.5

Eight (8) members of the Court, namely, then Associate Justice Hilario G. Davide, Jr. (ponente), Chief Justice Andres R. Narvasa,
and Associate Justices Florenz D. Regalado, Flerida Ruth P. Romero, Josue N. Bellosillo, Santiago M. Kapunan, Regino C.
Hermosisima, Jr. and Justo P. Torres, fully concurred in the majority opinion.

While all the members of the Court who participated in the deliberation6 agreed that the Delfin Petition should be dismissed for lack
of the required signatures, five (5) members, namely, Associate Justices Jose A.R. Melo, Reynato S. Puno, Vicente V. Mendoza,
Ricardo J. Francisco and Artemio V. Panganiban, held that R.A. 6735 was sufficient and adequate to implement the people's right to
amend the Constitution through initiative, and that COMELEC Resolution No. 2300 validly provided the details for the actual
exercise of such right. Justice Jose C. Vitug, on the other hand, opined that the Court should confine itself to resolving the issue of
whether the Delfin Petition sufficiently complied with the requirements of the law on initiative, and there was no need to rule on the
adequacy of R.A. 6735.

The COMELEC, Delfin and the Pedrosas filed separate motions for reconsideration of the Court's decision.

After deliberating on the motions for reconsideration, six (6)7 of the eight (8) majority members maintained their position that R.A.
6735 was inadequate to implement the provision on the initiative on amendments to the Constitution. Justice Torres filed an
inhibition, while Justice Hermosisima submitted a Separate Opinion adopting the position of the minority that R.A. 6735 sufficiently
covers the initiative to amend the Constitution. Hence, of the thirteen (13) members of the Court who participated in the deliberation,
six (6) members, namely, Chief Justice Narvasa and Associate Justices Regalado, Davide, Romero, Bellosillo and Kapunan voted to
deny the motions for lack of merit; and six (6) members, namely, Associate Justices Melo, Puno, Mendoza, Francisco, Hermosisima
and Panganiban voted to grant the same. Justice Vitug maintained his opinion that the matter was not ripe for judicial adjudication.
The motions for reconsideration were therefore denied for lack of sufficient votes to modify or reverse the decision of March 19,
1997.8

On June 23, 1997, PIRMA filed with the COMELEC a Petition for Initiative to Propose Amendments to the Constitution (PIRMA
Petition). The PIRMA Petition was supported by around five (5) million signatures in compliance with R.A. 6735 and COMELEC
Resolution No. 2300, and prayed that the COMELEC, among others: (1) cause the publication of the petition in Filipino and English
at least twice in newspapers of general and local circulation; (2) order all election officers to verify the signatures collected in support
of the petition and submit these to the Commission; and (3) set the holding of a plebiscite where the following proposition would be
submitted to the people for ratification:

Do you approve amendments to the 1987 Constitution giving the President the chance to be reelected for another term,
similarly with the Vice-President, so that both the highest officials of the land can serve for two consecutive terms of six
years each, and also to lift the term limits for all other elective government officials, thus giving Filipino voters the freedom
of choice, amending for that purpose, Section 4 of Article VII, Sections 4 and 7 of Article VI and Section 8 of Article X,
respectively?

The COMELEC dismissed the PIRMA Petition in view of the permanent restraining order issued by the Court in Santiago v.
COMELEC.

PIRMA filed with this Court a Petition for Mandamus and Certiorari seeking to set aside the COMELEC Resolution dismissing its
petition for initiative. PIRMA argued that the Court's decision on the Delfin Petition did not bar the COMELEC from acting on the
PIRMA Petition as said ruling was not definitive based on the deadlocked voting on the motions for reconsideration, and because
there was no identity of parties and subject matter between the two petitions. PIRMA also urged the Court to reexamine its ruling in
Santiago v. COMELEC.

The Court dismissed the petition for mandamus and certiorari in its resolution dated September 23, 1997. It explained:

The Court ruled, first, by a unanimous vote, that no grave abuse of discretion could be attributed to the public respondent
COMELEC in dismissing the petition filed by PIRMA therein, it appearing that it only complied with the dispositions in the
Decision of this Court in G.R. No. 127325 promulgated on March 19, 1997, and its Resolution of June 10, 1997.

The Court next considered the question of whether there was need to resolve the second issue posed by the petitioners,
namely, that the Court re-examine its ruling as regards R.A. 6735. On this issue, the Chief Justice and six (6) other
members of the Court, namely, Regalado, Davide, Romero, Bellosillo, Kapunan and Torres, JJ., voted that there was no
need to take it up. Vitug, J., agreed that there was no need for re-examination of said second issue since the case at bar
is not the proper vehicle for that purpose. Five (5) other members of the Court, namely, Melo, Puno, Francisco,
Hermosisima, and Panganiban, JJ., opined that there was a need for such a re-examination x x x x9

In their Separate Opinions, Justice (later Chief Justice) Davide and Justice Bellosillo stated that the PIRMA petition was dismissed
on the ground of res judicata.
Now, almost a decade later, another group, Sigaw ng Bayan, seeks to utilize anew the system of initiative to amend the Constitution,
this time to change the form of government from bicameral-presidential to unicameral-parliamentary system.

Let us look at the facts of the petition at bar with clear eyes.

On February 15, 2006, Sigaw ng Bayan, in coordination with Union of Local Authorities of the Philippines (ULAP), embarked on a
nationwide drive to gather signatures to support the move to adopt the parliamentary form of government in the country through
charter change. They proposed to amend the Constitution as follows:

A. Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI shall be amended to read as follows:

Section 1. (1) The legislative and executive powers shall be vested in a unicameral Parliament which shall be
composed of as many members as may be provided by law, to be apportioned among the provinces,
representative districts, and cities in accordance with the number of their respective inhabitants, with at least
three hundred thousand inhabitants per district, and on the basis of a uniform and progressive ratio. Each
district shall comprise, as far as practicable, contiguous, compact and adjacent territory, and each province
must have at least one member.

(2) Each Member of Parliament shall be a natural-born citizen of the Philippines, at least twenty-five years old
on the day of the election, a resident of his district for at least one year prior thereto, and shall be elected by the
qualified voters of his district for a term of five years without limitation as to the number thereof, except those
under the party-list system which shall be provided for by law and whose number shall be equal to twenty per
centum of the total membership coming from the parliamentary districts.

B. Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution are hereby amended to read, as follows:

Section 1. There shall be a President who shall be the Head of State. The executive power shall be exercised
by a Prime Minister, with the assistance of the Cabinet. The Prime Minister shall be elected by a majority of all
the Members of Parliament from among themselves. He shall be responsible to the Parliament for the program
of government.

C. For the purpose of insuring an orderly transition from the bicameral-Presidential to a unicameral-Parliamentary form of
government, there shall be a new Article XVIII, entitled "Transitory Provisions," which shall read, as follows:

Section 1. (1) The incumbent President and Vice President shall serve until the expiration of their term at noon
on the thirtieth day of June 2010 and shall continue to exercise their powers under the 1987 Constitution unless
impeached by a vote of two thirds of all the members of the interim parliament.

(2) In case of death, permanent disability, resignation or removal from office of the incumbent President, the
incumbent Vice President shall succeed as President. In case of death, permanent disability, resignation or
removal from office of both the incumbent President and Vice President, the interim Prime Minister shall
assume all the powers and responsibilities of Prime Minister under Article VII as amended.

Section 2. Upon the expiration of the term of the incumbent President and Vice President, with the exception of
Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of the 1987 Constitution which shall hereby be amended and
Sections 18 and 24 which shall be deleted, all other Sections of Article VI are hereby retained and renumbered
sequentially as Section 2, ad seriatim up to 26, unless they are inconsistent with the Parliamentary system of
government, in which case, they shall be amended to conform with a unicameral parliamentary form of
government; provided, however, that any and all references therein to "Congress," "Senate," "House of
Representatives" and "Houses of Congress" shall be changed to read "Parliament;" that any and all references
therein to "Member(s) of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be
changed to read as "Member(s) of Parliament" and any and all references to the "President" and/or "Acting
President" shall be changed to read "Prime Minister."

Section 3. Upon the expiration of the term of the incumbent President and Vice President, with the exception of
Sections 1, 2, 3 and 4 of Article VII of the 1987 Constitution which are hereby amended and Sections 7, 8, 9,
10, 11 and 12 which are hereby deleted, all other Sections of Article VII shall be retained and renumbered
sequentially as Section 2, ad seriatim up to 14, unless they shall be inconsistent with Section 1 hereof, in which
case they shall be deemed amended so as to conform to a unicameral Parliamentary System of government;
provided, however, that any all references therein to "Congress," "Senate," "House of Representatives" and
"Houses of Congress" shall be changed to read "Parliament;" that any and all references therein to "Member(s)
of Congress," "Senator(s)" or "Member(s) of the House of Representatives" shall be changed to read as
"Member(s) of Parliament" and any and all references to the "President" and or "Acting President" shall be
changed to read "Prime Minister."
Section 4. (1) There shall exist, upon the ratification of these amendments, an interim Parliament which shall
continue until the Members of the regular Parliament shall have been elected and shall have qualified. It shall
be composed of the incumbent Members of the Senate and the House of Representatives and the incumbent
Members of the Cabinet who are heads of executive departments.

(2) The incumbent Vice President shall automatically be a Member of Parliament until noon of the thirtieth day
of June 2010. He shall also be a member of the cabinet and shall head a ministry. He shall initially convene the
interim Parliament and shall preside over its sessions for the election of the interim Prime Minister and until the
Speaker shall have been elected by a majority vote of all the members of the interim Parliament from among
themselves.

(3) Senators whose term of office ends in 2010 shall be Members of Parliament until noon of the thirtieth day of
June 2010.

(4) Within forty-five days from ratification of these amendments, the interim Parliament shall convene to propose
amendments to, or revisions of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy.

Section 5. (1) The incumbent President, who is the Chief Executive, shall nominate, from among the members
of the interim Parliament, an interim Prime Minister, who shall be elected by a majority vote of the members
thereof. The interim Prime Minister shall oversee the various ministries and shall perform such powers and
responsibilities as may be delegated to him by the incumbent President."

(2) The interim Parliament shall provide for the election of the members of Parliament, which shall be
synchronized and held simultaneously with the election of all local government officials. The duly elected Prime
Minister shall continue to exercise and perform the powers, duties and responsibilities of the interim Prime
Minister until the expiration of the term of the incumbent President and Vice President. 10

Sigaw ng Bayan prepared signature sheets, on the upper portions of which were written the abstract of the proposed amendments,
to wit:

Abstract: Do you approve of the amendment of Articles VI and VII of the 1987 Constitution, changing the form of
government from the present bicameral-presidential to a unicameral-parliamentary system of government, in order to
achieve greater efficiency, simplicity and economy in government; and providing an Article XVIII as Transitory Provisions
for the orderly shift from one system to another?

The signature sheets were distributed nationwide to affiliated non-government organizations and volunteers of Sigaw ng Bayan, as
well as to the local officials. Copies of the draft petition for initiative containing the proposition were also circulated to the local
officials and multi-sectoral groups.

Sigaw ng Bayan alleged that it also held barangay assemblies which culminated on March 24, 25 and 26, 2006, to inform the people
and explain to them the proposed amendments to the Constitution. Thereafter, they circulated the signature sheets for signing.

The signature sheets were then submitted to the local election officers for verification based on the voters' registration record. Upon
completion of the verification process, the respective local election officers issued certifications to attest that the signature sheets
have been verified. The verified signature sheets were subsequently transmitted to the office of Sigaw ng Bayan for the counting of
the signatures.

On August 25, 2006, herein petitioners Raul L. Lambino and Erico B. Aumentado filed with the COMELEC a Petition for Initiative to
Amend the Constitution entitled "In the Matter of Proposing Amendments to the 1987 Constitution through a People's Initiative: A
Shift from a Bicameral Presidential to a Unicameral Parliamentary Government by Amending Articles VI and VII; and Providing
Transitory Provisions for the Orderly Shift from the Presidential to the Parliamentary System." They filed an Amended Petition on
August 30, 2006 to reflect the text of the proposed amendment that was actually presented to the people. They alleged that they
were filing the petition in their own behalf and together with some 6.3 million registered voters who have affixed their signatures on
the signature sheets attached thereto. Petitioners appended to the petition signature sheets bearing the signatures of registered
voters which they claimed to have been verified by the respective city or municipal election officers, and allegedly constituting at
least twelve per cent (12%) of all registered voters in the country, wherein each legislative district is represented by at least three per
cent (3%) of all the registered voters therein.

As basis for the filing of their petition for initiative, petitioners averred that Section 5 (b) and (c), together with Section 7 of
R.A. 6735, provide sufficient enabling details for the people's exercise of the power. Hence, petitioners prayed that the
COMELEC issue an Order:
1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local
circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of
the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition.

Several groups filed with the COMELEC their respective oppositions to the petition for initiative, among them ONEVOICE, Inc.,
Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr., Susan V. Ople, and Carlos P. Medina, Jr.;
Alternative Law Groups, Inc., Senate Minority Leader Aquilino Q. Pimentel, Jr., Senators Sergio Osmea III, Jamby A.S. Madrigal,
Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P. Rosales, Mario
Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum, Migrante, Gabriela,
Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Drs. Darby Santiago and
Reginald Pamugas; Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron D. Bocar, Ma. Tanya Karina A. Lat, Antonio L.
Salvador, and Randall C. Tabayoyong.

On August 31, 2006, the COMELEC denied due course to the Petition for Initiative. It cited this Court's ruling in Santiago v.
COMELEC11 permanently enjoining the Commission 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.

Forthwith, petitioners filed with this Court the instant Petition for Certiorari and Mandamus praying that the Court set aside the
August 31, 2006 resolution of the COMELEC, direct respondent COMELEC to comply with Section 4, Article XVII of the
Constitution, and set the date of the plebiscite. They state the following grounds in support of the petition:

I.

The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and
to give due course to the petition for initiative, because the cited Santiago ruling of 19 March 1997 cannot be considered
the majority opinion of the Supreme Court en banc, considering that upon its reconsideration and final voting on 10 June
1997, no majority vote was secured to declare Republic Act No. 6735 as inadequate, incomplete and insufficient in
standard.

II.

The 1987 Constitution, Republic Act No. 6735, Republic Act No. 8189 and existing appropriation of the COMELEC provide
for sufficient details and authority for the exercise of people's initiative, thus, existing laws taken together are adequate
and complete.

III.

The Honorable public respondent COMELEC committed grave abuse of discretion in refusing to take cognizance of, and
in refusing to give due course to the petition for initiative, thereby violating an express constitutional mandate and
disregarding and contravening the will of the people.

A.

Assuming in arguendo that there is no enabling law, respondent COMELEC cannot ignore the will of the
sovereign people and must accordingly act on the petition for initiative.

1.

The framers of the Constitution intended to give the people the power to propose amendments and
the people themselves are now giving vibrant life to this constitutional provision.

2.

Prior to the questioned Santiago ruling of 19 March 1997, the right of the people to exercise the
sovereign power of initiative and recall has been invariably upheld.
3.

The exercise of the initiative to propose amendments is a political question which shall be determined
solely by the sovereign people.

4.

By signing the signature sheets attached to the petition for initiative duly verified by the election
officers, the people have chosen to perform this sacred exercise of their sovereign power.

B.

The Santiago ruling of 19 March 1997 is not applicable to the instant petition for initiative filed by the petitioners.

C.

The permanent injunction issued in Santiago vs. COMELEC only applies to the Delfin petition.

1.

It is the dispositive portion of the decision and not other statements in the body of the decision that
governs the rights in controversy.

IV.

The Honorable public respondent failed or neglected to act or perform a duty mandated by law.

A.

The ministerial duty of the COMELEC is to set the initiative for plebiscite. 12

The oppositors-intervenors, ONEVOICE, Inc., Christian S. Monsod, Rene B. Azurin, Manuel L. Quezon III, Benjamin T. Tolosa, Jr.,
Susan V. Ople, and Carlos P. Medina, Jr.; Alternative Law Groups, Inc.; Bayan, Kilusang Mayo Uno, Ecumenical Bishops Forum,
Migrante Gabriela, Gabriela Women's Party, Anakbayan, League of Filipino Students, Leonardo San Jose, Jojo Pineda, Dr. Darby
Santiago, and Dr. Reginald Pamugas; Senate Minority Leader Aquilino Q. Pimentel, Jr., and Senators Sergio Osmea III, Jamby
A.S. Madrigal, Alfredo S. Lim, Panfilo M. Lacson, Luisa P. Ejercito-Estrada, and Jinggoy Estrada; Representatives Loretta Ann P.
Rosales, Mario Joyo Aguja, and Ana Theresia Hontiveros-Baraquel; and Attys. Pete Quirino-Quadra, Jose Anselmo I. Cadiz, Byron
D. Bocar, Ma. Tanya Karina A. Lat, Antonio L. Salvador, and Randall C. Tabayoyong moved to intervene in this case and filed their
respective Oppositions/Comments-in-Intervention.

The Philippine Constitution Association, Conrado F. Estrella, Tomas C. Toledo, Mariano M. Tajon, Froilan M. Bacungan, Joaquin T.
Venus, Jr., Fortunato P. Aguas, and Amado Gat Inciong; the Integrated Bar of the Philippines Cebu City and Cebu Province
Chapters; former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino; and the Senate of the Philippines, represented
by Senate President Manuel Villar, Jr., also filed their respective motions for intervention and Comments-in-Intervention.

The Trade Union Congress of the Philippines, Sulongbayan Movement Foundation, Inc., Ronald L. Adamat, Rolando Manuel Rivera,
Ruelo Baya, Philippine Transport and General Workers Organization, and Victorino F. Balais likewise moved to intervene and
submitted to the Court a Petition-in-Intervention. All interventions and oppositions were granted by the Court.

The oppositors-intervenors essentially submit that the COMELEC did not commit grave abuse of discretion in denying due course to
the petition for initiative as it merely followed this Court's ruling in Santiago v. COMELEC as affirmed in the case of PIRMA v.
COMELEC, based on the principle of stare decisis; that there is no sufficient law providing for the authority and the details for the
exercise of people's initiative to amend the Constitution; that the proposed changes to the Constitution are actually revisions, not
mere amendments; that the petition for initiative does not meet the required number of signatories under Section 2, Article XVII of
the 1987 Constitution; that it was not shown that the people have been informed of the proposed amendments as there was
disparity between the proposal presented to them and the proposed amendments attached to the petition for initiative, if indeed
there was; that the verification process was done ex parte, thus rendering dubious the signatures attached to the petition for
initiative; and that petitioners Lambino and Aumentado have no legal capacity to represent the signatories in the petition for initiative.

The Office of the Solicitor General (OSG), in compliance with the Court's resolution of September 5, 2006, filed its Comment to the
petition. Affirming the position of the petitioners, the OSG prayed that the Court grant the petition at bar and render judgment: (1)
declaring R.A. 6735 as adequate to cover or as reasonably sufficient to implement the system of initiative on amendments to the
Constitution and as having provided sufficient standards for subordinate legislation; (2) declaring as valid the provisions of
COMELEC Resolution No. 2300 on the conduct of initiative or amendments to the Constitution; (3) setting aside the assailed
resolution of the COMELEC for having been rendered with grave abuse of discretion amounting to lack or excess of jurisdiction;
and, (4) directing the COMELEC to grant the petition for initiative and set the corresponding plebiscite pursuant to R.A. 6735,
COMELEC Resolution No. 2300, and other pertinent election laws and regulations.

The COMELEC filed its own Comment stating that its resolution denying the petition for initiative is not tainted with grave abuse of
discretion as it merely adhered to the ruling of this Court in Santiago v. COMELEC which declared that R.A. 6735 does not
adequately implement the constitutional provision on initiative to amend the Constitution. It invoked the permanent injunction issued
by the Court against the COMELEC from taking cognizance of petitions for initiative on amendments to the Constitution until a valid
enabling law shall have been passed by Congress. It asserted that the permanent injunction covers not only the Delfin Petition, but
also all other petitions involving constitutional initiatives.

On September 26, 2006, the Court heard the case. The parties were required to argue on the following issues:13

1. Whether petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than
six million voters who allegedly signed the proposal to amend the Constitution.

2. Whether the Petitions for Initiative filed before the Commission on Elections complied with Section 2, Article XVII of the
Constitution.

3. Whether the Court's decision in Santiago v. COMELEC (G.R. No. 127325, March 19, 1997) bars the present petition.

4. Whether the Court should re-examine the ruling in Santiago v. COMELEC that there is no sufficient law implementing or
authorizing the exercise of people's initiative to amend the Constitution.

5. Assuming R.A. 6735 is sufficient, whether the Petitions for Initiative filed with the COMELEC have complied with its
provisions.

5.1 Whether the said petitions are sufficient in form and substance.

5.2 Whether the proposed changes embrace more than one subject matter.

6. Whether the proposed changes constitute an amendment or revision of the Constitution.

6.1 Whether the proposed changes are the proper subject of an initiative.

7. Whether the exercise of an initiative to propose amendments to the Constitution is a political question to be determined
solely by the sovereign people.

8. Whether the Commission on Elections committed grave abuse of discretion in dismissing the Petitions for Initiative filed
before it.

With humility, I offer the following views to these issues as profiled:

Petitioners Lambino and Aumentado are proper parties to file the present Petition in behalf of the more than six million
voters who allegedly signed the proposal to amend the Constitution.

Oppositors-intervenors contend that petitioners Lambino and Aumentado are not the proper parties to file the instant petition as they
were not authorized by the signatories in the petition for initiative.

The argument deserves scant attention. The Constitution requires that the petition for initiative should be filed by at least twelve per
cent (12%) of all registered voters, of which every legislative district must be represented by at least three per cent (3%) of all the
registered voters therein. The petition for initiative filed by Lambino and Aumentado before the COMELEC was accompanied by
voluminous signature sheets which prima facie show the intent of the signatories to support the filing of said petition. Stated above
their signatures in the signature sheets is the following:
x x x My signature herein which shall form part of the petition for initiative to amend the Constitution signifies my support
for the filing thereof.14

There is thus no need for the more than six (6) million signatories to execute separate documents to authorize petitioners to file the
petition for initiative in their behalf.

Neither is it necessary for said signatories to authorize Lambino and Aumentado to file the petition for certiorari and mandamus
before this Court. Rule 65 of the 1997 Rules of Civil Procedure provides who may file a petition for certiorari and mandamus.
Sections 1 and 3 of Rule 65 read:

SECTION 1. Petition for certiorari.When any tribunal, board or officer exercising judicial or quasi-judicial functions has
acted without or in excess of his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction,
and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person
aggrieved thereby may file a verified petition in the proper court x x x x.

SEC. 3. Petition for mandamus.When any tribunal, corporation, board, officer or person unlawfully neglects the
performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station x x x and there
is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a
verified petition in the proper court x x x x.

Thus, any person aggrieved by the act or inaction of the respondent tribunal, board or officer may file a petition for certiorari or
mandamus before the appropriate court. Certainly, Lambino and Aumentado, as among the proponents of the petition for initiative
dismissed by the COMELEC, have the standing to file the petition at bar.

II

The doctrine of stare decisis does not bar the reexamination of Santiago.

The latin phrase stare decisis et non quieta movere means "stand by the thing and do not disturb the calm." The doctrine started
with the English Courts.15 Blackstone observed that at the beginning of the 18th century, "it is an established rule to abide by former
precedents where the same points come again in litigation."16 As the rule evolved, early limits to its application were recognized: (1)
it would not be followed if it were "plainly unreasonable;" (2) where courts of equal authority developed conflicting decisions; and, (3)
the binding force of the decision was the "actual principle or principles necessary for the decision; not the words or reasoning used
to reach the decision."17

The doctrine migrated to the United States. It was recognized by the framers of the U.S. Constitution.18According to Hamilton, "strict
rules and precedents" are necessary to prevent "arbitrary discretion in the courts." 19 Madison agreed but stressed that "x x x once
the precedent ventures into the realm of altering or repealing the law, it should be rejected."20 Prof. Consovoy well noted that
Hamilton and Madison "disagree about the countervailing policy considerations that would allow a judge to abandon a
precedent."21 He added that their ideas "reveal a deep internal conflict between the concreteness required by the rule of law and the
flexibility demanded in error correction. It is this internal conflict that the Supreme Court has attempted to deal with for over two
centuries."22

Indeed, two centuries of American case law will confirm Prof. Consovoy's observation although stare decisis developed its own life
in the United States. Two strains of stare decisis have been isolated by legal scholars.23The first, known as vertical stare
decisis deals with the duty of lower courts to apply the decisions of the higher courts to cases involving the same facts. The second,
known as horizontal stare decisis requires that high courts must follow its own precedents. Prof. Consovoy correctly observes
that vertical stare decisis has been viewed as an obligation, while horizontal stare decisis, has been viewed as a policy, imposing
choice but not a command.24 Indeed, stare decisis is not one of the precepts set in stone in our Constitution.

It is also instructive to distinguish the two kinds of horizontal stare decisis constitutional stare decisisand statutory stare
decisis.25 Constitutional stare decisis involves judicial interpretations of the Constitution while statutory stare decisis involves
interpretations of statutes. The distinction is important for courts enjoy more flexibility in refusing to apply stare decisis in
constitutional litigations. Justice Brandeis' view on the binding effect of the doctrine in constitutional litigations still holds sway today.
In soothing prose, Brandeis stated: "Stare decisis is not . . . a universal and inexorable command. The rule of stare decisis is not
inflexible. Whether it shall be followed or departed from, is a question entirely within the discretion of the court, which is again called
upon to consider a question once decided."26 In the same vein, the venerable Justice Frankfurter opined: "the ultimate touchstone of
constitutionality is the Constitution itself and not what we have said about it."27 In contrast, the application of stare decisis on judicial
interpretation of statutes is more inflexible. As Justice Stevens explains: "after a statute has been construed, either by this Court or
by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the
judicial gloss had been drafted by the Congress itself."28 This stance reflects both respect for Congress' role and the need to
preserve the courts' limited resources.
In general, courts follow the stare decisis rule for an ensemble of reasons,29 viz: (1) it legitimizes judicial institutions; (2) it promotes
judicial economy; and, (3) it allows for predictability. Contrariwise, courts refuse to be bound by the stare decisis rule where30 (1) its
application perpetuates illegitimate and unconstitutional holdings; (2) it cannot accommodate changing social and political
understandings; (3) it leaves the power to overturn bad constitutional law solely in the hands of Congress; and, (4) activist judges
can dictate the policy for future courts while judges that respect stare decisis are stuck agreeing with them.

In its 200-year history, the U.S. Supreme Court has refused to follow the stare decisis rule and reversed its decisions in 192
cases.31 The most famous of these reversals is Brown v. Board of Education32 which junked Plessy v. Ferguson's33 "separate but
equal doctrine." Plessy upheld as constitutional a state law requirement that races be segregated on public transportation. In Brown,
the U.S. Supreme Court, unanimously held that "separate . . . is inherently unequal." Thus, by freeing itself from the shackles
of stare decisis, the U.S. Supreme Court freed the colored Americans from the chains of inequality. In the Philippine setting, this
Court has likewise refused to be straitjacketed by the stare decisis rule in order to promote public welfare. In La Bugal-B'laan Tribal
Association, Inc. v. Ramos,34 we reversed our original ruling that certain provisions of the Mining Law are unconstitutional. Similarly,
in Secretary of Justice v. Lantion,35 we overturned our first ruling and held, on motion for reconsideration, that a private respondent
is bereft of the right to notice and hearing during the evaluation stage of the extradition process.

An examination of decisions on stare decisis in major countries will show that courts are agreed on the factors that should be
considered before overturning prior rulings. These are workability, reliance, intervening developments in the law and changes in fact.
In addition, courts put in the balance the following determinants: closeness of the voting, age of the prior decision and its merits.36

The leading case in deciding whether a court should follow the stare decisis rule in constitutional litigations is Planned Parenthood v.
Casey.37 It established a 4-pronged test. The court should (1) determine whether the rule has proved to be intolerable simply in
defying practical workability; (2) consider whether the rule is subject to a kind of reliance that would lend a special hardship to the
consequences of overruling and add inequity to the cost of repudiation; (3) determine whether related principles of law have so far
developed as to have the old rule no more than a remnant of an abandoned doctrine; and, (4) find out whether facts have so
changed or come to be seen differently, as to have robbed the old rule of significant application or justification.

Following these guidelines, I submit that the stare decisis rule should not bar the reexamination of Santiago. On the factor of
intolerability, the six (6) justices in Santiago held R.A. 6735 to be insufficient as it provided no standard to guide COMELEC in
issuing its implementing rules. The Santiago ruling that R.A. 6735 is insufficient but without striking it down as unconstitutional is
an intolerable aberration, the only one of its kind in our planet. It improperly assails the ability of legislators to write laws. It usurps
the exclusive right of legislators to determine how far laws implementing constitutional mandates should be crafted. It is elementary
that courts cannot dictate on Congress the style of writing good laws, anymore than Congress can tell courts how to write literate
decisions. The doctrine of separation of powers forbids this Court to invade the exclusive lawmaking domain of Congress for courts
can construe laws but cannot construct them. The end result of the ruling of the six (6) justices that R.A. 6735 is insufficient is
intolerable for it rendered lifeless the sovereign right of the people to amend the Constitution via an initiative.

On the factor of reliance, the ruling of the six (6) justices in Santiago did not induce any expectation from the people. On the
contrary, the ruling smothered the hope of the people that they could amend the Constitution by direct action. Moreover, reliance is a
non-factor in the case at bar for it is more appropriate to consider in decisions involving contracts where private rights are
adjudicated. The case at bar involves no private rights but the sovereignty of the people.

On the factor of changes in law and in facts, certain realities on ground cannot be blinked away. The urgent need to adjust certain
provisions of the 1987 Constitution to enable the country to compete in the new millennium is given. The only point of contention is
the mode to effect the change - - - whether through constituent assembly, constitutional convention or people's initiative. Petitioners
claim that they have gathered over six (6) million registered voters who want to amend the Constitution through people's initiative
and that their signatures have been verified by registrars of the COMELEC. The six (6) justices who ruled that R.A. 6735 is
insufficient to implement the direct right of the people to amend the Constitution through an initiative cannot waylay the will of 6.3
million people who are the bearers of our sovereignty and from whom all government authority emanates. New developments in our
internal and external social, economic, and political settings demand the reexamination of the Santiago case. The stare decisis rule
is no reason for this Court to allow the people to step into the future with a blindfold.

III

A reexamination of R.A. 6735 will show that it is sufficient to implement the people's initiative.

Let us reexamine the validity of the view of the six (6) justices that R.A. 6735 is insufficient to implement Section 2, Article XVII of the
1987 Constitution allowing amendments to the Constitution to be directly proposed by the people through initiative.

When laws are challenged as unconstitutional, courts are counseled to give life to the intent of legislators. In enacting R.A. 6735, it
is daylight luminous that Congress intended the said law to implement the right of the people, thru initiative, to propose amendments
to the Constitution by direct action. This all-important intent is palpable from the following:

First. The text of R.A. 6735 is replete with references to the right of the people to initiate changes to the Constitution:
The policy statement declares:

Sec. 2. Statement of Policy. -- The power of the people under a system of initiative and referendum to directly propose,
enact, approve or reject, in whole or in part, the Constitution, laws, ordinances, or resolutions passed by any legislative
body upon compliance with the requirements of this Act is hereby affirmed, recognized and guaranteed. (emphasis
supplied)

It defines "initiative" as "the power of the people to propose amendments to the Constitution or to propose and enact
legislations through an election called for the purpose," and "plebiscite" as "the electoral process by which an initiative on the
Constitution is approved or rejected by the people."

It provides the requirements for a petition for initiative to amend the Constitution, viz:

(1) That "(a) petition for an initiative on the 1987 Constitution must have at least twelve per centum (12%) of the total
number of registered voters as signatories, of which every legislative district must be represented by at least three per
centum (3%) of the registered voters therein;"38 and

(2) That "(i)nitiative on the Constitution may be exercised only after five (5) years from the ratification of the 1987
Constitution and only once every five (5) years thereafter."39

It fixes the effectivity date of the amendment under Section 9(b) which provides that "(t)he proposition in an initiative on the
Constitution approved by a majority of the votes cast in the plebiscite shall become effective as to the day of the plebiscite."

Second. The legislative history of R.A. 6735 also reveals the clear intent of the lawmakers to use it as the instrument to implement
people's initiative. No less than former Chief Justice Hilario G. Davide, Jr., the ponente in Santiago, concedes:40

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 x x x x 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 and by the House of Representatives. This approved bill is now R.A. No. 6735.

Third. The sponsorship speeches by the authors of R.A. 6735 similarly demonstrate beyond doubt this intent. In his sponsorship
remarks, the late Senator Raul Roco (then a Member of the House of Representatives) emphasized the intent to make initiative as a
mode whereby the people can propose amendments to the Constitution. We quote his relevant remarks:41

SPONSORSHIP REMAKRS OF REP. ROCO

MR. ROCO. Mr. Speaker, with the permission of the committee, we wish to speak in support of House Bill No. 497,
entitled: INITIATIVE AND REFERENDUM ACT OF 1987, which later on may be called Initiative and Referendum Act of
1989.

As a background, we want to point out the constitutional basis of this particular bill. The grant of plenary legislative power
upon the Philippine Congress by the 1935, 1973 and 1987 Constitutions, Mr. Speaker, was based on the principle that any
power deemed to be legislative by usage and tradition is necessarily possessed by the Philippine Congress unless the
Organic Act has lodged it elsewhere. This was a citation from Vera vs. Avelino (1946).

The presidential system introduced by the 1935 Constitution saw the application of the principle of separation of powers.
While under the parliamentary system of the 1973 Constitution the principle remained applicable, Amendment 6 or the
1981 amendments to the 1973 Constitution ensured presidential dominance over the Batasang Pambansa.

Our constitutional history saw the shifting and sharing of legislative power between the legislature and the executive.

Transcending such changes in the exercise of legislative power is the declaration in the Philippine Constitution that he
Philippines is a Republican State where sovereignty resides in the people and all government authority emanates from
them.

In a Republic, Mr. Speaker, the power to govern is vested in its citizens participating through the right of suffrage and
indicating thereby their choice of lawmakers.
Under the 1987 Constitution, lawmaking power is still preserved in Congress. However, to institutionalize direct action of
the people as exemplified in the 1986 Revolution, there is a practical recognition of what we refer to as people's sovereign
power. This is the recognition of a system of initiative and referendum.

Section 1, Article VI of the 1987 Constitution provides, and I quote:

The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and
House of Representatives, except to the extent reserved to the people by the provision on initiative and
referendum.

In other words, Mr. Speaker, under the 1987 Constitution, Congress does not have plenary powers. There is a reserved
legislative power given to the people expressly.

Section 32, the implementing provision of the same article of the Constitution provides, and I quote:

The Congress shall, as early as possible, provide for a system of initiative and referendum, and the exceptions
therefrom, whereby the people can directly propose and enact laws or approve or reject any act or law or part
thereof passed by the Congress or local legislative body after the registration of a petition therefor signed by at
least ten per centum of the total number of registered voters, or which every legislative district must be
represented by at least three per centum of the registered voters thereof.

In other words, Mr. Speaker, in Section 1 of Article VI which describes legislative power, there are reserved powers given
to the people. In Section 32, we are specifically told to pass at the soonest possible time a bill on referendum and
initiative. We are specifically mandated to share the legislative powers of Congress with the people.

Of course, another applicable provision in the Constitution is Section 2, Article XVII, Mr. Speaker. Under the provision on
amending the Constitution, the section reads, and I quote:

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.

We in Congress therefore, Mr. Speaker, are charged with the duty to implement the exercise by the people of the right of
initiative and referendum.

House Bill No. 21505, as reported out by the Committee on Suffrage and Electoral Reforms last December 14, 1988, Mr.
Speaker, is the response to such a constitutional duty.

Mr. Speaker, if only to allay apprehensions, allow me to show where initiative and referendum under Philippine law has
occurred.

Mr. Speaker, the system of initiative and referendum is not new. In a very limited extent, the system is provided for in our
Local Government Code today. On initiative, for instance, Section 99 of the said code vests in the barangay assembly the
power to initiate legislative processes, to hold plebiscites and to hear reports of the sangguniang barangay. There are
variations of initiative and referendum. The barangay assembly is composed of all persons who have been actual
residents of the barangay for at least six months, who are at least 15 years of age and citizens of the Philippines. The
holding of barangay plebiscites and referendum is also provided in Sections 100 and 101 of the same Code.

Mr. Speaker, for brevity I will not read the pertinent quotations but will just submit the same to the Secretary to be
incorporated as part of my speech.

To continue, Mr. Speaker these same principles are extensively applied by the Local Government Code as it is now
mandated by the 1987 Constitution.

In other jurisdictions, Mr. Speaker, we have ample examples of initiative and referendum similar to what is now contained
in House Bill No. 21505. As in the 1987 Constitutions and House Bill No. 21505, the various constitutions of the states in
the United States recognize the right of registered voters to initiate the enactment of any statute or to reject any existing
law or parts thereof in a referendum. These states are Alaska, Alabama, Montana, Massachusetts, Dakota, Oklahoma,
Oregon, and practically all other states.
In certain American states, the kind of laws to which initiative and referendum applies is also without ay limitation, except
for emergency measures, which is likewise incorporated in Section 7(b) of House Bill No. 21505.

The procedure provided by the House bill from the filing of the petition, the requirement of a certain percentage of
supporters to present a proposition to submission to electors is substantially similar to those of many American laws. Mr.
Speaker, those among us who may have been in the United States, particularly in California, during election time or last
November during the election would have noticed different propositions posted in the city walls. They were propositions
submitted by the people for incorporation during the voting. These were in the nature of initiative, Mr. Speaker.

Although an infant then in Philippine political structure, initiative and referendum is a tried and tested system in other
jurisdictions, and House Bill No. 21505 through the various consolidated bills is patterned after American experience in a
great respect.

What does the bill essentially say, Mr. Speaker? Allow me to try to bring our colleagues slowly through the bill. The bill has
basically only 12 sections. The constitutional Commissioners, Mr. Speaker, saw this system of initiative and referendum
as an instrument which can be used should the legislature show itself indifferent to the needs of the people. That is why,
Mr. Speaker, it may be timely, since we seem to be amply criticized, as regards our responsiveness, to pass this bill on
referendum and initiative now. While indifference would not be an appropriate term to use at this time, and surely it is not
the case although we are so criticized, one must note that it is a felt necessity of our times that laws need to be proposed
and adopted at the soonest possible time to spur economic development, safeguard individual rights and liberties, and
share governmental power with the people.

With the legislative powers of the President gone, we alone, together with the Senators when they are minded to agree
with us, are left with the burden of enacting the needed legislation.

Let me now bring our colleagues, Mr. Speaker, to the process advocated by the bill.

First, initiative and referendum, Mr. Speaker, is defined. Initiative essentially is what the term connotes. It means that the
people, on their own political judgment, submit fore the consideration and voting of the general electorate a bill or a piece
of legislation.

Under House Bill No. 21505, there are three kinds of initiative. One is an initiative to amend the Constitution. This can
occur once every five years. Another is an initiative to amend statutes that we may have approved. Had this bill been an
existing law, Mr. Speaker, it is most likely that an overwhelming majority of the barangays in the Philippines would have
approved by initiative the matter of direct voting.

The third mode of initiative, Mr. Speaker, refers to a petition proposing to enact regional, provincial, city, municipal or
barangay laws or ordinances. It comes from the people and it must be submitted directly to the electorate. The bill gives a
definite procedure and allows the COMELEC to define rules and regulations to give teeth to the power of initiative.

On the other hand, referendum, Mr. Speaker, is the power of the people to approve or reject something that Congress has
already approved.

For instance, Mr. Speaker, when we divide the municipalities or the barangays into two or three, we must first get the
consent of the people affected through plebiscite or referendum.

Referendum is a mode of plebiscite, Mr. Speaker. However, referendum can also be petitioned by the people if, for
instance, they do not life the bill on direct elections and it is approved subsequently by the Senate. If this bill had already
become a law, then the people could petition that a referendum be conducted so that the acts of Congress can be
appropriately approved or rebuffed.

The initial stage, Mr. Speaker, is what we call the petition. As envisioned in the bill, the initiative comes from the people,
from registered voters of the country, by presenting a proposition so that the people can then submit a petition, which is a
piece of paper that contains the proposition. The proposition in the example I have been citing is whether there should be
direct elections during the barangay elections. So the petition must be filed in the appropriate agency and the proposition
must be clear stated. It can be tedious but that is how an effort to have direct democracy operates.

Section 4 of the bill gives requirements, Mr. Speaker. It will not be all that easy to have referendum or initiative petitioned
by the people. Under Section 4 of the committee report, we are given certain limitations. For instance, to exercise the
power of initiative or referendum, at least 10 percent of the total number of registered voters, of which every legislative
district is represented by at least 3 percent of the registered voters thereof, shall sign a petition. These numbers, Mr.
Speaker, are not taken from the air. They are mandated by the Constitution. There must be a requirement of 10 percent
for ordinary laws and 3 percent representing all districts. The same requirement is mutatis mutandis or appropriately
modified and applied to the different sections. So if it is, for instance, a petition on initiative or referendum for a barangay,
there is a 10 percent or a certain number required of the voters of the barangay. If it is for a district, there is also a certain
number required of all towns of the district that must seek the petition. If it is for a province then again a certain
percentage of the provincial electors is required. All these are based with reference to the constitutional mandate.

The conduct of the initiative and referendum shall be supervised and shall be upon the call of the Commission on
Elections. However, within a period of 30 days from receipt of the petition, the COMELEC shall determine the sufficiency
of the petition, publish the same and set the date of the referendum which shall not be earlier than 45 days but not later
than 90 days from the determination by the commission of the sufficiency of the petition. Why is this so, Mr. Speaker? The
petition must first be determined by the commission as to its sufficiency because our Constitution requires that no bill can
be approved unless it contains one subject matter. It is conceivable that in the fervor of an initiative or referendum, Mr.
Speaker, there may be more than two topics sought to be approved and that cannot be allowed. In fact, that is one of the
prohibitions under this referendum and initiative bill. When a matter under initiative or referendum is approved by the
required number of votes, Mr. Speaker, it shall become effective 15 days following the completion of its publication in
the Official Gazette. Effectively then, Mr. Speaker, all the bill seeks to do is to enlarge and recognize the legislative powers
of the Filipino people.

Mr. Speaker, I think this Congress, particularly this House, cannot ignore or cannot be insensitive to the call for initiative
and referendum. We should have done it in 1987 but that is past. Maybe we should have done it in 1988 but that too had
already passed, but it is only February 1989, Mr. Speaker, and we have enough time this year at least to respond to the
need of our people to participate directly in the work of legislation.

For these reasons, Mr. Speaker, we urge and implore our colleagues to approve House Bill No. 21505 as incorporated in
Committee Report No. 423 of the Committee on Suffrage and Electoral Reforms.

In closing, Mr. Speaker, I also request that the prepared text of my speech, together with the footnotes since they contain
many references to statutory history and foreign jurisdiction, be reproduced as part of the Record for future purposes.

Equally unequivocal on the intent of R.A. 6735 is the sponsorship speech of former Representative Salvador Escudero III, viz:42

SPONSORSHIP REMARKS OF REP. ESCUDERO

MR. ESCUDERO. Thank you, Mr. Speaker.

Mr. Speaker and my dear colleagues: Events in recent years highlighted the need to heed the clamor of the people for a
truly popular democracy. One recalls the impatience of those who actively participated in the parliament of the streets,
some of whom are now distinguished Members of this Chamber. A substantial segment of the population feel increasingly
that under the system, the people have the form but not the reality or substance of democracy because of the increasingly
elitist approach of their chosen Representatives to many questions vitally affecting their lives. There have been
complaints, not altogether unfounded, that many candidates easily forge their campaign promises to the people once
elected to office. The 1986 Constitutional Commission deemed it wise and proper to provide for a means whereby the
people can exercise the reserve power to legislate or propose amendments to the Constitution directly in case their chose
Representatives fail to live up to their expectations. That reserve power known as initiative is explicitly recognized in three
articles and four sections of the 1987 Constitution, namely: Article VI Section 1; the same article, Section 312; Article X,
Section 3; and Article XVII, Section 2. May I request that he explicit provisions of these three articles and four sections be
made part of my sponsorship speech, Mr. Speaker.

These constitutional provisions are, however, not self-executory. There is a need for an implementing law that will give
meaning and substance to the process of initiative and referendum which are considered valuable adjuncts to
representative democracy. It is needless to state that this bill when enacted into law will probably open the door to strong
competition of the people, like pressure groups, vested interests, farmers' group, labor groups, urban dwellers, the urban
poor and the like, with Congress in the field of legislation.

Such probability, however, pales in significance when we consider that through this bill we can hasten the politization of
the Filipino which in turn will aid government in forming an enlightened public opinion, and hopefully produce better and
more responsive and acceptable legislations.

Furthermore, Mr. Speaker, this would give the parliamentarians of the streets and cause-oriented groups an opportunity to
articulate their ideas in a truly democratic forum, thus, the competition which they will offer to Congress will hopefully be a
healthy one. Anyway, in an atmosphere of competition there are common interests dear to all Filipinos, and the pursuit of
each side's competitive goals can still take place in an atmosphere of reason and moderation.
Mr. Speaker and my dear colleagues, when the distinguished Gentleman from Camarines Sur and this Representation
filed our respective versions of the bill in 1987, we were hoping that the bill would be approved early enough so that our
people could immediately use the agrarian reform bill as an initial subject matter or as a take-off point.

However, in view of the very heavy agenda of the Committee on Local Government, it took sometime before the
committee could act on these. But as they say in Tagalog, huli man daw at magaling ay naihahabol din. The passage of
this bill therefore, my dear colleagues, could be one of our finest hours when we can set aside our personal and political
consideration for the greater good of our people. I therefore respectfully urge and plead that this bill be immediately
approved.

Thank you, Mr. Speaker.

We cannot dodge the duty to give effect to this intent for the "[c]ourts have the duty to interpret the law as legislated and when
possible, to honor the clear meaning of statutes as revealed by its language, purpose and history."43

The tragedy is that while conceding this intent, the six (6) justices, nevertheless, ruled that "x x x R.A. No. 6735 is incomplete,
inadequate, or wanting in essential terms and conditions insofar as initiative on amendments to the Constitution is concerned" for
the following reasons: (1) Section 2 of the Act does not suggest an initiative on amendments to the Constitution; (2) the Act does not
provide for the contents of the petition for initiative on the Constitution; and (3) 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.

To say the least, these alleged omissions are too weak a reason to throttle the right of the sovereign people to amend the
Constitution through initiative. R.A. 6735 clearly expressed the legislative policy for the people to propose amendments to the
Constitution by direct action. The fact that the legislature may have omitted certain details in implementing the people's initiative in
R.A. 6735, does not justify the conclusion that, ergo, the law is insufficient. What were omitted were mere details and not
fundamental policies which Congress alone can and has determined. Implementing details of a law can be delegated to the
COMELEC and can be the subject of its rule-making power. Under Section 2(1), Article IX-C of the Constitution, the COMELEC has
the power to enforce and administer all laws and regulations relative to the conduct of initiatives. Its rule-making power has long
been recognized by this Court. In ruling R.A. 6735 insufficient but without striking it down as unconstitutional, the six (6) justices
failed to give due recognition to the indefeasible right of the sovereign people to amend the Constitution.

IV

The proposed constitutional changes, albeit substantial, are mere amendments and can be undertaken through people's
initiative.

Oppositors-intervenors contend that Sections 1 and 2, Article XVII of the 1987 Constitution, only allow the use of people's initiative
to amend and not to revise the Constitution. They theorize that the changes proposed by petitioners are substantial and thus
constitute a revision which cannot be done through people's initiative.

In support of the thesis that the Constitution bars the people from proposing substantial amendments amounting to revision, the
oppositors-intervenors cite the following deliberations during the Constitutional Commission, viz:44

MR. SUAREZ: x x x x This proposal was suggested on the theory that this matter of initiative, which came about because
of the extraordinary developments this year, has to be separated from the traditional modes of amending the Constitution
as embodied in Section 1. The Committee members felt that this system of initiative should not extend to the revision of
the entire Constitution, so we removed it from the operation of Section 1 of the proposed Article on Amendment or
Revision.

xxxxxxxxxxxx

MS. AQUINO. In which case, I am seriously bothered by providing this process of initiative as a separate section in the
Article on Amendment. Would the sponsor be amenable 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-executing
provision?

MR. SUAREZ. We would be amenable except that, as we clarified a while ago, this process of initiative is limited to the
matter of amendment and should not expand into a revision which contemplates a total overhaul of the Constitution. That
was the sense that was conveyed by the Committee.
MS. AQUINO. In other words, the Committee was attempting to distinguish the coverage of modes (a) and (b) in Section 1
to include the process of revision; whereas the process of initiation to amend, which is given to the public, would only
apply to amendments?

MR. SUAREZ. That is right. Those were the terms envisioned in the Committee.

Commissioner (later Chief Justice) Hilario G. Davide, Jr., espoused the same view:45

MR. DAVIDE. x x x x We are limiting the right of the people, by initiative, to submit a proposal for amendment only, not for
revision, only once every five years x x x x

MR. MAAMBONG. My first question: Commissioner Davide's proposed amendment on line 1 refers to "amendment."
Does it 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."

Commissioner (now a distinguished Associate Justice of this Court) Adolfo S. Azcuna also clarified this point 46 -

MR. OPLE. To more closely reflect the intent of Section 2, may I suggest that we add to "Amendments" "OR REVISIONS
OF" to read: "Amendments OR REVISION OF this Constitution."

MR. AZCUNA. I think it was not allowed to revise the Constitution by initiative.

MR. OPLE. How is that again?

MR. AZCUNA. It was not our intention to allow a revision of the Constitution by initiative but merely by amendments.

MR. BENGZON. Only by amendments.

MR. AZCUNA. I remember that was taken on the floor.

MR. RODRIGO. Yes, just amendments.

The oppositors-intervenors then point out that by their proposals, petitioners will "change the very system of government from
presidential to parliamentary, and the form of the legislature from bicameral to unicameral," among others. They allegedly seek other
major revisions like the inclusion of a minimum number of inhabitants per district, a change in the period for a term of a Member of
Parliament, the removal of the limits on the number of terms, the election of a Prime Minister who shall exercise the executive
power, and so on and so forth.47 In sum, oppositors-intervenors submit that "the proposed changes to the Constitution effect major
changes in the political structure and system, the fundamental powers and duties of the branches of the government, the political
rights of the people, and the modes by which political rights may be exercised."48 They conclude that they are substantial
amendments which cannot be done through people's initiative. In other words, they posit the thesis that only simple but not
substantial amendments can be done through people's initiative.

With due respect, I disagree. To start with, the words "simple" and "substantial" are not subject to any accurate quantitative or
qualitative test. Obviously, relying on the quantitative test, oppositors-intervenors assert that the amendments will result in some one
hundred (100) changes in the Constitution. Using the same test, however, it is also arguable that petitioners seek to change
basically only two (2) out of the eighteen (18) articles of the 1987 Constitution, i.e. Article VI (Legislative Department) and Article VII
(Executive Department), together with the complementary provisions for a smooth transition from a presidential bicameral system to
a parliamentary unicameral structure. The big bulk of the 1987 Constitution will not be affected including Articles I (National
Territory), II (Declaration of Principles and State Policies), III (Bill of Rights), IV (Citizenship), V (Suffrage), VIII (Judicial Department),
IX (Constitutional Commissions), X (Local Government), XI (Accountability of Public Officers), XII (National Economy and
Patrimony), XIII (Social Justice and Human Rights), XIV (Education, Science and Technology, Arts, Culture, and Sports), XV (The
Family), XVI (General Provisions), and even XVII (Amendments or Revisions). In fine, we stand on unsafe ground if we use simple
arithmetic to determine whether the proposed changes are "simple" or "substantial."

Nor can this Court be surefooted if it applies the qualitative test to determine whether the said changes
are "simple" or "substantial" as to amount to a revision of the Constitution. The well-regarded political scientist, Garner, says that a
good constitution should contain at least three (3) sets of provisions: the constitution of liberty which sets forth the fundamental
rights of the people and imposes certain limitations on the powers of the government as a means of securing the enjoyment of these
rights; the constitution of government which deals with the framework of government and its powers, laying down certain rules for its
administration and defining the electorate; and, the constitution of sovereignty which prescribes the mode or procedure for
amending or revising the constitution.49 It is plain that the proposed changes will basically affect only the constitution of
government. The constitutions of liberty and sovereignty remain unaffected. Indeed, the proposed changes will not change the
fundamental nature of our state as "x x x a democratic and republican state."50 It is self-evident that a unicameral-parliamentary form
of government will not make our State any less democratic or any less republican in character. Hence, neither will the use of the
qualitative test resolve the issue of whether the proposed changes are "simple" or "substantial."

For this reason and more, our Constitutions did not adopt any quantitative or qualitative test to determine whether an "amendment"
is "simple" or "substantial." Nor did they provide that "substantial" amendments are beyond the power of the people to propose to
change the Constitution. Instead, our Constitutions carried the traditional distinction between "amendment" and "revision," i.e.,
"amendment" means change, including complex changes while "revision" means complete change, including the adoption of an
entirely new covenant. The legal dictionaries express this traditional difference between "amendment" and "revision." Black's Law
Dictionary defines "amendment" as "[a] formal revision or addition proposed or made to a statute, constitution, pleading, order, or
other instrument; specifically, a change made by addition, deletion, or correction." 51 Black's also refers to "amendment" as "the
process of making such a revision."52 Revision, on the other hand, is defined as "[a] reexamination or careful review for correction or
improvement."53 In parliamentary law, it is described as "[a] general and thorough rewriting of a governing document, in which
the entire document is open to amendment."54 Similarly, Ballentine's Law Dictionary defines "amendment" as "[a] correction or
revision of a writing to correct errors or better to state its intended purpose" 55 and "amendment of constitution" as "[a] process of
proposing, passing, and ratifying amendments to the x x x constitution."56 In contrast, "revision,"when applied to a statute (or
constitution), "contemplates the re-examination of the same subject matter contained in the statute (or constitution), and the
substitution of a new, and what is believed to be, a still more perfect rule." 57

One of the most authoritative constitutionalists of his time to whom we owe a lot of intellectual debt, Dean Vicente G. Sinco, of the
University of the Philippines College of Law, (later President of the U.P. and delegate to the Constitutional Convention of 1971)
similarly spelled out the difference between "amendment" and "revision." He opined: "the revision of a constitution, in its strict sense,
refers to a consideration of the entire constitution and the procedure for effecting such change; while amendment refers only to
particular provisions to be added to or to be altered in a constitution."58

Our people were guided by this traditional distinction when they effected changes in our 1935 and 1973 Constitutions. In 1940, the
changes to the 1935 Constitution which included the conversion from a unicameral system to a bicameral structure, the shortening
of the tenure of the President and Vice-President from a six-year term without reelection to a four-year term with one reelection, and
the establishment of the COMELEC, together with the complementary constitutional provisions to effect the changes, were
considered amendments only, not a revision.

The replacement of the 1935 Constitution by the 1973 Constitution was, however, considered a revision since the 1973 Constitution
was "a completely new fundamental charter embodying new political, social and economic concepts." 59 Among those adopted under
the 1973 Constitution were: the parliamentary system in place of the presidential system, with the leadership in legislation and
administration vested with the Prime Minister and his Cabinet; the reversion to a single-chambered lawmaking body instead of the
two-chambered, which would be more suitable to a parliamentary system of government; the enfranchisement of the youth
beginning eighteen (18) years of age instead of twenty-one (21), and the abolition of literacy, property, and other substantial
requirements to widen the basis for the electorate and expand democracy; the strengthening of the judiciary, the civil service
system, and the Commission on Elections; the complete nationalization of the ownership and management of mass media; the
giving of control to Philippine citizens of all telecommunications; the prohibition against alien individuals to own educational
institutions, and the strengthening of the government as a whole to improve the conditions of the masses. 60

The 1973 Constitution in turn underwent a series of significant changes in 1976, 1980, 1981, and 1984. The two significant
innovations introduced in 1976 were (1) the creation of an interim Batasang Pambansa, in place of the interim National Assembly,
and (2) Amendment No. 6 which conferred on the President the power to issue decrees, orders, or letters of instruction, whenever
the Batasang Pambansa fails to act adequately on any matter for any reason that in his judgment requires immediate action, or
there is grave emergency or threat or imminence thereof, with such decrees, or letters of instruction to form part of the law of the
land. In 1980, the retirement age of seventy (70) for justices and judges was restored. In 1981, the presidential system with
parliamentary features was installed. The transfer of private land for use as residence to natural-born citizens who had lost their
citizenship was also allowed. Then, in 1984, the membership of the Batasang Pambansa was reapportioned by provinces, cities, or
districts in Metro Manila instead of by regions; the Office of the Vice-President was created while the executive committee was
abolished; and, urban land reform and social housing programs were strengthened. 61 These substantial changes were simply
considered as mere amendments.

In 1986, Mrs. Corazon C. Aquino assumed the presidency, and repudiated the 1973 Constitution. She governed under Proclamation
No. 3, known as the Freedom Constitution.

In February 1987, the new constitution was ratified by the people in a plebiscite and superseded the Provisional or Freedom
Constitution. Retired Justice Isagani Cruz underscored the outstanding features of the 1987 Constitution which consists of eighteen
articles and is excessively long compared to the Constitutions of 1935 and 1973, on which it was largely based. Many of the original
provisions of the 1935 Constitution, particularly those pertaining to the legislative and executive departments, have been restored
because of the revival of the bicameral Congress of the Philippines and the strictly presidential system. The independence of the
judiciary has been strengthened, with new provisions for appointment thereto and an increase in its authority, which now covers
even political questions formerly beyond its jurisdiction. While many provisions of the 1973 Constitution were retained, like those on
the Constitutional Commissions and local governments, still the new 1987 Constitution was deemed as a revision of the 1973
Constitution.

It is now contended that this traditional distinction between amendment and revision was abrogated by the 1987 Constitution. It is
urged that Section 1 of Article XVII gives the power to amend or revise to Congress acting as a constituent assembly, and to a
Constitutional Convention duly called by Congress for the purpose. Section 2 of the same Article, it is said, limited the people's right
to change the Constitution via initiative through simple amendments. In other words, the people cannot propose substantial
amendments amounting to revision.

With due respect, I do not agree. As aforestated, the oppositors-intervenors who peddle the above proposition rely on the opinions
of some Commissioners expressed in the course of the debate on how to frame the amendment/revision provisions of the 1987
Constitution. It is familiar learning, however, that opinions in a constitutional convention, especially if inconclusive of an issue, are
of very limited value as explaining doubtful phrases, and are an unsafe guide (to the intent of the people) since the constitution
derives its force as a fundamental law, not from the action of the convention but from the powers (of the people) who have ratified
and adopted it.62 "Debates in the constitutional convention 'are of value as showing the views of the individual members, and as
indicating the reasons for their votes, but they give us no light as to the views of the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave that instrument the force of fundamental law.'" 63 Indeed, a careful perusal
of the debates of the Constitutional Commissioners can likewise lead to the conclusion that there was no abandonment of the
traditional distinction between "amendment" and "revision." For during the debates, some of the commissioners referred to the
concurring opinion of former Justice Felix Q. Antonio in Javellana v. The Executive Secretary,64that stressed the traditional
distinction between amendment and revision, thus:65

MR. SUAREZ: We mentioned the possible use of only one term and that is, "amendment." However, the Committee finally
agreed to use the terms "amendment" or "revision" when our attention was called by the honorable Vice-President to
the substantial difference in the connotation and significance between the said terms. As a result of our research, we
came up with the observations made in the famous or notorious Javellana doctrine, particularly the decision rendered
by Honorable Justice Makasiar,66 wherein he made the following distinction between "amendment" and "revision" of an
existing Constitution: "Revision" may involve a rewriting of the whole Constitution. On the other hand, the act of amending
a constitution envisages a change of specific provisions only. The intention of an act to amend is not the change of the
entire Constitution, but only the improvement of specific parts or the addition of provisions deemed essential as a
consequence of new conditions or the elimination of parts already considered obsolete or unresponsive to the needs of
the times.

The 1973 Constitution is not a mere amendment to the 1935 Constitution. It is a completely new fundamental Charter
embodying new political, social and economic concepts.

So, the Committee finally came up with the proposal that these two terms should be employed in the formulation of the
Article governing amendments or revisions to the new Constitution.

To further explain "revision," former Justice Antonio, in his concurring opinion, used an analogy "When a house is completely
demolished and another is erected on the same location, do you have a changed, repaired and altered house, or do you have a new
house? Some of the material contained in the old house may be used again, some of the rooms may be constructed the same, but
this does not alter the fact that you have altogether another or a new house."67

Hence, it is arguable that when the framers of the 1987 Constitution used the word "revision," they had in mind the "rewriting of the
whole Constitution," or the "total overhaul of the Constitution." Anything less is an "amendment" or just "a change of specific
provisions only," the intention being "not the change of the entire Constitution, but only the improvement of specific parts or the
addition of provisions deemed essential as a consequence of new conditions or the elimination of parts already considered obsolete
or unresponsive to the needs of the times." Under this view, "substantial" amendments are still "amendments" and thus can be
proposed by the people via an initiative.

As we cannot be guided with certainty by the inconclusive opinions of the Commissioners on the difference between "simple" and
"substantial" amendments or whether "substantial" amendments amounting to revision are covered by people's initiative, it
behooves us to follow the cardinal rule in interpreting Constitutions, i.e., construe them to give effect to the intention of the people
who adopted it. The illustrious Cooley explains its rationale well, viz:68

x x x the constitution does not derive its force from the convention which framed, but from the people who ratified it, the
intent to be arrived at is that of the people, and it is not to be supposed that they have looked for any dark or abstruse
meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common
understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed. These
proceedings therefore are less conclusive of the proper construction of the instrument than are legislative proceedings of
the proper construction of a statute; since in the latter case it is the intent of the legislature we seek, while in the former we
are endeavoring to arrive at the intent of the people through the discussion and deliberations of their representatives. The
history of the calling of the convention, the causes which led to it, and the discussions and issues before the people at the
time of the election of the delegates, will sometimes be quite as instructive and satisfactory as anything to be gathered
form the proceedings of the convention.

Corollarily, a constitution is not to be interpreted on narrow or technical principles, but liberally and on broad general lines, to
accomplish the object of its establishment and carry out the great principles of government not to defeat them. 69 One of these
great principles is the sovereignty of the people.

Let us now determine the intent of the people when they adopted initiative as a mode to amend the 1987 Constitution. We start with
the Declaration of Principles and State Policies which Sinco describes as "the basic political creed of the nation" 70 as it "lays down
the policies that government is bound to observe."71 Section 1, Article II of the 1935 Constitution and Section 1, Article II of the 1973
Constitution, similarly provide that "the Philippines is a republican state. Sovereignty resides in the people and all government
authority emanates from them." In a republican state, the power of the sovereign people is exercised and delegated to their
representatives. Thus in Metropolitan Transportation Service v. Paredes, this Court held that "a republican state, like the Philippines
x x x (is) derived from the will of the people themselves in freely creating a government 'of the people, by the people, and for the
people' a representative government through which they have agreed to exercise the powers and discharge the duties of their
sovereignty for the common good and general welfare."72

In both the 1935 and 1973 Constitutions, the sovereign people delegated to Congress or to a convention, the power to amend or
revise our fundamental law. History informs us how this delegated power to amend or revise the Constitution was abused
particularly during the Marcos regime. The Constitution was changed several times to satisfy the power requirements of the regime.
Indeed, Amendment No. 6 was passed giving unprecedented legislative powers to then President Ferdinand E. Marcos. A
conspiracy of circumstances from above and below, however, brought down the Marcos regime through an extra constitutional
revolution, albeit a peaceful one by the people. A main reason for the people's revolution was the failure of the representatives of the
people to effectuate timely changes in the Constitution either by acting as a constituent assembly or by calling a constitutional
convention. When the representatives of the people defaulted in using this last peaceful process of constitutional change,
the sovereign people themselves took matters in their own hands. They revolted and replaced the 1973 Constitution with the 1987
Constitution.

It is significant to note that the people modified the ideology of the 1987 Constitution as it stressed the power of the people to act
directly in their capacity as sovereign people. Correspondingly, the power of the legislators to act as representatives of the people in
the matter of amending or revising the Constitution was diminished for the spring cannot rise above its source. To reflect this
significant shift, Section 1, Article II of the 1987 Constitution was reworded. It now reads: "the Philippines is a democratic and
republican state. Sovereignty resides in the people and all government authority emanates from them." The commissioners of the
1986 Constitutional Commission explained the addition of the word "democratic," in our first Declaration of Principles, viz:

MR. NOLLEDO. I am putting the word "democratic" because of the provisions that we are now adopting which are covering
consultations with the people. For example, we have provisions on recall, initiative, the right of the people even to participate in
lawmaking and other instances that recognize the validity of interference by the people through people's organizations x x x x 73

MR. OPLE. x x x x The Committee added the word "democratic" to "republican," and, therefore, the first sentence states:
"The Philippines is a republican and democratic state x x x x

May I know from the committee the reason for adding the word "democratic" to "republican"? The constitutional framers of
the 1935 and 1973 Constitutions were content with "republican." Was this done merely for the sake of emphasis?

MR. NOLLEDO. x x x x "democratic" was added because of the need to emphasize people power and the many
provisions in the Constitution that we have approved related to recall, people's organizations, initiative and the like, which
recognize the participation of the people in policy-making in certain circumstances x x x x

MR. OPLE. I thank the Commissioner. That is a very clear answer and I think it does meet a need x x x x

MR. NOLLEDO. According to Commissioner Rosario Braid, "democracy" here is understood as participatory
democracy. 74 (emphasis supplied)

The following exchange between Commissioners Rene V. Sarmiento and Adolfo S. Azcuna is of the same import:75

MR. SARMIENTO. When we speak of republican democratic state, are we referring to representative democracy?

MR. AZCUNA. That is right.

MR. SARMIENTO. So, why do we not retain the old formulation under the 1973 and 1935 Constitutions which used the
words "republican state" because "republican state" would refer to a democratic state where people choose their
representatives?
MR. AZCUNA. We wanted to emphasize the participation of the people in government.

MR. SARMIENTO. But even in the concept "republican state," we are stressing the participation of the people x x x x So
the word "republican" will suffice to cover popular representation.

MR. AZCUNA. Yes, the Commissioner is right. However, the committee felt that in view of the introduction of the aspects
of direct democracy such as initiative, referendum or recall, it was necessary to emphasize the democratic portion of
republicanism, of representative democracy as well. So, we want to add the word "democratic" to emphasize that in this
new Constitution there are instances where the people would act directly, and not through their
representatives. (emphasis supplied)

Consistent with the stress on direct democracy, the systems of initiative, referendum, and recall were enthroned as polestars in the
1987 Constitution. Thus, Commissioner Blas F. Ople who introduced the provision on people's initiative said:76

MR. OPLE. x x x x I think this is just the correct time in history when we should introduce an innovative mode of proposing
amendments to the Constitution, vesting in the people and their organizations the right to formulate and propose their own
amendments and revisions of the Constitution in a manner that will be binding upon the government. It is not that I believe
this kind of direct action by the people for amending a constitution will be needed frequently in the future, but it is good to
know that the ultimate reserves of sovereign power still rest upon the people and that in the exercise of that power, they
can propose amendments or revision to the Constitution. (emphasis supplied)

Commissioner Jose E. Suarez also explained the people's initiative as a safety valve, as a peaceful way for the people to change
their Constitution, by citing our experiences under the Marcos government, viz:77

MR. SUAREZ. We agree to the difficulty in implementing this particular provision, but we are providing a channel for the
expression of the sovereign will of the people through this initiative system.

MR. BENGZON. Is Section 1, paragraphs (a) and (b), not sufficient channel for expression of the will of the people,
particularly in the amendment or revision of the Constitution?

MR. SUAREZ. Under normal circumstances, yes. But we know what happened during the 20 years under the Marcos
administration. So, if the National Assembly, in a manner of speaking, is operating under the thumb of the Prime Minister
or the President as the case may be, and the required number of votes could not be obtained, we would have to provide
for a safety valve in order that the people could ventilate in a very peaceful way their desire for amendment to the
Constitution.

It is very possible that although the people may be pressuring the National Assembly to constitute itself as a constituent
assembly or to call a constitutional convention, the members thereof would not heed the people's desire and clamor. So
this is a third avenue that we are providing for the implementation of what is now popularly known as people's power.
(emphasis supplied)

Commissioner Regalado E. Maambong opined that the people's initiative could avert a revolution, viz:78

MR. MAAMBONG. x x x x the amending process of the Constitution could actually avert a revolution by providing a safety
valve in bringing about changes in the Constitution through pacific means. This, in effect, operationalizes what political law
authors call the "prescription of sovereignty." (emphasis supplied)

The end result is Section 2, Article XVII of the 1987 Constitution which expressed the right of the sovereign people to propose
amendments to the Constitution by direct action or through initiative. To that extent, the delegated power of Congress to amend or
revise the Constitution has to be adjusted downward. Thus, Section 1, Article VI of the 1987 Constitution has to be reminted and
now provides: "The legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate and a House
of Representatives, except to the extent reserved to the people by the provision on initiative and referendum."

Prescinding from these baseline premises, the argument that the people through initiative cannot propose substantial amendments
to change the Constitution turns sovereignty on its head. At the very least, the submission constricts the democratic space for the
exercise of the direct sovereignty of the people. It also denigrates the sovereign people who they claim can only be trusted with the
power to propose "simple" but not "substantial" amendments to the Constitution. According to Sinco, the concept of sovereignty
should be strictly understood in its legal meaning as it was originally developed in law. 79 Legal sovereignty, he explained, is "the
possession of unlimited power to make laws. Its possessor is the legal sovereign. It implies the absence of any other party endowed
with legally superior powers and privileges. It is not subject to law 'for it is the author and source of law.' Legal sovereignty is thus
the equivalent of legal omnipotence."80
To be sure, sovereignty or popular sovereignty, emphasizes the supremacy of the people's will over the state which they themselves
have created. The state is created by and subject to the will of the people, who are the source of all political power. Rightly, we have
ruled that "the sovereignty of our people is not a kabalistic principle whose dimensions are buried in mysticism. Its metes and
bounds are familiar to the framers of our Constitutions. They knew that in its broadest sense, sovereignty is meant to be supreme,
the jus summi imperu, the absolute right to govern."81

James Wilson, regarded by many as the most brilliant, scholarly, and visionary lawyer in the United States in the 1780s, laid down
the first principles of popular sovereignty during the Pennsylvania ratifying convention of the 1787 Constitution of the United
States:82

There necessarily exists, in every government, a power from which there is no appeal, and which, for that reason, may be
termed supreme, absolute, and uncontrollable.

x x x x Perhaps some politician, who has not considered with sufficient accuracy our political systems, would answer that,
in our governments, the supreme power was vested in the constitutions x x x x This opinion approaches a step nearer to
the truth, but does not reach it. The truth is, that in our governments, the supreme, absolute, and uncontrollable power
remains in the people. As our constitutions are superior to our legislatures, so the people are superior to our constitutions.
Indeed the superiority, in this last instance, is much greater; for the people possess over our constitution, control in act, as
well as right. (emphasis supplied)

I wish to reiterate that in a democratic and republican state, only the people is sovereign - - - not the elected President, not the
elected Congress, not this unelected Court. Indeed, the sovereignty of the people which is indivisible cannot be reposed in any
organ of government. Only its exercise may be delegated to any of them. In our case, the people delegated to Congress the
exercise of the sovereign power to amend or revise the Constitution. If Congress, as delegate, can exercise this power to amend or
revise the Constitution, can it be argued that the sovereign people who delegated the power has no power to substantially amend
the Constitution by direct action? If the sovereign people do not have this power to make substantial amendments to the
Constitution, what did it delegate to Congress? How can the people lack this fraction of a power to substantially amend the
Constitution when by their sovereignty, all power emanates from them? It will take some mumbo jumbo to argue that the whole is
lesser than its part. Let Sinco clinch the point:83

But although possession may not be delegated, the exercise of sovereignty often is. It is delegated to the organs and
agents of the state which constitute its government, for it is only through this instrumentality that the state ordinarily
functions. However ample and complete this delegation may be, it is nevertheless subject to withdrawal at any time by the
state. On this point Willoughby says:

Thus, States may concede to colonies almost complete autonomy of government and reserve to themselves a
right to control of so slight and so negative a character as to make its exercise a rare and improbable
occurrence; yet so long as such right of control is recognized to exist, and the autonomy of the colonies is
conceded to be founded upon a grant and continuing consent of the mother countries the sovereignty of those
mother countries over them is complete and they are to be considered as possessing only administrative
autonomy and not political independence.

At the very least, the power to propose substantial amendments to the Constitution is shared with the people. We should accord the
most benign treatment to the sovereign power of the people to propose substantial amendments to the Constitution especially when
the proposed amendments will adversely affect the interest of some members of Congress. A contrary approach will suborn the
public weal to private interest and worse, will enable Congress (the delegate) to frustrate the power of the people to determine their
destiny (the principal).

All told, the teaching of the ages is that constitutional clauses acknowledging the right of the people to exercise initiative and
referendum are liberally and generously construed in favor of the people.84 Initiative and referendum powers must be broadly
construed to maintain maximum power in the people.85 We followed this orientation in Subic Bay Metropolitan Authority v.
Commission on Elections.86 There is not an iota of reason to depart from it.

The issues at bar are not political questions.

Petitioners submit that "[t]he validity of the exercise of the right of the sovereign people to amend the Constitution and their will, as
expressed by the fact that over six million registered voters indicated their support of the Petition for Initiative, is a purely political
question which is beyond even the very long arm of this Honorable Court's power of judicial review. Whether or not the 1987
Constitution should be amended is a matter which the people and the people alone must resolve in their sovereign capacity." 87 They
argue that "[t]he power to propose amendments to the Constitution is a right explicitly bestowed upon the sovereign people. Hence,
the determination by the people to exercise their right to propose amendments under the system of initiative is a sovereign act and
falls squarely within the ambit of a 'political question.'"88
The petitioners cannot be sustained. This issue has long been interred by Sanidad v. Commission on Elections, viz:89

Political questions are neatly associated with the wisdom, not 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.

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 proposals
to the people ultimately lie in the judgment of the latter. A clear Descartes fallacy of vicious cycle. 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, that constitutional provision has been followed or not is indisputably
a proper subject of inquiry, not by the people themselves of course who exercise no power of judicial review, 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
priori not a posteriori, i.e., before the submission to and ratification by the people.

In the instant case, the Constitution sets in black and white the requirements for the exercise of the people's initiative to amend the
Constitution. The amendments must be proposed by the people "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."90 Compliance with these requirements is clearly a justiciable and not a political question. Be that
as it may, how the issue will be resolved by the people is addressed to them and to them alone.

VI

Whether the Petition for Initiative filed before the COMELEC complied with Section 2, Article XVII of the Constitution and R.A. 6735
involves contentious issues of fact which should first be resolved by the COMELEC.

Oppositors-intervenors impugn the Petition for Initiative as it allegedly lacks the required number of signatures under Section 2,
Article XVII of the Constitution. Said provision requires that the petition for initiative be supported by at least twelve per cent (12%) of
the total number of registered voters, of which every legislative district must be represented by at least three per cent (3%) of the
registered voters therein. Oppositors-intervenors contend that no proper verification of signatures was done in several legislative
districts. They assert that mere verification of the names listed on the signature sheets without verifying the signatures reduces the
signatures submitted for their respective legislative districts to mere scribbles on a piece of paper.

Oppositor-intervenor ONEVOICE, Inc., submitted to this Court a certification dated August 23, 2006 issued by Atty. Marlon S.
Casquejo, Election Officer IV, Third District and OIC, First and Second District, Davao City, stating that his office has not verified the
signatures submitted by the proponents of the people's initiative. The certification reads:

This is to CERTIFY that this office (First, Second and Third District, Davao City) HAS NOT VERIFIED the signatures of
registered voters as per documents submitted in this office by the proponents of the People's Initiative. Consequently, NO
ELECTION DOCUMENTS AND/OR ORDER ISSUED BY HIGHER SUPERIORS used as basis for such verification of
signatures.91

Senate Minority Leader Aquilino Pimentel, Jr., among others, further clarified that although Atty. Casquejo and Reynne Joy B.
Bullecer, Acting Election Officer IV, First District, Davao City, later issued certifications stating that the Office of the City Election
Officer has examined the list of individuals appearing in the signature sheets, 92 the certifications reveal that the office had verified
only the names of the signatories, but not their signatures. Oppositors-intervenors submit that not only the names of the signatories
should be verified, but also their signatures to ensure the identities of the persons affixing their signatures on the signature sheets.

Oppositor-intervenor Luwalhati Antonino also alleged that petitioners failed to obtain the signatures of at least three per cent (3%) of
the total number of registered voters in the First Legislative District of South Cotabato. For the First District of South Cotabato,
petitioners submitted 3,182 signatures for General Santos City, 2,186 signatures for Tupi, 3,308 signatures for Tampakan and
10,301 signatures for Polomolok, or 18,977 signatures out of 359,488 registered voters of said district. Antonino, however, submitted
to this Court a copy of the certification by Glory D. Rubio, Election Officer III, Polomolok, dated May 8, 2006, showing that the
signatures from Polomolok were not verified because the Book of Voters for the whole municipality was in the custody of the Clerk of
Court of the Regional Trial Court, Branch 38, Polomolok, South Cotabato. 93 Excluding the signatures from Polomolok from the total
number of signatures from the First District of South Cotabato would yield only a total of 8,676 signatures which falls short of the
three per cent (3%) requirement for the district.
Former President Joseph Ejercito Estrada and Pwersa ng Masang Pilipino likewise submitted to this Court a certification issued by
Atty. Stalin A. Baguio, City Election Officer IV, Cagayan de Oro City, stating that the list of names appearing on the signature sheets
corresponds to the names of registered voters in the city, thereby implying that they have not actually verified the signatures. 94

The argument against the sufficiency of the signatures is further bolstered by Alternative Law Groups, Inc., which submitted copies
of similarly worded certifications from the election officers from Zamboanga del Sur 95 and from Compostela Valley.96 Alternative Law
Groups, Inc., further assails the regularity of the verification process as it alleged that verification in some areas were conducted by
Barangay officials and not by COMELEC election officers. It filed with this Court copies of certifications from Sulu and Sultan
Kudarat showing that the verification was conducted by local officials instead of COMELEC personnel. 97

Petitioners, on the other hand, maintain that the verification conducted by the election officers sufficiently complied with the
requirements of the Constitution and the law on initiative.

Contravening the allegations of oppositors-intervenors on the lack of verification in Davao City and in Polomolok, South Cotabato,
petitioner Aumentado claimed that the same election officers cited by the oppositors-intervenors also issued certifications showing
that they have verified the signatures submitted by the proponents of the people's initiative. He presented copies of the certifications
issued by Atty. Marlon S. Casquejo for the Second and Third Legislative Districts of Davao City stating that he verified the signatures
of the proponents of the people's initiative. His certification for the Second District states:

This is to CERTIFY that this Office has examined the list of individuals as appearing in the Signature Sheets of the
Registered Voters of District II, Davao City, submitted on April 7, 2006 by MR. NONATO BOLOS, Punong Barangay,
Centro, Davao City for verification which consists of THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662)
signatures.

Anent thereto, it appears that of the THIRTY THOUSAND SIX HUNDRED SIXTY-TWO (30,662) individuals, only
TWENTY-TWO THOUSAND SIX HUNDRED SIXTY-EIGHT (22,668) individuals were found to be REGISTERED
VOTERS, in the Computerized List of Voters of SECOND CONGRESSIONAL DISTRICT, DAVAO CITY. 98

It was also shown that Atty. Casquejo had issued a clarificatory certification regarding the verification process conducted in Davao
City. It reads:

Regarding the verification of the signatures of registered voters, this Office has previously issued two (2) separate
certifications for the 2nd and 3rd Districts of Davao City on April 20, 2006 and April 26, 2006, respectively, specifically
relating to the voters who supported the people's initiative. It was stated therein that the names submitted, comprising
22,668 individual voters in the 2nd District and 18,469 individual voters in the 3rd District, were found [to] be registered
voters of the respective districts mentioned as verified by this Office based on the Computerized List of Voters.

It must be clarified that the August 23, 2006 Certification was issued in error and by mistake for the reason that the
signature verification has not been fully completed as of that date.

I hereby CERTIFY that this Office has examined the signatures of the voters as appearing in the signature sheets and has
compared these with the signatures appearing in the book of voters and computerized list of voters x x x 99

Petitioner Aumentado also submitted a copy of the certification dated May 8, 2006 issued by Polomolok Election Officer Glory D.
Rubio to support their claim that said officer had conducted a verification of signatures in said area. The certification states:

This is to certify further, that the total 68,359 registered voters of this municipality, as of the May 10, 2004 elections,
10,804 names with signatures were submitted for verification and out of which 10,301 were found to be legitimate voters
as per official list of registered voters, which is equivalent to 15.07% of the total number of registered voters of this
Municipality.100

In addition to the lack of proper verification of the signatures in numerous legislative districts, allegations of fraud and irregularities in
the collection of signatures in Makati City were cited by Senator Pimentel, among others, to wit:

(1) No notice was given to the public, for the benefit of those who may be concerned, by the Makati COMELEC Office that
signature sheets have already been submitted to it for "verification." The camp of Mayor Binay was able to witness the
"verification process" only because of their pro-active stance;

(2) In District 1, the proponents of charter change submitted 43,405 signatures for verification. 36,219 alleged voters'
signatures (83% of the number of signatures submitted) were rejected outright. 7,186 signatures allegedly "passed"
COMELEC's initial scrutiny. However, upon examination of the signature sheets by Atty. Mar-len Abigail Binay, the said
7,186 signatures could not be accounted for. Atty. Binay manually counted 2,793 signatures marked with the word "OK"
and 3,443 signatures marked with a check, giving only 6,236 "apparently verified signatures." Before the COMELEC
officer issued the Certification, Atty. Binay already submitted to the said office not less than 55 letters of "signature
withdrawal," but no action was ever taken thereon;

(3) In District 2, 29,411 signatures were submitted for verification. 23,521 alleged voters' signatures (80% of those
submitted) were rejected outright. Of the 5,890 signatures which allegedly passed the COMELEC's initial scrutiny, some
more will surely fail upon closer examination;

(4) In the absence of clear, transparent, and uniform rules the COMELEC personnel did not know how to treat the
objections and other observations coming from the camp of Mayor Binay. The oppositors too did not know where to go for
their remedy when the COMELEC personnel merely "listened" to their objections and other observations. As mentioned
earlier, the COMELEC personnel did not even know what to do with the many "letters of signature withdrawal" submitted
to it;

(5) Signatures of people long dead, in prison, abroad, and other forgeries appear on the Sigaw ng Bayan Signature
Sheets. There is even a 15-year old alleged signatory;

(6) There are Signature Sheets obviously signed by one person;

(7) A Calara M. Roberto and a Roberto M. Calara both allegedly signed the Signature Sheets. 101

Also, there are allegations that many of the signatories did not understand what they have signed as they were merely misled into
signing the signature sheets. Opposed to these allegations are rulings that a person who affixes his signature on a document raises
the presumption that the person so signing has knowledge of what the document contains. Courts have recognized that there is
great value in the stability of records, so to speak, that no one should commit herself or himself to something in writing unless she or
he is fully aware and cognizant of the effect it may have upon her on him.102 In the same vein, we have held that a person is
presumed to have knowledge of the contents of a document he has signed.103 But as this Court is not a trier of facts, it cannot
resolve the issue.

In sum, the issue of whether the petitioners have complied with the constitutional requirement that the petition for initiative be signed
by at least twelve per cent (12%) of the total number of registered voters, of which every legislative district must be represented by
at least three per cent (3%) of the registered voters therein, involves contentious facts. Its resolution will require presentation of
evidence and their calibration by the COMELEC according to its rules. During the oral argument on this case, the COMELEC,
through Director Alioden Dalaig of its Law Department, admitted that it has not examined the documents submitted by the
petitioners in support of the petition for initiative, as well as the documents filed by the oppositors to buttress their claim that the
required number of signatures has not been met. The exchanges during the oral argument likewise clearly show the need for further
clarification and presentation of evidence to prove certain material facts. 104

The only basis used by the COMELEC to dismiss the petition for initiative was this Court's ruling in Santiago v. COMELEC that R.A.
6735 was insufficient. It has yet to rule on the sufficiency of the form and substance of the petition. I respectfully submit that
this issue should be properly litigated before the COMELEC where both parties will be given full opportunity to prove their
allegations.

For the same reasons, the sufficiency of the Petition for Initiative and its compliance with the requirements of R.A. 6735 on initiative
and its implementing rules is a question that should be resolved by the COMELEC at the first instance, as it is the body that is
mandated by the Constitution to administer all laws and regulations relative to the conduct of an election, plebiscite, initiative,
referendum and recall.105

VII

COMELEC gravely abused its discretion when it denied due course to the Lambino and Aumentado petition.

In denying due course to the Lambino and Aumentado petition, COMELEC relied on this Court's ruling in Santiago permanently
enjoining it 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.

Again, I respectfully submit that COMELEC's reliance on Santiago constitutes grave abuse of discretion amounting to lack of
jurisdiction. The Santiago case did not establish the firm doctrine that R.A. 6735 is not a sufficient law to implement the
constitutional provision allowing people's initiative to amend the Constitution. To recapitulate, the records show that in the original
decision, eight (8) justices106 voted that R.A. 6735 was not a sufficient law; five (5) justices107 voted that said law was sufficient; and
one (1) justice108 abstained from voting on the issue holding that unless and until a proper initiatory pleading is filed, the said issue is
not ripe for adjudication.109
Within the reglementary period, the respondents filed their motion for reconsideration. On June 10, 1997, the Court denied the
motion. Only thirteen (13) justices resolved the motion for Justice Torres inhibited himself. 110 Of the original majority of eight (8)
justices, only six (6) reiterated their ruling that R.A. 6735 was an insufficient law. Justice Hermosisima, originally part of the majority
of eight (8) justices, changed his vote and joined the minority of five (5) justices. He opined without any equivocation that R.A. 6735
was a sufficient law, thus:

It is one thing to utter a happy phrase from a protected cluster; another to think under fire to think for action upon which
great interests depend." So said Justice Oliver Wendell Holmes, and so I am guided as I reconsider my concurrence to
the holding of the majority that "R.A. No. 6735 is inadequate to cover the system of initiative on amendments to the
Constitution and to have failed to provide sufficient standard for subordinate legislation" and now to interpose my dissent
thereto.

xxx

WHEREFORE, I vote to dismiss the Delfin petition.

I vote, however, to declare R.A. No. 6735 as adequately providing the legal basis for the exercise by the people of their
right to amend the Constitution through initiative proceedings and to uphold the validity of COMELEC Resolution No. 2300
insofar as it does not sanction the filing of the initiatory petition for initiative proceedings to amend the Constitution without
the required names and/or signatures of at least 12% of all the registered voters, of which every legislative district must be
represented by at least 3% of the registered voters therein. (emphasis supplied)

Justice Vitug remained steadfast in refusing to rule on the sufficiency of R.A. 6735. In fine, the final vote on whether R.A. 6735 is a
sufficient law was 6-6 with one (1) justice inhibiting himself and another justice refusing to rule on the ground that the issue was not
ripe for adjudication.

It ought to be beyond debate that the six (6) justices who voted that R.A. 6735 is an insufficient law failed to establish a doctrine that
could serve as a precedent. Under any alchemy of law, a deadlocked vote of six (6) is not a majority and a non-majority cannot write
a rule with precedential value. The opinion of the late Justice Ricardo J. Francisco is instructive, viz:

As it stands, of the thirteen justices who took part in the deliberations on the issue of whether the motion for
reconsideration of the March 19, 1997 decision should be granted or not, only the following justices sided with Mr. Justice
Davide, namely: Chief Justice Narvasa, and Justices Regalado, Romero, Bellosillo and Kapunan. Justices Melo, Puno,
Mendoza, Hermosisima, Panganiban and the undersigned voted to grant the motion; while Justice Vitug "maintained his
opinion that the matter was not ripe for judicial adjudication." In other words, only five, out of the other twelve justices,
joined Mr. Justice Davide's June 10, 1997 ponencia finding R.A. No. 6735 unconstitutional for its failure to pass the so
called "completeness and sufficiency standards" tests. The "concurrence of a majority of the members who actually took
part in the deliberations" which Article VII, Section 4(2) of the Constitution requires to declare a law unconstitutional was,
beyond dispute, not complied with. And even assuming, for the sake of argument, that the constitutional requirement on
the concurrence of the "majority" was initially reached in the March 19, 1997 ponencia, the same is inconclusive as it was
still open for review by way of a motion for reconsideration. It was only on June 10, 1997 that the constitutionality of R.A.
No. 6735 was settled with finality, sans the constitutionally required "majority." The Court's declaration, therefore, is
manifestly grafted with infirmity and wanting in force necessitating, in my view, the reexamination of the Court's decision in
G.R. No. 127325. It behooves the Court "not to tarry any longer" nor waste this opportunity accorded by this new petition
(G.R. No. 129754) to relieve the Court's pronouncement from constitutional infirmity.

The jurisprudence that an equally divided Court can never set a precedent is well-settled. Thus, in the United States, an affirmance
in the Federal Supreme Court upon equal division of opinion is not an authority for the determination of other cases, either in that
Court or in the inferior federal courts. In Neil v. Biggers,111 which was a habeas corpus state proceeding by a state prisoner, the U.S.
Supreme Court held that its equally divided affirmance of petitioner's state court conviction was not an "actual adjudication" barring
subsequent consideration by the district court on habeas corpus. In discussing the non-binding effect of an equal division ruling, the
Court reviewed the history of cases explicating the disposition "affirmed by an equally divided Court:"

In this light, we review our cases explicating the disposition "affirmed by an equally divided Court." On what was
apparently the first occasion of an equal division, The Antelope, 10 Wheat, 66, 6 L. Ed. 268 (1825), the Court simply
affirmed on the point of division without much discussion. Id., at 126-127. Faced with a similar division during
the next Term, the Court again affirmed, Chief Justice Marshall explaining that "the principles of law which have been
argued, cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it." Etting v. Bank of United
States, 11 Wheat. 59, 78, 6 L. Ed. 419 (1826). As was later elaborated in such cases, it is the appellant or petitioner who
asks the Court to overturn a lower court's decree. "If the judges are divided, the reversal cannot be had, for no order can
be made. The judgment of the court below, therefore, stands in full force. It is indeed, the settled practice in such case to
enter a judgment of affirmance; but this is only the most convenient mode of expressing the fact that the cause is finally
disposed of in conformity with the action of the court below, and that that court can proceed to enforce its judgment. The
legal effect would be the same if the appeal, or writ of error, were dismissed." Durant v. Essex Co., 7 Wall. 107, 112, 19 L.
Ed. 154 (1869). Nor is an affirmance by an equally divided Court entitled to precedential weight. Ohio ex rel. Eaton v.
Price, 364 U.S. 263, 264, 80 S. Ct. 1463, 1464, 4 L. Ed. 2d 1708 (1960).xxx"

This doctrine established in Neil has not been overturned and has been cited with approval in a number of subsequent cases,112 and
has been applied in various state jurisdictions.

In the case of In the Matter of the Adoption of Erin G., a Minor Child,113 wherein a putative father sought to set aside a decree
granting petition for adoption of an Indian child on grounds of noncompliance with the requirements of Indian Child Welfare Act
(ICWA), the Supreme Court of Alaska held that its decision in In re Adoption of T.N.F. (T.N.F.),114 which lacked majority opinion
supporting holding that an action such as the putative father's would be governed by the state's one-year statute of limitations, was
not entitled to stare decisis effect. In T.N.F., a majority of the justices sitting did not agree on a common rationale, as two of four
participating justices agreed that the state's one-year statute of limitations applied, one justice concurred in the result only, and one
justice dissented. There was no "narrower" reasoning agreed upon by all three affirming justices. The concurring justice expressed
no opinion on the statute of limitations issue, and in agreeing with the result, he reasoned that ICWA did not give the plaintiff
standing to sue.115 The two-justice plurality, though agreeing that the state's one-year statute of limitations applied, specifically
disagreed with the concurring justice on the standing issue.116 Because a majority of the participating justices in T.N.F. did not agree
on any one ground for affirmance, it was not accorded stare decisis effect by the state Supreme Court.

The Supreme Court of Michigan likewise ruled that the doctrine of stare decisis does not apply to plurality decisions in which no
majority of the justices participating agree to the reasoning and as such are not authoritative interpretations binding on the Supreme
Court.117

In State ex rel. Landis v. Williams,118 the Supreme Court of Florida, in an equally divided opinion on the matter,119 held that chapter
15938, Acts of 1933 must be allowed to stand, dismissing a quo warranto suit without prejudice. The Court held:

In a cause of original jurisdiction in this court a statute cannot be declared unconstitutional nor its enforcement nor
operation judicially interfered with, except by the concurrence of a majority of the members of the Supreme Court sitting in
the cause wherein the constitutionality of the statute is brought in question or judicial relief sought against its enforcement.
Section 4 of Article 5, state Constitution.

Therefore in this case the concurrence of a majority of the members of this court in holding unconstitutional said chapter
15938, supra, not having been had, it follows that the statute in controversy must be allowed to stand and accordingly be
permitted to be enforced as a presumptively valid act of the Legislature, and that this proceeding in quo warranto must be
dismissed without prejudice. Spencer v. Hunt (Fla.) 147 So. 282. This decision is not to be regarded as a judicial
precedent on the question of constitutional law involved concerning the constitutionality vel non of chapter 15938. State ex
rel. Hampton v. McClung, 47 Fla. 224, 37 So. 51.

Quo warranto proceeding dismissed without prejudice by equal division of the court on question of constitutionality of
statute involved.

In U.S. v. Pink,120 the Court held that the affirmance by the U.S. Supreme Court by an equally divided vote of a decision of the New
York Court of Appeals that property of a New York branch of a Russian insurance company was outside the scope of the Russian
Soviet government's decrees terminating existence of insurance companies in Russia and seizing their assets, while conclusive and
binding upon the parties as respects the controversy in that action, did not constitute an authoritative "precedent."

In Berlin v. E.C. Publications, Inc.,121 the U.S. Court of Appeals Second Circuit, in holding that printed lyrics which had the same
meter as plaintiffs' lyrics, but which were in form a parody of the latter, did not constitute infringement of plaintiffs' copyrights, ruled
that the prior case of Benny v. Loew's, Inc.,122 which was affirmed by an equally divided court, was not binding upon it, viz:

Under the precedents of this court, and, as seems justified by reason as well as by authority, an affirmance by an equally
divided court is as between the parties, a conclusive determination and adjudication of the matter adjudged; but the
principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming
an authority for the determination of other cases, either in this or in inferior courts. 123

In Perlman v. First National Bank of Chicago,124 the Supreme Court of Illinois dismissed the appeal as it was unable to reach a
decision because two judges recused themselves and the remaining members of the Court were so divided, it was impossible to
secure the concurrence of four judges as is constitutionally required. The Court followed the procedure employed by the U.S.
Supreme Court when the Justices of that Court are equally divided, i.e. affirm the judgment of the court that was before it for review.
The affirmance is a conclusive determination and adjudication as between the parties to the immediate case, it is not authority for
the determination of other cases, either in the Supreme Court or in any other court. It is not "entitled to precedential weight." The
legal effect of such an affirmance is the same as if the appeal was dismissed. 125

The same rule is settled in the English Courts. Under English precedents,126 an affirmance by an equally divided Court is, as
between the parties, a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not
having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of
other cases, either in that or in inferior courts.

After a tour of these cases, we can safely conclude that the prevailing doctrine is that, the affirmance by an equally divided court
merely disposes of the present controversy as between the parties and settles no issue of law; the affirmance leaves unsettled the
principle of law presented by the case and is not entitled to precedential weight or value. In other words, the decision only has res
judicata and not stare decisis effect. It is not conclusive and binding upon other parties as respects the controversies in other
actions.

Let us now examine the patent differences between the petition at bar and the Delfin Petition in the Santiago case which will prevent
the Santiago ruling from binding the present petitioners. To start with, the parties are different. More importantly, the Delfin
Petition did not contain the signatures of the required number of registered voters under the Constitution: the requirement that
twelve per cent (12%) of all the registered voters in the country wherein each legislative district is represented by at least three per
cent (3%) of all the registered voters therein was not complied with. For this reason, we ruled unanimously that it was not the
initiatory petition which the COMELEC could properly take cognizance of. In contrast, the present petition appears to be
accompanied by the signatures of the required number of registered voters. Thus, while the Delfin Petition prayed that an Order be
issued fixing the time and dates for signature gathering all over the country, the Lambino and Aumentado petition, prayed for the
calling of a plebiscite to allow the Filipino people to express their sovereign will on the proposition. COMELEC cannot close its eyes
to these material differences.

Plainly, the COMELEC committed grave abuse of discretion amounting to lack of jurisdiction in denying due course to the Lambino
and Aumentado petition on the basis of its mistaken notion that Santiago established the doctrine that R.A. 6735 was an insufficient
law. As aforestressed, that ruling of six (6) justices who do not represent the majority lacks precedential status and is non-binding on
the present petitioners.

The Court's dismissal of the PIRMA petition is of no moment. Suffice it to say that we dismissed the PIRMA petition on the principle
of res judicata. This was stressed by former Chief Justice Hilario G. Davide Jr., viz:

The following are my reasons as to why this petition must be summarily dismissed:

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for
the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and
spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit
organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199
Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the
body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution."
In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the
COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding
member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their
Comment to the petition in Santiago, the PEDROSAS did not deny that they were founding members of PIRMA, and by
their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which needs no further elaboration. (emphasis supplied)

Justice Josue N. Bellosillo adds:

The essential requisites of res judicata are: (1) the former judgment must be final; (2) it must have been rendered by a
court having jurisdiction over the subject matter and the parties; (3) it must be a judgment on the merits; and (4) there
must be between the first and second actions identity of parties, identity of subject matter, and identity of causes of
action.127

Applying these principles in the instant case, we hold that all the elements of res judicata are present. For sure, our
Decision in Santiago v. COMELEC, which was promulgated on 19 March 1997, and the motions for reconsideration
thereof denied with finality on 10 June 1997, is undoubtedly final. The said Decision was rendered by this Court which had
jurisdiction over the petition for prohibition under Rule 65. Our judgment therein was on the merits, i.e., rendered only after
considering the evidence presented by the parties as well as their arguments in support of their respective claims and
defenses. And, as between Santiago v. COMELEC case and COMELEC Special Matter No. 97-001 subject of the present
petition, there is identity of parties, subject matter and causes of action.

Petitioners contend that the parties in Santiago v. COMELEC are not identical to the parties in the instant case as some of
the petitioners in the latter case were not parties to the former case. However, a perusal of the records reveals that the
parties in Santiago v. COMELEC included the COMELEC, Atty. Jesus S. Delfin, spouses Alberto and Carmen Pedrosa, in
their capacities as founding members of PIRMA, as well as Atty. Pete Quirino-Quadra, another founding member of
PIRMA, representing PIRMA, as respondents. In the instant case, Atty. Delfin was never removed, and the spouses
Alberto and Carmen Pedrosa were joined by several others who were made parties to the petition. In other words, what
petitioners did was to make it appear that the PIRMA Petition was filed by an entirely separate and distinct group by
removing some of the parties involved in Santiago v. COMELEC and adding new parties. But as we said in Geralde v.
Sabido128-

A party may not evade the application of the rule of res judicata by simply including additional parties in the
subsequent case or by not including as parties in the later case persons who were parties in the previous suit.
The joining of new parties does not remove the case from the operation of the rule on res judicata if the party
against whom the judgment is offered in evidence was a party in the first action; otherwise, the parties might
renew the litigation by simply joining new parties.

The fact that some persons or entities joined as parties in the PIRMA petition but were not parties in Santiago v.
COMELEC does not affect the operation of the prior judgment against those parties to the PIRMA Petition who were
likewise parties in Santiago v. COMELEC, as they are bound by such prior judgment.

Needless to state, the dismissal of the PIRMA petition which was based on res judicata binds only PIRMA but not the petitioners.

VIII

Finally, let the people speak.

"It is a Constitution we are expounding" solemnly intoned the great Chief Justice John Marshall of the United States in the 1819
case of M'cCulloch v. Maryland.129 Our Constitution is not a mere collection of slogans. Every syllable of our Constitution is suffused
with significance and requires our full fealty. Indeed, the rule of law will wither if we allow the commands of our Constitution to
underrule us.

The first principle enthroned by blood in our Constitution is the sovereignty of the people. We ought to be concerned with this first
principle, i.e., the inherent right of the sovereign people to decide whether to amend the Constitution. Stripped of its
abstractions, democracy is all about who has the sovereign right to make decisions for the people and our Constitution clearly and
categorically says it is no other than the people themselves from whom all government authority emanates. This right of the people
to make decisions is the essence of sovereignty, and it cannot receive any minimalist interpretation from this Court. If there is any
principle in the Constitution that cannot be diluted and is non-negotiable, it is this sovereign right of the people to decide.

This Court should always be in lockstep with the people in the exercise of their sovereignty. Let them who will diminish or destroy
the sovereign right of the people to decide be warned. Let not their sovereignty be diminished by those who belittle their brains to
comprehend changes in the Constitution as if the people themselves are not the source and author of our Constitution. Let not their
sovereignty be destroyed by the masters of manipulation who misrepresent themselves as the spokesmen of the people.

Be it remembered that a petition for people's initiative that complies with the requirement that it "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" is but the first step in a long journey towards the amendment of the Constitution. Lest it be missed, the case at bar involves
but a proposal to amend the Constitution. The proposal will still be debated by the people and at this time, there is yet no fail-safe
method of telling what will be the result of the debate. There will still be a last step to the process of amendment which is the
ratification of the proposal by a majority of the people in a plebiscite called for the purpose. Only when the proposal is approved by a
majority of the people in the plebiscite will it become an amendment to the Constitution. All the way, we cannot tie the tongues of the
people. It is the people who decide for the people are not an obscure footnote in our Constitution.

The people's voice is sovereign in a democracy. Let us hear them. Let us heed them. Let us not only sing paens to the people's
sovereignty. Yes, it is neither too soon nor too late to let the people speak.

IN VIEW WHEREOF, I vote to REVERSE and SET ASIDE the resolution of the Commission on Elections dated August 31, 2006,
denying due course to the Petition for Initiative filed by Raul L. Lambino and Erico B. Aumentado in their own behalf and together
with some 6.3 million registered voters who affixed their signatures thereon and to REMAND the petition at bar to the
Commission on Elections for further proceedings.
REYNATO S. PUNO
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent; TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L.
ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA, SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE
TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE
VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN, MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE
and CARLOS P. MEDINA, JR., ALTERNATIVE LAW GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA,
KILUSANG MAYO UNO, HEAD, ECUMENICAL BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY,
ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS, LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR.
REGINALD PAMUGAS, LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL,
LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C.
TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN, JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT
INCIONG, SENATE MINORITY LEADER AQUILINO P. PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S.
MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH
EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER
and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT, ANTONIO L. SALVADOR and
RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES, Represented by its President, MANUEL VILLAR, JR., Oppositors-
Intervenors;

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter
Doe, Respondents.

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

SEPARATE OPINION

QUISUMBING, J.:

1. With due respect to the main opinion written by J. Antonio T. Carpio, and the dissent of J. Reynato S. Puno, I view the matter
before us in this petition as one mainly involving a complex political question.1 While admittedly the present Constitution lays down
certain numerical requirements for the conduct of a People's Initiative, such as the percentages of signatures being 12% of the
total number of registered voters, provided each legislative district is represented by at least 3% they are not the main points of
controversy. Stated in simple terms, what this Court must decide is whether the Commission on Elections gravely abused its
discretion when it denied the petition to submit the proposed changes to the Constitution directly to the vote of the sovereign people
in a plebiscite. Technical questions, e.g. whether petitioners should have filed a Motion for Reconsideration before coming to us, are
of no moment in the face of the transcendental issue at hand. What deserve our full attention are the issues concerning the
applicable rules as well as statutory and constitutional limitations on the conduct of the People's Initiative.

2. It must be stressed that no less than the present Constitution itself empowers the people to "directly" propose amendments
through their own "initiative." The subject of the instant petition is by way of exercising that initiative in order to change our form of
government from presidential to parliamentary. Much has been written about the fulsome powers of the people in a democracy. But
the most basic concerns the idea that sovereignty resides in the people and that all government authority emanates from them.
Clearly, by the power of popular initiative, the people have the sovereign right to change the present Constitution. Whether the initial
moves are done by a Constitutional Convention, a Constitutional Assembly, or a People's Initiative, in the end every amendment --
however insubstantial or radical -- must be submitted to a plebiscite. Thus, it is the ultimate will of the people expressed in the ballot,
that matters.2

3. I cannot fault the COMELEC, frankly, for turning down the petition of Messrs. Lambino, et al. For the COMELEC was just relying
on precedents, with the common understanding that, pursuant to the cases of Santiago v. COMELEC3 and PIRMA v.
COMELEC,4 the COMELEC had been permanently enjoined from entertaining any petition for a people's initiative to amend the
Constitution by no less than this Court. In denying due course below to Messrs. Lambino and Aumentado's petition, I could not hold
the COMELEC liable for grave abuse of discretion when they merely relied on this Court's unequivocal rulings. Of course,
the Santiago and the PIRMA decisions could be reviewed and reversed by this Court, as J. Reynato S. Puno submits now. But until
the Court does so, the COMELEC was duty bound to respect and obey this Court's mandate, for the rule of law to prevail.

4. Lastly, I see no objection to the remand to the COMELEC of the petition of Messrs. Lambino and Aumentado and 6.327 million
voters, for further examination of the factual requisites before a plebiscite is conducted. On page 4 of the assailed Resolution of the
respondent dated August 31, 2006, the COMELEC tentatively expressed its view that "even if the signatures in the instant Petition
appear to meet the required minimum per centum of the total number of registered voters", the COMELEC could not give the
Petition due course because of our view that R.A. No. 6735 was inadequate. That, however, is now refuted by Mr. Justice Puno's
scholarly ponencia. Now that we have revisited the Santiago v. COMELEC decision, there is only one clear task for COMELEC. In
my view, the only doable option left for the COMELEC, once factual issues are heard and resolved, is to give due course to the
petition for the initiative to amend our Constitution so that the sovereign people can vote on whether a parliamentary system of
government should replace the present presidential system.

5. I am therefore in favor of letting the sovereign people speak on their choice of the form of
government as a political question soonest. (This I say without fear of media opinion that our judicial
independence has been tainted or imperiled, for it is not.) Thus I vote for the remand of the petition.
Thereafter, as prayed for, COMELEC should forthwith certify the Petition as sufficient in form and
substance and call for the holding of a plebiscite within the period mandated by the basic law, not earlier
than sixty nor later than ninety days from said certification. Only a credible plebiscite itself, conducted
peacefully and honestly, can bring closure to the instant political controversy.

LEONARDO A. QUISUMBING
Associate Justice

____________________

EN BANC

G. R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

G. R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR. and RENE A.Q. SAGUISAG, petitioners,
vs.
HE COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners
RESURRECCION Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and
Peter Doe, respondents.

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

DISSENTING OPINION

CORONA, J.:

The life of the law is not logic but experience.1 Our collective experience as a nation breathes life to our system of laws, especially to
the Constitution. These cases promise to significantly contribute to our collective experience as a nation. Fealty to the primary
constitutional principle that the Philippines is not merely a republican State but a democratic one as well behooves this Court to
affirm the right of the people to participate directly in the process of introducing changes to their fundamental law. These petitions
present such an opportunity. Thus, this is an opportune time for this Court to uphold the sovereign rights of the people.
I agree with the opinion of Mr. Justice Reynato Puno who has sufficiently explained the rationale for upholding the people's initiative.
However, I wish to share my own thoughts on certain matters I deem material and significant.

Santiago Does Not Apply to This Case But Only to the 1997 Delfin Petition

The COMELEC denied the petition for initiative filed by petitioners purportedly on the basis of this Court's ruling in Santiago v.
COMELEC2 that: (1) RA 6753 was inadequate to cover the system of initiative regarding amendments to the Constitution and (2) the
COMELEC was permanently enjoined from entertaining or taking cognizance of any petition for initiative regarding amendments to
the Constitution until a sufficient law was validly enacted to provide for the implementation of the initiative provision.

However, Santiago should not apply to this case but only to the petition of Delfin in 1997. It would be unreasonable to make it apply
to all petitions which were yet unforeseen in 1997. The fact is that Santiago was focused on the Delfin petition alone.

Those who oppose the exercise of the people's right to initiate changes to the Constitution via initiative claim that Santiago barred
any and all future petitions for initiative by virtue of the doctrines of stare decisis and res judicata. The argument is flawed.

The ponencia of Mr. Justice Puno has amply discussed the arguments relating to stare decisis. Hence, I will address the argument
from the viewpoint of res judicata.

Res judicata is the rule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights
of the parties and their privies and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand
or cause of action.3 It has the following requisites: (1) the former judgment or order must be final; (2) it must have been rendered by
a court having jurisdiction of the subject matter and of the parties; (3) it must be a judgment or order on the merits and (4) there
must be identity of parties, of subject matter, and of cause of action between the first and second actions. 4

There is no identity of parties in Santiago and the instant case. While the COMELEC was also the respondent in Santiago, the
petitioners in that case and those in this case are different. More significantly, there is no identity of causes of action in the two
cases. Santiago involved amendments to Sections 4 and 7 of Article VI, Section 4 of Article VII and Section 8 of Article X of the
Constitution while the present petition seeks to amend Sections 1to 7 of Article VI and Sections 1 to 4 of the 1987 Constitution.
Clearly, therefore, the COMELEC committed grave abuse of discretion when it ruled that the present petition for initiative was barred
by Santiago and, on that ground, dismissed the petition.

The present petition and that in Santiago are materially different from each other. They are not based on the same facts. There is
thus no cogent reason to frustrate and defeat the present direct action of the people to exercise their sovereignty by proposing
changes to their fundamental law.

People's Initiative Should Not


Be Subjected to Conditions

People's initiative is an option reserved by the people for themselves exclusively. Neither Congress nor the COMELEC has the
power to curtail or defeat this exclusive power of the people to change the Constitution. Neither should the exercise of this power be
made subject to any conditions, as some would have us accept.

Oppositors to the people's initiative point out that this Court ruled in Santiago that RA 6735 was inadequate to cover the system of
initiative on amendments to the Constitution and, thus, no law existed to enable the people to directly propose changes to the
Constitution. This reasoning is seriously objectionable.

The pronouncement on the insufficiency of RA 6735 was, to my mind, out of place. It was unprecedented and dangerously
transgressed the domain reserved to the legislature.

While the legislature is authorized to establish procedures for determining the validity and sufficiency of a petition to amend the
constitution,5 that procedure cannot unnecessarily restrict the initiative privilege.6 In the same vein, this Court cannot unnecessarily
and unreasonably restrain the people's right to directly propose changes to the Constitution by declaring a law inadequate simply for
lack of a sub-heading and other grammatical but insignificant omissions. Otherwise, the constitutional intent to empower the people
will be severely emasculated, if not rendered illusory.

People's Right and Power to Propose Changes to the Constitution Directly Should not be Unreasonably Curtailed

If Congress and a constitutional convention, both of which are mere representative bodies, can propose changes to the Constitution,
there is no reason why the supreme body politic itself the people may not do so directly.
Resort to initiative to amend the constitution or enact a statute is an exercise of "direct democracy" as opposed to "representative
democracy." The system of initiative allows citizens to directly propose constitutional amendments for the general electorate to adopt
or reject at the polls, particularly in a plebiscite. While representative government was envisioned to "refine and enlarge the public
views, by passing them through the medium of a chosen body of citizens, whose wisdom may best discern the true interest of their
country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations," 7 the
exercise of "direct democracy" through initiative reserves direct lawmaking power to the people by providing them a method to make
new laws via the constitution, or alternatively by enacting statutes.8 Efforts of the represented to control their representatives through
initiative have been described as curing the problems of democracy with more democracy. 9

The Constitution celebrates the sovereign right of the people and declares that "sovereignty resides in the people and all
government authority emanates from them."10 Unless the present petition is granted, this constitutional principle will be nothing but
empty rhetoric, devoid of substance for those whom it seeks to empower.

The right of the people to pass legislation and to introduce changes to the Constitution is a fundamental right and must be jealously
guarded.11 The people should be allowed to directly seek redress of the problems of society and representative democracy with the
constitutional tools they have reserved for their use alone.

Accordingly, I vote to GRANT the petition in G.R. No. 174513.

RENATO C. CORONA
Associate Justice

____________________

EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW
GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL
BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,
LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES,
MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN,
JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P.
PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D.
BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299 entitled

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter
Doe, Respondents.

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

SEPARATE OPINION

TINGA, J:
I join in full the opinion of Senior Associate Justice Puno. Its enviable sang-froid, inimitable lucidity, and luminous scholarship are all
so characteristic of the author that it is hardly a waste of pen and ink to write separately if only to express my deep admiration for his
disquisition. It is compelling because it derives from the fundamental democratic ordinance that sovereignty resides in the people,
and it seeks to effectuate that principle through the actual empowerment of the sovereign people. Justice Puno's opinion will in the
short term engender reactions on its impact on present attempts to amend the Constitution, but once the political passion of the
times have been shorn, it will endure as an unequivocal message to the taongbayan that they are to be trusted to chart the course
of their future.

Nothing that I inscribe will improve on Justice Puno's opinion. I only write separately to highlight a few other points which also inform
my vote to grant the petitions.

I.

I agree with Justice Puno that Santiago v. COMELEC1 and PIRMA v. COMELEC2 had not acquired value as precedent and should
be reversed in any case. I add that the Court has long been mindful of the rule that it necessitates a majority, and not merely a
plurality, in order that a decision can stand as precedent. That principle has informed the members of this Court as they deliberated
and voted upon contentious petitions, even if this consideration is not ultimately reflected on the final draft released for promulgation.

The curious twist to Santiago and PIRMA is that for all the denigration heaped upon Rep. Act No. 6735 in those cases, the Court did
not invalidate any provision of the statute. All the Court said then was that the law was "inadequate". Since this "inadequate" law
was not annulled by the Court, or repealed by Congress, it remained part of the statute books.3

I maintain that even if Rep. Act No. 6735 is truly "inadequate", the Court in Santiago should not have simply let the insufficiency
stand given that it was not minded to invalidate the law itself. Article 9 of the Civil Code provides that "[n]o judge or court shall
decline to render judgment by reason of the silence, obscurity or insufficiency of the laws."4 As explained by the Court recently
in Reyes v. Lim,5 "[Article 9] calls for the application of equity, which[, in the revered Justice Cardozo's words,] 'fills the open spaces
in the law.'"6 Certainly, any court that refuses to rule on an action premised on Rep. Act No. 6735 on the ground that the law is
"inadequate" would have been found in grave abuse of discretion. The previous failure by the Court to "fill the open spaces"
in Santiago further highlights that decision's status as an unfortunate aberration.

I am mindful of the need to respect stare decisis, to the point of having recently decried a majority ruling that was clearly minded to
reverse several precedents but refused to explicitly say so.7 Yet the principle is not immutable.8The passionate words of Chief
Justice Panganiban in Osmea v. COMELEC9 bear quoting:

Before I close, a word about stare decisis. In the present case, the Court is maintaining the ad ban to be consistent with
its previous holding in NPC vs. Comelec. Thus, respondent urges reverence for the stability of judicial doctrines. I submit,
however, that more important than consistency and stability are the verity, integrity and correctness of jurisprudence. As
Dean Roscoe Pound explains, "Law must be stable but it cannot stand still." Verily, it must correct itself and move in
cadence with the march of the electronic age. Error and illogic should not be perpetuated. After all, the Supreme Court, in
many cases, has deviated from stare decisis and reversed previous doctrines and decisions.10 It should do no less in the
present case.11

Santiago established a tenet that the Supreme Court may affirm a law as constitutional, yet declare its provisions as inadequate to
accomplish the legislative purpose, then barred the enforcement of the law. That ruling is erroneous, illogical, and should not be
perpetuated.

II.

Following Justice Puno's clear demonstration why Santiago should not be respected as precedent, I agree that the COMELEC's
failure to take cognizance of the petitions as mandated by Rep. Act No. 6735 constitutes grave abuse of discretion correctible
through the petitions before this Court.

The Court has consistently held in cases such as Abes v. COMELEC12, Sanchez v. COMELEC13, and Sambarani v.
COMELEC14 that "the functions of the COMELEC under the Constitution are essentially executive and administrative in
nature".15 More pertinently, in Buac v. COMELEC16, the Court held that the jurisdiction of the COMELEC relative to the enforcement
and administration of a law relative to a plebiscite fell under the jurisdiction of the poll body under its constitutional mandate "to
enforce and administer all laws and regulations relative to the conduct of a xxx plebiscite". 17

Rep. Act No. 6735 is a law relative to the conduct of a plebiscite. The primary task of the COMELEC under Rep. Act No. 6735 is to
enforce and administer the said law, functions that are essentially executive and administrative in nature. Even the subsequent duty
of the COMELEC of determining the sufficiency of the petitions after they have been filed is administrative in character. By any
measure, the COMELEC's failure to perform its executive and administrative functions under Rep. Act No. 6735 constitutes grave
abuse of discretion.
III.

It has been argued that the subject petitions for initiative are barred under Republic Act No. 6735 as they allegedly embrace more
than one subject. Section 10 of Rep. Act No. 6735 classifies as a "prohibited measure," a petition submitted to the electorate that
embraces more than one subject.18 On this point, reliance is apparently placed on the array of provisions which are to be affected by
the amendments proposed in the initiative petition.

Section 10 of Rep. Act No. 6735 is a reflection of the long-enshrined constitutional principle that the laws passed by Congress "shall
embrace only one subject which shall be expressed in the title thereof". 19 The one-subject requirement under the Constitution is
satisfied if all the parts of the statute are related, and are germane to the subject matter expressed in the title, or as long as they are
not inconsistent with or foreign to the general subject and title.20 An act having a single general subject, indicated in the title, may
contain any number of provisions, no matter how diverse they may be, so long as they are not inconsistent with or foreign to the
general subject, and may be considered in furtherance of such subject by providing for the method and means of carrying out the
general object.21

The precedents governing the one-subject, one-title rule under the Constitution should apply as well in the interpretation of Section
10 of Rep. Act No. 6735. For as long as it can be established that an initiative petition embraces a single general subject, the
petition may be allowed no matter the number of constitutional provisions proposed for amendment if the amendments are germane
to the subject of the petition.

Both the Sigaw ng Bayan and the Lambino initiative petitions expressly propose the changing of the form of government from
bicameral-presidential to unicameral-parliamentary. Such a proposal may strike as comprehensive, necessitating as it will the
reorganization of the executive and legislative branches of government, nevertheless it ineluctably encompasses only a single
general subject still.

The 1987 Constitution (or any constitution for that matter) is susceptible to division into several general spheres. To cite the broadest
of these spheres by way of example, Article III enumerates the guaranteed rights of the people under the Bill of Rights; Articles VI,
VII and VIII provide for the organizational structure of government; while Articles II, XII, XIII & XIV, XV and XVI enunciate policy
principles of the State. What would clearly be prohibited under Section 10 of Rep. Act No. 6735 is an initiative petition that seeks to
amend provisions which do not belong to the same sphere. For example, had a single initiative petition sought not only to change
the form of government from presidential to parliamentary but also to amend the Bill of Rights, said petition would arguably have
been barred under Section 10, as that petition ostensibly embraces more than one subject, with each subject bearing no functional
relation to the other. But that is not the case with the present initiative petitions.

Neither can it be argued that the initiative petitions embrace more than one subject since the proposed amendments seek to affect
two separate branches of government. The very purpose of the initiative petitions is to fuse the powers of the executive and
legislative branches of government; hence, the amendments intended to effect such general intent necessarily affects the two
branches. If it required that to propose a shift in government from presidential to parliamentary, the amendments to Article VII
(Executive Branch) have to be segregated to a different petition from that which would propose amendments to Article VI
(Legislative Branch), then the result would be two initiative petitions both subject to separate authentications, consideration and
even plebiscites, all to effect one general proposition. This scenario, which entertains the possibility that one petition would
ultimately fail while the other succeeds, could thus allow for the risk that the executive branch could be abolished without
transferring executive power to the legislative branch. An absurd result, indeed.

I am not even entirely comfortable with the theoretical underpinnings of Section 10. The Constitution indubitably grants the people
the right to seek amendment of the charter through initiative, and mandates Congress to "provide for the implementation of the
exercise of this right." In doing so, Congress may not restrict the right to initiative on grounds that are not provided for in the
Constitution. If for example the implementing law also provides that certain provisions of the Constitution may not be amended
through initiative, that prohibition should not be sustained. Congress is tasked with the implementation, and not the restriction of the
right to initiative.

The one-subject requirement under Section 10 is not provided for as a bar to amendment under the Constitution. Arguments can be
supplied for the merit of such a requirement, since it would afford a measure of orderliness when the vital question of amending the
Constitution arises. The one-subject requirement does allow the voters focus when deliberating whether or not to vote for the
amendments. These factors of desirability nonetheless fail to detract from the fact that the one-subject requirement imposes an
additional restriction on the right to initiative not contemplated by the Constitution. Short of invalidating the requirement, a better
course of action would be to insist upon its liberal interpretation. After all, the Court has consistently adhered to a liberal
interpretation of the one-subject, one-title rule.22 There is no cause to adopt a stricter interpretative rule with regard to the one-
subject rule under Section 10 of Rep. Act No. 6735.

IV.

During the hearing on the petitions, the argument was raised that provisions of the Constitution amended through initiative would not
have the benefit of a reference source from the record of a deliberative body such as Congress or a constitutional convention. It was
submitted that this consideration influenced the Constitutional Commission as it drafted Section 2, Article XVII, which expressly
provided that only amendments, and not revisions, may be the subject of initiative petitions.

This argument clearly proceeds from a premise that accords supreme value to the record of deliberations of a constitutional
convention or commission in the interpretation of the charter. Yet if the absence of a record of deliberations stands as so serious a
flaw as to invalidate or constrict processes which change a constitution or its provisions, then the entire initiative process authorized
by the Constitution should be scarlet-marked as well.

Even if this position can be given any weight in the consideration of these petitions, I would like to point out that resort to the records
of deliberations is only one of many aids to constitutional construction. For one, it should be abhorred if the provision under study is
itself clear, plain, and free from ambiguity. As the Court held in Civil Liberties Union v. Executive Secretary:23

While it is permissible in this jurisdiction to consult the debates and proceedings of the constitutional convention in order
to arrive at the reason and purpose of the resulting Constitution, resort thereto may be had only when other guides fail as
said proceedings are powerless to vary the terms of the Constitution when the meaning is clear. Debates in the
constitutional convention "are of value as showing the views of the individual members, and as indicating the reasons for
their votes, but they give us no light as to the views of the large majority who did not talk . . . We think it safer to construe
the constitution from what appears upon its face."24

Even if there is need to refer to extrinsic sources in aid of constitutional interpretation, the constitutional record does not provide the
exclusive or definitive answer on how to interpret the provision. The intent of a constitutional convention is not controlling by itself,
and while the historical discussion on the floor of the constitutional convention is valuable, it is not necessarily decisive. The Court
has even held in Vera v. Avelino25 that "the proceedings of the [constitutional] convention are less conclusive of the proper
construction of the fundamental law than are legislative proceedings of the proper construction of a statute, since in the latter case it
is the intent of the legislature that courts seek, while in the former courts are endeavoring to arrive at the intent of the people through
the discussions and deliberations of their representatives."26 The proper interpretation of a constitution depends more on how it was
understood by the people adopting it than the framers' understanding thereof.27

If there is fear in the absence of a constitutional record as guide for interpretation of any amendments adopted via initiative, such
absence would not preclude the courts from interpreting such amendments in a manner consistent with how courts generally
construe the Constitution. For example, reliance will be placed on the other provisions of the Constitution to arrive at a harmonized
and holistic constitutional framework. The constitutional record is hardly the Rosetta Stone that unlocks the meaning of the
Constitution.

V.

I fully agree with Justice Puno that all issues relating to the sufficiency of the initiative petitions should be remanded to the
COMELEC. Rep. Act No. 6735 clearly reposes on the COMELEC the task of determining the sufficiency of the petitions, including
the ascertainment of whether twelve percent (12%) of all registered voters, including three percent (3%) of registered voters in every
legislative district have indeed signed the initiative petitions.28 It should be remembered that the COMELEC had dismissed the
initiative petitions outright, and had yet to undertake the determination of sufficiency as required by law.

It has been suggested to the end of leading the Court to stifle the initiative petitions that the Court may at this juncture pronounce
the initiative petitions as insufficient. The derivation of the factual predicates leading to the suggestion is uncertain, considering that
the trier of facts, the COMELEC in this instance, has yet to undertake the necessary determination. Still, the premise has been
floated that petitioners have made sufficient admissions before this Court that purportedly established the petitions are insufficient.

That premise is highly dubitable. Yet the more fundamental question that we should ask, I submit, is whether it serves well on the
Court to usurp trier of facts even before the latter exercises its functions? If the Court, at this stage, were to declare the petitions as
insufficient, it would be akin to the Court pronouncing an accused as guilty even before the lower court trial had began.

Matugas v. COMELEC29 inveighs against the propriety of the Court uncharacteristically assuming the role of trier of facts, and
resolving factual questions not previously adjudicated by the lower courts or tribunals:

[P]etitioner in this case cannot "enervate" the COMELEC's findings by introducing new evidence before this Court, which
in any case is not a trier of facts, and then ask it to substitute its own judgment and discretion for that of the COMELEC.

The rule in appellate procedure is that a factual question may not be raised for the first time on appeal, and documents
forming no part of the proofs before the appellate court will not be considered in disposing of the issues of an action. This
is true whether the decision elevated for review originated from a regular court or an administrative agency or quasi-
judicial body, and whether it was rendered in a civil case, a special proceeding, or a criminal case. Piecemeal presentation
of evidence is simply not in accord with orderly justice.30
Any present determination by the Court on the sufficiency of the petitions constitutes in effect a trial de novo, the Justices of the
Supreme Court virtually descending to the level of trial court judges. This is an unbecoming recourse, and it simply is not done.

VI.

The worst position this Court could find itself in is to acquiesce to a plea that it make the choice whether to amend the Constitution
or not. This is a matter which should not be left to fifteen magistrates who have not been elected by the people to make the choice
for them.

A vote to grant the petitions is not a vote to amend the 1987 Constitution. It is merely a vote to allow the people to directly exercise
that option. In fact, the position of Justice Puno which I share would not even guarantee that the Lambino and Sigaw ng Bayan
initiative petitions would be submitted to the people in a referendum. The COMELEC will still have to determine the sufficiency of the
petition. Among the questions which still have to be determined by the poll body in considering the sufficiency of the petitions is
whether twelve percent (12%) of all registered voters nationwide, including three percent (3%) of registered voters in every
legislative district, have indeed signed the initiative petitions. 31

And even should the COMELEC find the initiative petitions sufficient, the matter of whether the Constitution should be amended
would still depend on the choice of the electorate. The oppositors are clearly queasy about some of the amendments proposed, or
the imputed motives behind the amendments. A referendum, should the COMELEC find the petitions as sufficient, would allow them
to convey their uneasiness to the public at large, as well as for the proponents of the amendment to defend their proposal. The
campaign period alone would allow the public to be involved in the significant deliberation on the course our nation should take, with
the ensuing net benefit of a more informed, more politically aware populace. And of course, the choice on whether the Constitution
should be amended would lie directly with the people. The initiative process involves participatory democracy at its most elemental;
wherein the consequential debate would not be confined to the august halls of Congress or the hallowed chambers of this Court, as
it would spill over to the public squares and town halls, the academic yards and the Internet blogosphere, the dining areas in the
homes of the affluent and the impoverished alike.

The prospect of informed and widespread discussion on constitutional change engaged in by a people who are actually empowered
in having a say whether these changes should be enacted, gives fruition to the original vision of pure democracy, as formulated in
Athens two and a half millennia ago. The great hero of Athenian democracy, Pericles, was recorded as saying in his famed Funeral
Oration, "We differ from other states in regarding the man who keeps aloof from public life not as 'private' but as useless; we decide
or debate, carefully and in person all matters of policy, and we hold, not that words and deeds go ill together, but that acts are
foredoomed to failure when undertaken undiscussed."32

Unfortunately, given the highly politicized charge of the times, it has been peddled that an act or vote that assists the initiative
process is one for the willful extinction of democracy or democratic institutions. Such a consideration should of course properly play
its course in the public debates and deliberations attendant to the initiative process. Yet as a result of the harum-scarum, the
temptation lies heavy for a member of this Court perturbed with the prospect of constitutional change to relieve those anxieties by
simply voting to enjoin any legal procedure that initiates the amendment or revision of the fundamental law, even at the expense of
the people's will or what the Constitution allows. A vote so oriented takes the conservative path of least resistance, even as it may
gain the admiration of those who do not want to see the Constitution amended.

Still, the biases we should enforce as magistrates are those of the Constitution and the elements of democracy on which our rule of
law is founded. Direct democracy, as embodied in the initiative process, is but a culmination of the evolution over the centuries of
democratic rights of choice and self-governance. The reemergence of the Athenian democratic ideal after centuries of tyrannical
rules arrived very slowly, the benefits parceled out at first only to favored classes. The Magna Carta granted limited rights to self-
determination and self-governance only to a few English nobles; the American Constitution was originally intended to give a
meaningful voice only to free men, mostly Caucasian, who met the property-holding requirements set by the states for voting. Yet
even the very idea of popular voting, limited as it may have already been within the first few years of the American Union, met
resistance from no less a revered figure as Alexander Hamilton, to whom the progressive historian Howard Zinn attributes these
disconcerting words:

The voice of the people has been said to be the voice of God; and however generally this maxim has been quoted and
believed, it is not true in fact. The people are turbulent and changing; they seldom judge or determine right. Give therefore
to the first class a distinct permanent share in the government Can a democratic assembly who annually revolve in the
mass of the people be supposed steadily to pursue the public good? Nothing but a permanent body can check the
imprudence of democracy33

This utterly paternalistic and bigoted view has not survived into the present age of modern democracy where a person's poverty,
color, or gender no longer impedes the exercise of full democratic rights. Yet a democracy that merely guarantees its citizens the
right to live their lives freely is incomplete if there is no corresponding allowance for a means by which the people have a direct
choice in determining their country's direction. Initiative as a mode of amending a constitution may seem incompatible with
representative democracy, yet it embodies an even purer form of democracy. Initiative, which our 1987 Constitution saw fit to grant
to the people, is a progressive measure that is but a continuation of the line of evolution of the democratic ideal.
By allowing the sovereign people to directly propose and enact constitutional amendments, the initiative process should be
acknowledged as the purest implement of democratic rule under law. This right granted to over sixty million Filipinos cannot be
denied by the votes of less than eight magistrates for reasons that bear no cogitation on the Constitution.

I VOTE to GRANT the petitions.

DANTE O. TINGA
Associate Justice

____________________

EN BANC

G. R. No. 174153

RAUL LAMBINO and ERICO B. AUMENTADO together with 6,327,952 REGISTERED VOTERS, Petitioners
vs.
THE COMMISSION ON ELECTIONS, Respondent;
TRADE UNION CONGRESS OF THE PHILIPPINES (TUCP), RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, RUELO BAYA,
SULONGBAYAN MOVEMENT FOUNDATION, INC., PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION
(PTGWO) and VICTORINO F. BALAIS, Petitioners-Intervenors; ONE VOICE INC., CHRISTIAN S. MONSOD, RENE B. AZURIN,
MANUEL L. QUEZON III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE and CARLOS P. MEDINA, JR., ALTERNATIVE LAW
GROUPS, INC., ATTY. PETE QUIRINO-QUADRA, BAYAN, BAYAN MUNA, KILUSANG MAYO UNO, HEAD, ECUMENICAL
BISHOPS FORUM, MIGRANTE, GABRIELA, GABRIELA WOMEN'S PARTY, ANAKBAYAN, LEAGUE OF FILIPINO STUDENTS,
LEONADO SAN JOSE, JOJO PINEDA, DR. DARBY SANTIAGO, and DR. REGINALD PAMUGAS, LORETTA ANN P. ROSALES,
MARIO JOYO AGUJA, ANA THERESIA HONTIVEROS-BARAQUEL, LUWALHATI ANTONINO, PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), CONRADO F. ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN,
JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT INCIONG, SENATE MINORITY LEADER AQUILINO P.
PIMENTEL, JR., and SENATORS SERGIO R. OSMEA III, JAMBY A.S. MADRIGAL, LUISA P. EJERCITO-ESTRADA, JINGGOY
ESTRADA, ALFREDO S. LIM and PANFILO M. LACSON, JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO,
INTEGRATED BAR OF THE PHILIPPINES CEBU CITY CHAPTER and CEBU CHAPTER, JOSE ANSELMO I. CADIZ, BYRON D.
BOCAR, MA. TANYA KARINA A. LAT, ANOTNIO L. SALVADOR and RANDALL C. TABAYOYONG, SENATE OF THE PHILIPPINES,
Represented by its President, MANUEL VILLAR, JR., Oppositors-Intervenors;

G.R. No. 174299

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, Petitioners
vs.
COMMISSION ON ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, SR., and Commissioners RESSURRECCION
Z. BORRA, FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter
Doe, Respondents.

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

DISSENTING OPINION

CHICO-NAZARIO, J.:

"The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this
supreme and irresistible power to make or unmake, resides only in the whole body of the people; not in any subdivision of them."

-- Marshall, C.J., Cohens v. Virginia (1821, US) 6 Wheat 264, 389, 5 L ed. 257, 287.

I express my concurrence in the discussions and conclusions presented in the persuasive and erudite dissent of Justice Reynato S.
Puno. However, I make some additional observations in connection with my concurrence.

While it is but proper to accord great respect and reverence to the Philippine Constitution of 1987 for being the supreme law of the
land, we should not lose sight of the truth that there is an ultimate authority to which the Constitution is also subordinate the will of
the people. No less than its very first paragraph, the Preamble,1expressly recognizes that the Constitution came to be because it
was ordained and promulgated by the sovereign Filipino people. It is a principle reiterated yet again in Article II, Section 1, of the
Constitution, which explicitly declares that "[t]he Philippines is a democratic and republican State. Sovereignty resides in the people
and all government authority emanates from them." Thus, the resolution of the issues and controversies raised by the instant
Petition should be guided accordingly by the foregoing principle.

If the Constitution is the expression of the will of the sovereign people, then, in the event that the people change their will, so must
the Constitution be revised or amended to reflect such change. Resultantly, the right to revise or amend the Constitution inherently
resides in the sovereign people whose will it is supposed to express and embody. The Constitution itself, under Article XVII, provides
for the means by which the revision or amendment of the Constitution may be proposed and ratified.

Under Section 1 of the said Article, proposals to amend or revise the Constitution may be made (a) by Congress, upon a vote of
three-fourths of all its Members, or (b) by constitutional convention. The Congress and the constitutional convention possess the
power to propose amendments to, or revisions of, the Constitution not simply because the Constitution so provides, but because the
sovereign people had chosen to delegate their inherent right to make such proposals to their representatives either through
Congress or through a constitutional convention.

On the other hand, the sovereign people, well-inspired and greatly empowered by the People Power Revolution of 1986, reserved to
themselves the right to directly propose amendments to the Constitution through initiative, to wit

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. 2

The afore-quoted section does not confer on the Filipino people the right to amend the Constitution because, as previously
discussed, such right is inherent in them. The section only reduces into writing this right to initiate amendments to the Constitution
where they collectively and willfully agreed in the manner by which they shall exercise this right: (a) through the filing of a petition;
(b) supported by at least twelve percent (12%) of the total number of registered voters nationwide; (c) with each legislative district
represented by at least three percent (3%) of the registered voters therein; (d) subject to the limitation that no such petition may be
filed within five years after the ratification of the Constitution, and not oftener than once every five years thereafter; and (e) a
delegation to Congress of the authority to provide the formal requirements and other details for the implementation of the right.

It is my earnest opinion that the right of the sovereign people to directly propose amendments to the Constitution through initiative is
more superior than the power they delegated to Congress or to a constitutional convention to amend or revise the Constitution. The
initiative process gives the sovereign people the voice to express their collective will, and when the people speak, we must be ready
to listen. Article XVII, Section 2 of the Constitution recognizes and guarantees the sovereign people's right to initiative, rather than
limits it. The enabling law which Congress has been tasked to enact must give life to the said provision and make the exercise of the
right to initiative possible, not regulate, limit, or restrict it in any way that would render the people's option of resorting to initiative to
amend the Constitution more stringent, difficult, and less feasible, as compared to the other constitutional means to amend or revise
the Constitution. In fact, it is worth recalling that under Article VI, Section 1 of the Constitution, the legislative power of Congress is
limited to the extent reserved to the people by the provisions on initiative and referendum.

It is with this frame of mind that I review the issues raised in the instant Petitions, and which has led me to the conclusions, in
support of the dissent of Justice Puno, that (a) The Commission on Election (COMELEC) had indeed committed grave abuse of
discretion in summarily dismissing the petition for initiative to amend the Constitution filed by herein petitioners Raul L. Lambino and
Erico B. Aumentado; (b) The Court should revisit the pronouncements it made in Santiago v. Commission on Elections;3 (c) It is the
sovereign people's inherent right to propose changes to the Constitution, regardless of whether they constitute merely amendments
or a total revision thereof; and (d) The COMELEC should take cognizance of Lambino and Aumentado's petition for initiative and, in
the exercise of its jurisdiction, determine the factual issues raised by the oppositors before this Court.

The COMELEC had indeed committed grave abuse of discretion when it summarily dismissed Lambino and Aumentado's petition
for initiative entirely on the basis of the Santiago case which, allegedly, permanently enjoined it from entertaining or taking
cognizance of any petition for initiative to amend the Constitution in the absence of a sufficient law.

After a careful reading, however, of the Santiago case, I believe in earnest that the permanent injunction actually issued by this
Court against the COMELEC pertains only to the petition for initiative filed by Jesus S. Delfin, and not to all subsequent petitions for
initiative to amend the Constitution.

The Conclusion4 in the majority opinion in the Santiago case reads

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.

It is clear from the fallo, as it is reproduced above, that the Court made permanent the Temporary Restraining Order (TRO) it issued
on 18 December 1996 against the COMELEC. The said TRO enjoined the COMELEC from proceeding with the Delfin Petition, and
Alberto and Carmen Pedrosa from conducting a signature drive for people's initiative.5 It was this restraining order, more particularly
the portion thereof referring to the Delfin Petition, which was expressly made permanent by the Court. It would seem to me that the
COMELEC and all other oppositors to Lambino and Aumentado's petition for initiative gave unwarranted significance and weight to
the first paragraph of the Conclusion in the Santiago case. The first and second paragraphs of the Conclusion, preceding the
dispositive portion, merely express the opinion of the ponente; while the definite orders of the Court for implementation are found in
the dispositive portion.

We have previously held that

The dispositive portion or the fallo is what actually constitutes the resolution of the court and which is the subject of
execution, although the other parts of the decision may be resorted to in order to determine the ratio decidendi for such a
resolution. Where there is conflict between the dispositive part and the opinion of the court contained in the text of the
decision, the former must prevail over the latter on the theory that the dispositive portion is the final order while the opinion
is merely a statement ordering nothing. Hence execution must conform more particularly to that ordained or decreed in
the dispositive portion of the decision.6

Is there a conflict between the first paragraph of the Conclusion and the dispositive portion of the Santiago case? Apparently, there
is. The first paragraph of the Conclusion states that the COMELEC should be permanently enjoined from entertaining or taking
cognizance of any petition for initiative on amendments to the Constitution until the enactment of a valid law. On the other hand,
the fallo only makes permanent the TRO7 against COMELEC enjoining it from proceeding with the Delfin Petition. While the
permanent injunction contemplated in the Conclusion encompasses all petitions for initiative on amendments to the Constitution,
the fallo is expressly limited to the Delfin Petition. To resolve the conflict, the final order of the Court as it is stated in the dispositive
portion or the fallo should be controlling.

Neither can the COMELEC dismiss Lambino and Aumentado's petition for initiative on the basis of this Court's Resolution, dated 23
September 1997, in the case of People's Initiative for Reform, Modernization and Action (PIRMA) v. The Commission on Elections,
et al.8 The Court therein found that the COMELEC did not commit grave abuse of discretion in dismissing the PIRMA Petition for
initiative to amend the Constitution for it only complied with the Decision in the Santiago case.

It is only proper that the Santiago case should also bar the PIRMA Petition on the basis of res judicata because PIRMA participated
in the proceedings of the said case, and had knowledge of and, thus, must be bound by the judgment of the Court therein. As
explained by former Chief Justice Hilario G. Davide, Jr. in his separate opinion to the Resolution in the PIRMA case

First, it is barred by res judicata. No one aware of the pleadings filed here and in Santiago v. COMELEC (G.R. No.
127325, 19 March 1997) may plead ignorance of the fact that the former is substantially identical to the latter, except for
the reversal of the roles played by the principal parties and inclusion of additional, yet not indispensable, parties in the
present petition. But plainly, the same issues and reliefs are raised and prayed for in both cases.

The principal petitioner here is the PEOPLE'S INITIATIVE FOR REFORM, MODERNIZATION, AND ACTION (PIRMA) and
Spouses ALBERTO PEDROSA and CARMEN PEDROSA. PIRMA is self-described as "a non-stock, non-profit
organization duly organized and existing under Philippine laws with office address at Suite 403, Fedman Suites, 199
Salcedo Street, Legaspi Village, Makati City," with "ALBERTO PEDROSA and CARMEN PEDROSA" as among its
"officers." In Santiago, the PEDROSAS were made respondents as founding members of PIRMA which, as alleged in the
body of the petition therein, "proposes to undertake the signature drive for a people's initiative to amend the Constitution."
In Santiago then, the PEDROSAS were sued in their capacity as founding members of PIRMA.

The decision in Santiago specifically declared that PIRMA was duly represented at the hearing of the Delfin petition in the
COMELEC. In short, PIRMA was intervenor-petitioner therein. Delfin alleged in his petition that he was a founding
member of the Movement for People's Initiative, and under footnote no. 6 of the decision, it was noted that said movement
was "[l]ater identified as the People's Initiative for Reforms, Modernization and Action, or PIRMA for brevity." In their
Comment to the petition in Santiago, the PEDROSA'S did not deny that they were founding members of PIRMA, and by
their arguments, demonstrated beyond a shadow of a doubt that they had joined Delfin or his cause.

No amount of semantics may then shield herein petitioners PIRMA and the PEDROSAS, as well as the others joining
them, from the operation of the principle of res judicata, which needs no further elaboration.9

While the Santiago case bars the PIRMA case because of res judicata, the same cannot be said to the Petition at bar. Res judicata
is an absolute bar to a subsequent action for the same cause; and its requisites are: (a) the former judgment or order must be final;
(b) the judgment or order must be one on the merits; (c) it must have been rendered by a court having jurisdiction over the subject
matter and parties; and (d) there must be between the first and second actions, identity of parties, of subject matter and of causes of
action.10

Even though it is conceded that the first three requisites are present herein, the last has not been complied with. Undoubtedly,
the Santiago case and the present Petition involve different parties, subject matter, and causes of action, and the former should not
bar the latter.

In the Santiago case, the petition for initiative to amend the Constitution was filed by Delfin alone. His petition does not qualify as the
initiatory pleading over which the COMELEC can acquire jurisdiction, being unsupported by the required number of registered
voters, and actually imposing upon the COMELEC the task of gathering the voters' signatures. In the case before us, the petition for
initiative to amend the Constitution was filed by Lambino and Aumentado, on behalf of the 6.3 million registered voters who affixed
their signatures on the signature sheets attached thereto. Their petition prays that the COMELEC issue an Order

1. Finding the petition to be sufficient pursuant to Section 4, Article XVII of the 1987 Constitution;

2. Directing the publication of the petition in Filipino and English at least twice in newspapers of general and local
circulation; and

3. Calling a plebiscite to be held not earlier than sixty nor later than ninety days after the Certification by the COMELEC of
the sufficiency of the petition, to allow the Filipino people to express their sovereign will on the proposition.

Although both cases involve the right of the people to initiate amendments to the Constitution, the personalities concerned and the
other factual circumstances attendant in the two cases differ. Also dissimilar are the particular prayer and reliefs sought by the
parties from the COMELEC, as well as from this Court. For these reasons, I find that the COMELEC acted with grave abuse of
discretion when it summarily dismissed the petition for initiative filed by Lambino and Aumentado. It behooves the COMELEC to
accord due course to a petition which on its face complies with the rudiments of the law. COMELEC was openly negligent in
summarily dismissing the Lambino and Aumentado petition. The haste by which the instant Petition was struck down is
characteristic of bad faith, which, to my mind, is a patent and gross evasion of COMELEC's positive duty. It has so obviously copped
out of its duty and responsibility to determine the sufficiency thereof and sought protection and justification for its craven decision in
the supposed permanent injunction issued against it by the Court in the Santiago case. The COMELEC had seemingly expanded
the scope and application of the said permanent injunction, reading into it more than what it actually states, which is surprising,
considering that the Chairman and majority of the members of COMELEC are lawyers who should be able to understand and
appreciate, more than a lay person, the legal consequences and intricacies of the pronouncements made by the Court in the
Santiago case and the permanent injunction issued therein.

No less than the Constitution itself, under the second paragraph of Article XVII, Section 4, imposes upon the COMELEC the
mandate to set a date for plebiscite after a positive determination of the sufficiency of a petition for initiative on amendments to the
Constitution, viz

SEC. 4. x x x
Any amendment under Section 2 hereof shall be valid when ratified by a majority of the votes cast in a plebiscite which
shall be held not earlier than sixty days nor later than ninety days after the certification by the Commission on Elections of
the sufficiency of the petition.

As a rule, the word "shall" commonly denotes an imperative obligation and is inconsistent with the idea of discretion, and that the
presumption is that the word "shall" when used, is mandatory.11 Under the above-quoted constitutional provision, it is the mandatory
or imperative obligation of the COMELEC to (a) determine the sufficiency of the petition for initiative on amendments to the
Constitution and issue a certification on its findings; and (b) in case such petition is found to be sufficient, to set the date for the
plebiscite on the proposed amendments not earlier than 60 days nor later than 90 days after its certification. The COMELEC should
not be allowed to shun its constitutional mandate under the second paragraph of Article XVII, Section 4, through the summary
dismissal of the petition for initiative filed by Lambino and Aumentado, when such petition is supported by 6.3 million signatures of
registered voters. Should all of these signatures be authentic and representative of the required percentages of registered voters for
every legislative district and the whole nation, then the initiative is a true and legitimate expression of the will of the people to amend
the Constitution, and COMELEC had caused them grave injustice by silencing their voice based on a patently inapplicable
permanent injunction.

II

We should likewise take the opportunity to revisit the pronouncements made by the Court in its Decision in the Santiago case,
especially as regards the supposed insufficiency or inadequacy of Republic Act No. 6735 as the enabling law for the implementation
of the people's right to initiative on amendments to the Constitution.

The declaration of the Court that Republic Act No. 6735 is insufficient or inadequate actually gave rise to more questions rather than
answers, due to the fact that there has never been a judicial precedent wherein the Court invalidated a law for insufficiency or
inadequacy. The confusion over such a declaration thereby impelled former Chief Justice Davide, Jr., the ponente in
the Santiago case, to provide the following clarification in his separate opinion to the Resolution in the PIRMA case, thus

Simply put, Santiago did, in reality, declare as unconstitutional that portion of R.A. No. 6735 relating to Constitutional
initiatives for failure to comply with the "completeness and sufficient standard tests" with respect to permissible delegation
of legislative power or subordinate legislation. However petitioners attempt to twist the language in Santiago, the
conclusion is inevitable; the portion of R.A. No. 6735 was held to be unconstitutional.

It is important to note, however, that while the Decision in the Santiago case pronounced repeatedly that Republic Act No. 6735 was
insufficient and inadequate, there is no categorical declaration therein that the said statute was unconstitutional. The express finding
that Republic Act No. 6735 is unconstitutional can only be found in the separate opinion of former Chief Justice Davide to the
Resolution in the PIRMA case, which was not concurred in by the other members of the Court.

Even assuming arguendo that the declaration in the Santiago case, that Republic Act No. 6735 is insufficient and inadequate, is
already tantamount to a declaration that the statute is unconstitutional, it was rendered in violation of established rules in statutory
construction, which state that

[A]ll presumptions are indulged in favor of constitutionality; one who attacks a statute, alleging unconstitutionality must
prove its invalidity beyond a reasonable doubt (Victoriano v. Elizalde Rope Workers' Union, 59 SCRA 54 [19741). In fact,
this Court does not decide questions of a constitutional nature unless that question is properly raised and presented in
appropriate cases and is necessary to a determination of the case, i.e., the issue of constitutionality must be lis mota
presented (Tropical Homes v. National Housing Authority, 152 SCRA 540 [1987]).

First, the Court, in the Santiago case, could have very well avoided the issue of constitutionality of Republic Act No. 6735 by
ordering the COMELEC to dismiss the Delfin petition for the simple reason that it does not constitute an initiatory pleading over
which the COMELEC could acquire jurisdiction. And second, the unconstitutionality of Republic Act No. 6735 has not been
adequately shown. It was by and large merely inferred or deduced from the way Republic Act No. 6735 was worded and the
provisions thereof arranged and organized by Congress. The dissenting opinions rendered by several Justices in the Santiago case
reveal the other side to the argument, adopting the more liberal interpretation that would allow the Court to sustain the
constitutionality of Republic Act No. 6735. It would seem that the majority in the Santiago case failed to heed the rule that all
presumptions should be resolved in favor of the constitutionality of the statute.

The Court, acting en banc on the Petition at bar, can revisit its Decision in the Santiago case and again open to judicial review the
constitutionality of Republic Act No. 6735; in which case, I shall cast my vote in favor of its constitutionality, having satisfied the
completeness and sufficiency of standards tests for the valid delegation of legislative power. I fully agree in the conclusion made by
Justice Puno on this matter in his dissenting opinion12 in the Santiago case, that reads

R.A. No. 6735 sufficiently states the policy and the standards to guide the COMELEC in promulgating the law's
implementing rules and regulations of the law. As aforestated, Section 2 spells out the policy of the law; viz: "The power of
the people under a system of initiative and referendum to directly propose, enact, approve or reject, in whole or in part,
the Constitution, laws, ordinances, or resolutions passed by any legislative body upon compliance with the requirements
of this Act is hereby affirmed, recognized and guaranteed." Spread out all over R.A. No. 6735 are the standards to
canalize the delegated power to the COMELEC to promulgate rules and regulations from overflowing. Thus, the law
states the number of signatures necessary to start a people's initiative, directs how initiative proceeding is commenced,
what the COMELEC should do upon filing of the petition for initiative, how a proposition is approved, when a plebiscite
may be held, when the amendment takes effect, and what matters may not be the subject of any initiative. By any
measure, these standards are adequate.

III

The dissent of Justice Puno has already a well-presented discourse on the difference between an "amendment" and a "revision" of
the Constitution. Allow me also to articulate my additional thoughts on the matter.

Oppositors to Lambino and Aumentado's petition for initiative argue that the proposed changes therein to the provisions of the
Constitution already amount to a revision thereof, which is not allowed to be done through people's initiative; Article XVII, Section 2
of the Constitution on people's initiative refers only to proposals for amendments to the Constitution. They assert the traditional
distinction between an amendment and a revision, with amendment referring to isolated or piecemeal change only, while revision as
a revamp or rewriting of the whole instrument.13

However, as pointed out by Justice Puno in his dissent, there is no quantitative or qualitative test that can establish with definiteness
the distinction between an amendment and a revision, or between a substantial and simple change of the Constitution.

The changes proposed to the Constitution by Lambino and Aumentado's petition for initiative basically affect only Article VI on the
Legislative Department and Article VII on the Executive Department. While the proposed changes will drastically alter the
constitution of our government by vesting both legislative and executive powers in a unicameral Parliament, with the President as
the Head of State and the Prime Minister exercising the executive power; they would not essentially affect the other 16 Articles of
the Constitution. The 100 or so changes counted by the oppositors to the other provisions of the Constitution are constituted mostly
of the nominal substitution of one word for the other, such as Parliament for Congress, or Prime Minister for President. As eloquently
pointed out in the dissent of Justice Puno, the changes proposed to transform our form of government from bicameral-presidential to
unicameral-parliamentary, would not affect the fundamental nature of our state as a democratic and republican state. It will still be a
representative government where officials continue to be accountable to the people and the people maintain control over the
government through the election of members of the Parliament.

Furthermore, should the people themselves wish to change a substantial portion or even the whole of the Constitution, what or who
is to stop them? Article XVII, Section 2 of the Constitution which, by the way it is worded, refers only to their right to initiative on
amendments of the Constitution? The delegates to the Constitutional Convention who, according to their deliberations, purposely
limited Article XVII, Section 2 of the Constitution to amendments? This Court which has the jurisdiction to interpret the provision?
Bearing in mind my earlier declaration that the will of the sovereign people is supreme, there is nothing or no one that can preclude
them from initiating changes to the Constitution if they choose to do so. To reiterate, the Constitution is supposed to be the
expression and embodiment of the people's will, and should the people's will clamor for a revision of the Constitution, it is their will
which should prevail. Even the fact that the people ratified the 1987 Constitution, including Article XVII, Section 2 thereof, as it is
worded, should not prevent the exercise by the sovereign people of their inherent right to change the Constitution, even if such
change would be tantamount to a substantial amendment or revision thereof, for their actual exercise of the said right should be a
clear renunciation of the limitation which the said provision imposes upon it. It is the inherent right of the people as sovereign to
change the Constitution, regardless of the extent thereof.

IV

Lastly, I fail to see the injustice in allowing the COMELEC to give due course to and take cognizance of Lambino and Aumentado's
petition for initiative to amend the Constitution. I reiterate that it would be a greater evil if one such petition which is ostensibly
supported by the required number of registered voters all over the country, be summarily dismissed.

Giving due course and taking cognizance of the petition would not necessarily mean that the same would be found sufficient and set
for plebiscite. The COMELEC still faces the task of reviewing the petition to determine whether it complies with the requirements for
a valid exercise of the right to initiative. Questions raised by the oppositors to the petition, such as those on the authenticity of the
registered voters' signatures or compliance with the requisite number of registered voters for every legislative district, are already
factual in nature and require the reception and evaluation of evidence of the parties. Such questions are best presented and
resolved before the COMELEC since this Court is not a trier of facts.

In view of the foregoing, I am of the position that the Resolution of the COMELEC dated 31 August 2006 denying due course to the
Petition for Initiative filed by Lambino and Aumentado be reversed and set aside for having been issued in grave abuse of discretion,
amounting to lack of jurisdiction, and that the Petition be remanded to the COMELEC for further proceedings.

In short, I vote to GRANT the petition for Initiative of Lambino and Aumentado.
MINITA V. CHICO-NAZARIO
Associate Justice

____________________

EN BANC

G.R. No. 174153 October 25, 2006

RAUL L. LAMBINO and ERICO B. AUMENTADO, together with 6,327,952 REGISTERED VOTERS, petitioners, vs. The
COMMISSION ON ELECTIONS, respondent.

G.R. No. 174299 October 25, 2006

MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A. Q. SAGUISAG, petitioners vs. COMMISSION ON
ELECTIONS, Represented by Chairman BENJAMIN S. ABALOS, JR., and Commissioners RESURRECCION Z. BORRA,
FLORENTINO A. TUASON, JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, and John Doe and Peter Doe, respondents.

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

SEPARATE OPINION

VELASCO, JR., J.:

Introduction

The fate of every democracy, of every government based on the Sovereignty of the people, depends
on the choices it makes between these opposite principles: absolute power on the one hand, and on
the other the restraints of legality and the authority of tradition.
John Acton

In this thorny matter of the people's initiative, I concur with the erudite and highly persuasive opinion of Justice Reynato S. Puno
upholding the people's initiative and raise some points of my own.

The issue of the people's power to propose amendments to the Constitution was once discussed in the landmark case of Santiago
v. COMELEC.1 Almost a decade later, the issue is once again before the Court, and I firmly believe it is time to reevaluate the
pronouncements made in that case.

The issue of Charter Change is one that has sharply divided the nation, and its proponents and opponents will understandably take
all measures to advance their position and defeat that of their opponents. The wisdom or folly of Charter Change does not concern
the Court. The only thing that the Court must review is the validity of the present step taken by the proponents of Charter Change,
which is the People's Initiative, as set down in Article XVII, Sec. 2 of the 1987 Constitution:

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.

In the Santiago case, the Court discussed whether the second paragraph of that section had been fulfilled. It determined that
Congress had not provided for the implementation of the exercise of the people's initiative, when it held that Republic Act No. 6735,
or "The Initiative and Referendum Act," was "inadequate to cover the system of initiative on amendments to the Constitution, and to
have failed to provide sufficient standard for subordinate legislation." 2

With all due respect to those Justices who made that declaration, I must disagree.

Republic Act No. 6735 is the proper law for proposing constitutional amendments and it should not have been considered
inadequate.
The decision in Santiago focused on what it perceived to be fatal flaws in the drafting of the law, in the failings of the way the law
was structured, to come to the conclusion that the law was inadequate. The Court itself recognized the legislators' intent, but
disregarded this intent. The law was found wanting. The Court then saw the inclusion of the Constitution in RA 6735 as an
afterthought. However, it was included, and it should not be excluded by the Court via a strained analysis of the law. The difficult
construction of the law should not serve to frustrate the intent of the framers of the 1987 Constitution: to give the people the power
to propose amendments as they saw fit. It is a basic precept in statutory construction that the intent of the legislature is the
controlling factor in the interpretation of a statute.3 The intent of the legislature was clear, and yet RA 6735 was declared inadequate.
It was not specifically struck down or declared unconstitutional, merely incomplete. The Court focused on what RA 6735 was not,
and lost sight of what RA 6735 was.

It is my view that the reading of RA 6735 in Santiago should have been more flexible. It is also a basic precept of statutory
construction that statutes should be construed not so much according to the letter that killeth but in line with the purpose for which
they have been enacted.4 The reading of the law should not have been with the view of its defeat, but with the goal of upholding it,
especially with its avowed noble purpose.

Congress has done its part in empowering the people themselves to propose amendments to the Constitution, in accordance with
the Constitution itself. It should not be the Supreme Court that stifles the people, and lets their cries for change go unheard,
especially when the Constitution itself grants them that power.

The court's ruling in the Santiago case does not bar the present petition because the fallo in the Santiago case is limited to the
Delfin petition.

The Santiago case involved a petition for prohibition filed by Miriam Defensor-Santiago, et al., against the COMELEC, et al., which
sought to prevent the COMELEC from entertaining the "Petition to Amend the Constitution, to Lift Term Limits of Elective Officials, by
People's Initiative" filed by Atty. Jesus Delfin. In the body of the judgment, the Court made the following conclusion, viz:

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

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.

In the said case, the Court's fallo states as follows:

WHEREFORE, judgment is hereby rendered

a) GRANTING the instant petition;

b) DECLARING R. A. 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 Resolutions 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 against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.

The question now is if the ruling in Santiago is decisive in this case. It is elementary that when there is conflict between the
dispositive portion or fallo of the decision and the opinion of the court contained in the text or body of the judgment, the former
prevails over the latter. An order of execution is based on the disposition, not on the body, of the decision.5 The dispositive portion is
its decisive resolution; thus, it is the subject of execution. The other parts of the decision may be resorted to in order to determine
the ratio decidendi for the disposition. Where there is conflict between the dispositive part and the opinion of the court contained in
the text or body of the decision, the former must prevail over the latter on the theory that the dispositive portion is the final order,
while the opinion is merely a statement ordering nothing. Hence, the execution must conform with that which is ordained or decreed
in the dispositive portion of the decision.6

A judgment must be distinguished from an opinion. The latter is an informal expression of the views of the court and cannot prevail
against its final order or decision. While the two may be combined in one instrument, the opinion forms no part of the judgment. So
there is a distinction between the findings and conclusions of a court and its Judgment. While they may constitute its decision and
amount to the rendition of a judgment, they are not the judgment itself. It is not infrequent that the grounds of a decision fail to reflect
the exact views of the court, especially those of concurring justices in a collegiate court. We often encounter in judicial decisions
lapses, findings, loose statements and generalities which do not bear on the issues or are apparently opposed to the otherwise
sound and considered result reached by the court as expressed in the dispositive part, so called, of the decision. 7

Applying the foregoing argument to the Santiago case, it immediately becomes apparent that the disposition in the latter case
categorically made permanent the December 18, 1996 Temporary Restraining Order issued against the COMELEC in the Delfin
petition but did NOT formally incorporate therein any directive PERMANENTLY enjoining the COMELEC "from entertaining or taking
cognizance of any petition for initiative on amendments." Undeniably, the perpetual proscription against the COMELEC from
assuming jurisdiction over any other petition on Charter Change through a People's Initiative is just a conclusion and cannot bind
the poll body, for such unending ban would trench on its constitutional power to enforce and administer all laws and regulations
relative to the conduct of an election, plebiscite, initiative, referendum and recall under Section 2, Article IX of the Constitution. RA
6735 gave the COMELEC the jurisdiction to determine the sufficiency of the petition on the initiative under Section 8, Rule 11 and
the form of the petition under Section 3, Rule I; hence, it cannot be barred from entertaining any such petition.

In sum, the COMELEC still retains its jurisdiction to take cognizance of any petition on initiative under RA 6735 and it can rule on the
petition and its action can only be passed upon by the Court when the same is elevated through a petition for certiorari. COMELEC
cannot be barred from acting on said petitions since jurisdiction is conferred by law (RA 6735) and said law has not been declared
unconstitutional and hence still valid though considered inadequate in the Santiago case.

Respondents, however, claim that the Court in the subsequent case of PIRMA v. Commission on Elections8confirmed the statement
of the Court in the Santiago case that the COMELEC was "permanently enjoined from entertaining or taking cognizance of any
petition for initiative on amendments." Much reliance is placed on the ruling contained in a Minute Resolution which reads:

The Court ruled, first, by a unanimous vote, that no grave abuse of Discretion could be attributed to the public respondent
COMELEC in Dismissing the petition filed by PIRMA therein, it appearing that it only Complied with the DISPOSITIONS in
the Decision of this Court in G.R. No. 127325, promulgated on March 19, 1997, and its Resolution of June 10, 1997.

Take note that the Court specifically referred to "dispositions" in the March 19, 1997 Decision. To reiterate, the dispositions in the
Santiago case decision refer specifically to the December 18, 1996 TRO being made permanent against the COMELEC but do not
pertain to a permanent injunction against any other petition for initiative on amendment. Thus, what was confirmed or even affirmed
in the Minute Resolution in the PIRMA case pertains solely to the December 18, 1996 TRO which became permanent, the
declaration of the inadequacy of RA 6735, and the annulment of certain parts of Resolution No. 2300 but certainly not the alleged
perpetual injunction against the initiative petition. Thus, the resolution in the PIRMA case cannot be considered res judicata to the
Lambino petition.

Amendment or Revision

One last matter to be considered is whether the petition may be allowed under RA 6735, since only amendments to the Constitution
may be the subject of a people's initiative.

The Lambino petition cannot be considered an act of revising the Constitution; it is merely an attempt to amend it. The term
amendment has to be liberally construed so as to effectuate the people's efforts to amend the Constitution.

As an eminent constitutionalist, Dean Vicente G. Sinco,9 explained:

Strictly speaking, the act of revising a constitution involves alterations of different portions of the entire document. It may
result in the rewriting either of the whole constitution, or the greater portion of it, or perhaps only some of its important
provisions. But whatever results the revision may produce, the factor that characterizes it as an act of revision is the
original intention and plan authorized to be carried out. That intention and plan must contemplate a consideration of all the
provisions of the constitution to determine which one should be altered or suppressed or whether the whole document
should be replaced with an entirely new one.

The act of amending a constitution, on the other hand, envisages a change of only a few specific provisions. The intention
of an act to amend is not to consider the advisability of changing the entire constitution or of considering that possibility.
The intention rather is to improve specific parts of the existing constitution or to add to it provisions deemed essential on
account of changed conditions or to suppress portions of it that seem obsolete, or dangerous, or misleading in their effect.
In this case, the Lambino petition is not concerned with rewriting the entire Constitution. It was never its intention to revise the whole
Constitution. It merely concerns itself with amending a few provisions in our fundamental charter.

When there are gray areas in legislation, especially in matters that pertain to the sovereign people's political rights, courts must lean
more towards a more liberal interpretation favoring the people's right to exercise their sovereign power.

Conclusion

Sovereignty residing in the people is the highest form of sovereignty and thus deserves the highest respect even from the courts. It
is not something that can be overruled, set aside, ignored or stomped over by whatever amount of technicalities, blurred or vague
provisions of the law.

As I find RA 6735 to be adequate as the implementing law for the People's Initiative, I vote to grant the petition in G.R. No. 174153
and dismiss the petition in G.R. No. 174299. The Amended Petition for Initiative filed by petitioners Raul L. Lambino and Erico B.
Aumentado should be remanded to the COMELEC for determination whether or not the petition is sufficient under RA 6735, and if
the petition is sufficient, to schedule and hold the necessary plebiscite as required by RA 6735.

It is time to let the people's voice be heard once again as it was twenty years ago. And should this voice
demand a change in the Constitution, the Supreme Court should not be one to stand in its way.

PRESBITERO J. VELASCO, JR.


Associate Justice

EN BANC

THE PROVINCE OF NORTH COTABATO, duly represented by G.R. No. 183591


GOVERNOR JESUS SACDALAN and/or VICE-GOVERNOR Present:
EMMANUEL PIOL, for and in his own behalf,
Petitioners, PUNO, C.J.,
QUISUMBING,
- versus - YNARES-SANTIAGO,
CARPIO,
AUSTRIA-MARTINEZ,
THE GOVERNMENT OF THE REPUBLIC OF THE CORONA,
PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN CARPIO MORALES,
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH AZCUNA,
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK TINGA,
RYAN SULLIVAN and/or GEN. HERMOGENES ESPERON, JR., CHICO-NAZARIO,
the latter in his capacity as the present and duly-appointed VELASCO, JR.,
Presidential Adviser on the Peace Process (OPAPP) or the so-called NACHURA,
Office of the Presidential Adviser on the Peace Process, REYES,
Respondents. LEONARDO-DE CASTRO, &
x--------------------------------------------x BRION, JJ.
CITY GOVERNMENT OF ZAMBOANGA, as represented by Promulgated:
HON. CELSO L. LOBREGAT, City Mayor of Zamboanga, and in
his personal capacity as resident of the City of Zamboanga, Rep. October 14, 2008
MA. ISABELLE G. CLIMACO, District 1, and Rep. ERICO
BASILIO A. FABIAN, District 2, City of Zamboanga,
Petitioners,

- versus -

G.R. No. 183752


THE GOVERNMENT OF THE REPUBLIC OF THE
PHILIPPINES PEACE NEGOTIATING PANEL (GRP), as
represented by RODOLFO C. GARCIA, LEAH ARMAMENTO,
SEDFREY CANDELARIA, MARK RYAN SULLIVAN and
HERMOGENES ESPERON, in his capacity as the Presidential
Adviser on Peace Process,
Respondents.
x--------------------------------------------x
THE CITY OF ILIGAN, duly represented by CITY MAYOR
LAWRENCE LLUCH CRUZ,
Petitioner,

- versus

THE GOVERNMENT OF THE REPUBLIC OF THE


PHILIPPINES PEACE PANEL ON ANCESTRAL DOMAIN
(GRP), represented by SEC. RODOLFO GARCIA, ATTY. LEAH
ARMAMENTO, ATTY. SEDFREY CANDELARIA, MARK
RYAN SULLIVAN; GEN. HERMOGENES ESPERON, JR., in his
capacity as the present and duly appointed Presidential Adviser on
the Peace Process; and/or SEC. EDUARDO ERMITA, in his
capacity as Executive Secretary.
Respondents.
x--------------------------------------------x
THE PROVINCIAL GOVERNMENT OF ZAMBOANGA DEL
NORTE, as represented by HON. ROLANDO E. YEBES, in his
capacity as Provincial Governor, HON. FRANCIS H. OLVIS, in his G.R. No. 183893
capacity as Vice-Governor and Presiding Officer of the
Sangguniang Panlalawigan, HON. CECILIA JALOSJOS
CARREON, Congresswoman, 1st Congressional District, HON.
CESAR G. JALOSJOS, Congressman, 3rdCongressional District,
and Members of the Sangguniang Panlalawigan of the Province of
Zamboanga del Norte, namely, HON. SETH FREDERICK P.
JALOSJOS, HON. FERNANDO R. CABIGON, JR., HON.
ULDARICO M. MEJORADA II, HON. EDIONAR M.
ZAMORAS, HON. EDGAR J. BAGUIO, HON. CEDRIC L.
ADRIATICO, HON. FELIXBERTO C. BOLANDO, HON.
JOSEPH BRENDO C. AJERO, HON. NORBIDEIRI B. EDDING,
HON. ANECITO S. DARUNDAY, HON. ANGELICA J.
CARREON and HON. LUZVIMINDA E. TORRINO,
Petitioners,

- versus -

THE GOVERNMENT OF THE REPUBLIC OF THE


PHILIPPINES PEACE NEGOTIATING PANEL [GRP], as
represented by HON. RODOLFO C. GARCIA and HON.
HERMOGENES ESPERON, in his capacity as the Presidential
Adviser of Peace Process,
Respondents.
x--------------------------------------------x G.R. No. 183951
ERNESTO M. MACEDA, JEJOMAR C. BINAY, and AQUILINO
L. PIMENTEL III,
Petitioners,
- versus -

THE GOVERNMENT OF THE REPUBLIC OF THE


PHILIPPINES PEACE NEGOTIATING PANEL, represented by its
Chairman RODOLFO C. GARCIA, and the MORO ISLAMIC
LIBERATION FRONT PEACE NEGOTIATING PANEL,
represented by its Chairman MOHAGHER IQBAL,
Respondents.
x--------------------------------------------x
FRANKLIN M. DRILON and ADEL ABBAS TAMANO,
Petitioners-in-Intervention.
x--------------------------------------------x
SEN. MANUEL A. ROXAS,
Petitioners-in-Intervention.
x--------------------------------------------x
MUNICIPALITY OF LINAMON duly represented by its Municipal
Mayor NOEL N. DEANO,
Petitioners-in-Intervention,
x--------------------------------------------x
THE CITY OF ISABELA, BASILANPROVINCE, represented by
MAYOR CHERRYLYN P. SANTOS-AKBAR,
Petitioners-in-Intervention.
x--------------------------------------------x
THE PROVINCE OF SULTAN KUDARAT, rep. by HON.
SUHARTO T. MANGUDADATU, in his capacity as Provincial
Governor and a resident of the Province of Sultan Kudarat,
Petitioner-in-Intervention.
x-------------------------------------------x

RUY ELIAS LOPEZ, for and in his own behalf and on behalf of
Indigenous Peoples in Mindanao Not Belonging to the MILF,
Petitioner-in-Intervention.
x--------------------------------------------x
CARLO B. GOMEZ, GERARDO S. DILIG, NESARIO G. AWAT,
JOSELITO C. ALISUAG and RICHALEX G. JAGMIS, as citizens
and residents of Palawan,
Petitioners-in-Intervention.
x--------------------------------------------x
MARINO RIDAO and KISIN BUXANI,
Petitioners-in-Intervention.
x--------------------------------------------x
MUSLIM LEGAL ASSISTANCE FOUNDATION, INC
(MUSLAF), G.R. No. 183962
Respondent-in-Intervention.
x--------------------------------------------x
MUSLIM MULTI-SECTORAL MOVEMENT FOR PEACE &
DEVELOPMENT (MMMPD),
Respondent-in-Intervention.
x--------------------------------------------x

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

DECISION

CARPIO MORALES, J.:

Subject of these consolidated cases is the extent of the powers of the President in pursuing the peace process. While the facts surrounding this

controversy center on the armed conflict in Mindanao between the government and the Moro Islamic Liberation Front (MILF), the legal issue

involved has a bearing on all areas in the country where there has been a long-standing armed conflict. Yet again, the Court is tasked to perform a

delicate balancing act. It must uncompromisingly delineate the bounds within which the President may lawfully exercise her discretion, but it
must do so in strict adherence to the Constitution, lest its ruling unduly restricts the freedom of action vested by that same Constitution in the

Chief Executive precisely to enable her to pursue the peace process effectively.
I. FACTUAL ANTECEDENTS OF THE PETITIONS

On August 5, 2008, the Government of the Republic of the Philippines (GRP) and the MILF, through the Chairpersons of their respective peace

negotiating panels, were scheduled to sign a Memorandum of Agreement on the Ancestral Domain (MOA-AD) Aspect of the GRP-MILF Tripoli

Agreement on Peace of 2001 in Kuala Lumpur, Malaysia.

The MILF is a rebel group which was established in March 1984 when, under the leadership of the late Salamat Hashim, it splintered from the

Moro National Liberation Front (MNLF) then headed by Nur Misuari, on the ground, among others, of what Salamat perceived to be the

manipulation of the MNLF away from an Islamic basis towards Marxist-Maoist orientations. [1]

The signing of the MOA-AD between the GRP and the MILF was not to materialize, however, for upon motion of petitioners, specifically those

who filed their cases before the scheduled signing of the MOA-AD, this Court issued a Temporary Restraining Order enjoining the GRP from

signing the same.

The MOA-AD was preceded by a long process of negotiation and the concluding of several prior agreements between the two parties beginning

in 1996, when the GRP-MILF peace negotiations began. On July 18, 1997, the GRP and MILF Peace Panels signed the Agreement on General

Cessation of Hostilities. The following year, they signed the General Framework of Agreement of Intent on August 27, 1998.

The Solicitor General, who represents respondents, summarizes the MOA-AD by stating that the same contained, among others, the commitment

of the parties to pursue peace negotiations, protect and respect human rights, negotiate with sincerity in the resolution and pacific settlement of

the conflict, and refrain from the use of threat or force to attain undue advantage while the peace negotiations on the substantive agenda are on-

going.[2]

Early on, however, it was evident that there was not going to be any smooth sailing in the GRP-MILF peace process. Towards the end of 1999 up

to early 2000, the MILF attacked a number of municipalities in Central Mindanao and, in March 2000, it took control of the town

hall of Kauswagan, Lanao del Norte.[3] In response, then President Joseph Estrada declared and carried out an all-out-war against the MILF.

When President Gloria Macapagal-Arroyo assumed office, the military offensive against the MILF was suspended and the government sought a

resumption of the peace talks. The MILF, according to a leading MILF member, initially responded with deep reservation, but when President

Arroyo asked the Government of Malaysia through Prime Minister Mahathir Mohammad to help convince the MILF to return to the negotiating

table, the MILF convened its Central Committee to seriously discuss the matter and, eventually, decided to meet with the GRP.[4]
The parties met in Kuala Lumpur on March 24, 2001, with the talks being facilitated by the Malaysian government, the parties signing on the

same date the Agreement on the General Framework for the Resumption of Peace Talks Between the GRP and the MILF. The MILF thereafter

suspended all its military actions.[5]

Formal peace talks between the parties were held in Tripoli, Libya from June 20-22, 2001, the outcome of which was the GRP-MILF Tripoli

Agreement on Peace (Tripoli Agreement 2001) containing the basic principles and agenda on the following aspects of the

negotiation: Security Aspect, Rehabilitation Aspect, and Ancestral Domain Aspect. With regard to the Ancestral Domain Aspect, the parties in

Tripoli Agreement 2001 simply agreed that the same be discussed further by the Parties in their next meeting.

A second round of peace talks was held in Cyberjaya, Malaysia on August 5-7, 2001 which ended with the signing of the Implementing

Guidelines on the Security Aspect of the Tripoli Agreement 2001 leading to a ceasefire status between the parties.This was followed by the

Implementing Guidelines on the Humanitarian Rehabilitation and Development Aspects of the Tripoli Agreement 2001, which was signed

on May 7, 2002 at Putrajaya, Malaysia. Nonetheless, there were many incidence of violence between government forces and the MILF from 2002

to 2003.

Meanwhile, then MILF Chairman Salamat Hashim passed away on July 13, 2003 and he was replaced by Al Haj Murad, who was then the chief

peace negotiator of the MILF. Murads position as chief peace negotiator was taken over by Mohagher Iqbal.[6]

In 2005, several exploratory talks were held between the parties in Kuala Lumpur, eventually leading to the crafting of the draft MOA-AD in its

final form, which, as mentioned, was set to be signed last August 5, 2008.

II. STATEMENT OF THE PROCEEDINGS

Before the Court is what is perhaps the most contentious consensus ever embodied in an instrument the MOA-AD which is assailed principally

by the present petitions bearing docket numbers 183591, 183752, 183893, 183951 and 183962.

Commonly impleaded as respondents are the GRP Peace Panel on Ancestral Domain[7] and the Presidential Adviser on the Peace Process (PAPP)

Hermogenes Esperon, Jr.

On July 23, 2008, the Province of North Cotabato[8] and Vice-Governor Emmanuel Piol filed a petition, docketed as G.R. No. 183591,

for Mandamus and Prohibition with Prayer for the Issuance of Writ of Preliminary Injunction and Temporary Restraining Order. [9] Invoking the

right to information on matters of public concern, petitioners seek to compel respondents to disclose and furnish them the complete and official

copies of the MOA-AD including its attachments, and to prohibit the slated signing of the MOA-AD, pending the disclosure of the contents of the

MOA-AD and the holding of a public consultation thereon.Supplementarily, petitioners pray that the MOA-AD be declared unconstitutional. [10]
This initial petition was followed by another one, docketed as G.R. No. 183752, also for Mandamus and Prohibition [11] filed by the City

of Zamboanga,[12] Mayor Celso Lobregat, Rep. Ma. Isabelle Climaco and Rep. Erico Basilio Fabian who likewise pray for similar injunctive

reliefs. Petitioners herein moreover pray that the City of Zamboanga be excluded from the Bangsamoro Homeland and/or Bangsamoro Juridical

Entity and, in the alternative, that the MOA-AD be declared null and void.

By Resolution of August 4, 2008, the Court issued a Temporary Restraining Order commanding and directing public respondents and

their agents to cease and desist from formally signing the MOA-AD. [13] The Court also required the Solicitor General to submit to the Court and

petitioners the official copy of the final draft of the MOA-AD,[14] to which she complied.[15]

Meanwhile, the City of Iligan[16] filed a petition for Injunction and/or Declaratory Relief, docketed as G.R. No. 183893, praying that

respondents be enjoined from signing the MOA-AD or, if the same had already been signed, from implementing the same, and that the MOA-AD

be declared unconstitutional. Petitioners herein additionally implead Executive Secretary Eduardo Ermita as respondent.

The Province of Zamboanga del Norte,[17] Governor Rolando Yebes, Vice-Governor Francis Olvis, Rep. Cecilia Jalosjos-Carreon, Rep.

Cesar Jalosjos, and the members [18] of the Sangguniang Panlalawigan of Zamboanga del Norte filed on August 15, 2008 a petition for Certiorari,

Mandamus and Prohibition,[19] docketed as G.R. No. 183951. They pray, inter alia, that the MOA-AD be declared null and void and without

operative effect, and that respondents be enjoined from executing the MOA-AD.

On August 19, 2008, Ernesto Maceda, Jejomar Binay, and Aquilino Pimentel III filed a petition for Prohibition, [20]docketed as G.R.

No. 183962, praying for a judgment prohibiting and permanently enjoining respondents from formally signing and executing the MOA-AD and

or any other agreement derived therefrom or similar thereto, and nullifying the MOA-AD for being unconstitutional and illegal. Petitioners

herein additionally implead as respondent the MILF Peace Negotiating Panel represented by its Chairman Mohagher Iqbal.

Various parties moved to intervene and were granted leave of court to file their petitions-/comments-in-intervention.Petitioners-in-

Intervention include Senator Manuel A. Roxas, former Senate President Franklin Drilon and Atty. Adel Tamano, the City of Isabela[21] and Mayor

Cherrylyn Santos-Akbar, the Province of Sultan Kudarat [22] and Gov. Suharto Mangudadatu, the Municipality of Linamon in Lanao del Norte,
[23]
Ruy Elias Lopez of Davao City and of the Bagobo tribe, Sangguniang Panlungsod member Marino Ridao and businessman Kisin Buxani,

both of Cotabato City; and lawyers Carlo Gomez, Gerardo Dilig, Nesario Awat, Joselito Alisuag, Richalex Jagmis, all of Palawan City. The

Muslim Legal Assistance Foundation, Inc. (Muslaf) and the Muslim Multi-Sectoral Movement for Peace and Development (MMMPD) filed their

respective Comments-in-Intervention.

By subsequent Resolutions, the Court ordered the consolidation of the petitions. Respondents filed Comments on the petitions, while

some of petitioners submitted their respective Replies.

Respondents, by Manifestation and Motion of August 19, 2008, stated that the Executive Department shall thoroughly review the

MOA-AD and pursue further negotiations to address the issues hurled against it, and thus moved to dismiss the cases.In the succeeding exchange

of pleadings, respondents motion was met with vigorous opposition from petitioners.
The cases were heard on oral argument on August 15, 22 and 29, 2008 that tackled the following principal issues:

1. Whether the petitions have become moot and academic

(i) insofar as the mandamus aspect is concerned, in view of the disclosure of official copies of the final draft of the
Memorandum of Agreement (MOA); and

(ii) insofar as the prohibition aspect involving the Local Government Units is concerned, if it is considered that
consultation has become fait accompli with the finalization of the draft;

2. Whether the constitutionality and the legality of the MOA is ripe for adjudication;

3. Whether respondent Government of the Republic of the Philippines Peace Panel committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it negotiated and initiated the MOA vis--vis ISSUES Nos. 4 and 5;

4. Whether there is a violation of the peoples right to information on matters of public concern (1987 Constitution, Article
III, Sec. 7) under a state policy of full disclosure of all its transactions involving public interest (1987 Constitution,
Article II, Sec. 28) including public consultation under Republic Act No. 7160 (LOCAL GOVERNMENT CODE
OF 1991)[;]

If it is in the affirmative, whether prohibition under Rule 65 of the 1997 Rules of Civil Procedure is an appropriate
remedy;

5. Whether by signing the MOA, the Government of the Republic of the Philippines would be BINDING itself

a) to create and recognize the Bangsamoro Juridical Entity (BJE) as a separate state, or a juridical, territorial or
political subdivision not recognized by law;

b) to revise or amend the Constitution and existing laws to conform to the MOA;

c) to concede to or recognize the claim of the Moro Islamic Liberation Front for ancestral domain in violation of
Republic Act No. 8371 (THE INDIGENOUS PEOPLES RIGHTS ACT OF 1997), particularly Section 3(g) &
Chapter VII (DELINEATION, RECOGNITION OF ANCESTRAL DOMAINS)[;]

If in the affirmative, whether the Executive Branch has the authority to so bind the Government of the Republic of
the Philippines;

6. Whether the inclusion/exclusion of the Province of North Cotabato, Cities of Zamboanga, Iligan and Isabela, and the
Municipality of Linamon, Lanao del Norte in/from the areas covered by the projected Bangsamoro Homeland is a
justiciable question; and

7. Whether desistance from signing the MOA derogates any prior valid commitments of the Government of the Republic
of the Philippines.[24]

The Court, thereafter, ordered the parties to submit their respective Memoranda. Most of the parties submitted their memoranda on

time.

III. OVERVIEW OF THE MOA-AD

As a necessary backdrop to the consideration of the objections raised in the subject five petitions and six petitions-in-intervention against the

MOA-AD, as well as the two comments-in-intervention in favor of the MOA-AD, the Court takes an overview of the MOA.

The MOA-AD identifies the Parties to it as the GRP and the MILF.
Under the heading Terms of Reference (TOR), the MOA-AD includes not only four earlier agreements between the GRP and MILF,

but also two agreements between the GRP and the MNLF: the 1976 Tripoli Agreement, and the Final Peace Agreement on the Implementation of

the 1976 Tripoli Agreement, signed on September 2, 1996 during the administration of President Fidel Ramos.

The MOA-AD also identifies as TOR two local statutes the organic act for the Autonomous Region in Muslim Mindanao (ARMM) [25] and the

Indigenous Peoples Rights Act (IPRA),[26] and several international law instruments the ILO Convention No. 169 Concerning Indigenous and

Tribal Peoples in Independent Countries in relation to the UN Declaration on the Rights of the Indigenous Peoples, and the UN Charter, among

others.

The MOA-AD includes as a final TOR the generic category of compact rights entrenchment emanating from the regime of dar-ul-muahada (or

territory under compact) and dar-ul-sulh (or territory under peace agreement) that partakes the nature of a treaty device.

During the height of the Muslim Empire, early Muslim jurists tended to see the world through a simple dichotomy: there was the dar-ul-

Islam (the Abode of Islam) and dar-ul-harb (the Abode of War). The first referred to those lands where Islamic laws held sway, while the second

denoted those lands where Muslims were persecuted or where Muslim laws were outlawed or ineffective. [27] This way of viewing the world,

however, became more complex through the centuries as the Islamic world became part of the international community of nations.

As Muslim States entered into treaties with their neighbors, even with distant States and inter-governmental organizations, the classical division

of the world into dar-ul-Islam and dar-ul-harb eventually lost its meaning. New terms were drawn up to describe novel ways of perceiving non-

Muslim territories. For instance, areas like dar-ul-muahada (land of compact) and dar-ul-sulh (land of treaty) referred to countries which, though

under a secular regime, maintained peaceful and cooperative relations with Muslim States, having been bound to each other by treaty or

agreement. Dar-ul-aman (land of order), on the other hand, referred to countries which, though not bound by treaty with Muslim States,

maintained freedom of religion for Muslims. [28]

It thus appears that the compact rights entrenchment emanating from the regime of dar-ul-muahada and dar-ul-sulh simply refers to all other

agreements between the MILF and the Philippine government the Philippines being the land of compact and peace agreement that partake of the

nature of a treaty device, treaty being broadly defined as any solemn agreement in writing that sets out understandings, obligations, and benefits

for both parties which provides for a framework that elaborates the principles declared in the [MOA-AD].[29]

The MOA-AD states that the Parties HAVE AGREED AND ACKNOWLEDGED AS FOLLOWS, and starts with its main body.

The main body of the MOA-AD is divided into four strands, namely,
Concepts and Principles, Territory, Resources, and Governance.

A. CONCEPTS AND PRINCIPLES


This strand begins with the statement that it is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be

accepted as Bangsamoros. It defines Bangsamoro people as the natives or original inhabitants of Mindanao and its adjacent islands

including Palawan and the Sulu archipelago at the time of conquest or colonization, and their descendantswhether mixed or of full

blood, including their spouses.[30]

Thus, the concept of Bangsamoro, as defined in this strand of the MOA-AD, includes not only Moros as traditionally understood even by

Muslims,[31] but all indigenous peoples of Mindanao and its adjacent islands. The MOA-AD adds that the freedom of choice of indigenous

peoples shall be respected. What this freedom of choice consists in has not been specifically defined.

The MOA-AD proceeds to refer to the Bangsamoro homeland, the ownership of which is vested exclusively in the Bangsamoro people by virtue

of their prior rights of occupation.[32] Both parties to the MOA-AD acknowledge that ancestral domain does notform part of the public domain.[33]

The Bangsamoro people are acknowledged as having the right to self-governance, which right is said to be rooted on ancestral territoriality

exercised originally under the suzerain authority of their sultanates and the Pat a Pangampong ku Ranaw. The sultanates were described as states

or karajaan/kadatuan resembling a body politic endowed with all the elements of a nation-state in the modern sense.[34]

The MOA-AD thus grounds the right to self-governance of the Bangsamoro people on the past suzerain authority of the sultanates. As gathered,

the territory defined as the Bangsamoro homeland was ruled by several sultanates and, specifically in the case of the Maranao, by the Pat a

Pangampong ku Ranaw, a confederation of independent principalities (pangampong) each ruled by datus and sultans, none of whom was

supreme over the others.[35]

The MOA-AD goes on to describe the Bangsamoro people as the First Nation with defined territory and with a system of government having

entered into treaties of amity and commerce with foreign nations.

The term First Nation is of Canadian origin referring to the indigenous peoples of that territory, particularly those known as Indians. In Canada,

each of these indigenous peoples is equally entitled to be called First Nation, hence, all of them are usually described collectively by the plural

First Nations.[36] To that extent, the MOA-AD, by identifying the Bangsamoro people as theFirst Nation suggesting its exclusive entitlement to

that designation departs from the Canadian usage of the term.

The MOA-AD then mentions for the first time the Bangsamoro Juridical Entity (BJE) to which it grants the authority and jurisdiction over the

Ancestral Domain and Ancestral Lands of the Bangsamoro.[37]

B. TERRITORY

The territory of the Bangsamoro homeland is described as the land mass as well as the maritime, terrestrial, fluvial and alluvial domains,

including the aerial domain and the atmospheric space above it, embracing the Mindanao-Sulu-Palawan geographic region. [38]
More specifically, the core of the BJE is defined as the present geographic area of the ARMM thus constituting the following areas: Lanao del

Sur, Maguindanao, Sulu, Tawi-Tawi, Basilan, and Marawi City. Significantly, this core also includes certain municipalities of Lanao del Norte

that voted for inclusion in the ARMM in the 2001 plebiscite.[39]

Outside of this core, the BJE is to cover other provinces, cities, municipalities and barangays, which are grouped into two categories,

Category A and Category B. Each of these areas is to be subjected to a plebiscite to be held on different dates, years apart from each other. Thus,

Category A areas are to be subjected to a plebiscite not later than twelve (12) months following the signing of the MOA-AD. [40] Category B areas,

also called Special Intervention Areas, on the other hand, are to be subjected to a plebiscite twenty-five (25) years from the signing of a separate

agreement the Comprehensive Compact.[41]

The Parties to the MOA-AD stipulate that the BJE shall have jurisdiction over all natural resources within its internal waters,defined as extending

fifteen (15) kilometers from the coastline of the BJE area;[42] that the BJE shall also have territorial waters, which shall stretch beyond the BJE

internal waters up to the baselines of the Republic of the Philippines (RP) south east and south west of mainland Mindanao; and that within

these territorial waters, the BJE and the Central Government (used interchangeably with RP) shall exercise joint jurisdiction, authority and

management over all natural resources.[43] Notably, the jurisdiction over the internal waters is not similarly described as joint.

The MOA-AD further provides for the sharing of minerals on the territorial waters between the Central Government and the BJE, in favor of the

latter, through production sharing and economic cooperation agreement. [44] The activities which the Parties are allowed to conduct on

the territorial waters are enumerated, among which are the exploration and utilization of natural resources, regulation of shipping and fishing

activities, and the enforcement of police and safety measures. [45] There is no similar provision on the sharing of minerals and allowed activities

with respect to the internal waters of the BJE.

C. RESOURCES

The MOA-AD states that the BJE is free to enter into any economic cooperation and trade relations with foreign countries and shall have the

option to establish trade missions in those countries. Such relationships and understandings, however, are not to include aggression against the

GRP. The BJE may also enter into environmental cooperation agreements. [46]

The external defense of the BJE is to remain the duty and obligation of the Central Government. The Central Government is also bound to take

necessary steps to ensure the BJEs participation in international meetings and events like those of the ASEAN and the specialized agencies of the

UN. The BJE is to be entitled to participate in Philippine official missions and delegations for the negotiation of border agreements or protocols

for environmental protection and equitable sharing of incomes and revenues involving the bodies of water adjacent to or between the islands

forming part of the ancestral domain.[47]


With regard to the right of exploring for, producing, and obtaining all potential sources of energy, petroleum, fossil fuel, mineral oil and natural

gas, the jurisdiction and control thereon is to be vested in the BJE as the party having control within its territorial jurisdiction. This right carries

the proviso that, in times of national emergency, when public interest so requires, the Central Government may, for a fixed period and under

reasonable terms as may be agreed upon by both Parties, assume or direct the operation of such resources. [48]

The sharing between the Central Government and the BJE of total production pertaining to natural resources is to be 75:25 in favor of the BJE.[49]

The MOA-AD provides that legitimate grievances of the Bangsamoro people arising from any unjust dispossession of their territorial and

proprietary rights, customary land tenures, or their marginalization shall be acknowledged. Whenever restoration is no longer possible, reparation

is to be in such form as mutually determined by the Parties.[50]

The BJE may modify or cancel the forest concessions, timber licenses, contracts or agreements, mining concessions, Mineral Production and

Sharing Agreements (MPSA), Industrial Forest Management Agreements (IFMA), and other land tenure instruments granted by the Philippine

Government, including those issued by the present ARMM.[51]

D. GOVERNANCE

The MOA-AD binds the Parties to invite a multinational third-party to observe and monitor the implementation of the Comprehensive

Compact. This compact is to embody the details for the effective enforcement and the mechanisms and modalities for the actual implementation

of the MOA-AD. The MOA-AD explicitly provides that the participation of the third party shall not in any way affect the status of the

relationship between the Central Government and the BJE.[52]

The associative relationship


between the Central Government
and the BJE

The MOA-AD describes the relationship of the Central Government and the BJE as associative, characterized by shared authority and

responsibility. And it states that the structure of governance is to be based on executive, legislative, judicial, and administrative institutions with

defined powers and functions in the Comprehensive Compact.

The MOA-AD provides that its provisions requiring amendments to the existing legal framework shall take effect upon signing of the

Comprehensive Compact and upon effecting the aforesaid amendments, with due regard to the non-derogation of prior agreements and within the

stipulated timeframe to be contained in the Comprehensive Compact. As will be discussed later, much of the present controversy hangs on the

legality of this provision.

The BJE is granted the power to build, develop and maintain its own institutions inclusive of civil service, electoral, financial and

banking, education, legislation, legal, economic, police and internal security force, judicial system and correctional institutions, the details of

which shall be discussed in the negotiation of the comprehensive compact.

As stated early on, the MOA-AD was set to be signed on August 5, 2008 by Rodolfo Garcia and Mohagher Iqbal, Chairpersons of the Peace

Negotiating Panels of the GRP and the MILF, respectively. Notably, the penultimate paragraph of the MOA-AD identifies the signatories as the
representatives of the Parties, meaning the GRP and MILF themselves, and not merely of the negotiating panels. [53] In addition, the signature page

of the MOA-AD states that it is WITNESSED BY Datuk Othman Bin Abd Razak, Special Adviser to the Prime Minister of Malaysia,

ENDORSED BY Ambassador Sayed Elmasry, Adviser to Organization of the Islamic Conference (OIC) Secretary General and Special Envoy for

Peace Process in Southern Philippines, and SIGNED IN THE PRESENCE OF Dr. Albert G. Romulo, Secretary of Foreign Affairs of RP and Dato

Seri Utama Dr. Rais Bin Yatim, Minister of Foreign Affairs, Malaysia, all of whom were scheduled to sign the Agreement last August 5, 2008.

Annexed to the MOA-AD are two documents containing the respective lists cum maps of the provinces, municipalities, and barangays

under Categories A and B earlier mentioned in the discussion on the strand on TERRITORY.

IV. PROCEDURAL ISSUES

A. RIPENESS

The power of judicial review is limited to actual cases or controversies. [54] Courts decline to issue advisory opinions or to resolve

hypothetical or feigned problems, or mere academic questions. [55] The limitation of the power of judicial review to actual cases and

controversies defines the role assigned to the judiciary in a tripartite allocation of power, to assure that the courts will not intrude into areas

committed to the other branches of government.[56]

An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial resolution

as distinguished from a hypothetical or abstract difference or dispute. There must be a contrariety of legal rights that can be interpreted and

enforced on the basis of existing law and jurisprudence. [57] The Court can decide the constitutionality of an act or treaty only when a proper case

between opposing parties is submitted for judicial determination.[58]

Related to the requirement of an actual case or controversy is the requirement of ripeness. A question is ripe for adjudication when the

act being challenged has had a direct adverse effect on the individual challenging it. [59] For a case to be considered ripe for adjudication, it is a

prerequisite that something had then been accomplished or performed by either branch before a court may come into the picture, [60] and the

petitioner must allege the existence of an immediate or threatened injury to itself as a result of the challenged action. [61] He must show that he has

sustained or is immediately in danger of sustaining some direct injury as a result of the act complained of.[62]

The Solicitor General argues that there is no justiciable controversy that is ripe for judicial review in the present petitions, reasoning

that

The unsigned MOA-AD is simply a list of consensus points subject to further negotiations and legislative
enactments as well as constitutional processes aimed at attaining a final peaceful agreement. Simply put, the MOA-AD
remains to be a proposal that does not automatically create legally demandable rights and obligations until the list of
operative acts required have been duly complied with. x x x

xxxx

In the cases at bar, it is respectfully submitted that this Honorable Court has no authority to pass upon issues
based on hypothetical or feigned constitutional problems or interests with no concrete bases. Considering
the preliminary character of the MOA-AD, there are no concrete acts that could possibly violate petitioners and intervenors
rights since the acts complained of are mere contemplated steps toward the formulation of a final peace agreement. Plainly,
petitioners and intervenors perceived injury, if at all, is merely imaginary and illusory apart from being unfounded and
based on mere conjectures. (Underscoring supplied)

The Solicitor General cites[63] the following provisions of the MOA-AD:

TERRITORY

xxxx

2. Toward this end, the Parties enter into the following stipulations:
xxxx

d. Without derogating from the requirements of prior agreements, the Government stipulates to
conduct and deliver, using all possible legal measures, within twelve (12) months following the
signing of the MOA-AD, a plebiscite covering the areas as enumerated in the list and depicted
in the map as Category A attached herein (the Annex). The Annex constitutes an integral part of
this framework agreement. Toward this end, the Parties shall endeavor to complete the
negotiations and resolve all outstanding issues on the Comprehensive Compact within fifteen
(15) months from the signing of the MOA-AD.

xxxx

GOVERNANCE

xxxx

7. The Parties agree that mechanisms and modalities for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.

Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into
force upon the signing of a Comprehensive Compact and upon effecting the necessary changes to the legal
framework with due regard to non-derogation of prior agreements and within the stipulated timeframe to
be contained in the Comprehensive Compact.[64](Underscoring supplied)

The Solicitor Generals arguments fail to persuade.

Concrete acts under the MOA-AD are not necessary to render the present controversy ripe. In Pimentel, Jr. v. Aguirre,[65]this Court

held:

x x x [B]y the mere enactment of the questioned law or the approval of the challenged action, the dispute is said
to have ripened into a judicial controversy even without any other overt act. Indeed, even a singular violation of the
Constitution and/or the law is enough to awaken judicial duty.

xxxx

By the same token, when an act of the President, who in our constitutional scheme is a coequal of Congress, is
seriously alleged to have infringed the Constitution and the laws x x x settling the dispute becomes the duty and the
responsibility of the courts.[66]

In Santa Fe Independent School District v. Doe,[67] the United States Supreme Court held that the challenge to the constitutionality of

the schools policy allowing student-led prayers and speeches before games was ripe for adjudication, even if no public prayer had yet been led

under the policy, because the policy was being challenged as unconstitutional on its face.[68]
That the law or act in question is not yet effective does not negate ripeness. For example, in New York v. United States, [69]decided in

1992, the United States Supreme Court held that the action by the State of New York challenging the provisions of the Low-Level Radioactive

Waste Policy Act was ripe for adjudication even if the questioned provision was not to take effect until January 1, 1996, because the parties

agreed that New York had to take immediate action to avoid the provision's consequences. [70]

The present petitions pray for Certiorari,[71] Prohibition, and Mandamus. Certiorari and Prohibition are remedies granted by law when

any tribunal, board or officer has acted, in the case of certiorari, or is proceeding, in the case of prohibition, without or in excess of its jurisdiction

or with grave abuse of discretion amounting to lack or excess of jurisdiction. [72] Mandamus is a remedy granted by law when any tribunal,

corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an

office, trust, or station, or unlawfully excludes another from the use or enjoyment of a right or office to which such other is entitled. [73] Certiorari,

Mandamus and Prohibition are appropriate remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of

legislative and executive officials.[74]

The authority of the GRP Negotiating Panel is defined by Executive Order No. 3 (E.O. No. 3), issued on February 28, 2001.[75] The

said executive order requires that [t]he government's policy framework for peace, including the systematic approach and the administrative

structure for carrying out the comprehensive peace process x x x be governed by this Executive Order.[76]

The present petitions allege that respondents GRP Panel and PAPP Esperon drafted the terms of the MOA-AD without consulting the

local government units or communities affected, nor informing them of the proceedings. As will be discussed in greater detail later, such

omission, by itself, constitutes a departure by respondents from their mandate under E.O. No. 3.

Furthermore, the petitions allege that the provisions of the MOA-AD violate the Constitution. The MOA-AD provides that any

provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon the signing of a Comprehensive

Compact and upon effecting the necessary changes to the legal framework, implying an amendment of the Constitution to accommodate the

MOA-AD. This stipulation, in effect, guaranteed to the MILF the amendment of the Constitution. Such act constitutes another violation of its

authority. Again, these points will be discussed in more detail later.

As the petitions allege acts or omissions on the part of respondent that exceed their authority, by violating their duties under E.O. No.

3 and the provisions of the Constitution and statutes, the petitions make a prima facie case for Certiorari, Prohibition, and Mandamus, and an

actual case or controversy ripe for adjudication exists. When an act of a branch of government is seriously alleged to have infringed the

Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the dispute.[77]

B. LOCUS STANDI

For a party to have locus standi, one must allege such a personal stake in the outcome of the controversy as to assure that concrete adverseness

which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions. [78]
Because constitutional cases are often public actions in which the relief sought is likely to affect other persons, a preliminary question frequently

arises as to this interest in the constitutional question raised.[79]

When suing as a citizen, the person complaining must allege that he has been or is about to be denied some right or privilege to which he is

lawfully entitled or that he is about to be subjected to some burdens or penalties by reason of the statute or act complained of. [80] When the issue

concerns a public right, it is sufficient that the petitioner is a citizen and has an interest in the execution of the laws. [81]

For a taxpayer, one is allowed to sue where there is an assertion that public funds are illegally disbursed or deflected to an illegal purpose, or that

there is a wastage of public funds through the enforcement of an invalid or unconstitutional law. [82] The Court retains discretion whether or not to

allow a taxpayers suit.[83]

In the case of a legislator or member of Congress, an act of the Executive that injures the institution of Congress causes a derivative but

nonetheless substantial injury that can be questioned by legislators. A member of the House of Representatives has standing to maintain inviolate

the prerogatives, powers and privileges vested by the Constitution in his office.[84]

An organization may be granted standing to assert the rights of its members, [85] but the mere invocation by the Integrated Bar of

the Philippines or any member of the legal profession of the duty to preserve the rule of law does not suffice to clothe it with standing.[86]

As regards a local government unit (LGU), it can seek relief in order to protect or vindicate an interest of its own, and of the other LGUs. [87]

Intervenors, meanwhile, may be given legal standing upon showing of facts that satisfy the requirements of the law authorizing intervention,
[88]
such as a legal interest in the matter in litigation, or in the success of either of the parties.

In any case, the Court has discretion to relax the procedural technicality on locus standi, given the liberal attitude it has exercised, highlighted in

the case of David v. Macapagal-Arroyo,[89] where technicalities of procedure were brushed aside, the constitutional issues raised being of

paramount public interest or of transcendental importance deserving the attention of the Court in view of their seriousness, novelty and weight as

precedents.[90] The Courts forbearing stance on locus standi on issues involving constitutional issues has for its purpose the protection of

fundamental rights.

In not a few cases, the Court, in keeping with its duty under the Constitution to determine whether the other branches of government have kept

themselves within the limits of the Constitution and the laws and have not abused the discretion given them, has brushed aside technical rules of

procedure.[91]

In the petitions at bar, petitioners Province of North Cotabato (G.R. No. 183591) Province of Zamboanga del Norte (G.R. No. 183951), City of

Iligan (G.R. No. 183893) and City of Zamboanga (G.R. No. 183752) and petitioners-in-intervention Province of Sultan Kudarat, City of

Isabela and Municipality of Linamon have locus standi in view of the direct and substantial injury that they, as LGUs, would suffer as their
territories, whether in whole or in part, are to be included in the intended domain of the BJE. These petitioners allege that they did not vote for

their inclusion in the ARMM which would be expanded to form the BJE territory. Petitioners legal standing is thus beyond doubt.

In G.R. No. 183962, petitioners Ernesto Maceda, Jejomar Binay and Aquilino Pimentel III would have no standing as citizens and taxpayers for

their failure to specify that they would be denied some right or privilege or there would be wastage of public funds. The fact that they are a

former Senator, an incumbent mayor of Makati City, and a resident of Cagayan de Oro, respectively, is of no consequence. Considering their

invocation of the transcendental importance of the issues at hand, however, the Court grants them standing.

Intervenors Franklin Drilon and Adel Tamano, in alleging their standing as taxpayers, assert that government funds would be expended for the

conduct of an illegal and unconstitutional plebiscite to delineate the BJE territory. On that score alone, they can be given legal standing. Their

allegation that the issues involved in these petitions are of undeniable transcendental importance clothes them with added basis for their

personality to intervene in these petitions.

With regard to Senator Manuel Roxas, his standing is premised on his being a member of the Senate and a citizen to enforce compliance by

respondents of the publics constitutional right to be informed of the MOA-AD, as well as on a genuine legal interest in the matter in litigation, or

in the success or failure of either of the parties. He thus possesses the requisite standing as an intervenor.

With respect to Intervenors Ruy Elias Lopez, as a former congressman of the 3rd district of Davao City, a taxpayer and a member of the Bagobo

tribe; Carlo B. Gomez, et al., as members of the IBP Palawan chapter, citizens and taxpayers; Marino Ridao, as taxpayer, resident and member of

the Sangguniang Panlungsod of Cotabato City; and Kisin Buxani, as taxpayer, they failed to allege any proper legal interest in the present

petitions. Just the same, the Court exercises its discretion to relax the procedural technicality on locus standi given the paramount public interest

in the issues at hand.

Intervening respondents Muslim Multi-Sectoral Movement for Peace and Development, an advocacy group for justice and the attainment of

peace and prosperity in Muslim Mindanao; and Muslim Legal Assistance Foundation Inc., a non-government organization of Muslim lawyers,

allege that they stand to be benefited or prejudiced, as the case may be, in the resolution of the petitions concerning the MOA-AD, and prays for

the denial of the petitions on the grounds therein stated. Such legal interest suffices to clothe them with standing.

B. MOOTNESS

Respondents insist that the present petitions have been rendered moot with the satisfaction of all the reliefs prayed for by petitioners and the

subsequent pronouncement of the Executive Secretary that [n]o matter what the Supreme Court ultimately decides[,] the government will not sign

the MOA.[92]

In lending credence to this policy decision, the Solicitor General points out that the President had already disbanded the GRP Peace Panel.[93]
In David v. Macapagal-Arroyo,[94] this Court held that the moot and academic principle not being a magical formula that automatically dissuades

courts in resolving a case, it will decide cases, otherwise moot and academic, if it finds that (a) there is a grave violation of the Constitution; [95] (b)

the situation is of exceptional character and paramount public interest is involved; [96](c) the constitutional issue raised requires formulation of

controlling principles to guide the bench, the bar, and the public;[97] and (d) the case is capable of repetition yet evading review. [98]

Another exclusionary circumstance that may be considered is where there is a voluntary cessation of the activity complained of by the defendant

or doer. Thus, once a suit is filed and the doer voluntarily ceases the challenged conduct, it does not automatically deprive the tribunal of power to

hear and determine the case and does not render the case moot especially when the plaintiff seeks damages or prays for injunctive relief against

the possible recurrence of the violation.[99]

The present petitions fall squarely into these exceptions to thus thrust them into the domain of judicial review. The grounds cited above

in David are just as applicable in the present cases as they were, not only in David, but also in Province of Batangas v. Romulo[100] and Manalo v.

Calderon[101] where the Court similarly decided them on the merits, supervening events that would ordinarily have rendered the same moot

notwithstanding.

Petitions not mooted

Contrary then to the asseverations of respondents, the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel did not

moot the present petitions. It bears emphasis that the signing of the MOA-AD did not push through due to the Courts issuance of a Temporary

Restraining Order.

Contrary too to respondents position, the MOA-AD cannot be considered a mere list of consensus points, especially given its nomenclature,

the need to have it signed or initialed by all the parties concerned on August 5, 2008, and the far-reaching Constitutional implications of these

consensus points, foremost of which is the creation of the BJE.

In fact, as what will, in the main, be discussed, there is a commitment on the part of respondents to amend and effect necessary changes to the

existing legal framework for certain provisions of the MOA-AD to take effect. Consequently, the present petitions are not confined to the terms

and provisions of the MOA-AD, but to other on-going and future negotiations and agreements necessary for its realization. The petitions have

not, therefore, been rendered moot and academic simply by the public disclosure of the MOA-AD, [102] the manifestation that it will not be signed

as well as the disbanding of the GRP Panel not withstanding.

Petitions are imbued with paramount public interest

There is no gainsaying that the petitions are imbued with paramount public interest, involving a significant part of the countrys territory and the

wide-ranging political modifications of affected LGUs. The assertion that the MOA-AD is subject to further legal enactments including possible
Constitutional amendments more than ever provides impetus for the Court to formulate controlling principles to guide the bench, the bar, the

public and, in this case, the government and its negotiating entity.

Respondents cite Suplico v. NEDA, et al.[103] where the Court did not pontificat[e] on issues which no longer legitimately constitute an actual case

or controversy [as this] will do more harm than good to the nation as a whole.

The present petitions must be differentiated from Suplico. Primarily, in Suplico, what was assailed and eventually cancelled was a stand-alone

government procurement contract for a national broadband network involving a one-time contractual relation between two partiesthe government

and a private foreign corporation. As the issues therein involved specific government procurement policies and standard principles on contracts,

the majority opinion in Suplico found nothing exceptional therein, the factual circumstances being peculiar only to the transactions and parties

involved in the controversy.


The MOA-AD is part of a series of agreements

In the present controversy, the MOA-AD is a significant part of a series of agreements necessary to carry out the Tripoli Agreement 2001. The

MOA-AD which dwells on the Ancestral Domain Aspect of said Tripoli Agreement is the third such component to be undertaken following the

implementation of the Security Aspect in August 2001 and the Humanitarian, Rehabilitation and Development Aspect in May 2002.

Accordingly, even if the Executive Secretary, in his Memorandum of August 28, 2008 to the Solicitor General, has stated that no matter what the

Supreme Court ultimately decides[,] the government will not sign the MOA[-AD], mootness will not set in in light of the terms of

the Tripoli Agreement 2001.

Need to formulate principles-guidelines

Surely, the present MOA-AD can be renegotiated or another one will be drawn up to carry out the Ancestral Domain Aspect of

the Tripoli Agreement 2001, in another or in any form, which could contain similar or significantly drastic provisions.While the Court notes the

word of the Executive Secretary that the government is committed to securing an agreement that is both constitutional and equitable because that

is the only way that long-lasting peace can be assured, it is minded to render a decision on the merits in the present petitions to formulate

controlling principles to guide the bench, the bar, the public and, most especially, the government in negotiating with the MILF regarding

Ancestral Domain.

Respondents invite the Courts attention to the separate opinion of then Chief Justice Artemio Panganiban in Sanlakas v. Reyes[104] in which he

stated that the doctrine of capable of repetition yet evading review can override mootness, provided the party raising it in a proper case has been

and/or continue to be prejudiced or damaged as a direct result of their issuance. They contend that the Court must have jurisdiction over the

subject matter for the doctrine to be invoked.


The present petitions all contain prayers for Prohibition over which this Court exercises original jurisdiction. While G.R. No. 183893

(City of Iligan v. GRP) is a petition for Injunction and Declaratory Relief, the Court will treat it as one for Prohibition as it has far reaching

implications and raises questions that need to be resolved.[105] At all events, the Court has jurisdiction over most if not the rest of the petitions.

Indeed, the present petitions afford a proper venue for the Court to again apply the doctrine immediately referred to as what it had done in a

number of landmark cases.[106] There is a reasonable expectation that petitioners, particularly the Provinces of North Cotabato, Zamboanga del

Norte and Sultan Kudarat, the Cities of Zamboanga, Iligan and Isabela, and the Municipality of Linamon, will again be subjected to the same

problem in the future as respondents actions are capable of repetition, in another or any form.

It is with respect to the prayers for Mandamus that the petitions have become moot, respondents having, by Compliance of August 7, 2008,

provided this Court and petitioners with official copies of the final draft of the MOA-AD and its annexes. Too, intervenors have been furnished,

or have procured for themselves, copies of the MOA-AD.


V. SUBSTANTIVE ISSUES

As culled from the Petitions and Petitions-in-Intervention, there are basically two SUBSTANTIVE issues to be resolved, one relating to

the manner in which the MOA-AD was negotiated and finalized, the other relating to its provisions, viz:

1. Did respondents violate constitutional and statutory provisions on public consultation and the right to information when they negotiated and

later initialed the MOA-AD?

2. Do the contents of the MOA-AD violate the Constitution and the laws?
ON THE FIRST SUBSTANTIVE ISSUE

Petitioners invoke their constitutional right to information on matters of public concern, as provided in Section 7, Article III on the Bill

of Rights:

Sec. 7. The right of the people to information on matters of public concern shall be recognized. Access to
official records, and to documents, and papers pertaining to official acts, transactions, or decisions, as well as to
government research data used as basis for policy development, shall be afforded the citizen, subject to such limitations as
may be provided by law.[107]

As early as 1948, in Subido v. Ozaeta,[108] the Court has recognized the statutory right to examine and inspect public records, a right which was

eventually accorded constitutional status.

The right of access to public documents, as enshrined in both the 1973 Constitution and the 1987 Constitution, has been recognized as a self-

executory constitutional right.[109]


In the 1976 case of Baldoza v. Hon. Judge Dimaano,[110] the Court ruled that access to public records is predicated on the right of the people to

acquire information on matters of public concern since, undoubtedly, in a democracy, the pubic has a legitimate interest in matters of social and

political significance.

x x x The incorporation of this right in the Constitution is a recognition of the fundamental role of free exchange of
information in a democracy. There can be no realistic perception by the public of the nations problems, nor a meaningful
democratic decision-making if they are denied access to information of general interest. Information is needed to enable the
members of society to cope with the exigencies of the times. As has been aptly observed: Maintaining the flow of such
information depends on protection for both its acquisition and its dissemination since, if either process is interrupted, the
flow inevitably ceases. x x x[111]

In the same way that free discussion enables members of society to cope with the exigencies of their time, access to information of general

interest aids the people in democratic decision-making by giving them a better perspective of the vital issues confronting the nation [112] so that

they may be able to criticize and participate in the affairs of the government in a responsible, reasonable and effective manner. It is by ensuring an

unfettered and uninhibited exchange of ideas among a well-informed public that a government remains responsive to the changes desired by the

people.[113]

The MOA-AD is a matter of public concern

That the subject of the information sought in the present cases is a matter of public concern [114] faces no serious challenge.In

fact, respondents admit that the MOA-AD is indeed of public concern.[115] In previous cases, the Court found that the regularity of real estate

transactions entered in the Register of Deeds,[116] the need for adequate notice to the public of the various laws,[117] the civil service eligibility of a

public employee,[118] the proper management of GSIS funds allegedly used to grant loans to public officials, [119] the recovery of the Marcoses

alleged ill-gotten wealth,[120] and the identity of party-list nominees,[121] among others, are matters of public concern. Undoubtedly, the MOA-AD

subject of the present cases is of public concern, involving as it does the sovereignty and territorial integrity of the State, which directly affects

the lives of the public at large.

Matters of public concern covered by the right to information include steps and negotiations leading to the consummation of the contract. In not

distinguishing as to the executory nature or commercial character of agreements, the Court has categorically ruled:

x x x [T]he right to information contemplates inclusion of negotiations leading to the consummation of the
transaction. Certainly, a consummated contract is not a requirement for the exercise of the right to information. Otherwise,
the people can never exercise the right if no contract is consummated, and if one is consummated, it may be too late for the
public to expose its defects.
Requiring a consummated contract will keep the public in the dark until the contract, which may be grossly disadvantageous
to the government or even illegal, becomes fait accompli. This negates the State policy of full transparency on matters of
public concern, a situation which the framers of the Constitution could not have intended. Such a requirement will prevent
the citizenry from participating in the public discussion of any proposed contract, effectively truncating a basic right
enshrined in the Bill of Rights. We can allow neither an emasculation of a constitutional right, nor a retreat by the State of its
avowed policy of full disclosure of all its transactions involving public interest.[122] (Emphasis and italics in the original)

Intended as a splendid symmetry[123] to the right to information under the Bill of Rights is the policy of public disclosure under Section 28, Article

II of the Constitution reading:


Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public
disclosure of all its transactions involving public interest.[124]

The policy of full public disclosure enunciated in above-quoted Section 28 complements the right of access to information on matters of public

concern found in the Bill of Rights. The right to information guarantees the right of the people to demand information, while Section 28

recognizes the duty of officialdom to give information even if nobody demands.[125]

The policy of public disclosure establishes a concrete ethical principle for the conduct of public affairs in a genuinely open democracy, with the

peoples right to know as the centerpiece. It is a mandate of the State to be accountable by following such policy. [126] These provisions are vital to

the exercise of the freedom of expression and essential to hold public officials at all times accountable to the people. [127]

Whether Section 28 is self-executory, the records of the deliberations of the Constitutional Commission so disclose:

MR. SUAREZ. And since this is not self-executory, this policy will not be enunciated or will not be in force and
effect until after Congress shall have provided it.

MR. OPLE. I expect it to influence the climate of public ethics immediately but, of course, the implementing law will have
to be enacted by Congress, Mr. Presiding Officer.[128]

The following discourse, after Commissioner Hilario Davide, Jr., sought clarification on the issue, is enlightening.

MR. DAVIDE. I would like to get some clarifications on this. Mr. Presiding Officer, did I get the Gentleman
correctly as having said that this is not a self-executing provision? It would require a legislation by Congress to implement?

MR. OPLE. Yes. Originally, it was going to be self-executing, but I accepted an amendment from Commissioner
Regalado, so that the safeguards on national interest are modified by the clause as may be provided by law

MR. DAVIDE. But as worded, does it not mean that this will immediately take effect and Congress may provide
for reasonable safeguards on the sole ground national interest?

MR. OPLE. Yes. I think so, Mr. Presiding Officer, I said earlier that it should immediately influence the climate of the
conduct of public affairs but, of course, Congress here may no longer pass a law revoking it, or if this is approved,
revoking this principle, which is inconsistent with this policy.[129] (Emphasis supplied)

Indubitably, the effectivity of the policy of public disclosure need not await the passing of a statute. As Congress cannot revoke this principle, it is

merely directed to provide for reasonable safeguards. The complete and effective exercise of the right to information necessitates that its

complementary provision on public disclosure derive the same self-executory nature. Since both provisions go hand-in-hand, it is absurd to say

that the broader[130] right to information on matters of public concern is already enforceable while the correlative duty of the State to disclose its

transactions involving public interest is not enforceable until there is an enabling law. Respondents cannot thus point to the absence of an

implementing legislation as an excuse in not effecting such policy.


An essential element of these freedoms is to keep open a continuing dialogue or process of communication between the government and the

people. It is in the interest of the State that the channels for free political discussion be maintained to the end that the government may perceive

and be responsive to the peoples will. [131] Envisioned to be corollary to the twin rights to information and disclosure is the design for feedback

mechanisms.

MS. ROSARIO BRAID. Yes. And lastly, Mr. Presiding Officer, will the people be able to participate? Will the
government provide feedback mechanisms so that the people can participate and can react where the existing media
facilities are not able to provide full feedback mechanisms to the government? I suppose this will be part of the government
implementing operational mechanisms.

MR. OPLE. Yes. I think through their elected representatives and that is how these courses take place. There is a
message and a feedback, both ways.

xxxx

MS. ROSARIO BRAID. Mr. Presiding Officer, may I just make one last sentence?

I think when we talk about the feedback network, we are not talking about public officials but also network of
private business o[r] community-based organizations that will be reacting. As a matter of fact, we will put more credence or
credibility on the private network of volunteers and voluntary community-based organizations. So I do not think we are
afraid that there will be another OMA in the making.[132] (Emphasis supplied)

The imperative of a public consultation, as a species of the right to information, is evident in the marching orders to respondents. The mechanics

for the duty to disclose information and to conduct public consultation regarding the peace agenda and process is manifestly provided by E.O.

No. 3.[133] The preambulatory clause of E.O. No. 3 declares that there is a need to further enhance the contribution of civil society to the

comprehensive peace process by institutionalizing the peoples participation.

One of the three underlying principles of the comprehensive peace process is that it should be community-based, reflecting the

sentiments, values and principles important to all Filipinos and shall be defined not by the government alone, nor by the different contending

groups only, but by all Filipinos as one community. [134] Included as a component of the comprehensive peace process is consensus-building and

empowerment for peace, which includes continuing consultations on both national and local levels to build consensus for a peace agenda and

process, and the mobilization and facilitation of peoples participation in the peace process.[135]

Clearly, E.O. No. 3 contemplates not just the conduct of a plebiscite to effectuate continuing consultations, contrary to respondents

position that plebiscite is more than sufficient consultation.[136]

Further, E.O. No. 3 enumerates the functions and responsibilities of the PAPP, one of which is to [c]onduct regular dialogues with the National

Peace Forum (NPF) and other peace partners to seek relevant information, comments, recommendations as well as to render appropriate and

timely reports on the progress of the comprehensive peace process. [137] E.O. No. 3 mandates the establishment of the NPF to be the principal

forum for the PAPP to consult with and seek advi[c]e from the peace advocates, peace partners and concerned sectors of society on both national

and local levels, on the implementation of the comprehensive peace process, as well as for government[-]civil society dialogue and consensus-

building on peace agenda and initiatives.[138]


In fine, E.O. No. 3 establishes petitioners right to be consulted on the peace agenda, as a corollary to the constitutional right to information and

disclosure.

PAPP Esperon committed grave abuse of discretion

The PAPP committed grave abuse of discretion when he failed to carry out the pertinent consultation. The furtive process by which the MOA-AD

was designed and crafted runs contrary to and in excess of the legal authority , and amounts to a whimsical, capricious, oppressive, arbitrary and

despotic exercise thereof.

The Court may not, of course, require the PAPP to conduct the consultation in a particular way or manner. It may, however, require him to

comply with the law and discharge the functions within the authority granted by the President.[139]

Petitioners are not claiming a seat at the negotiating table, contrary to respondents retort in justifying the denial of petitioners right to be

consulted. Respondents stance manifests the manner by which they treat the salient provisions of E.O. No. 3 on peoples participation. Such

disregard of the express mandate of the President is not much different from superficial conduct toward token provisos that border on classic lip

service.[140] It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

As for respondents invocation of the doctrine of executive privilege, it is not tenable under the premises. The argument defies sound reason when

contrasted with E.O. No. 3s explicit provisions on continuing consultation and dialogue on both national and local levels. The executive order

even recognizes the exercise of the publics right even before the GRP makes its official recommendations or before the government proffers its

definite propositions.[141] It bear emphasis that E.O. No. 3 seeks to elicit relevant advice, information, comments and recommendations from the

people through dialogue.

AT ALL EVENTS, respondents effectively waived the defense of executive privilege in view of their unqualified disclosure of the official copies

of the final draft of the MOA-AD. By unconditionally complying with the Courts August 4, 2008 Resolution, without a prayer for the documents

disclosure in camera, or without a manifestation that it was complying therewith ex abundante ad cautelam.

Petitioners assertion that the Local Government Code (LGC) of 1991 declares it a State policy to require all national agencies and offices to

conduct periodic consultations with appropriate local government units, non-governmental and people's organizations, and other concerned

sectors of the community before any project or program is implemented in their respective jurisdictions [142]is well-taken. The LGC chapter on

intergovernmental relations puts flesh into this avowed policy:

Prior Consultations Required. No project or program shall be implemented by government authorities unless the
consultations mentioned in Sections 2 (c) and 26 hereof are complied with, and prior approval of the sanggunian concerned
is obtained: Provided, That occupants in areas where such projects are to be implemented shall not be evicted unless
appropriate relocation sites have been provided, in accordance with the provisions of the Constitution. [143] (Italics and
underscoring supplied)
In Lina, Jr. v. Hon. Pao,[144] the Court held that the above-stated policy and above-quoted provision of the LGU apply only to national programs or

projects which are to be implemented in a particular local community. Among the programs and projects covered are those that are critical to the

environment and human ecology including those that may call for the eviction of a particular group of people residing in the locality where these

will be implemented.[145] The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast territory to the

Bangsamoro people,[146] which could pervasively and drastically result to the diaspora or displacement of a great number of inhabitants from their

total environment.

With respect to the indigenous cultural communities/indigenous peoples (ICCs/IPs), whose interests are represented herein by petitioner Lopez

and are adversely affected by the MOA-AD, the ICCs/IPs have, under the IPRA, the right to participate fully at all levels of decision-making in

matters which may affect their rights, lives and destinies. [147] The MOA-AD, an instrument recognizing ancestral domain, failed to justify its non-

compliance with the clear-cut mechanisms ordained in said Act,[148] which entails, among other things, the observance of the free and prior

informed consent of the ICCs/IPs.

Notably, the IPRA does not grant the Executive Department or any government agency the power to delineate and recognize an ancestral domain

claim by mere agreement or compromise. The recognition of the ancestral domain is the raison detre of the MOA-AD, without which all other

stipulations or consensus points necessarily must fail. In proceeding to make a sweeping declaration on ancestral domain, without complying with

the IPRA, which is cited as one of the TOR of the MOA-AD, respondents clearly transcended the boundaries of their authority. As it seems, even

the heart of the MOA-AD is still subject to necessary changes to the legal framework. While paragraph 7 on Governance suspends the effectivity

of all provisions requiring changes to the legal framework, such clause is itself invalid, as will be discussed in the following section.

Indeed, ours is an open society, with all the acts of the government subject to public scrutiny and available always to public cognizance. This has

to be so if the country is to remain democratic, with sovereignty residing in the people and all government authority emanating from them. [149]

ON THE SECOND SUBSTANTIVE ISSUE

With regard to the provisions of the MOA-AD, there can be no question that they cannot all be accommodated under the present Constitution and

laws. Respondents have admitted as much in the oral arguments before this Court, and the MOA-AD itself recognizes the need to amend the

existing legal framework to render effective at least some of its provisions. Respondents, nonetheless, counter that the MOA-AD is free of any

legal infirmity because any provisions therein which are inconsistent with the present legal framework will not be effective until the necessary

changes to that framework are made. The validity of this argument will be considered later. For now, the Court shall pass upon how

The MOA-AD is inconsistent with the Constitution and laws as presently


worded.

In general, the objections against the MOA-AD center on the extent of the powers conceded therein to the BJE. Petitioners assert that the powers

granted to the BJE exceed those granted to any local government under present laws, and even go beyond those of the present ARMM. Before

assessing some of the specific powers that would have been vested in the BJE, however, it would be useful to turn first to a general idea that
serves as a unifying link to the different provisions of the MOA-AD, namely, the international law concept of association. Significantly, the

MOA-AD explicitly alludes to this concept, indicating that the Parties actually framed its provisions with it in mind.

Association is referred to in paragraph 3 on TERRITORY, paragraph 11 on RESOURCES, and paragraph 4 on GOVERNANCE.It is in the last

mentioned provision, however, that the MOA-AD most clearly uses it to describe the envisioned relationship between the BJE and the Central

Government.

4. The relationship between the Central Government and the Bangsamoro juridical entity shall be associative characterized
by shared authority and responsibility with a structure of governance based on executive, legislative, judicial and
administrative institutions with defined powers and functions in the comprehensive compact. A period of transition shall be
established in a comprehensive peace compact specifying the relationship between the Central Government and the BJE.
(Emphasis and underscoring supplied)

The nature of the associative relationship may have been intended to be defined more precisely in the still to be forged Comprehensive

Compact. Nonetheless, given that there is a concept of association in international law, and the MOA-AD by its inclusion of international law

instruments in its TOR placed itself in an international legal context, that concept of association may be brought to bear in understanding the use

of the term associative in the MOA-AD.

Keitner and Reisman state that

[a]n association is formed when two states of unequal power voluntarily establish durable links. In the basic model, one
state, the associate, delegates certain responsibilities to the other, the principal, while maintaining its international status as
a state. Free associations represent a middle ground between integration and independence. x x x[150] (Emphasis and
underscoring supplied)

For purposes of illustration, the Republic of the Marshall Islands and the Federated States of Micronesia (FSM), formerly part of the U.S.-

administered Trust Territory of the Pacific Islands, [151] are associated states of the U.S. pursuant to a Compact of Free Association. The currency in

these countries is the U.S. dollar, indicating their very close ties with the U.S., yet they issue their own travel documents, which is a mark of their

statehood. Their international legal status as states was confirmed by the UN Security Council and by their admission to UN membership.

According to their compacts of free association, the Marshall Islands and the FSM generally have the capacity to conduct foreign affairs in their

own name and right, such capacity extending to matters such as the law of the sea, marine resources, trade, banking, postal, civil aviation, and

cultural relations. The U.S. government, when conducting its foreign affairs, is obligated to consult with the governments of the Marshall Islands

or the FSM on matters which it (U.S. government) regards as relating to or affecting either government.

In the event of attacks or threats against the Marshall Islands or the FSM, the U.S. government has the authority and obligation to defend them as

if they were part of U.S. territory. The U.S. government, moreover, has the option of establishing and using military areas and facilities within

these associated states and has the right to bar the military personnel of any third country from having access to these territories for military

purposes.
It bears noting that in U.S. constitutional and international practice, free association is understood as an international association between

sovereigns. The Compact of Free Association is a treaty which is subordinate to the associated nations national constitution, and each party may

terminate the association consistent with the right of independence. It has been said that, with the admission of the U.S.-associated states to the

UN in 1990, the UN recognized that the American model of free association is actually based on an underlying status of independence.[152]

In international practice, the associated state arrangement has usually been used as a transitional device of former colonies on their way to full

independence. Examples of states that have passed through the status of associated states as a transitional phase are Antigua, St. Kitts-Nevis-

Anguilla, Dominica, St. Lucia, St. Vincent and Grenada. All have since become independent states.[153]

Back to the MOA-AD, it contains many provisions which are consistent with the international legal concept of association, specifically the

following: the BJEs capacity to enter into economic and trade relations with foreign countries, the commitment of the Central Government to

ensure the BJEs participation in meetings and events in the ASEAN and the specialized UN agencies, and the continuing responsibility of the

Central Government over external defense. Moreover, the BJEs right to participate in Philippine official missions bearing on negotiation of

border agreements, environmental protection, and sharing of revenues pertaining to the bodies of water adjacent to or between the islands forming

part of the ancestral domain, resembles the right of the governments of FSM and the Marshall Islands to be consulted by the U.S. government on

any foreign affairs matter affecting them.

These provisions of the MOA indicate, among other things, that the Parties aimed to vest in the BJE the status of an associated state or, at any

rate, a status closely approximating it.

The concept of association is not recognized under the present Constitution

No province, city, or municipality, not even the ARMM, is recognized under our laws as having an associative relationship with the

national government. Indeed, the concept implies powers that go beyond anything ever granted by the Constitution to any local or regional

government. It also implies the recognition of the associated entity as a state. The Constitution, however, does not contemplate any state in this

jurisdiction other than the Philippine State, much less does it provide for a transitory status that aims to prepare any part of Philippine territory for

independence.

Even the mere concept animating many of the MOA-ADs provisions, therefore, already requires for its validity the amendment of constitutional

provisions, specifically the following provisions of Article X:

SECTION 1. The territorial and political subdivisions of the Republic of the Philippines are the provinces, cities,
municipalities, and barangays. There shall be autonomous regions in Muslim Mindanao and the Cordilleras as hereinafter
provided.

SECTION 15. There shall be created autonomous regions in Muslim Mindanao and in the Cordilleras consisting of
provinces, cities, municipalities, and geographical areas sharing common and distinctive historical and cultural heritage,
economic and social structures, and other relevant characteristics within the framework of this Constitution and the
national sovereignty as well as territorial integrity of the Republic of the Philippines.

The BJE is a far more powerful


entity than the autonomous region
recognized in the Constitution

It is not merely an expanded version of the ARMM, the status of its relationship with the national government being fundamentally

different from that of the ARMM. Indeed, BJE is a state in all but name as it meets the criteria of a state laid down in the Montevideo Convention,
[154]
namely, a permanent population, a defined territory, a government, and a capacity to enter into relations with other states.

Even assuming arguendo that the MOA-AD would not necessarily sever any portion of Philippine territory, the spirit animating

it which has betrayed itself by its use of the concept of association runs counter to the national sovereignty and territorial integrity of the

Republic.

The defining concept underlying the relationship between the national government and the BJE being itself contrary to the present

Constitution, it is not surprising that many of the specific provisions of the MOA-AD on the formation and powers of the BJE are in conflict with

the Constitution and the laws.

Article X, Section 18 of the Constitution provides that [t]he creation of the autonomous region shall be effective when approved by a majority of

the votes cast by the constituent units in a plebiscite called for the purpose, provided that only provinces, cities, and geographic areas voting

favorably in such plebiscite shall be included in the autonomous region. (Emphasis supplied)

As reflected above, the BJE is more of a state than an autonomous region. But even assuming that it is covered by the term autonomous region in

the constitutional provision just quoted, the MOA-AD would still be in conflict with it. Under paragraph 2(c) on TERRITORY in relation to 2(d)

and 2(e), the present geographic area of the ARMM and, in addition, the municipalities of Lanao del Norte which voted for inclusion in the

ARMM during the 2001 plebiscite Baloi, Munai, Nunungan, Pantar, Tagoloan and Tangkal are automatically part of the BJE without need of

another plebiscite, in contrast to the areas under Categories A and B mentioned earlier in the overview. That the present components of the

ARMM and the above-mentioned municipalities voted for inclusion therein in 2001, however, does not render another plebiscite unnecessary

under the Constitution, precisely because what these areas voted for then was their inclusion in the ARMM, not the BJE.

The MOA-AD, moreover, would not


comply with Article X, Section 20 of
the Constitution

since that provision defines the powers of autonomous regions as follows:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national laws, the
organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;


(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural heritage; and
(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the
region. (Underscoring supplied)

Again on the premise that the BJE may be regarded as an autonomous region, the MOA-AD would require an amendment that would expand the

above-quoted provision. The mere passage of new legislation pursuant to sub-paragraph No. 9 of said constitutional provision would not suffice,

since any new law that might vest in the BJE the powers found in the MOA-AD must, itself, comply with other provisions of the Constitution. It

would not do, for instance, to merely pass legislation vesting the BJE with treaty-making power in order to accommodate paragraph 4 of the

strand on RESOURCES which states: The BJE is free to enter into any economic cooperation and trade relations with foreign countries:

provided, however, that such relationships and understandings do not include aggression against the Government of the Republic of the

Philippines x x x. Under our constitutional system, it is only the President who has that power. Pimentel v. Executive Secretary[155] instructs:

In our system of government, the President, being the head of state, is regarded as the sole organ and authority in external
relations and is the country's sole representative with foreign nations. As the chief architect of foreign policy, the President
acts as the country's mouthpiece with respect to international affairs. Hence, the President is vested with the authority
to deal with foreign states and governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of treaty-making, the President has the sole
authority to negotiate with other states. (Emphasis and underscoring supplied)

Article II, Section 22 of the Constitution must also be amended if the scheme envisioned in the MOA-AD is to be effected.That constitutional

provision states: The State recognizes and promotes the rights of indigenous cultural communities within the framework of national unity and

development. (Underscoring supplied) An associative arrangement does not uphold national unity. While there may be a semblance of unity

because of the associative ties between the BJE and the national government, the act of placing a portion of Philippine territory in a status which,

in international practice, has generally been a preparation for independence, is certainly not conducive to national unity.

Besides being irreconcilable with the Constitution, the MOA-AD is


also inconsistent with prevailing statutory law, among which are R.A. No.
9054[156] or the Organic Act of the ARMM, and the IPRA.[157]

Article X, Section 3 of the Organic Act of the ARMM is a bar to the adoption of the definition of Bangsamoro people used in the MOA-

AD. Paragraph 1 on CONCEPTS AND PRINCIPLES states:

1. It is the birthright of all Moros and all Indigenous peoples of Mindanao to identify themselves and be accepted as
Bangsamoros.The Bangsamoro people refers to those who are natives or original inhabitants of Mindanao and its adjacent
islands including Palawan and the Sulu archipelago at the time of conquest or colonization of its descendants whether
mixed or of full blood. Spouses and their descendants are classified as Bangsamoro. The freedom of choice of the
Indigenous people shall be respected. (Emphasis and underscoring supplied)

This use of the term Bangsamoro sharply contrasts with that found in the Article X, Section 3 of the Organic Act, which, rather than lumping

together the identities of the Bangsamoro and other indigenous peoples living in Mindanao, clearly distinguishes between Bangsamoro people

and Tribal peoples, as follows:

As used in this Organic Act, the phrase indigenous cultural community refers to Filipino citizens residing in the
autonomous region who are:
(a) Tribal peoples. These are citizens whose social, cultural and economic conditions distinguish them from other sectors of
the national community; and

(b) Bangsa Moro people. These are citizens who are believers in Islam and who have retained some or all of their own
social, economic, cultural, and political institutions.

Respecting the IPRA, it lays down the prevailing procedure for the delineation and recognition of ancestral domains. The MOA-ADs manner of

delineating the ancestral domain of the Bangsamoro people is a clear departure from that procedure. By paragraph 1 of TERRITORY, the Parties

simply agree that, subject to the delimitations in the agreed Schedules, [t]he Bangsamoro homeland and historic territory refer to the land mass as

well as the maritime, terrestrial, fluvial and alluvial domains, and the aerial domain, the atmospheric space above it, embracing the Mindanao-

Sulu-Palawan geographic region.

Chapter VIII of the IPRA, on the other hand, lays down a detailed procedure, as illustrated in the following provisions thereof:

SECTION 52. Delineation Process. The identification and delineation of ancestral domains shall be done in accordance
with the following procedures:

xxxx

b) Petition for Delineation. The process of delineating a specific perimeter may be initiated by the NCIP with the consent
of the ICC/IP concerned, or through a Petition for Delineation filed with the NCIP, by a majority of the members of the
ICCs/IPs;

c) Delineation Proper. The official delineation of ancestral domain boundaries including census of all community members
therein, shall be immediately undertaken by the Ancestral Domains Office upon filing of the application by the ICCs/IPs
concerned. Delineation will be done in coordination with the community concerned and shall at all times include genuine
involvement and participation by the members of the communities concerned;

d) Proof Required. Proof of Ancestral Domain Claims shall include the testimony of elders or community under oath, and
other documents directly or indirectly attesting to the possession or occupation of the area since time immemorial by such
ICCs/IPs in the concept of owners which shall be any one (1) of the following authentic documents:

1) Written accounts of the ICCs/IPs customs and traditions;

2) Written accounts of the ICCs/IPs political structure and institution;

3) Pictures showing long term occupation such as those of old improvements, burial grounds, sacred places and old
villages;

4) Historical accounts, including pacts and agreements concerning boundaries entered into by the ICCs/IPs concerned
with other ICCs/IPs;

5) Survey plans and sketch maps;

6) Anthropological data;

7) Genealogical surveys;

8) Pictures and descriptive histories of traditional communal forests and hunting grounds;

9) Pictures and descriptive histories of traditional landmarks such as mountains, rivers, creeks, ridges, hills, terraces
and the like; and

10) Write-ups of names and places derived from the native dialect of the community.

e) Preparation of Maps. On the basis of such investigation and the findings of fact based thereon, the Ancestral Domains
Office of the NCIP shall prepare a perimeter map, complete with technical descriptions, and a description of the natural
features and landmarks embraced therein;
f) Report of Investigation and Other Documents. A complete copy of the preliminary census and a report of investigation,
shall be prepared by the Ancestral Domains Office of the NCIP;

g) Notice and Publication. A copy of each document, including a translation in the native language of the ICCs/IPs
concerned shall be posted in a prominent place therein for at least fifteen (15) days. A copy of the document shall also be
posted at the local, provincial and regional offices of the NCIP, and shall be published in a newspaper of general circulation
once a week for two (2) consecutive weeks to allow other claimants to file opposition thereto within fifteen (15) days from
date of such publication: Provided, That in areas where no such newspaper exists, broadcasting in a radio station will be a
valid substitute: Provided, further, That mere posting shall be deemed sufficient if both newspaper and radio station are not
available;

h) Endorsement to NCIP. Within fifteen (15) days from publication, and of the inspection process, the Ancestral Domains
Office shall prepare a report to the NCIP endorsing a favorable action upon a claim that is deemed to have sufficient proof.
However, if the proof is deemed insufficient, the Ancestral Domains Office shall require the submission of additional
evidence: Provided, That the Ancestral Domains Office shall reject any claim that is deemed patently false or fraudulent
after inspection and verification: Provided, further, That in case of rejection, the Ancestral Domains Office shall give the
applicant due notice, copy furnished all concerned, containing the grounds for denial. The denial shall be appealable to the
NCIP: Provided, furthermore, That in cases where there are conflicting claims among ICCs/IPs on the boundaries of
ancestral domain claims, the Ancestral Domains Office shall cause the contending parties to meet and assist them in
coming up with a preliminary resolution of the conflict, without prejudice to its full adjudication according to the section
below.

xxxx

To remove all doubts about the irreconcilability of the MOA-AD with the present legal system, a discussion of not only the

Constitution and domestic statutes, but also of international law is in order, for

Article II, Section 2 of the Constitution states that the Philippines adopts the
generally accepted principles of international law as part of the law of the
land.

Applying this provision of the Constitution, the Court, in Mejoff v. Director of Prisons,[158] held that the Universal Declaration of Human Rights is

part of the law of the land on account of which it ordered the release on bail of a detained alien of Russian descent whose deportation order had

not been executed even after two years. Similarly, the Court in Agustin v. Edu[159] applied the aforesaid constitutional provision to the 1968 Vienna

Convention on Road Signs and Signals.

International law has long recognized the right to self-determination of peoples, understood not merely as the entire population of a State but also

a portion thereof. In considering the question of whether the people of Quebec had a right to unilaterally secede from Canada, the Canadian

Supreme Court in REFERENCE RE SECESSION OF QUEBEC [160] had occasion to acknowledge that the right of a people to self-determination

is now so widely recognized in international conventions that the principle has acquired a status beyond convention and is considered a general

principle of international law.

Among the conventions referred to are the International Covenant on Civil and Political Rights [161] and the International Covenant on

Economic, Social and Cultural Rights [162] which state, in Article 1 of both covenants, that all peoples, by virtue of the right of self-determination,

freely determine their political status and freely pursue their economic, social, and cultural development.

The peoples right to self-determination should not, however, be understood as extending to a unilateral right of secession. A distinction should be

made between the right of internal and external self-determination. REFERENCE RE SECESSION OF QUEBEC is again instructive:

(ii) Scope of the Right to Self-determination


126. The recognized sources of international law establish that the right to self-determination of a people is normally
fulfilled through internal self-determination a peoples pursuit of its political, economic, social and cultural development
within the framework of an existing state. A right to external self-determination (which in this case potentially takes the
form of the assertion of a right to unilateral secession) arises in only the most extreme of cases and, even then, under
carefully defined circumstances. x x x

External self-determination can be defined as in the following statement from the Declaration on Friendly Relations,
supra, as

The establishment of a sovereign and independent State, the free association or integration with an independent State or the
emergence into any other political status freely determined by a people constitute modes of implementing the right of self-
determination by that people. (Emphasis added)

127. The international law principle of self-determination has evolved within a framework of respect for the territorial
integrity of existing states. The various international documents that support the existence of a peoples right to self-
determination also contain parallel statements supportive of the conclusion that the exercise of such a right must be
sufficiently limited to prevent threats to an existing states territorial integrity or the stability of relations between sovereign
states.

x x x x (Emphasis, italics and underscoring supplied)

The Canadian Court went on to discuss the exceptional cases in which the right to external self-determination can arise, namely, where a people

is under colonial rule, is subject to foreign domination or exploitation outside a colonial context, and less definitely but asserted by a number of

commentators is blocked from the meaningful exercise of its right to internal self-determination. The Court ultimately held that the population of

Quebec had no right to secession, as the same is not under colonial rule or foreign domination, nor is it being deprived of the freedom to make

political choices and pursue economic, social and cultural development, citing that Quebec is equitably represented in legislative, executive and

judicial institutions within Canada, even occupying prominent positions therein.

The exceptional nature of the right of secession is further exemplified in the REPORT OF THE INTERNATIONAL COMMITTEE OF JURISTS

ON THE LEGAL ASPECTS OF THE AALAND ISLANDS QUESTION.[163] There, Sweden presented to the Council of the League of

Nations the question of whether the inhabitants of the Aaland Islands should be authorized to determine by plebiscite if the archipelago should

remain under Finnish sovereignty or be incorporated in the kingdom of Sweden. The Council, before resolving the question, appointed an

International Committee composed of three jurists to submit an opinion on the preliminary issue of whether the dispute should, based on

international law, be entirely left to the domestic jurisdiction of Finland. The Committee stated the rule as follows:

x x x [I]n the absence of express provisions in international treaties, the right of disposing of national territory is essentially
an attribute of the sovereignty of every State. Positive International Law does not recognize the right of national groups, as
such, to separate themselves from the State of which they form part by the simple expression of a wish, any more than it
recognizes the right of other States to claim such a separation. Generally speaking, the grant or refusal of the right to a
portion of its population of determining its own political fate by plebiscite or by some other method, is, exclusively, an
attribute of the sovereignty of every State which is definitively constituted. A dispute between two States concerning such a
question, under normal conditions therefore, bears upon a question which International Law leaves entirely to the domestic
jurisdiction of one of the States concerned. Any other solution would amount to an infringement of sovereign rights of a
State and would involve the risk of creating difficulties and a lack of stability which would not only be contrary to the very
idea embodied in term State, but would also endanger the interests of the international community. If this right is not
possessed by a large or small section of a nation, neither can it be held by the State to which the national group wishes to
be attached, nor by any other State. (Emphasis and underscoring supplied)
The Committee held that the dispute concerning the Aaland Islands did not refer to a question which is left by international law to the domestic

jurisdiction of Finland, thereby applying the exception rather than the rule elucidated above. Its ground for departing from the general rule,

however, was a very narrow one, namely, the Aaland Islands agitation originated at a time when Finland was undergoing drastic political

transformation. The internal situation of Finland was, according to the Committee, so abnormal that, for a considerable time, the conditions

required for the formation of a sovereign State did not exist. In the midst of revolution, anarchy, and civil war, the legitimacy of the Finnish

national government was disputed by a large section of the people, and it had, in fact, been chased from the capital and forcibly prevented from

carrying out its duties. The armed camps and the police were divided into two opposing forces. In light of these circumstances, Finland was not,

during the relevant time period, a definitively constituted sovereign state. The Committee, therefore, found that Finland did not possess the right

to withhold from a portion of its population the option to separate itself a right which sovereign nations generally have with respect to their own

populations.

Turning now to the more specific category of indigenous peoples, this term has been used, in scholarship as well as international, regional, and

state practices, to refer to groups with distinct cultures, histories, and connections to land (spiritual and otherwise) that have been forcibly

incorporated into a larger governing society. These groups are regarded as indigenous since they are the living descendants of pre-invasion

inhabitants of lands now dominated by others. Otherwise stated, indigenous peoples, nations, or communities are culturally distinctive groups that

find themselves engulfed by settler societies born of the forces of empire and conquest. [164] Examples of groups who have been regarded as

indigenous peoples are the Maori of New Zealand and the aboriginal peoples of Canada.

As with the broader category of peoples, indigenous peoples situated within states do not have a general right to independence or secession from

those states under international law,[165] but they do have rights amounting to what was discussed above as the right to internal self-determination.

In a historic development last September 13, 2007, the UN General Assembly adopted the United Nations Declaration on the Rights of

Indigenous Peoples (UN DRIP) through General Assembly Resolution 61/295. The vote was 143 to 4, the Philippinesbeing included among those

in favor, and the four voting against being Australia, Canada, New Zealand, and the U.S. The Declaration clearly recognized the right of

indigenous peoples to self-determination, encompassing the right to autonomy or self-government, to wit:

Article 3

Indigenous peoples have the right to self-determination. By virtue of that right they freely determine their political status
and freely pursue their economic, social and cultural development.

Article 4

Indigenous peoples, in exercising their right to self-determination, have the right to autonomy or self-government in
matters relating to their internal and local affairs, as well as ways and means for financing their autonomous functions.

Article 5

Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural
institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural
life of the State.
Self-government, as used in international legal discourse pertaining to indigenous peoples, has been understood as equivalent to internal self-

determination.[166] The extent of self-determination provided for in the UN DRIP is more particularly defined in its subsequent articles, some of

which are quoted hereunder:


Article 8
1. Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their
culture.
2. States shall provide effective mechanisms for prevention of, and redress for:
(a) Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their
cultural values or ethnic identities;
(b) Any action which has the aim or effect of dispossessing them of their lands, territories or resources;
(c) Any form of forced population transfer which has the aim or effect of violating or undermining any of their
rights;
(d) Any form of forced assimilation or integration;

(e) Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.
Article 21

1. Indigenous peoples have the right, without discrimination, to the improvement of their economic and social conditions,
including, inter alia, in the areas of education, employment, vocational training and retraining, housing, sanitation,
health and social security.
2. States shall take effective measures and, where appropriate, special measures to ensure continuing improvement of their
economic and social conditions. Particular attention shall be paid to the rights and special needs of indigenous
elders, women, youth, children and persons with disabilities.

Article 26

1. Indigenous peoples have the right to the lands, territories and resources which they have traditionally owned, occupied
or otherwise used or acquired.
2. Indigenous peoples have the right to own, use, develop and control the lands, territories and resources that they possess
by reason of traditional ownership or other traditional occupation or use, as well as those which they have
otherwise acquired.
3. States shall give legal recognition and protection to these lands, territories and resources. Such recognition shall be
conducted with due respect to the customs, traditions and land tenure systems of the indigenous peoples
concerned.

Article 30

1. Military activities shall not take place in the lands or territories of indigenous peoples, unless justified by a relevant
public interest or otherwise freely agreed with or requested by the indigenous peoples concerned.

2. States shall undertake effective consultations with the indigenous peoples concerned, through appropriate procedures
and in particular through their representative institutions, prior to using their lands or territories for military
activities.

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their
lands or territories and other resources.

2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative
institutions in order to obtain their free and informed consent prior to the approval of any project affecting their
lands or territories and other resources, particularly in connection with the development, utilization or exploitation
of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall
be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.

Article 37

1. Indigenous peoples have the right to the recognition, observance and enforcement of treaties, agreements and other
constructive arrangements concluded with States or their successors and to have States honour and respect such
treaties, agreements and other constructive arrangements.
2. Nothing in this Declaration may be interpreted as diminishing or eliminating the rights of indigenous peoples contained
in treaties, agreements and other constructive arrangements.

Article 38

States in consultation and cooperation with indigenous peoples, shall take the appropriate measures, including legislative
measures, to achieve the ends of this Declaration.

Assuming that the UN DRIP, like the Universal Declaration on Human Rights, must now be regarded as embodying customary international law

a question which the Court need not definitively resolve here the obligations enumerated therein do not strictly require the Republic to grant the

Bangsamoro people, through the instrumentality of the BJE, the particular rights and powers provided for in the MOA-AD. Even the more

specific provisions of the UN DRIP are general in scope, allowing for flexibility in its application by the different States.

There is, for instance, no requirement in the UN DRIP that States now guarantee indigenous peoples their own police and internal

security force. Indeed, Article 8 presupposes that it is the State which will provide protection for indigenous peoples against acts like the forced

dispossession of their lands a function that is normally performed by police officers. If the protection of a right so essential to indigenous peoples

identity is acknowledged to be the responsibility of the State, then surely the protection of rights less significant to them as such peoples would

also be the duty of States. Nor is there in the UN DRIP an acknowledgement of the right of indigenous peoples to the aerial domain and

atmospheric space. What it upholds, in Article 26 thereof, is the right of indigenous peoples to the lands, territories and resources which they

have traditionally owned, occupied or otherwise used or acquired.

Moreover, the UN DRIP, while upholding the right of indigenous peoples to autonomy, does not obligate States to grant indigenous peoples the

near-independent status of an associated state. All the rights recognized in that document are qualified in Article 46 as follows:

1. Nothing in this Declaration may be interpreted as implying for any State, people, group or person any right to engage in
any activity or to perform any act contrary to the Charter of the United Nations or construed as authorizing or
encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political
unity of sovereign and independent States.

Even if the UN DRIP were considered as part of the law of the land pursuant to Article II, Section 2 of the Constitution, it would not suffice to

uphold the validity of the MOA-AD so as to render its compliance with other laws unnecessary.

It is, therefore, clear that the MOA-AD contains numerous provisions that cannot be reconciled with the Constitution and the laws as presently

worded. Respondents proffer, however, that the signing of the MOA-AD alone would not have entailed any violation of law or grave abuse of

discretion on their part, precisely because it stipulates that the provisions thereof inconsistent with the laws shall not take effect until these laws

are amended. They cite paragraph 7 of the MOA-AD strand on GOVERNANCE quoted earlier, but which is reproduced below for convenience:

7. The Parties agree that the mechanisms and modalities for the actual implementation of this MOA-AD shall be
spelt out in the Comprehensive Compact to mutually take such steps to enable it to occur effectively.
Any provisions of the MOA-AD requiring amendments to the existing legal framework shall come into force upon signing
of a Comprehensive Compact and upon effecting the necessary changes to the legal framework with due regard to non
derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.
Indeed, the foregoing stipulation keeps many controversial provisions of the MOA-AD from coming into force until the necessary

changes to the legal framework are effected. While the word Constitution is not mentioned in the provision now under consideration or anywhere

else in the MOA-AD, the term legal framework is certainly broad enough to include the Constitution.

Notwithstanding the suspensive clause, however, respondents, by their mere act of incorporating in the MOA-AD the provisions

thereof regarding the associative relationship between the BJE and the Central Government, have already violated the Memorandum of

Instructions From The President dated March 1, 2001, which states that the negotiations shall be conducted in accordance with x x x the

principles of the sovereignty and territorial integrity of the Republic of the Philippines. (Emphasis supplied) Establishing an associative

relationship between the BJE and the Central Government is, for the reasons already discussed, a preparation for independence, or worse, an

implicit acknowledgment of an independent status already prevailing.

Even apart from the above-mentioned Memorandum, however, the MOA-AD is defective because the suspensive clause is invalid, as

discussed below.

The authority of the GRP Peace Negotiating Panel to negotiate with the MILF is founded on E.O. No. 3, Section 5(c), which states that there shall

be established Government Peace Negotiating Panels for negotiations with different rebel groups to be appointed by the President as her official

emissaries to conduct negotiations, dialogues, and face-to-face discussions with rebel groups. These negotiating panels are to report to the

President, through the PAPP on the conduct and progress of the negotiations.

It bears noting that the GRP Peace Panel, in exploring lasting solutions to the Moro Problem through its negotiations with the MILF,

was not restricted by E.O. No. 3 only to those options available under the laws as they presently stand. One of the components of a

comprehensive peace process, which E.O. No. 3 collectively refers to as the Paths to Peace, is the pursuit of social, economic, and political

reforms which may require new legislation or even constitutional amendments. Sec. 4(a) of E.O. No. 3, which reiterates Section 3(a), of E.O. No.

125,[167] states:

SECTION 4. The Six Paths to Peace. The components of the comprehensive peace process comprise the processes known
as the Paths to Peace. These component processes are interrelated and not mutually exclusive, and must therefore be
pursued simultaneously in a coordinated and integrated fashion. They shall include, but may not be limited to, the
following:

a. PURSUIT OF SOCIAL, ECONOMIC AND POLITICAL REFORMS. This component involves the vigorous
implementation of various policies, reforms, programs and projects aimed at addressing the root causes of internal
armed conflicts and social unrest. This may require administrative action, new legislation or even constitutional
amendments.

x x x x (Emphasis supplied)

The MOA-AD, therefore, may reasonably be perceived as an attempt of respondents to address, pursuant to this provision of E.O. No.

3, the root causes of the armed conflict in Mindanao. The E.O. authorized them to think outside the box, so to speak.Hence, they negotiated and
were set on signing the MOA-AD that included various social, economic, and political reforms which cannot, however, all be accommodated

within the present legal framework, and which thus would require new legislation and constitutional amendments.

The inquiry on the legality of the suspensive clause, however, cannot stop here, because it must be asked

whether the President herself may exercise the power delegated to


the GRP Peace Panel under E.O. No. 3, Sec. 4(a).

The President cannot delegate a power that she herself does not possess. May the President, in the course of peace negotiations, agree

to pursue reforms that would require new legislation and constitutional amendments, or should the reforms be restricted only to those solutions

which the present laws allow? The answer to this question requires a discussion of

the extent of the Presidents power to conduct peace negotiations.

That the authority of the President to conduct peace negotiations with rebel groups is not explicitly mentioned in the Constitution does not mean

that she has no such authority. In Sanlakas v. Executive Secretary,[168] in issue was the authority of the President to declare a state of rebellion an

authority which is not expressly provided for in the Constitution. The Court held thus:

In her ponencia in Marcos v. Manglapus, Justice Cortes put her thesis into jurisprudence. There, the Court, by a slim 8-7
margin, upheld the President's power to forbid the return of her exiled predecessor. The rationale for the majority's ruling
rested on the President's

. . . unstated residual powers which are implied from the grant of executive power and which
are necessary for her to comply with her duties under the Constitution. The powers of the President
are not limited to what are expressly enumerated in the article on the Executive Department and in
scattered provisions of the Constitution. This is so, notwithstanding the avowed intent of the
members of the Constitutional Commission of 1986 to limit the powers of the President as a reaction
to the abuses under the regime of Mr. Marcos, for the result was a limitation of specific powers of
the President, particularly those relating to the commander-in-chief clause, but not a diminution of
the general grant of executive power.
Thus, the President's authority to declare a state of rebellion springs in the main from her powers as chief executive and, at
the same time, draws strength from her Commander-in-Chief powers. x x x (Emphasis and underscoring supplied)

Similarly, the Presidents power to conduct peace negotiations is implicitly included in her powers as Chief Executive and

Commander-in-Chief. As Chief Executive, the President has the general responsibility to promote public peace, and as Commander-in-Chief, she

has the more specific duty to prevent and suppress rebellion and lawless violence.[169]

As the experience of nations which have similarly gone through internal armed conflict will show, however, peace is rarely attained by simply

pursuing a military solution. Oftentimes, changes as far-reaching as a fundamental reconfiguration of the nations constitutional structure is

required. The observations of Dr. Kirsti Samuels are enlightening, to wit:

x x x [T]he fact remains that a successful political and governance transition must form the core of any post-conflict
peace-building mission. As we have observed in Liberia and Haiti over the last ten years, conflict cessation without
modification of the political environment, even where state-building is undertaken through technical electoral assistance
and institution- or capacity-building, is unlikely to succeed. On average, more than 50 percent of states emerging from
conflict return to conflict. Moreover, a substantial proportion of transitions have resulted in weak or limited democracies.

The design of a constitution and its constitution-making process can play an important role in the political and
governance transition. Constitution-making after conflict is an opportunity to create a common vision of the future of a
state and a road map on how to get there. The constitution can be partly a peace agreement and partly a framework setting
up the rules by which the new democracy will operate.[170]
In the same vein, Professor Christine Bell, in her article on the nature and legal status of peace agreements, observed that the typical way that

peace agreements establish or confirm mechanisms for demilitarization and demobilization is by linking them to new constitutional

structures addressing governance, elections, and legal and human rights institutions. [171]

In the Philippine experience, the link between peace agreements and constitution-making has been recognized by no less than the

framers of the Constitution. Behind the provisions of the Constitution on autonomous regions [172] is the framers intention to implement a

particular peace agreement, namely, the Tripoli Agreement of 1976 between the GRP and the MNLF, signed by then Undersecretary of National

Defense Carmelo Z. Barbero and then MNLF Chairman Nur Misuari.

MR. ROMULO. There are other speakers; so, although I have some more questions, I will reserve my right to
ask them if they are not covered by the other speakers. I have only two questions.
I heard one of the Commissioners say that local autonomy already exists in the Muslim region; it is working very
well; it has, in fact, diminished a great deal of the problems. So, my question is: since that already exists, why do we have to
go into something new?

MR. OPLE. May I answer that on behalf of Chairman Nolledo. Commissioner Yusup Abubakar is right
that certain definite steps have been taken to implement the provisions of the Tripoli Agreement with respect to an
autonomous region in Mindanao. This is a good first step, but there is no question that this is merely a partial response to
the Tripoli Agreement itself and to the fuller standard of regional autonomy contemplated in that agreement, and now by
state policy.[173] (Emphasis supplied)

The constitutional provisions on autonomy and the statutes enacted pursuant to them have, to the credit of their drafters, been partly

successful. Nonetheless, the Filipino people are still faced with the reality of an on-going conflict between the Government and the MILF. If the

President is to be expected to find means for bringing this conflict to an end and to achieve lasting peace in Mindanao, then she must be given the

leeway to explore, in the course of peace negotiations, solutions that may require changes to the Constitution for their implementation. Being

uniquely vested with the power to conduct peace negotiations with rebel groups, the President is in a singular position to know the precise nature

of their grievances which, if resolved, may bring an end to hostilities.

The President may not, of course, unilaterally implement the solutions that she considers viable, but she may not be prevented from

submitting them as recommendations to Congress, which could then, if it is minded, act upon them pursuant to the legal procedures for

constitutional amendment and revision. In particular, Congress would have the option, pursuant to Article XVII, Sections 1 and 3 of the

Constitution, to propose the recommended amendments or revision to the people, call a constitutional convention, or submit to the electorate the

question of calling such a convention.

While the President does not possess constituent powers as those powers may be exercised only by Congress, a Constitutional Convention, or the

people through initiative and referendum she may submit proposals for constitutional change to Congress in a manner that does not involve the

arrogation of constituent powers.

In Sanidad v. COMELEC,[174] in issue was the legality of then President Marcos act of directly submitting proposals for constitutional

amendments to a referendum, bypassing the interim National Assembly which was the body vested by the 1973 Constitution with the power to
propose such amendments. President Marcos, it will be recalled, never convened the interim National Assembly. The majority upheld the

Presidents act, holding that the urges of absolute necessity compelled the President as the agent of the people to act as he did, there being no

interim National Assembly to propose constitutional amendments. Against this ruling, Justices Teehankee and Muoz Palma vigorously

dissented. The Courts concern at present, however, is not with regard to the point on which it was then divided in that controversial case, but on

that which was not disputed by either side.

Justice Teehankees dissent,[175] in particular, bears noting. While he disagreed that the President may directly submit proposed

constitutional amendments to a referendum, implicit in his opinion is a recognition that he would have upheld the Presidents action along with the

majority had the President convened the interim National Assembly and coursed his proposals through it. Thus Justice Teehankee opined:

Since the Constitution provides for the organization of the essential departments of government, defines and delimits the
powers of each and prescribes the manner of the exercise of such powers, and the constituent power has not been granted to
but has been withheld from the President or Prime Minister, it follows that the Presidents questioned decrees proposing and
submitting constitutional amendments directly to the people (without the intervention of the interim National Assembly in
whom the power is expressly vested) are devoid of constitutional and legal basis.[176] (Emphasis supplied)

From the foregoing discussion, the principle may be inferred that the President in the course of conducting peace negotiations may validly

consider implementing even those policies that require changes to the Constitution, but she may not unilaterally implement them without the

intervention of Congress, or act in any way as if the assent of that body were assumed as a certainty.

Since, under the present Constitution, the people also have the power to directly propose amendments through initiative and referendum, the

President may also submit her recommendations to the people, not as a formal proposal to be voted on in a plebiscite similar to what President

Marcos did in Sanidad, but for their independent consideration of whether these recommendations merit being formally proposed through

initiative.

These recommendations, however, may amount to nothing more than the Presidents suggestions to the people, for any further involvement in the

process of initiative by the Chief Executive may vitiate its character as a genuine peoples initiative. The only initiative recognized by the

Constitution is that which truly proceeds from the people. As the Court stated in Lambino v. COMELEC:[177]

The Lambino Group claims that their initiative is the people's voice. However, the Lambino Group unabashedly
states in ULAP Resolution No. 2006-02, in the verification of their petition with the COMELEC, that ULAP maintains its
unqualified support to the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional reforms. The
Lambino Group thus admits that their people's initiative is an unqualified support to the agenda of the incumbent President
to change the Constitution. This forewarns the Court to be wary of incantations of people's voice or sovereign will in the
present initiative.

It will be observed that the President has authority, as stated in her oath of office, [178] only to preserve and defend the

Constitution. Such presidential power does not, however, extend to allowing her to change the Constitution, but simply to recommend proposed

amendments or revision. As long as she limits herself to recommending these changes and submits to the proper procedure for constitutional

amendments and revision, her mere recommendation need not be construed as an unconstitutional act.
The foregoing discussion focused on the Presidents authority to propose constitutional amendments, since her authority to propose

new legislation is not in controversy. It has been an accepted practice for Presidents in this jurisdiction to propose new legislation. One of the

more prominent instances the practice is usually done is in the yearly State of the Nation Address of the President to Congress. Moreover, the

annual general appropriations bill has always been based on the budget prepared by the President, which for all intents and purposes is a proposal

for new legislation coming from the President.[179]

The suspensive clause in the MOA-AD viewed in light of the above-discussed


standards

Given the limited nature of the Presidents authority to propose constitutional amendments, she cannot guarantee to any third party that

the required amendments will eventually be put in place, nor even be submitted to a plebiscite. The most she could do is submit these proposals

as recommendations either to Congress or the people, in whom constituent powers are vested.

Paragraph 7 on Governance of the MOA-AD states, however, that all provisions thereof which cannot be reconciled with the present

Constitution and laws shall come into force upon signing of a Comprehensive Compact and upon effecting the necessary changes to the legal

framework. This stipulation does not bear the marks of a suspensive condition defined in civil law as a future and uncertain event but of a term. It

is not a question of whether the necessary changes to the legal framework will be effected, but when. That there is no uncertainty being

contemplated is plain from what follows, for the paragraph goes on to state that the contemplated changes shall be with due regard to non

derogation of prior agreements and within the stipulated timeframe to be contained in the Comprehensive Compact.

Pursuant to this stipulation, therefore, it is mandatory for the GRP to effect the changes to the legal framework contemplated in the

MOA-AD which changes would include constitutional amendments, as discussed earlier. It bears noting that,

By the time these changes are put in place, the MOA-AD itself would be
counted among the prior agreements from which there could be no derogation.

What remains for discussion in the Comprehensive Compact would merely be the implementing details for these consensus points and, notably,

the deadline for effecting the contemplated changes to the legal framework.

Plainly, stipulation-paragraph 7 on GOVERNANCE is inconsistent with the limits of the Presidents authority to propose constitutional

amendments, it being a virtual guarantee that the Constitution and the laws of the Republic of the Philippines will certainly be adjusted to

conform to all the consensus points found in the MOA-AD. Hence, it must be struck down as unconstitutional.

A comparison between the suspensive clause of the MOA-AD with a similar provision appearing in the 1996 final peace agreement

between the MNLF and the GRP is most instructive.

As a backdrop, the parties to the 1996 Agreement stipulated that it would be implemented in two phases. Phase I covered a three-year

transitional period involving the putting up of new administrative structures through Executive Order, such as the Special Zone of Peace and
Development (SZOPAD) and the Southern Philippines Council for Peace and Development (SPCPD), while Phase II covered the establishment

of the new regional autonomous government through amendment or repeal of R.A. No. 6734, which was then the Organic Act of the ARMM.

The stipulations on Phase II consisted of specific agreements on the structure of the expanded autonomous region envisioned by the

parties. To that extent, they are similar to the provisions of the MOA-AD. There is, however, a crucial difference between the two

agreements. While the MOA-AD virtually guarantees that the necessary changes to the legal framework will be put in place , the GRP-MNLF

final peace agreement states thus: Accordingly, these provisions [on Phase II] shall be recommended by the GRP to Congress for incorporation in

the amendatory or repealing law.

Concerns have been raised that the MOA-AD would have given rise to a binding international law obligation on the part of the Philippines to

change its Constitution in conformity thereto, on the ground that it may be considered either as a binding agreement under international law, or a

unilateral declaration of the Philippine government to the international community that it would grant to the Bangsamoro people all the

concessions therein stated. Neither ground finds sufficient support in international law, however.

The MOA-AD, as earlier mentioned in the overview thereof, would have included foreign dignitaries as signatories. In addition,

representatives of other nations were invited to witness its signing in Kuala Lumpur. These circumstances readily lead one to surmise that the

MOA-AD would have had the status of a binding international agreement had it been signed. An examination of the prevailing principles in

international law, however, leads to the contrary conclusion.

The Decision on CHALLENGE TO JURISDICTION: LOM ACCORD AMNESTY [180] (the Lom Accord case) of the Special Court of

Sierra Leone is enlightening. The Lom Accord was a peace agreement signed on July 7, 1999 between the Government of Sierra Leone and the

Revolutionary United Front (RUF), a rebel group with which the Sierra Leone Government had been in armed conflict for around eight years at

the time of signing. There were non-contracting signatories to the agreement, among which were the Government of the Togolese Republic,

the Economic Community of West African States, and the UN.

On January 16, 2002, after a successful negotiation between the UN Secretary-General and the Sierra Leone Government, another

agreement was entered into by the UN and that Government whereby the Special Court of Sierra Leone was established.The sole purpose of the

Special Court, an international court, was to try persons who bore the greatest responsibility for serious violations of international humanitarian

law and Sierra Leonean law committed in the territory of Sierra Leone since November 30, 1996.

Among the stipulations of the Lom Accord was a provision for the full pardon of the members of the RUF with respect to anything

done by them in pursuit of their objectives as members of that organization since the conflict began.

In the Lom Accord case, the Defence argued that the Accord created an internationally binding obligation not to prosecute the

beneficiaries of the amnesty provided therein, citing, among other things, the participation of foreign dignitaries and international organizations in
the finalization of that agreement. The Special Court, however, rejected this argument, ruling that the Lome Accord is not a treaty and that it can

only create binding obligations and rights between the parties in municipal law, not in international law. Hence, the Special Court held, it is

ineffective in depriving an international court like it of jurisdiction.

37. In regard to the nature of a negotiated settlement of an internal armed conflict it is easy to assume and to argue with
some degree of plausibility, as Defence counsel for the defendants seem to have done, that the mere fact that in
addition to the parties to the conflict, the document formalizing the settlement is signed by foreign heads of state or
their representatives and representatives of international organizations, means the agreement of the parties is
internationalized so as to create obligations in international law.

xxxx

40. Almost every conflict resolution will involve the parties to the conflict and the mediator or facilitator of the settlement,
or persons or bodies under whose auspices the settlement took place but who are not at all parties to the conflict,
are not contracting parties and who do not claim any obligation from the contracting parties or incur any obligation
from the settlement.

41. In this case, the parties to the conflict are the lawful authority of the State and the RUF which has no status of statehood
and is to all intents and purposes a faction within the state. The non-contracting signatories of the Lom Agreement
were moral guarantors of the principle that, in the terms of Article XXXIV of the Agreement, this peace agreement
is implemented with integrity and in good faith by both parties. The moral guarantors assumed no legal
obligation. It is recalled that the UN by its representative appended, presumably for avoidance of doubt, an
understanding of the extent of the agreement to be implemented as not including certain international crimes.

42. An international agreement in the nature of a treaty must create rights and obligations regulated by international law so
that a breach of its terms will be a breach determined under international law which will also provide principle
means of enforcement. The Lom Agreement created neither rights nor obligations capable of being regulated by
international law. An agreement such as the Lom Agreement which brings to an end an internal armed conflict no
doubt creates a factual situation of restoration of peace that the international community acting through the
Security Council may take note of. That, however, will not convert it to an international agreement which creates
an obligation enforceable in international, as distinguished from municipal, law.A breach of the terms of such a
peace agreement resulting in resumption of internal armed conflict or creating a threat to peace in the
determination of the Security Council may indicate a reversal of the factual situation of peace to be visited with
possible legal consequences arising from the new situation of conflict created. Such consequences such as action
by the Security Council pursuant to Chapter VII arise from the situation and not from the agreement, nor from the
obligation imposed by it. Such action cannot be regarded as a remedy for the breach. A peace agreement which
settles an internal armed conflict cannot be ascribed the same status as one which settles an international armed
conflict which, essentially, must be between two or more warring States.The Lom Agreement cannot be
characterised as an international instrument. x x x (Emphasis, italics and underscoring supplied)

Similarly, that the MOA-AD would have been signed by representatives of States and international organizations not parties to the Agreement

would not have sufficed to vest in it a binding character under international law.

In another vein, concern has been raised that the MOA-AD would amount to a unilateral declaration of the Philippine State, binding

under international law, that it would comply with all the stipulations stated therein, with the result that it would have to amend its Constitution

accordingly regardless of the true will of the people. Cited as authority for this view is Australia v. France,[181] also known as the Nuclear Tests

Case, decided by the International Court of Justice (ICJ).

In the Nuclear Tests Case, Australia challenged before the ICJ the legality of Frances nuclear tests in the South Pacific.France refused

to appear in the case, but public statements from its President, and similar statements from other French officials including its Minister of

Defence, that its 1974 series of atmospheric tests would be its last, persuaded the ICJ to dismiss the case. [182] Those statements, the ICJ held,
amounted to a legal undertaking addressed to the international community, which required no acceptance from other States for it to become

effective.

Essential to the ICJ ruling is its finding that the French government intended to be bound to the international community in issuing its

public statements, viz:

43. It is well recognized that declarations made by way of unilateral acts, concerning legal or factual situations, may have
the effect of creating legal obligations. Declarations of this kind may be, and often are, very specific. When it is
the intention of the State making the declaration that it should become bound according to its terms, that intention
confers on the declaration the character of a legal undertaking, the State being thenceforth legally required to
follow a course of conduct consistent with the declaration. An undertaking of this kind, if given publicly, and with
an intent to be bound, even though not made within the context of international negotiations, is binding. In these
circumstances, nothing in the nature of a quid pro quo nor any subsequent acceptance of the declaration, nor even
any reply or reaction from other States, is required for the declaration to take effect, since such a requirement
would be inconsistent with the strictly unilateral nature of the juridical act by which the pronouncement by the
State was made.

44. Of course, not all unilateral acts imply obligation; but a State may choose to take up a certain position in relation to a
particular matter with the intention of being boundthe intention is to be ascertained by interpretation of the
act. When States make statements by which their freedom of action is to be limited, a restrictive interpretation is
called for.

xxxx

51. In announcing that the 1974 series of atmospheric tests would be the last, the French Government conveyed to the
world at large, including the Applicant, its intention effectively to terminate these tests. It was bound to assume
that other States might take note of these statements and rely on their being effective. The validity of these
statements and their legal consequences must be considered within the general framework of the security of
international intercourse, and the confidence and trust which are so essential in the relations among States. It is
from the actual substance of these statements, and from the circumstances attending their making, that the legal
implications of the unilateral act must be deduced. The objects of these statements are clear and they were
addressed to the international community as a whole, and the Court holds that they constitute an undertaking
possessing legal effect. The Court considers *270 that the President of the Republic, in deciding upon the effective
cessation of atmospheric tests, gave an undertaking to the international community to which his words were
addressed. x x x (Emphasis and underscoring supplied)

As gathered from the above-quoted ruling of the ICJ, public statements of a state representative may be construed as a unilateral declaration only

when the following conditions are present: the statements were clearly addressed to the international community, the state intended to be bound to

that community by its statements, and that not to give legal effect to those statements would be detrimental to the security of international

intercourse. Plainly, unilateral declarations arise only in peculiar circumstances.

The limited applicability of the Nuclear Tests Case ruling was recognized in a later case decided by the ICJ entitled Burkina Faso v. Mali,[183] also

known as the Case Concerning the Frontier Dispute. The public declaration subject of that case was a statement made by the President of Mali, in

an interview by a foreign press agency, that Mali would abide by the decision to be issued by a commission of the Organization of African Unity

on a frontier dispute then pending between Mali and Burkina Faso.

Unlike in the Nuclear Tests Case, the ICJ held that the statement of Malis President was not a unilateral act with legal implications. It

clarified that its ruling in the Nuclear Tests case rested on the peculiar circumstances surrounding the French declaration subject thereof, to wit:

40. In order to assess the intentions of the author of a unilateral act, account must be taken of all the factual circumstances
in which the act occurred. For example, in the Nuclear Tests cases, the Court took the view that since the applicant
States were not the only ones concerned at the possible continuance of atmospheric testing by the French
Government, that Government's unilateral declarations had conveyed to the world at large, including the
Applicant, its intention effectively to terminate these tests(I.C.J. Reports 1974, p. 269, para. 51; p. 474, para.
53). In the particular circumstances of those cases, the French Government could not express an intention to be
bound otherwise than by unilateral declarations. It is difficult to see how it could have accepted the terms of a
negotiated solution with each of the applicants without thereby jeopardizing its contention that its conduct was
lawful. The circumstances of the present case are radically different. Here, there was nothing to hinder the Parties
from manifesting an intention to accept the binding character of the conclusions of the Organization of African
Unity Mediation Commission by the normal method: a formal agreement on the basis of reciprocity. Since no
agreement of this kind was concluded between the Parties, the Chamber finds that there are no grounds to interpret
the declaration made by Mali's head of State on 11 April 1975 as a unilateral act with legal implications in regard
to the present case. (Emphasis and underscoring supplied)

Assessing the MOA-AD in light of the above criteria, it would not have amounted to a unilateral declaration on the part of the

Philippine State to the international community. The Philippine panel did not draft the same with the clear intention of being bound thereby to the

international community as a whole or to any State, but only to the MILF. While there were States and international organizations involved, one

way or another, in the negotiation and projected signing of the MOA-AD, they participated merely as witnesses or, in the case of Malaysia, as

facilitator. As held in the Lom Accord case, the mere fact that in addition to the parties to the conflict, the peace settlement is signed by

representatives of states and international organizations does not mean that the agreement is internationalized so as to create obligations in

international law.

Since the commitments in the MOA-AD were not addressed to States, not to give legal effect to such commitments would not be

detrimental to the security of international intercourse to the trust and confidence essential in the relations among States.

In one important respect, the circumstances surrounding the MOA-AD are closer to that of Burkina Faso wherein, as already

discussed, the Mali Presidents statement was not held to be a binding unilateral declaration by the ICJ. As in that case, there was also nothing to

hinder the Philippine panel, had it really been its intention to be bound to other States, to manifest that intention by formal agreement. Here, that

formal agreement would have come about by the inclusion in the MOA-AD of a clear commitment to be legally bound to the international

community, not just the MILF, and by an equally clear indication that the signatures of the participating states-representatives would constitute an

acceptance of that commitment. Entering into such a formal agreement would not have resulted in a loss of face for the Philippine government

before the international community, which was one of the difficulties that prevented the French Government from entering into a formal

agreement with other countries. That the Philippine panel did not enter into such a formal agreement suggests that it had no intention to be bound

to the international community. On that ground, the MOA-AD may not be considered a unilateral declaration under international law.

The MOA-AD not being a document that can bind the Philippines under international law notwithstanding, respondents almost consummated act

of guaranteeing amendments to the legal framework is, by itself, sufficient to constitute grave abuse of discretion. The grave abuse lies not in the

fact that they considered, as a solution to the Moro Problem, the creation of a state within a state, but in their brazen willingness to guarantee that

Congress and the sovereign Filipino people would give their imprimatur to their solution. Upholding such an act would amount to authorizing a

usurpation of the constituent powers vested only in Congress, a Constitutional Convention, or the people themselves through the process of

initiative, for the only way that the Executive can ensure the outcome of the amendment process is through an undue influence or interference

with that process.


The sovereign people may, if it so desired, go to the extent of giving up a portion of its own territory to the Moros for the sake of

peace, for it can change the Constitution in any it wants, so long as the change is not inconsistent with what, in international law, is known as Jus

Cogens.[184] Respondents, however, may not preempt it in that decision.

SUMMARY

The petitions are ripe for adjudication. The failure of respondents to consult the local government units or communities affected

constitutes a departure by respondents from their mandate under E.O. No. 3. Moreover, respondents exceeded their authority by the mere act of

guaranteeing amendments to the Constitution. Any alleged violation of the Constitution by any branch of government is a proper matter for

judicial review.

As the petitions involve constitutional issues which are of paramount public interest or of transcendental importance, the Court grants the

petitioners, petitioners-in-intervention and intervening respondents the requisite locus standi in keeping with the liberal stance adopted in David

v. Macapagal-Arroyo.

Contrary to the assertion of respondents that the non-signing of the MOA-AD and the eventual dissolution of the GRP Peace Panel mooted the

present petitions, the Court finds that the present petitions provide an exception to the moot and academic principle in view of (a) the grave

violation of the Constitution involved; (b) the exceptional character of the situation and paramount public interest; (c) the need to formulate

controlling principles to guide the bench, the bar, and the public; and (d) the fact that the case is capable of repetition yet evading review.

The MOA-AD is a significant part of a series of agreements necessary to carry out the GRP-MILF Tripoli Agreement on Peace signed by the

government and the MILF back in June 2001. Hence, the present MOA-AD can be renegotiated or another one drawn up that could contain

similar or significantly dissimilar provisions compared to the original.

The Court, however, finds that the prayers for mandamus have been rendered moot in view of the respondents action in providing the Court and

the petitioners with the official copy of the final draft of the MOA-AD and its annexes.

The peoples right to information on matters of public concern under Sec. 7, Article III of the Constitution is in splendid symmetrywith the state

policy of full public disclosure of all its transactions involving public interest under Sec. 28, Article II of the Constitution. The right to

information guarantees the right of the people to demand information, while Section 28 recognizes the duty of officialdom to give information

even if nobody demands. The complete and effective exercise of the right to information necessitates that its complementary provision on public

disclosure derive the same self-executory nature, subject only to reasonable safeguards or limitations as may be provided by law.

The contents of the MOA-AD is a matter of paramount public concern involving public interest in the highest order. In declaring that the right to

information contemplates steps and negotiations leading to the consummation of the contract, jurisprudence finds no distinction as to the

executory nature or commercial character of the agreement.


An essential element of these twin freedoms is to keep a continuing dialogue or process of communication between the government

and the people. Corollary to these twin rights is the design for feedback mechanisms. The right to public consultation was envisioned to be a

species of these public rights.

At least three pertinent laws animate these constitutional imperatives and justify the exercise of the peoples right to be consulted on relevant

matters relating to the peace agenda.

One, E.O. No. 3 itself is replete with mechanics for continuing consultations on both national and local levels and for a principal forum for

consensus-building. In fact, it is the duty of the Presidential Adviser on the Peace Process to conduct regular dialogues to seek relevant

information, comments, advice, and recommendations from peace partners and concerned sectors of society.

Two, Republic Act No. 7160 or the Local Government Code of 1991 requires all national offices to conduct consultations before any project or

program critical to the environment and human ecology including those that may call for the eviction of a particular group of people residing in

such locality, is implemented therein. The MOA-AD is one peculiar program that unequivocally and unilaterally vests ownership of a vast

territory to the Bangsamoro people, which could pervasively and drastically result to the diaspora or displacement of a great number of

inhabitants from their total environment.

Three, Republic Act No. 8371 or the Indigenous Peoples Rights Act of 1997 provides for clear-cut procedure for the recognition and delineation

of ancestral domain, which entails, among other things, the observance of the free and prior informed consent of the Indigenous Cultural

Communities/Indigenous Peoples. Notably, the statute does not grant the Executive Department or any government agency the power to

delineate and recognize an ancestral domain claim by mere agreement or compromise.

The invocation of the doctrine of executive privilege as a defense to the general right to information or the specific right to consultation is

untenable. The various explicit legal provisions fly in the face of executive secrecy. In any event, respondents effectively waived such defense

after it unconditionally disclosed the official copies of the final draft of the MOA-AD, for judicial compliance and public scrutiny.

IN SUM, the Presidential Adviser on the Peace Process committed grave abuse of discretion when he failed to carry out the pertinent consultation

process, as mandated by E.O. No. 3, Republic Act No. 7160, and Republic Act No. 8371. The furtive process by which the MOA-AD was

designed and crafted runs contrary to and in excess of the legal authority, and amounts to a whimsical, capricious, oppressive, arbitrary and

despotic exercise thereof. It illustrates a gross evasion of positive duty and a virtual refusal to perform the duty enjoined.

The MOA-AD cannot be reconciled with the present Constitution and laws. Not only its specific provisions but the very concept underlying

them, namely, the associative relationship envisioned between the GRP and the BJE, are unconstitutional, for the concept presupposes that the

associated entity is a state and implies that the same is on its way to independence.
While there is a clause in the MOA-AD stating that the provisions thereof inconsistent with the present legal framework will not be effective until

that framework is amended, the same does not cure its defect. The inclusion of provisions in the MOA-AD establishing an associative

relationship between the BJE and the Central Government is, itself, a violation of the Memorandum of Instructions From The President dated

March 1, 2001, addressed to the government peace panel. Moreover, as the clause is worded, it virtually guarantees that the necessary

amendments to the Constitution and the laws will eventually be put in place.Neither the GRP Peace Panel nor the President herself is authorized

to make such a guarantee. Upholding such an act would amount to authorizing a usurpation of the constituent powers vested only in Congress, a

Constitutional Convention, or the people themselves through the process of initiative, for the only way that the Executive can ensure the outcome

of the amendment process is through an undue influence or interference with that process.

While the MOA-AD would not amount to an international agreement or unilateral declaration binding on the Philippines under

international law, respondents act of guaranteeing amendments is, by itself, already a constitutional violation that renders the MOA-AD fatally

defective.

WHEREFORE, respondents motion to dismiss is DENIED. The main and intervening petitions are GIVEN DUE COURSE and

hereby GRANTED.

The Memorandum of Agreement on the Ancestral Domain Aspect of the GRP-MILF Tripoli Agreement on Peace of 2001 is

declared CONTRARY TO LAW AND THE CONSTITUTION.

SO ORDERED.

CONCHITA CARPIO MORALES


Associate Justice

WE CONCUR:

REYNATO S. PUNO
Chief Justice

EN BANC
PROF. MERLIN M. MAGALLONA, G.R No. 187167

AKBAYAN PARTY-LIST REP. RISA

HONTIVEROS, PROF. HARRY C. Present:

ROQUE, JR., AND UNIVERSITY OF

THE PHILIPPINES COLLEGE OF CORONA, C.J.,

LAW STUDENTS, ALITHEA CARPIO,

BARBARA ACAS, VOLTAIRE VELASCO, JR.,

ALFERES, CZARINA MAY LEONARDO-DE CASTRO,

ALTEZ, FRANCIS ALVIN ASILO, BRION,

SHERYL BALOT, RUBY AMOR PERALTA,

BARRACA, JOSE JAVIER BAUTISTA, BERSAMIN,

ROMINA BERNARDO, VALERIE DEL CASTILLO,

PAGASA BUENAVENTURA, EDAN ABAD,

MARRI CAETE, VANN ALLEN VILLARAMA, JR.,

DELA CRUZ, RENE DELORINO, PEREZ,

PAULYN MAY DUMAN, SHARON MENDOZA, and

ESCOTO, RODRIGO FAJARDO III, SERENO, JJ.

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,

- versus -

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 Promulgated:

TO THE UNITED NATIONS,


Respondents. July 16, 2011

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

DECISION

CARPIO, J.:

The Case

This original action for the writs of certiorari and prohibition assails the constitutionality of Republic Act No. 9522 1 (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),4codifying, 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.8Complying 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, 10embodying 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 standi and (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 Ruling of the Court

On the threshold issues, we hold that (1) petitioners possess locus standi to bring this suit as citizens and (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.

On the Threshold Issues

Petitioners Possess Locus

Standi as Citizens
Petitioners themselves undermine their assertion of locus standi as legislators and taxpayers because the petition alleges neither infringement of

legislative prerogative15 nor misuse of public funds,16 occasioned 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 undoubtedly raises

issues of national significance necessitating urgent resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult to

find other litigants possessing a more direct and specific interest to bring the suit, thus satisfying one of the requirements for granting citizenship

standing.17

The Writs of Certiorari and Prohibition

Are Proper Remedies to Test

the Constitutionality of Statutes

In praying for the dismissal of the petition on preliminary grounds, respondents seek a strict observance of the offices of the writs of certiorari

and prohibition, noting that the writs cannot issue absent any showing of grave abuse of discretion in the exercise of judicial, quasi-judicial or

ministerial powers on the part of respondents and resulting prejudice on the part of petitioners. 18

Respondents submission holds true in ordinary civil proceedings. When this Court exercises its constitutional power of judicial review, however,

we have, by tradition, viewed the writs of certiorari and prohibition as proper remedial vehicles to test the constitutionality of statutes, 19 and

indeed, of acts of other branches of government.20 Issues of constitutional import are sometimes crafted out of statutes which, while having no

bearing on the personal interests of the petitioners, carry such relevance in the life of this nation that the Court inevitably finds itself constrained

to take cognizance of the case and pass upon the issues raised, non-compliance with the letter of procedural rules notwithstanding. The statute

sought to be reviewed here is one such law.

RA 9522 is Not Unconstitutional

RA 9522 is a Statutory Tool

to Demarcate the Countrys

Maritime Zones and Continental


Shelf Under UNCLOS III, not to

Delineate Philippine Territory

Petitioners submit that RA 9522 dismembers a large portion of the national territory21 because it discards the pre-UNCLOS III demarcation of

Philippine territory under the Treaty of Paris and related treaties, successively encoded in the definition of national territory under the 1935, 1973

and 1987 Constitutions. Petitioners theorize that this constitutional definition trumps any treaty or statutory provision denying the Philippines

sovereign control over waters, beyond the territorial sea recognized at 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 in the Treaty of Paris. 22

Petitioners theory fails to persuade us.

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 miles from the baselines], contiguous zone [24 nautical miles from the

baselines], exclusive economic zone [200 nautical miles from the baselines]), and continental shelves that UNCLOS III delimits. 23 UNCLOS 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 archipelagic States graduated authority over a limited span of waters and submarine lands

along their coasts.

On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States parties to mark-out specific basepoints along

their coasts from which baselines are drawn, either straight or contoured, to serve as geographic starting points to measure the breadth of the

maritime zones and continental shelf. Article 48 of UNCLOS III on archipelagic States like ours could not be any clearer:

Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the exclusive economic zone
and the continental shelf. The breadth of the territorial sea, the contiguous zone, the exclusive economic zone and the
continental shelf shall be measured from archipelagic baselines drawn in accordance with article 47. (Emphasis supplied)

Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States parties to delimit with precision the extent of their

maritime zones and continental shelves. In turn, this gives notice to the rest of the international community of the scope of the maritime space and
submarine areas within which 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 zone (Article 33), and the right to exploit the living and

non-living resources in the exclusive economic zone (Article 56) and continental shelf (Article 77).

Even under petitioners theory that the Philippine territory embraces the islands and all the waters within the rectangular area delimited

in the Treaty of Paris, the baselines of the Philippines would still have to be drawn in accordance with RA 9522 because this is the only way to

draw the baselines in conformity with UNCLOS III. The baselines cannot be drawn from the boundaries or other portions of the rectangular area

delineated in the Treaty of Paris, but from the outermost islands and drying reefs of the archipelago.24

UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement or, as petitioners claim, diminution of

territory. Under traditional international law typology, States acquire (or conversely, lose) territory through occupation, accretion, cession and

prescription,25 not by executing multilateral treaties on the regulations of sea-use rights or enacting statutes to comply with the treatys terms to

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

RA 9522s Use of the Framework

of Regime of Islands to Determine the

Maritime Zones of the KIG and the

Scarborough Shoal, not Inconsistent

with the Philippines Claim of Sovereignty

Over these Areas

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.


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

Extent of maritime area using RA 3046, as Extent of maritime area using RA

amended, taking into account the Treaty of 9522, taking into account UNCLOS

Paris delimitation (in square nautical miles) III (in square nautical miles)

Internal or

archipelagic
166,858 171,435
waters

Territorial Sea 274,136 32,106

Exclusive

Economic Zone
382,669
TOTAL 440,994 586,210

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 course, where there are overlapping exclusive economic zones of opposite or adjacent

States, there will have to be a delineation of maritime boundaries in accordance with UNCLOS III. 30
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:

SEC. 2. The baselines in the following areas over which the Philippines likewise exercises sovereignty and
jurisdiction shall be determined as Regime of Islands under the Republic of the Philippines consistent with Article 121 of
the United Nations Convention on the Law of the Sea (UNCLOS):
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 Scarborough
Shoal are outside our archipelagic baseline because if we put them inside our baselines we might be accused of violating
the provision of international law which states: The drawing of such baseline shall not depart to any appreciable extent
from the general configuration of the archipelago. So sa loob ng ating baseline, dapat magkalapit ang mga islands. Dahil
malayo ang Scarborough Shoal, hindi natin masasabing malapit sila sa atin although we are still allowed by international
law to claim them as our own.

This is called contested islands outside our configuration. We see that our archipelago is defined by the orange line which
[we] call[] archipelagic baseline. Ngayon, tingnan ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong
malaking circle sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago kaya kung ilihis pa
natin ang dating archipelagic baselines 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)

Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS IIIs limits. The need to shorten this baseline, and in

addition, to optimize the location of basepoints using current maps, became imperative as discussed by respondents:

[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 Point) is 140.06 nautical miles x x
x. This exceeds the maximum length allowed under Article 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 archipelago may exceed that length, up to a maximum length of 125 nautical miles.
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.
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 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

Hence, far from surrendering the Philippines claim over the KIG and the Scarborough Shoal, Congress decision to classify the KIG

and the Scarborough Shoal as Regime[s] of Islands under the Republic of 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 of the KIG, qualifies under the category of

regime of islands, whose islands generate their own applicable maritime zones.37

Statutory Claim Over Sabah under

RA 5446 Retained
Petitioners argument for the invalidity of RA 9522 for its failure to textualize the Philippines claim over Sabah in North Borneo is also untenable.

Section 2 of RA 5446, which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:

Section 2. The definition of the baselines of the territorial sea of the Philippine Archipelago as provided in this
Act is without prejudice to the delineation of the baselines of the territorial sea around the territory of Sabah, situated in
North Borneo, over which the Republic of the Philippines has acquired dominion and sovereignty. (Emphasis supplied)

UNCLOS III and RA 9522 not

Incompatible with the Constitutions

Delineation of Internal Waters

As their final argument against the validity of RA 9522, petitioners contend that the law unconstitutionally converts internal waters into

archipelagic waters, hence subjecting these waters to the right of innocent and sea lanes passage under UNCLOS III, including overflight.

Petitioners extrapolate that these passage rights indubitably expose Philippine internal waters to nuclear and maritime pollution hazards, in

violation of the Constitution.38

Whether referred to as Philippine internal waters under Article I of the Constitution 39 or as archipelagic waters under UNCLOS III (Article 49

[1]), the Philippines exercises sovereignty over the body of water lying landward of the baselines, including the air space over it and the

submarine areas underneath. UNCLOS III affirms this:

Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters and of their bed and
subsoil.

1. The sovereignty of an archipelagic State extends to the waters enclosed by the archipelagic
baselines drawn in accordance with article 47, described as archipelagic waters, regardless of their
depth or distance from the coast.
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.
xxxx
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 by the archipelagic State of its sovereignty over
such waters and their air space, bed and subsoil, and the resources contained therein. (Emphasis supplied)

The fact of sovereignty, however, does not preclude the operation of municipal and international law norms subjecting the territorial sea or

archipelagic waters to necessary, if not marginal, burdens in the 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 designating routes within the archipelagic waters to regulate

innocent and sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage are now pending in Congress.41

In the absence of municipal legislation, international law norms, now codified in UNCLOS III, operate to grant innocent passage

rights over the territorial sea or archipelagic waters, subject to the treatys 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 can

validly invoke its sovereignty to absolutely forbid innocent passage that is exercised in accordance with customary international law without

risking retaliatory measures from the international community.

The fact that for archipelagic States, their archipelagic waters are subject to both the right of innocent passage and sea lanes
45
passage does not place them in lesser footing vis--vis continental coastal States which are subject, in their territorial sea, to the right of innocent

passage and the right of transit passage through international straits. The 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 subject to their territorial sovereignty. More importantly, the recognition of

archipelagic States archipelago and the waters enclosed by their baselines as one cohesive entity prevents the treatment of their islands as separate

islands under UNCLOS III.46 Separate islands generate their own maritime zones, placing the waters between islands separated by more than 24

nautical miles beyond the States territorial sovereignty, subjecting these waters to the rights of other States under UNCLOS III. 47

Petitioners invocation of non-executory constitutional provisions in Article II (Declaration of Principles and State Policies) 48must also

fail. Our present state of jurisprudence considers the provisions in Article II as mere legislative guides, which, absent enabling legislation, do not

embody judicially enforceable 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 2 51) 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

FIRST DIVISION

G.R. No. 171182 August 23, 2012

UNIVERSITY OF THE PHILIPPINES, JOSE V. ABUEVA, RAUL P. DE GUZMAN, RUBEN P. ASPIRAS, EMMANUEL P. BELLO,
WILFREDO P. DAVID, CASIANO S. ABRIGO, and JOSEFINA R. LICUANAN,Petitioners,
vs.
HON. AGUSTIN S. DIZON, his capacity as Presiding Judge of the Regional Trial Court of Quezon City, Branch 80, STERN
BUILDERS, INC., and SERVILLANO DELA CRUZ, Respondents.

DECISION

BERSAMIN, J.:

Trial judges should not immediately issue writs of execution or garnishment against the Government or any of its subdivisions,
agencies and instrumentalities to enforce money judgments.1 They should bear in mind that the primary jurisdiction to examine,
audit and settle all claims of any sort due from the Government or any of its subdivisions, agencies and instrumentalities pertains to
the Commission on Audit (COA) pursuant to Presidential Decree No. 1445 (Government Auditing Code of the Philippines).

The Case

On appeal by the University of the Philippines and its then incumbent officials (collectively, the UP) is the decision promulgated on
September 16, 2005,2 whereby the Court of Appeals (CA) upheld the order of the Regional Trial Court (RTC), Branch 80, in Quezon
City that directed the garnishment of public funds amounting to P 16,370,191.74 belonging to the UP to satisfy the writ of execution
issued to enforce the already final and executory judgment against the UP.

Antecedents

On August 30, 1990, the UP, through its then President Jose V. Abueva, entered into a General Construction Agreement with
respondent Stern Builders Corporation (Stern Builders), represented by its President and General Manager Servillano dela Cruz, for
the construction of the extension building and the renovation of the College of Arts and Sciences Building in the campus of the
University of the Philippines in Los Baos (UPLB).3

In the course of the implementation of the contract, Stern Builders submitted three progress billings corresponding to the work
accomplished, but the UP paid only two of the billings. The third billing worth P 273,729.47 was not paid due to its disallowance by
the Commission on Audit (COA). Despite the lifting of the disallowance, the UP failed to pay the billing, prompting Stern Builders and
dela Cruz to sue the UP and its co-respondent officials to collect the unpaid billing and to recover various damages. The suit,
entitled Stern Builders Corporation and Servillano R. Dela Cruz v. University of the Philippines Systems, Jose V. Abueva, Raul P. de
Guzman, Ruben P. Aspiras, Emmanuel P. Bello, Wilfredo P. David, Casiano S. Abrigo, and Josefina R. Licuanan, was docketed as
Civil Case No. Q-93-14971 of the Regional Trial Court in Quezon City (RTC). 4

After trial, on November 28, 2001, the RTC rendered its decision in favor of the plaintiffs, 5 viz:

Wherefore, in the light of the foregoing, judgment is hereby rendered in favor of the plaintiff and against the defendants ordering the
latter to pay plaintiff, jointly and severally, the following, to wit:

1. P 503,462.74 amount of the third billing, additional accomplished work and retention money

2. P 5,716,729.00 in actual damages

3. P 10,000,000.00 in moral damages

4. P 150,000.00 and P 1,500.00 per appearance as attorneys fees; and

5. Costs of suit.

SO ORDERED.

Following the RTCs denial of its motion for reconsideration on May 7, 2002,6 the UP filed a notice of appeal on June 3, 2002.7 Stern
Builders and dela Cruz opposed the notice of appeal on the ground of its filing being belated, and moved for the execution of the
decision. The UP countered that the notice of appeal was filed within the reglementary period because the UPs Office of Legal
Affairs (OLS) in Diliman, Quezon City received the order of denial only on May 31, 2002. On September 26, 2002, the RTC denied
due course to the notice of appeal for having been filed out of time and granted the private respondents motion for execution. 8

The RTC issued the writ of execution on October 4, 2002,9 and the sheriff of the RTC served the writ of execution and notice of
demand upon the UP, through its counsel, on October 9, 2002.10 The UP filed an urgent motion to reconsider the order dated
September 26, 2002, to quash the writ of execution dated October 4, 2002, and to restrain the proceedings. 11 However, the RTC
denied the urgent motion on April 1, 2003.12

On June 24, 2003, the UP assailed the denial of due course to its appeal through a petition for certiorari in the Court of Appeals
(CA), docketed as CA-G.R. No. 77395.13

On February 24, 2004, the CA dismissed the petition for certiorari upon finding that the UPs notice of appeal had been filed
late,14 stating:

Records clearly show that petitioners received a copy of the Decision dated November 28, 2001 and January 7, 2002, thus, they
had until January 22, 2002 within which to file their appeal. On January 16, 2002 or after the lapse of nine (9) days, petitioners
through their counsel Atty. Nolasco filed a Motion for Reconsideration of the aforesaid decision, hence, pursuant to the rules,
petitioners still had six (6) remaining days to file their appeal. As admitted by the petitioners in their petition (Rollo, p. 25), Atty.
Nolasco received a copy of the Order denying their motion for reconsideration on May 17, 2002, thus, petitioners still has until May
23, 2002 (the remaining six (6) days) within which to file their appeal. Obviously, petitioners were not able to file their Notice of
Appeal on May 23, 2002 as it was only filed on June 3, 2002.

In view of the said circumstances, We are of the belief and so holds that the Notice of Appeal filed by the petitioners was really filed
out of time, the same having been filed seventeen (17) days late of the reglementary period. By reason of which, the decision dated
November 28, 2001 had already become final and executory. "Settled is the rule that the perfection of an appeal in the manner and
within the period permitted by law is not only mandatory but jurisdictional, and failure to perfect that appeal renders the challenged
judgment final and executory. This is not an empty procedural rule but is grounded on fundamental considerations of public policy
and sound practice." (Rams Studio and Photographic Equipment, Inc. vs. Court of Appeals, 346 SCRA 691, 696). Indeed, Atty.
Nolasco received the order of denial of the Motion for Reconsideration on May 17, 2002 but filed a Notice of Appeal only on June 3,
3003. As such, the decision of the lower court ipso facto became final when no appeal was perfected after the lapse of the
reglementary period. This procedural caveat cannot be trifled with, not even by the High Court.15

The UP sought a reconsideration, but the CA denied the UPs motion for reconsideration on April 19, 2004. 16

On May 11, 2004, the UP appealed to the Court by petition for review on certiorari (G.R. No. 163501).
On June 23, 2004, the Court denied the petition for review.17 The UP moved for the reconsideration of the denial of its petition for
review on August 29, 2004,18 but the Court denied the motion on October 6, 2004.19 The denial became final and executory on
November 12, 2004.20

In the meanwhile that the UP was exhausting the available remedies to overturn the denial of due course to the appeal and the
issuance of the writ of execution, Stern Builders and dela Cruz filed in the RTC their motions for execution despite their previous
motion having already been granted and despite the writ of execution having already issued. On June 11, 2003, the RTC granted
another motion for execution filed on May 9, 2003 (although the RTC had already issued the writ of execution on October 4, 2002). 21

On June 23, 2003 and July 25, 2003, respectively, the sheriff served notices of garnishment on the UPs depository banks, namely:
Land Bank of the Philippines (Buendia Branch) and the Development Bank of the Philippines (DBP), Commonwealth Branch. 22 The
UP assailed the garnishment through an urgent motion to quash the notices of garnishment; 23 and a motion to quash the writ of
execution dated May 9, 2003.24

On their part, Stern Builders and dela Cruz filed their ex parte motion for issuance of a release order. 25

On October 14, 2003, the RTC denied the UPs urgent motion to quash, and granted Stern Builders and dela Cruzs ex parte motion
for issuance of a release order.26

The UP moved for the reconsideration of the order of October 14, 2003, but the RTC denied the motion on November 7, 2003. 27

On January 12, 2004, Stern Builders and dela Cruz again sought the release of the garnished funds.28 Despite the UPs
opposition,29 the RTC granted the motion to release the garnished funds on March 16, 2004.30 On April 20, 2004, however, the RTC
held in abeyance the enforcement of the writs of execution issued on October 4, 2002 and June 3, 2003 and all the ensuing notices
of garnishment, citing Section 4, Rule 52, Rules of Court, which provided that the pendency of a timely motion for reconsideration
stayed the execution of the judgment.31

On December 21, 2004, the RTC, through respondent Judge Agustin S. Dizon, authorized the release of the garnished funds of the
UP,32 to wit:

WHEREFORE, premises considered, there being no more legal impediment for the release of the garnished amount in satisfaction
of the judgment award in the instant case, let the amount garnished be immediately released by the Development Bank of the
Philippines, Commonwealth Branch, Quezon City in favor of the plaintiff.

SO ORDERED.

The UP was served on January 3, 2005 with the order of December 21, 2004 directing DBP to release the garnished funds. 33

On January 6, 2005, Stern Builders and dela Cruz moved to cite DBP in direct contempt of court for its non-compliance with the
order of release.34

Thereupon, on January 10, 2005, the UP brought a petition for certiorari in the CA to challenge the jurisdiction of the RTC in issuing
the order of December 21, 2004 (CA-G.R. CV No. 88125).35 Aside from raising the denial of due process, the UP averred that the
RTC committed grave abuse of discretion amounting to lack or excess of jurisdiction in ruling that there was no longer any legal
impediment to the release of the garnished funds. The UP argued that government funds and properties could not be seized by
virtue of writs of execution or garnishment, as held in Department of Agriculture v. National Labor Relations Commission, 36 and citing
Section 84 of Presidential Decree No. 1445 to the effect that "revenue funds shall not be paid out of any public treasury or
depository except in pursuance of an appropriation law or other specific statutory authority;" and that the order of garnishment
clashed with the ruling in University of the Philippines Board of Regents v. Ligot-Telan 37 to the effect that the funds belonging to the
UP were public funds.

On January 19, 2005, the CA issued a temporary restraining order (TRO) upon application by the UP. 38

On March 22, 2005, Stern Builders and dela Cruz filed in the RTC their amended motion for sheriffs assistance to implement the
release order dated December 21, 2004, stating that the 60-day period of the TRO of the CA had already lapsed. 39 The UP opposed
the amended motion and countered that the implementation of the release order be suspended.40

On May 3, 2005, the RTC granted the amended motion for sheriffs assistance and directed the sheriff to proceed to the DBP to
receive the check in satisfaction of the judgment.41

The UP sought the reconsideration of the order of May 3, 2005.42


On May 16, 2005, DBP filed a motion to consign the check representing the judgment award and to dismiss the motion to cite its
officials in contempt of court.43

On May 23, 2005, the UP presented a motion to withhold the release of the payment of the judgment award.44

On July 8, 2005, the RTC resolved all the pending matters,45 noting that the DBP had already delivered to the sheriff Managers
Check No. 811941 for P 16,370,191.74 representing the garnished funds payable to the order of Stern Builders and dela Cruz as its
compliance with the RTCs order dated December 21, 2004.46 However, the RTC directed in the same order that Stern Builders and
dela Cruz should not encash the check or withdraw its amount pending the final resolution of the UPs petition for certiorari, to wit: 47

To enable the money represented in the check in question (No. 00008119411) to earn interest during the pendency of the defendant
University of the Philippines application for a writ of injunction with the Court of Appeals the same may now be deposited by the
plaintiff at the garnishee Bank (Development Bank of the Philippines), the disposition of the amount represented therein being
subject to the final outcome of the case of the University of the Philippines et al., vs. Hon. Agustin S. Dizon et al., (CA G.R. 88125)
before the Court of Appeals.

Let it be stated herein that the plaintiff is not authorized to encash and withdraw the amount represented in the check in question
and enjoy the same in the fashion of an owner during the pendency of the case between the parties before the Court of Appeals
which may or may not be resolved in plaintiffs favor.

With the end in view of seeing to it that the check in question is deposited by the plaintiff at the Development Bank of the Philippines
(garnishee bank), Branch Sheriff Herlan Velasco is directed to accompany and/or escort the plaintiff in making the deposit of the
check in question.

SO ORDERED.

On September 16, 2005, the CA promulgated its assailed decision dismissing the UPs petition for certiorari, ruling that the UP had
been given ample opportunity to contest the motion to direct the DBP to deposit the check in the name of Stern Builders and dela
Cruz; and that the garnished funds could be the proper subject of garnishment because they had been already earmarked for the
project, with the UP holding the funds only in a fiduciary capacity, 48 viz:

Petitioners next argue that the UP funds may not be seized for execution or garnishment to satisfy the judgment award. Citing
Department of Agriculture vs. NLRC, University of the Philippines Board of Regents vs. Hon. Ligot-Telan, petitioners contend that
UP deposits at Land Bank and the Development Bank of the Philippines, being government funds, may not be released absent an
appropriations bill from Congress.

The argument is specious. UP entered into a contract with private respondents for the expansion and renovation of the Arts and
Sciences Building of its campus in Los Baos, Laguna. Decidedly, there was already an appropriations earmarked for the said
project. The said funds are retained by UP, in a fiduciary capacity, pending completion of the construction project.

We agree with the trial Court [sic] observation on this score:

"4. Executive Order No. 109 (Directing all National Government Agencies to Revert Certain Accounts Payable to
the Cumulative Result of Operations of the National Government and for Other Purposes) Section 9. Reversion
of Accounts Payable, provides that, all 1995 and prior years documented accounts payable and all
undocumented accounts regardless of the year they were incurred shall be reverted to the Cumulative Result of
Operations of the National Government (CROU). This shall apply to accounts payable of all funds, except
fiduciary funds, as long as the purpose for which the funds were created have not been accomplished and
accounts payable under foreign assisted projects for the duration of the said project. In this regard, the
Department of Budget and Management issued Joint-Circular No. 99-6 4.0 (4.3) Procedural Guidelines which
provides that all accounts payable that reverted to the CROU may be considered for payment upon
determination thru administrative process, of the existence, validity and legality of the claim. Thus, the allegation
of the defendants that considering no appropriation for the payment of any amount awarded to plaintiffs
appellee the funds of defendant-appellants may not be seized pursuant to a writ of execution issued by the
regular court is misplaced. Surely when the defendants and the plaintiff entered into the General Construction of
Agreement there is an amount already allocated by the latter for the said project which is no longer subject of
future appropriation."49

After the CA denied their motion for reconsideration on December 23, 2005, the petitioners appealed by petition for review.

Matters Arising During the Pendency of the Petition


On January 30, 2006, Judge Dizon of the RTC (Branch 80) denied Stern Builders and dela Cruzs motion to withdraw the deposit, in
consideration of the UPs intention to appeal to the CA,50 stating:

Since it appears that the defendants are intending to file a petition for review of the Court of Appeals resolution in CA-G.R. No.
88125 within the reglementary period of fifteen (15) days from receipt of resolution, the Court agrees with the defendants stand that
the granting of plaintiffs subject motion is premature.

Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of the amount
represented therein being subject to the final outcome of the case of the University of the Philippines, et. al., vs. Hon. Agustin S.
Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or resolution of said court has to be final and
executory, for if the same will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered
its own final judgment or resolution.51

However, on January 22, 2007, the UP filed an Urgent Application for A Temporary Restraining Order and/or A Writ of Preliminary
Injunction,52 averring that on January 3, 2007, Judge Maria Theresa dela Torre-Yadao (who had meanwhile replaced Judge Dizon
upon the latters appointment to the CA) had issued another order allowing Stern Builders and dela Cruz to withdraw the
deposit,53 to wit:

It bears stressing that defendants liability for the payment of the judgment obligation has become indubitable due to the final and
executory nature of the Decision dated November 28, 2001. Insofar as the payment of the [sic] judgment obligation is concerned,
the Court believes that there is nothing more the defendant can do to escape liability. It is observed that there is nothing more the
defendant can do to escape liability. It is observed that defendant U.P. System had already exhausted all its legal remedies to
overturn, set aside or modify the decision (dated November 28, 2001( rendered against it. The way the Court sees it, defendant U.P.
Systems petition before the Supreme Court concerns only with the manner by which said judgment award should be satisfied. It has
nothing to do with the legality or propriety thereof, although it prays for the deletion of [sic] reduction of the award of moral damages.

It must be emphasized that this Courts finding, i.e., that there was sufficient appropriation earmarked for the project, was upheld by
the Court of Appeals in its decision dated September 16, 2005. Being a finding of fact, the Supreme Court will, ordinarily, not disturb
the same was said Court is not a trier of fact. Such being the case, defendants arguments that there was no sufficient appropriation
for the payment of the judgment obligation must fail.

While it is true that the former Presiding Judge of this Court in its Order dated January 30, 2006 had stated that:

Let it be stated that what the Court meant by its Order dated July 8, 2005 which states in part that the "disposition of the amount
represented therein being subject to the final outcome of the case of the University of the Philippines, et. al., vs. Hon. Agustin S.
Dizon et al., (CA G.R. No. 88125 before the Court of Appeals) is that the judgment or resolution of said court has to be final and
executory, for if the same will still be elevated to the Supreme Court, it will not attain finality yet until the highest court has rendered
its own final judgment or resolution.

it should be noted that neither the Court of Appeals nor the Supreme Court issued a preliminary injunction enjoining the release or
withdrawal of the garnished amount. In fact, in its present petition for review before the Supreme Court, U.P. System has not prayed
for the issuance of a writ of preliminary injunction. Thus, the Court doubts whether such writ is forthcoming.

The Court honestly believes that if defendants petition assailing the Order of this Court dated December 31, 2004 granting the
motion for the release of the garnished amount was meritorious, the Court of Appeals would have issued a writ of injunction
enjoining the same. Instead, said appellate court not only refused to issue a wit of preliminary injunction prayed for by U.P. System
but denied the petition, as well.54

The UP contended that Judge Yadao thereby effectively reversed the January 30, 2006 order of Judge Dizon disallowing the
withdrawal of the garnished amount until after the decision in the case would have become final and executory.

Although the Court issued a TRO on January 24, 2007 to enjoin Judge Yadao and all persons acting pursuant to her authority from
enforcing her order of January 3, 2007,55 it appears that on January 16, 2007, or prior to the issuance of the TRO, she had already
directed the DBP to forthwith release the garnished amount to Stern Builders and dela Cruz; 56 and that DBP had forthwith complied
with the order on January 17, 2007 upon the sheriffs service of the order of Judge Yadao.57

These intervening developments impelled the UP to file in this Court a supplemental petition on January 26, 2007, 58 alleging that the
RTC (Judge Yadao) gravely erred in ordering the immediate release of the garnished amount despite the pendency of the petition
for review in this Court.

The UP filed a second supplemental petition59 after the RTC (Judge Yadao) denied the UPs motion for the redeposit of the
withdrawn amount on April 10, 2007,60 to wit:
This resolves defendant U.P. Systems Urgent Motion to Redeposit Judgment Award praying that plaintiffs be directed to redeposit
the judgment award to DBP pursuant to the Temporary Restraining Order issued by the Supreme Court. Plaintiffs opposed the
motion and countered that the Temporary Restraining Order issued by the Supreme Court has become moot and academic
considering that the act sought to be restrained by it has already been performed. They also alleged that the redeposit of the
judgment award was no longer feasible as they have already spent the same.

It bears stressing, if only to set the record straight, that this Court did not in its Order dated January 3, 2007 (the implementation of
which was restrained by the Supreme Court in its Resolution dated January 24, 2002) direct that that garnished amount "be
deposited with the garnishee bank (Development Bank of the Philippines)". In the first place, there was no need to order DBP to
make such deposit, as the garnished amount was already deposited in the account of plaintiffs with the DBP as early as May 13,
2005. What the Court granted in its Order dated January 3, 2007 was plaintiffs motion to allow the release of said deposit. It must
be recalled that the Court found plaintiffs motion meritorious and, at that time, there was no restraining order or preliminary
injunction from either the Court of Appeals or the Supreme Court which could have enjoined the release of plaintiffs deposit. The
Court also took into account the following factors:

a) the Decision in this case had long been final and executory after it was rendered on November 28, 2001;

b) the propriety of the dismissal of U.P. Systems appeal was upheld by the Supreme Court;

c) a writ of execution had been issued;

d) defendant U.P. Systems deposit with DBP was garnished pursuant to a lawful writ of execution issued by the
Court; and

e) the garnished amount had already been turned over to the plaintiffs and deposited in their account with DBP.

The garnished amount, as discussed in the Order dated January 16, 2007, was already owned by the plaintiffs, having been
delivered to them by the Deputy Sheriff of this Court pursuant to par. (c), Section 9, Rule 39 of the 1997 Rules of Civil Procedure.
Moreover, the judgment obligation has already been fully satisfied as per Report of the Deputy Sheriff.

Anent the Temporary Restraining Order issued by the Supreme Court, the same has become functus oficio, having been issued
after the garnished amount had been released to the plaintiffs. The judgment debt was released to the plaintiffs on January 17,
2007, while the Temporary Restraining Order issued by the Supreme Court was received by this Court on February 2, 2007. At the
time of the issuance of the Restraining Order, the act sought to be restrained had already been done, thereby rendering the said
Order ineffectual.

After a careful and thorough study of the arguments advanced by the parties, the Court is of the considered opinion that there is no
legal basis to grant defendant U.P. Systems motion to redeposit the judgment amount. Granting said motion is not only contrary to
law, but it will also render this Courts final executory judgment nugatory. Litigation must end and terminate sometime and
somewhere, and it is essential to an effective administration of justice that once a judgment has become final the issue or cause
involved therein should be laid to rest. This doctrine of finality of judgment is grounded on fundamental considerations of public
policy and sound practice. In fact, nothing is more settled in law than that once a judgment attains finality it thereby becomes
immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is
perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the
court rendering it or by the highest court of the land.

WHEREFORE, premises considered, finding defendant U.P. Systems Urgent Motion to Redeposit Judgment Award devoid of merit,
the same is hereby DENIED.

SO ORDERED.

Issues

The UP now submits that:

THE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISMISSING THE PETITION, ALLOWING IN EFFECT THE
GARNISHMENT OF UP FUNDS, WHEN IT RULED THAT FUNDS HAVE ALREADY BEEN EARMARKED FOR THE
CONSTRUCTION PROJECT; AND THUS, THERE IS NO NEED FOR FURTHER APPROPRIATIONS.

II
THE COURT OF APPEALS COMMITTED GRAVE ERROR IN ALLOWING GARNISHMENT OF A STATE UNIVERSITYS FUNDS
IN VIOLATION OF ARTICLE XIV, SECTION 5(5) OF THE CONSTITUTION.

III

IN THE ALTERNATIVE, THE UNIVERSITY INVOKES EQUITY AND THE REVIEW POWERS OF THIS HONORABLE COURT TO
MODIFY, IF NOT TOTALLY DELETE THE AWARD OF P 10 MILLION AS MORAL DAMAGES TO RESPONDENTS.

IV

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE JUDGMENT AWARD
IN ITS ORDER DATED 3 JANUARY 2007 ON THE GROUND OF EQUITY AND JUDICIAL COURTESY.

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN ORDERING THE IMMEDIATE RELEASE OF THE JUDGMENT AWARD
IN ITS ORDER DATED 16 JANUARY 2007 ON THE GROUND THAT PETITIONER UNIVERSITY STILL HAS A PENDING MOTION
FOR RECONSIDERATION OF THE ORDER DATED 3 JANUARY 2007.

VI

THE RTC-BRANCH 80 COMMITTED GRAVE ERROR IN NOT ORDERING THE REDEPOSIT OF THE GARNISHED AMOUNT TO
THE DBP IN VIOLATION OF THE CLEAR LANGUAGE OF THE SUPREME COURT RESOLUTION DATED 24 JANUARY 2007.

The UP argues that the amount earmarked for the construction project had been purposely set aside only for the aborted project
and did not include incidental matters like the awards of actual damages, moral damages and attorneys fees. In support of its
argument, the UP cited Article 12.2 of the General Construction Agreement, which stipulated that no deductions would be allowed
for the payment of claims, damages, losses and expenses, including attorneys fees, in case of any litigation arising out of the
performance of the work. The UP insists that the CA decision was inconsistent with the rulings in Commissioner of Public Highways
v. San Diego61 and Department of Agriculture v. NLRC62 to the effect that government funds and properties could not be seized
under writs of execution or garnishment to satisfy judgment awards.

Furthermore, the UP contends that the CA contravened Section 5, Article XIV of the Constitution by allowing the garnishment of UP
funds, because the garnishment resulted in a substantial reduction of the UPs limited budget allocated for the remuneration, job
satisfaction and fulfillment of the best available teachers; that Judge Yadao should have exhibited judicial courtesy towards the
Court due to the pendency of the UPs petition for review; and that she should have also desisted from declaring that the TRO
issued by this Court had become functus officio.

Lastly, the UP states that the awards of actual damages of P 5,716,729.00 and moral damages of P 10 million should be reduced, if
not entirely deleted, due to its being unconscionable, inequitable and detrimental to public service.

In contrast, Stern Builders and dela Cruz aver that the petition for review was fatally defective for its failure to mention the other
cases upon the same issues pending between the parties (i.e., CA-G.R. No. 77395 and G.R No. 163501); that the UP was evidently
resorting to forum shopping, and to delaying the satisfaction of the final judgment by the filing of its petition for review; that the ruling
in Commissioner of Public Works v. San Diego had no application because there was an appropriation for the project; that the UP
retained the funds allotted for the project only in a fiduciary capacity; that the contract price had been meanwhile adjusted
to P 22,338,553.25, an amount already more than sufficient to cover the judgment award; that the UPs prayer to reduce or delete
the award of damages had no factual basis, because they had been gravely wronged, had been deprived of their source of income,
and had suffered untold miseries, discomfort, humiliation and sleepless years; that dela Cruz had even been constrained to sell his
house, his equipment and the implements of his trade, and together with his family had been forced to live miserably because of the
wrongful actuations of the UP; and that the RTC correctly declared the Courts TRO to be already functus officio by reason of the
withdrawal of the garnished amount from the DBP.

The decisive issues to be considered and passed upon are, therefore:

(a) whether the funds of the UP were the proper subject of garnishment in order to satisfy the judgment award; and (b) whether the
UPs prayer for the deletion of the awards of actual damages of P 5,716,729.00, moral damages of P 10,000,000.00 and attorneys
fees of P 150,000.00 plus P 1,500.00 per appearance could be granted despite the finality of the judgment of the RTC.

Ruling

The petition for review is meritorious.


I.
UPs funds, being government funds,
are not subject to garnishment

The UP was founded on June 18, 1908 through Act 1870 to provide advanced instruction in literature, philosophy, the sciences, and
arts, and to give professional and technical training to deserving students. 63 Despite its establishment as a body corporate,64 the UP
remains to be a "chartered institution"65 performing a legitimate government function. It is an institution of higher learning, not a
corporation established for profit and declaring any dividends.66 In enacting Republic Act No. 9500 (The University of the Philippines
Charter of 2008), Congress has declared the UP as the national university 67 "dedicated to the search for truth and knowledge as well
as the development of future leaders."68

Irrefragably, the UP is a government instrumentality,69 performing the States constitutional mandate of promoting quality and
accessible education.70 As a government instrumentality, the UP administers special funds sourced from the fees and income
enumerated under Act No. 1870 and Section 1 of Executive Order No. 714,71 and from the yearly appropriations, to achieve the
purposes laid down by Section 2 of Act 1870, as expanded in Republic Act No. 9500.72 All the funds going into the possession of the
UP, including any interest accruing from the deposit of such funds in any banking institution, constitute a "special trust fund," the
disbursement of which should always be aligned with the UPs mission and purpose,73 and should always be subject to auditing by
the COA.74

Presidential Decree No. 1445 defines a "trust fund" as a fund that officially comes in the possession of an agency of the government
or of a public officer as trustee, agent or administrator, or that is received for the fulfillment of some obligation. 75 A trust fund may be
utilized only for the "specific purpose for which the trust was created or the funds received." 76

The funds of the UP are government funds that are public in character. They include the income accruing from the use of real
property ceded to the UP that may be spent only for the attainment of its institutional objectives.77Hence, the funds subject of this
action could not be validly made the subject of the RTCs writ of execution or garnishment. The adverse judgment rendered against
the UP in a suit to which it had impliedly consented was not immediately enforceable by execution against the UP, 78 because
suability of the State did not necessarily mean its liability. 79

A marked distinction exists between suability of the State and its liability. As the Court succinctly stated in Municipality of San
Fernando, La Union v. Firme:80

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.

Also, in Republic v. Villasor,81 where the issuance of an alias writ of execution directed against the funds of the Armed Forces of the
Philippines to satisfy a final and executory judgment was nullified, the Court said:

xxx 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 claimants 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.

The UP correctly submits here that the garnishment of its funds to satisfy the judgment awards of actual and moral damages
(including attorneys fees) was not validly made if there was no special appropriation by Congress to cover the liability. It was,
therefore, legally unwarranted for the CA to agree with the RTCs holding in the order issued on April 1, 2003 that no appropriation
by Congress to allocate and set aside the payment of the judgment awards was necessary because "there (were) already an
appropriations (sic) earmarked for the said project."82The CA and the RTC thereby unjustifiably ignored the legal restriction imposed
on the trust funds of the Government and its agencies and instrumentalities to be used exclusively to fulfill the purposes for which
the trusts were created or for which the funds were received except upon express authorization by Congress or by the head of a
government agency in control of the funds, and subject to pertinent budgetary laws, rules and regulations.83

Indeed, an appropriation by Congress was required before the judgment that rendered the UP liable for moral and actual damages
(including attorneys fees) would be satisfied considering that such monetary liabilities were not covered by the "appropriations
earmarked for the said project." The Constitution strictly mandated that "(n)o money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."84
II
COA must adjudicate private respondents claim
before execution should proceed

The execution of the monetary judgment against the UP was within the primary jurisdiction of the COA. This was expressly provided
in Section 26 of Presidential Decree No. 1445, to wit:

Section 26. General jurisdiction. - The authority and powers of the Commission shall extend to and comprehend all matters relating
to auditing procedures, systems and controls, the keeping of the general accounts of the Government, the preservation of vouchers
pertaining thereto for a period of ten years, the examination and inspection of the books, records, and papers relating to those
accounts; and the audit and settlement of the accounts of all persons respecting funds or property received or held by them in an
accountable capacity, as well as the examination, audit, and settlement of all debts and claims of any sort due from or owing to the
Government or any of its subdivisions, agencies and instrumentalities. The said jurisdiction extends to all government-owned or
controlled corporations, including their subsidiaries, and other self-governing boards, commissions, or agencies of the Government,
and as herein prescribed, including non governmental entities subsidized by the government, those funded by donations through the
government, those required to pay levies or government share, and those for which the government has put up a counterpart fund
or those partly funded by the government.

It was of no moment that a final and executory decision already validated the claim against the UP. The settlement of the monetary
claim was still subject to the primary jurisdiction of the COA despite the final decision of the RTC having already validated the
claim.85 As such, Stern Builders and dela Cruz as the claimants had no alternative except to first seek the approval of the COA of
their monetary claim.

On its part, the RTC should have exercised utmost caution, prudence and judiciousness in dealing with the motions for execution
against the UP and the garnishment of the UPs funds. The RTC had no authority to direct the immediate withdrawal of any portion
of the garnished funds from the depository banks of the UP. By eschewing utmost caution, prudence and judiciousness in dealing
with the execution and garnishment, and by authorizing the withdrawal of the garnished funds of the UP, the RTC acted beyond its
jurisdiction, and all its orders and issuances thereon were void and of no legal effect, specifically: (a) the order Judge Yadao issued
on January 3, 2007 allowing Stern Builders and dela Cruz to withdraw the deposited garnished amount; (b) the order Judge Yadao
issued on January 16, 2007 directing DBP to forthwith release the garnish amount to Stern Builders and dela Cruz; (c) the sheriffs
report of January 17, 2007 manifesting the full satisfaction of the writ of execution; and (d) the order of April 10, 2007 deying the
UPs motion for the redeposit of the withdrawn amount. Hence, such orders and issuances should be struck down without exception.

Nothing extenuated Judge Yadaos successive violations of Presidential Decree No. 1445. She was aware of Presidential Decree
No. 1445, considering that the Court circulated to all judges its Administrative Circular No. 10-2000, 86 issued on October 25, 2000,
enjoining them "to observe utmost caution, prudence and judiciousness in the issuance of writs of execution to satisfy money
judgments against government agencies and local government units" precisely in order to prevent the circumvention of Presidential
Decree No. 1445, as well as of the rules and procedures of the COA, to wit:

In order to prevent possible circumvention of the rules and procedures of the Commission on Audit, judges are hereby enjoined to
observe utmost caution, prudence and judiciousness in the issuance of writs of execution to satisfy money judgments against
government agencies and local government units.

Judges should bear in mind that in Commissioner of Public Highways v. San Diego (31 SCRA 617, 625 1970), this Court explicitly
stated:

"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
claimants action only up to the completion of proceedings anterior to the stage of execution and that the power of the Court 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.

Moreover, it is settled jurisprudence that upon determination of State liability, the prosecution, enforcement or satisfaction thereof
must still be pursued in accordance with the rules and procedures laid down in P.D. No. 1445, otherwise known as the Government
Auditing Code of the Philippines (Department of Agriculture v. NLRC, 227 SCRA 693, 701-02 1993 citing Republic vs. Villasor, 54
SCRA 84 1973). All money claims against the Government must first be filed with the Commission on Audit which must act upon it
within sixty days. Rejection of the claim will authorize the claimant to elevate the matter to the Supreme Court on certiorari and in
effect, sue the State thereby (P.D. 1445, Sections 49-50).

However, notwithstanding the rule that government properties are not subject to levy and execution unless otherwise provided for by
statute (Republic v. Palacio, 23 SCRA 899 1968; Commissioner of Public Highways v. San Diego, supra) or municipal ordinance
(Municipality of Makati v. Court of Appeals, 190 SCRA 206 1990), the Court has, in various instances, distinguished between
government funds and properties for public use and those not held for public use. Thus, in Viuda de Tan Toco v. Municipal Council of
Iloilo (49 Phil 52 1926, the Court ruled that "where property of a municipal or other public corporation is sought to be subjected to
execution to satisfy judgments recovered against such corporation, the question as to whether such property is leviable or not is to
be determined by the usage and purposes for which it is held." The following can be culled from Viuda de Tan Toco v. Municipal
Council of Iloilo:

1. Properties held for public uses and generally everything held for governmental purposes are not subject to levy and sale
under execution against such corporation. The same rule applies to funds in the hands of a public officer and taxes due to a
municipal corporation.

2. Where a municipal corporation owns in its proprietary capacity, as distinguished from its public or government capacity, property
not used or used for a public purpose but for quasi-private purposes, it is the general rule that such property may be seized and sold
under execution against the corporation.

3. Property held for public purposes is not subject to execution merely because it is temporarily used for private purposes. If the
public use is wholly abandoned, such property becomes subject to execution.

This Administrative Circular shall take effect immediately and the Court Administrator shall see to it that it is faithfully implemented.

Although Judge Yadao pointed out that neither the CA nor the Court had issued as of then any writ of preliminary injunction to enjoin
the release or withdrawal of the garnished amount, she did not need any writ of injunction from a superior court to compel her
obedience to the law. The Court is disturbed that an experienced judge like her should look at public laws like Presidential Decree
No. 1445 dismissively instead of loyally following and unquestioningly implementing them. That she did so turned her court into an
oppressive bastion of mindless tyranny instead of having it as a true haven for the seekers of justice like the UP.

III
Period of appeal did not start without effective
service of decision upon counsel of record;
Fresh-period rule announced in
Neypes v. Court of Appeals
can be given retroactive application

The UP next pleads that the Court gives due course to its petition for review in the name of equity in order to reverse or modify the
adverse judgment against it despite its finality. At stake in the UPs plea for equity was the return of the amount of P 16,370,191.74
illegally garnished from its trust funds. Obstructing the plea is the finality of the judgment based on the supposed tardiness of UPs
appeal, which the RTC declared on September 26, 2002. The CA upheld the declaration of finality on February 24, 2004, and the
Court itself denied the UPs petition for review on that issue on May 11, 2004 (G.R. No. 163501). The denial became final on
November 12, 2004.

It is true that a decision that has attained finality becomes immutable and unalterable, and cannot be modified in any respect, 87 even
if the modification is meant to correct erroneous conclusions of fact and law, and whether the modification is made by the court that
rendered it or by this Court as the highest court of the land.88 Public policy dictates that once a judgment becomes final, executory
and unappealable, the prevailing party should not be deprived of the fruits of victory by some subterfuge devised by the losing party.
Unjustified delay in the enforcement of such judgment sets at naught the role and purpose of the courts to resolve justiciable
controversies with finality.89 Indeed, all litigations must at some time end, even at the risk of occasional errors.

But the doctrine of immutability of a final judgment has not been absolute, and has admitted several exceptions, among them: (a)
the correction of clerical errors; (b) the so-called nunc pro tunc entries that cause no prejudice to any party; (c) void judgments; and
(d) whenever circumstances transpire after the finality of the decision that render its execution unjust and inequitable. 90 Moreover, in
Heirs of Maura So v. Obliosca,91 we stated that despite the absence of the preceding circumstances, the Court is not precluded from
brushing aside procedural norms if only to serve the higher interests of justice and equity. Also, in Gumaru v. Quirino State
College,92 the Court nullified the proceedings and the writ of execution issued by the RTC for the reason that respondent state
college had not been represented in the litigation by the Office of the Solicitor General.

We rule that the UPs plea for equity warrants the Courts exercise of the exceptional power to disregard the declaration of finality of
the judgment of the RTC for being in clear violation of the UPs right to due process.

Both the CA and the RTC found the filing on June 3, 2002 by the UP of the notice of appeal to be tardy. They based their finding on
the fact that only six days remained of the UPs reglementary 15-day period within which to file the notice of appeal because the UP
had filed a motion for reconsideration on January 16, 2002 vis--vis the RTCs decision the UP received on January 7, 2002; and
that because the denial of the motion for reconsideration had been served upon Atty. Felimon D. Nolasco of the UPLB Legal Office
on May 17, 2002, the UP had only until May 23, 2002 within which to file the notice of appeal.

The UP counters that the service of the denial of the motion for reconsideration upon Atty. Nolasco was defective considering that its
counsel of record was not Atty. Nolasco of the UPLB Legal Office but the OLS in Diliman, Quezon City; and that the period of appeal
should be reckoned from May 31, 2002, the date when the OLS received the order. The UP submits that the filing of the notice of
appeal on June 3, 2002 was well within the reglementary period to appeal.

We agree with the submission of the UP.

Firstly, the service of the denial of the motion for reconsideration upon Atty. Nolasco of the UPLB Legal Office was invalid and
ineffectual because he was admittedly not the counsel of record of the UP. The rule is that it is on the counsel and not the client that
the service should be made.93

That counsel was the OLS in Diliman, Quezon City, which was served with the denial only on May 31, 2002. As such, the running of
the remaining period of six days resumed only on June 1, 2002,94 rendering the filing of the UPs notice of appeal on June 3, 2002
timely and well within the remaining days of the UPs period to appeal.

Verily, the service of the denial of the motion for reconsideration could only be validly made upon the OLS in Diliman, and no other.
The fact that Atty. Nolasco was in the employ of the UP at the UPLB Legal Office did not render the service upon him effective. It is
settled that where a party has appeared by counsel, service must be made upon such counsel.95 Service on the party or the partys
employee is not effective because such notice is not notice in law.96 This is clear enough from Section 2, second paragraph, of Rule
13, Rules of Court, which explicitly states that: "If any party has appeared by counsel, service upon him shall be made upon his
counsel or one of them, unless service upon the party himself is ordered by the court. Where one counsel appears for several
parties, he shall only be entitled to one copy of any paper served upon him by the opposite side." As such, the period to appeal
resumed only on June 1, 2002, the date following the service on May 31, 2002 upon the OLS in Diliman of the copy of the decision
of the RTC, not from the date when the UP was notified.97

Accordingly, the declaration of finality of the judgment of the RTC, being devoid of factual and legal bases, is set aside.

Secondly, even assuming that the service upon Atty. Nolasco was valid and effective, such that the remaining period for the UP to
take a timely appeal would end by May 23, 2002, it would still not be correct to find that the judgment of the RTC became final and
immutable thereafter due to the notice of appeal being filed too late on June 3, 2002.

In so declaring the judgment of the RTC as final against the UP, the CA and the RTC applied the rule contained in the second
paragraph of Section 3, Rule 41 of the Rules of Court to the effect that the filing of a motion for reconsideration interrupted the
running of the period for filing the appeal; and that the period resumed upon notice of the denial of the motion for reconsideration.
For that reason, the CA and the RTC might not be taken to task for strictly adhering to the rule then prevailing.

However, equity calls for the retroactive application in the UPs favor of the fresh-period rule that the Court first announced in mid-
September of 2005 through its ruling in Neypes v. Court of Appeals,98 viz:

To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court
deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from
receipt of the order dismissing a motion for a new trial or motion for reconsideration.

The retroactive application of the fresh-period rule, a procedural law that aims "to regiment or make the appeal period uniform, to be
counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final
order or resolution,"99 is impervious to any serious challenge. This is because there are no vested rights in rules of procedure.100 A
law or regulation is procedural when it prescribes rules and forms of procedure in order that courts may be able to administer
justice.101 It does not come within the legal conception of a retroactive law, or is not subject of the general rule prohibiting the
retroactive operation of statues, but is given retroactive effect in actions pending and undetermined at the time of its passage
without violating any right of a person who may feel that he is adversely affected.

We have further said that a procedural rule that is amended for the benefit of litigants in furtherance of the administration of justice
shall be retroactively applied to likewise favor actions then pending, as equity delights in equality. 102 We may even relax stringent
procedural rules in order to serve substantial justice and in the exercise of this Courts equity jurisdiction. 103 Equity jurisdiction aims
to do complete justice in cases where a court of law is unable to adapt its judgments to the special circumstances of a case because
of the inflexibility of its statutory or legal jurisdiction.104

It is cogent to add in this regard that to deny the benefit of the fresh-period rule to the UP would amount to injustice and absurdity
injustice, because the judgment in question was issued on November 28, 2001 as compared to the judgment in Neypes that was
rendered in 1998; absurdity, because parties receiving notices of judgment and final orders issued in the year 1998 would enjoy the
benefit of the fresh-period rule but the later rulings of the lower courts like that herein would not. 105

Consequently, even if the reckoning started from May 17, 2002, when Atty. Nolasco received the denial, the UPs filing on June 3,
2002 of the notice of appeal was not tardy within the context of the fresh-period rule. For the UP, the fresh period of 15-days counted
from service of the denial of the motion for reconsideration would end on June 1, 2002, which was a Saturday. Hence, the UP had
until the next working day, or June 3, 2002, a Monday, within which to appeal, conformably with Section 1 of Rule 22, Rules of
Court, which holds that: "If the last day of the period, as thus computed, falls on a Saturday, a Sunday, or a legal holiday in the place
where the court sits, the time shall not run until the next working day."

IV
Awards of monetary damages,
being devoid of factual and legal bases,
did not attain finality and should be deleted

Section 14 of Article VIII of the Constitution prescribes that express findings of fact and of law should be made in the decision
rendered by any court, to wit:

Section 14. No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on
which it is based.

No petition for review or motion for reconsideration of a decision of the court shall be refused due course or denied without stating
the legal basis therefor.

Implementing the constitutional provision in civil actions is Section 1 of Rule 36, Rules of Court, viz:

Section 1. Rendition of judgments and final orders. A judgment or final order determining the merits of the case shall be in writing
personally and directly prepared by the judge, stating clearly and distinctly the facts and the law on which it is based, signed by him,
and filed with the clerk of the court. (1a)

The Constitution and the Rules of Court apparently delineate two main essential parts of a judgment, namely: the body and the
decretal portion. Although the latter is the controlling part,106 the importance of the former is not to be lightly regarded because it is
there where the court clearly and distinctly states its findings of fact and of law on which the decision is based. To state it differently,
one without the other is ineffectual and useless. The omission of either inevitably results in a judgment that violates the letter and
the spirit of the Constitution and the Rules of Court.

The term findings of fact that must be found in the body of the decision refers to statements of fact, not to conclusions of
law.107 Unlike in pleadings where ultimate facts alone need to be stated, the Constitution and the Rules of Court require not only that
a decision should state the ultimate facts but also that it should specify the supporting evidentiary facts, for they are what are called
the findings of fact.

The importance of the findings of fact and of law cannot be overstated. The reason and purpose of the Constitution and the Rules of
Court in that regard are obviously to inform the parties why they win or lose, and what their rights and obligations are. Only thereby
is the demand of due process met as to the parties. As Justice Isagani A. Cruz explained in Nicos Industrial Corporation v. Court of
Appeals:108

It is a requirement of due process that the parties to a litigation be informed of how it was decided, with an explanation of the factual
and legal reasons that led to the conclusions of the court. The court cannot simply say that judgment is rendered in favor of X and
against Y and just leave it at that without any justification whatsoever for its action. The losing party is entitled to know why he lost,
so he may appeal to a higher court, if permitted, should he believe that the decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on which it is based leaves the parties in the dark as to how it was reached and is
especially prejudicial to the losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal.

Here, the decision of the RTC justified the grant of actual and moral damages, and attorneys fees in the following terse manner, viz:

xxx The Court is not unmindful that due to defendants unjustified refusal to pay their outstanding obligation to plaintiff, the same
suffered losses and incurred expenses as he was forced to re-mortgage his house and lot located in Quezon City to Metrobank
(Exh. "CC") and BPI Bank just to pay its monetary obligations in the form of interest and penalties incurred in the course of the
construction of the subject project.109

The statement that "due to defendants unjustified refusal to pay their outstanding obligation to plaintiff, the same suffered losses
and incurred expenses as he was forced to re-mortgage his house and lot located in Quezon City to Metrobank (Exh. "CC") and BPI
Bank just to pay its monetary obligations in the form of interest and penalties incurred in the course of the construction of the subject
project" was only a conclusion of fact and law that did not comply with the constitutional and statutory prescription. The statement
specified no detailed expenses or losses constituting the P 5,716,729.00 actual damages sustained by Stern Builders in relation to
the construction project or to other pecuniary hardships. The omission of such expenses or losses directly indicated that Stern
Builders did not prove them at all, which then contravened Article 2199, Civil Code, the statutory basis for the award of actual
damages, which entitled a person to an adequate compensation only for such pecuniary loss suffered by him as he has duly proved.
As such, the actual damages allowed by the RTC, being bereft of factual support, were speculative and whimsical. Without the clear
and distinct findings of fact and law, the award amounted only to an ipse dixit on the part of the RTC,110 and did not attain finality.

There was also no clear and distinct statement of the factual and legal support for the award of moral damages in the substantial
amount of P 10,000,000.00. The award was thus also speculative and whimsical. Like the actual damages, the moral damages
constituted another judicial ipse dixit, the inevitable consequence of which was to render the award of moral damages incapable of
attaining finality. In addition, the grant of moral damages in that manner contravened the law that permitted the recovery of moral
damages as the means to assuage "physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded
feelings, moral shock, social humiliation, and similar injury." 111 The contravention of the law was manifest considering that Stern
Builders, as an artificial person, was incapable of experiencing pain and moral sufferings.112 Assuming that in granting the
substantial amount of P 10,000,000.00 as moral damages, the RTC might have had in mind that dela Cruz had himself suffered
mental anguish and anxiety. If that was the case, then the RTC obviously disregarded his separate and distinct personality from that
of Stern Builders.113 Moreover, his moral and emotional sufferings as the President of Stern Builders were not the sufferings of Stern
Builders. Lastly, the RTC violated the basic principle that moral damages were not intended to enrich the plaintiff at the expense of
the defendant, but to restore the plaintiff to his status quo ante as much as possible. Taken together, therefore, all these
considerations exposed the substantial amount of P 10,000,000.00 allowed as moral damages not only to be factually baseless and
legally indefensible, but also to be unconscionable, inequitable and unreasonable.

Like the actual and moral damages, the P 150,000.00, plus P 1,500.00 per appearance, granted as attorneys fees were factually
unwarranted and devoid of legal basis. The general rule is that a successful litigant cannot recover attorneys fees as part of the
damages to be assessed against the losing party because of the policy that no premium should be placed on the right to
litigate.114 Prior to the effectivity of the present Civil Code, indeed, such fees could be recovered only when there was a stipulation to
that effect. It was only under the present Civil Code that the right to collect attorneys fees in the cases mentioned in Article
2208115 of the Civil Code came to be recognized.116 Nonetheless, with attorneys fees being allowed in the concept of actual
damages,117 their amounts must be factually and legally justified in the body of the decision and not stated for the first time in the
decretal portion.118 Stating the amounts only in the dispositive portion of the judgment is not enough;119 a rendition of the factual and
legal justifications for them must also be laid out in the body of the decision. 120

That the attorneys fees granted to the private respondents did not satisfy the foregoing requirement suffices for the Court to undo
them.121 The grant was ineffectual for being contrary to law and public policy, it being clear that the express findings of fact and law
were intended to bring the case within the exception and thereby justify the award of the attorneys fees. Devoid of such express
findings, the award was a conclusion without a premise, its basis being improperly left to speculation and conjecture. 122

Nonetheless, the absence of findings of fact and of any statement of the law and jurisprudence on which the awards of actual and
moral damages, as well as of attorneys fees, were based was a fatal flaw that invalidated the decision of the RTC only as to such
awards. As the Court declared in Velarde v. Social Justice Society, 123 the failure to comply with the constitutional requirement for a
clear and distinct statement of the supporting facts and law "is a grave abuse of discretion amounting to lack or excess of
jurisdiction" and that "(d)ecisions or orders issued in careless disregard of the constitutional mandate are a patent nullity and must
be struck down as void."124 The other item granted by the RTC (i.e., P 503,462.74) shall stand, subject to the action of the COA as
stated herein.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES and SETS ASIDE the decision of the Court of
Appeals under review; ANNULS the orders for the garnishment of the funds of the University of the Philippines and for the release of
the garnished amount to Stern Builders Corporation and Servillano dela Cruz; and DELETES from the decision of the Regional Trial
Court dated November 28, 2001 for being void only the awards of actual damages of P 5,716,729.00, moral damages
of P 10,000,000.00, and attorney's fees of P 150,000.00, plus P 1,500.00 per appearance, in favor of Stern Builders Corporation
and Servillano dela Cruz.

The Court ORDERS Stem Builders Corporation and Servillano dela Cruz to redeposit the amount of P 16,370,191.74 within 10 days
from receipt of this decision.

Costs of suit to be paid by the private respondents.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:
G.R. No. 206510 September 16, 2014

MOST REV. PEDRO D. ARIGO, Vicar Apostolic of Puerto Princesa D.D.; MOST REV. DEOGRACIAS S. INIGUEZ, JR., Bishop-
Emeritus of Caloocan, FRANCES Q. QUIMPO, CLEMENTE G. BAUTISTA, JR., Kalikasan-PNE, MARIA CAROLINA P. ARAULLO,
RENATO M. REYES, JR., Bagong Alyansang Makabayan, HON. NERI JAVIER COLMENARES, Bayan Muna Partylist, ROLAND G.
SIMBULAN, PH.D., Junk VF A Movement, TERESITA R. PEREZ, PH.D., HON. RAYMOND V. PALATINO, Kabataan Party-list,
PETER SJ. GONZALES, Pamalakaya, GIOVANNI A. TAPANG, PH. D., Agham, ELMER C. LABOG, Kilusang Mayo Uno, JOAN
MAY E. SALVADOR, Gabriela, JOSE ENRIQUE A. AFRICA, THERESA A. CONCEPCION, MARY JOAN A. GUAN, NESTOR T.
BAGUINON, PH.D., A. EDSEL F. TUPAZ, Petitioners,
vs.
SCOTT H. SWIFT in his capacity as Commander of the US. 7th Fleet, MARK A. RICE in his capacity as Commanding Officer of the
USS Guardian, PRESIDENT BENIGNO S. AQUINO III in his capacity as Commander-in-Chief of the Armed Forces of the
Philippines, HON. ALBERT F. DEL ROSARIO, Secretary, pepartment of Foreign Affair.s, HON. PAQUITO OCHOA, JR.,
Executiv~.:Secretary, Office of the President, . HON. VOLTAIRE T. GAZMIN, Secretary, Department of National Defense, HON.
RAMON JESUS P. P AJE, Secretary, Department of Environment and Natural Resoz!rces, VICE ADMIRAL JOSE LUIS M. ALANO,
Philippine Navy Flag Officer in Command, Armed Forces of the Philippines, ADMIRAL RODOLFO D. ISO RENA, Commandant,
Philippine Coast Guard, COMMODORE ENRICO EFREN EVANGELISTA, Philippine Coast Guard Palawan, MAJOR GEN.
VIRGILIO 0. DOMINGO, Commandant of Armed Forces of the Philippines Command and LT. GEN. TERRY G. ROBLING, US
Marine Corps Forces. Pacific and Balikatan 2013 Exercise Co-Director, Respondents.

DECISION

VILLARAMA, JR, J.:

Before us is a petition for the issuance of a Writ of Kalikasan with prayer for the issuance of a Temporary Environmental Protection
Order (TEPO) under Rule 7 of A.M. No. 09-6-8-SC, otherwise known as the Rules of Procedure for Environmental Cases (Rules),
involving violations of environmental laws and regulations in relation to the grounding of the US military ship USS Guardian over the
Tubbataha Reefs.

Factual Background

The name "Tubbataha" came from the Samal (seafaring people of southern Philippines) language which means "long reef exposed
at low tide." Tubbataha is composed of two huge coral atolls - the north atoll and the south atoll - and the Jessie Beazley Reef, a
smaller coral structure about 20 kilometers north of the atolls. The reefs of Tubbataha and Jessie Beazley are considered part of
Cagayancillo, a remote island municipality of Palawan.1

In 1988, Tubbataha was declared a National Marine Park by virtue of Proclamation No. 306 issued by President Corazon C. Aquino
on August 11, 1988. Located in the middle of Central Sulu Sea, 150 kilometers southeast of Puerto Princesa City, Tubbataha lies at
the heart of the Coral Triangle, the global center of marine biodiversity.

In 1993, Tubbataha was inscribed by the United Nations Educational Scientific and Cultural Organization (UNESCO) as a World
Heritage Site. It was recognized as one of the Philippines' oldest ecosystems, containing excellent examples of pristine reefs and a
high diversity of marine life. The 97,030-hectare protected marine park is also an important habitat for internationally threatened and
endangered marine species. UNESCO cited Tubbataha's outstanding universal value as an important and significant natural habitat
for in situ conservation of biological diversity; an example representing significant on-going ecological and biological processes; and
an area of exceptional natural beauty and aesthetic importance.2

On April 6, 2010, Congress passed Republic Act (R.A.) No. 10067,3 otherwise known as the "Tubbataha Reefs Natural Park (TRNP)
Act of 2009" "to ensure the protection and conservation of the globally significant economic, biological, sociocultural, educational
and scientific values of the Tubbataha Reefs into perpetuity for the enjoyment of present and future generations." Under the "no-
take" policy, entry into the waters of TRNP is strictly regulated and many human activities are prohibited and penalized or fined,
including fishing, gathering, destroying and disturbing the resources within the TRNP. The law likewise created the Tubbataha
Protected Area Management Board (TPAMB) which shall be the sole policy-making and permit-granting body of the TRNP.

The USS Guardian is an Avenger-class mine countermeasures ship of the US Navy. In December 2012, the US Embassy in the
Philippines requested diplomatic clearance for the said vessel "to enter and exit the territorial waters of the Philippines and to arrive
at the port of Subic Bay for the purpose of routine ship replenishment, maintenance, and crew liberty." 4 On January 6, 2013, the ship
left Sasebo, Japan for Subic Bay, arriving on January 13, 2013 after a brief stop for fuel in Okinawa, Japan.1wphi1

On January 15, 2013, the USS Guardian departed Subic Bay for its next port of call in Makassar, Indonesia. On January 17, 2013 at
2:20 a.m. while transiting the Sulu Sea, the ship ran aground on the northwest side of South Shoal of the Tubbataha Reefs, about
80 miles east-southeast of Palawan. No cine was injured in the incident, and there have been no reports of leaking fuel or oil.
On January 20, 2013, U.S. 7th Fleet Commander, Vice Admiral Scott Swift, expressed regret for the incident in a press
statement.5 Likewise, US Ambassador to the Philippines Harry K. Thomas, Jr., in a meeting at the Department of Foreign Affairs
(DFA) on February 4, "reiterated his regrets over the grounding incident and assured Foreign Affairs Secretazy Albert F. del Rosario
that the United States will provide appropriate compensation for damage to the reef caused by the ship."6 By March 30, 2013, the
US Navy-led salvage team had finished removing the last piece of the grounded ship from the coral reef.

On April 1 7, 2013, the above-named petitioners on their behalf and in representation of their respective sector/organization and
others, including minors or generations yet unborn, filed the present petition agairtst Scott H. Swift in his capacity as Commander of
the US 7th Fleet, Mark A. Rice in his capacity as Commanding Officer of the USS Guardian and Lt. Gen. Terry G. Robling, US
Marine Corps Forces, Pacific and Balikatan 2013 Exercises Co-Director ("US respondents"); President Benigno S. Aquino III in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines (AFP), DF A Secretary Albert F. Del Rosario, Executive
Secretary Paquito Ochoa, Jr., Secretary Voltaire T. Gazmin (Department of National Defense), Secretary Jesus P. Paje (Department
of Environment and Natural Resources), Vice-Admiral Jose Luis M. Alano (Philippine Navy Flag Officer in Command, AFP), Admiral
Rodolfo D. Isorena (Philippine Coast Guard Commandant), Commodore Enrico Efren Evangelista (Philippine Coast Guard-
Palawan), and Major General Virgilio 0. Domingo (AFP Commandant), collectively the "Philippine respondents."

The Petition

Petitioners claim that the grounding, salvaging and post-salvaging operations of the USS Guardian cause and continue to cause
environmental damage of such magnitude as to affect the provinces of Palawan, Antique, Aklan, Guimaras, Iloilo, Negros
Occidental, Negros Oriental, Zamboanga del Norte, Basilan, Sulu, and Tawi-Tawi, which events violate their constitutional rights to a
balanced and healthful ecology. They also seek a directive from this Court for the institution of civil, administrative and criminal suits
for acts committed in violation of environmental laws and regulations in connection with the grounding incident.

Specifically, petitioners cite the following violations committed by US respondents under R.A. No. 10067: unauthorized entry
(Section 19); non-payment of conservation fees (Section 21 ); obstruction of law enforcement officer (Section 30); damages to the
reef (Section 20); and destroying and disturbing resources (Section 26[g]). Furthermore, petitioners assail certain provisions of the
Visiting Forces Agreement (VFA) which they want this Court to nullify for being unconstitutional.

The numerous reliefs sought in this case are set forth in the final prayer of the petition, to wit: WHEREFORE, in view of the
foregoing, Petitioners respectfully pray that the Honorable Court: 1. Immediately issue upon the filing of this petition a Temporary
Environmental Protection Order (TEPO) and/or a Writ of Kalikasan, which shall, in particular,

a. Order Respondents and any person acting on their behalf, to cease and desist all operations over the Guardian
grounding incident;

b. Initially demarcating the metes and bounds of the damaged area as well as an additional buffer zone;

c. Order Respondents to stop all port calls and war games under 'Balikatan' because of the absence of clear guidelines,
duties, and liability schemes for breaches of those duties, and require Respondents to assume responsibility for prior and
future environmental damage in general, and environmental damage under the Visiting Forces Agreement in particular.

d. Temporarily define and describe allowable activities of ecotourism, diving, recreation, and limited commercial activities
by fisherfolk and indigenous communities near or around the TRNP but away from the damaged site and an additional
buffer zone;

2. After summary hearing, issue a Resolution extending the TEPO until further orders of the Court;

3. After due proceedings, render a Decision which shall include, without limitation:

a. Order Respondents Secretary of Foreign Affairs, following the dispositive portion of Nicolas v. Romulo, "to forthwith
negotiate with the United States representatives for the appropriate agreement on [environmental guidelines and
environmental accountability] under Philippine authorities as provided in Art. V[] of the VFA ... "

b. Direct Respondents and appropriate agencies to commence administrative, civil, and criminal proceedings against
erring officers and individuals to the full extent of the law, and to make such proceedings public;

c. Declare that Philippine authorities may exercise primary and exclusive criminal jurisdiction over erring U.S. personnel
under the circumstances of this case;
d. Require Respondents to pay just and reasonable compensation in the settlement of all meritorious claims for damages
caused to the Tubbataha Reef on terms and conditions no less severe than those applicable to other States, and
damages for personal injury or death, if such had been the case;

e. Direct Respondents to cooperate in providing for the attendance of witnesses and in the collection and production of
evidence, including seizure and delivery of objects connected with the offenses related to the grounding of the Guardian;

f. Require the authorities of the Philippines and the United States to notify each other of the disposition of all cases,
wherever heard, related to the grounding of the Guardian;

g. Restrain Respondents from proceeding with any purported restoration, repair, salvage or post salvage plan or plans,
including cleanup plans covering the damaged area of the Tubbataha Reef absent a just settlement approved by the
Honorable Court;

h. Require Respondents to engage in stakeholder and LOU consultations in accordance with the Local Government Code
and R.A. 10067;

i. Require Respondent US officials and their representatives to place a deposit to the TRNP Trust Fund defined under
Section 17 of RA 10067 as a bona .fide gesture towards full reparations;

j. Direct Respondents to undertake measures to rehabilitate the areas affected by the grounding of the Guardian in light of
Respondents' experience in the Port Royale grounding in 2009, among other similar grounding incidents;

k. Require Respondents to regularly publish on a quarterly basis and in the name of transparency and accountability such
environmental damage assessment, valuation, and valuation methods, in all stages of negotiation;

l. Convene a multisectoral technical working group to provide scientific and technical support to the TPAMB;

m. Order the Department of Foreign Affairs, Department of National Defense, and the Department of Environment and
Natural Resources to review the Visiting Forces Agreement and the Mutual Defense Treaty to consider whether their
provisions allow for the exercise of erga omnes rights to a balanced and healthful ecology and for damages which follow
from any violation of those rights;

n. Narrowly tailor the provisions of the Visiting Forces Agreement for purposes of protecting the damaged areas of TRNP;

o. Declare the grant of immunity found in Article V ("Criminal Jurisdiction") and Article VI of the Visiting Forces Agreement
unconstitutional for violating equal protection and/or for violating the preemptory norm of nondiscrimination incorporated
as part of the law of the land under Section 2, Article II, of the Philippine Constitution;

p. Allow for continuing discovery measures;

q. Supervise marine wildlife rehabilitation in the Tubbataha Reefs in all other respects; and

4. Provide just and equitable environmental rehabilitation measures and such other reliefs as are just and equitable under
the premises.7 (Underscoring supplied.)

Since only the Philippine respondents filed their comment8 to the petition, petitioners also filed a motion for early resolution and
motion to proceed ex parte against the US respondents.9

Respondents' Consolidated Comment

In their consolidated comment with opposition to the application for a TEPO and ocular inspection and production orders,
respondents assert that: ( 1) the grounds relied upon for the issuance of a TEPO or writ of Kalikasan have become fait accompli as
the salvage operations on the USS Guardian were already completed; (2) the petition is defective in form and substance; (3) the
petition improperly raises issues involving the VFA between the Republic of the Philippines and the United States of America; and
( 4) the determination of the extent of responsibility of the US Government as regards the damage to the Tubbataha Reefs rests
exdusively with the executive branch.

The Court's Ruling


As a preliminary matter, there is no dispute on the legal standing of petitioners to file the present petition.

Locus standi is "a right of appearance in a court of justice on a given question."10 Specifically, it is "a party's personal and substantial
interest in a case where he has sustained or will sustain direct injury as a result" of the act being challenged, and "calls for more
than just a generalized grievance."11 However, the rule on standing is a procedural matter which this Court has relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers and legislators when the public interest so requires, such as when the subject
matter of the controversy is of transcendental importance, of overreaching significance to society, or of paramount public interest. 12

In the landmark case of Oposa v. Factoran, Jr.,13 we recognized the "public right" of citizens to "a balanced and healthful ecology
which, for the first time in our constitutional history, is solemnly incorporated in the fundamental law." We declared that the right to a
balanced and healthful ecology need not be written in the Constitution for it is assumed, like other civil and polittcal rights
guaranteed in the Bill of Rights, to exist from the inception of mankind and it is an issue of transcendental importance with
intergenerational implications.1wphi1 Such right carries with it the correlative duty to refrain from impairing the environment. 14

On the novel element in the class suit filed by the petitioners minors in Oposa, this Court ruled that not only do ordinary citizens
have legal standing to sue for the enforcement of environmental rights, they can do so in representation of their own and future
generations. Thus:

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. 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 a:: well as future generations. Needless to say, every generation has a responsibility to the next to preserve that rhythm and
harmony for the full 1:njoyment 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.15 (Emphasis supplied.)

The liberalization of standing first enunciated in Oposa, insofar as it refers to minors and generations yet unborn, is now enshrined
in the Rules which allows the filing of a citizen suit in environmental cases. The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that humans are stewards of nature." 16

Having settled the issue of locus standi, we shall address the more fundamental question of whether this Court has jurisdiction over
the US respondents who did not submit any pleading or manifestation in this case.

The immunity of the State from suit, known also as the doctrine of sovereign immunity or non-suability of the State, 17 is expressly
provided in Article XVI of the 1987 Constitution which states:

Section 3. The State may not be sued without its consent.

In United States of America v. Judge Guinto,18 we discussed the principle of 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. x x x.

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." [De 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 comp.taint on the
ground that it has been filed without its consent.19 (Emphasis supplied.)

Under the American Constitution, the doctrine is expressed in the Eleventh Amendment which reads:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

In the case of Minucher v. Court of Appeals,20 we further expounded on the immunity of foreign states from the jurisdiction of local
courts, as follows:

The precept that a State cannot be sued in the courts of a foreign state is a long-standing rule of customary international law then
closely identified with the personal immunity of a foreign sovereign from suit and, with the emergence of democratic states, made to
attach not just to the person of the head of state, or his representative, but also distinctly to the state itself in its sovereign capacity. If
the acts giving rise to a suit arc those of a foreign government done by its foreign agent, although not necessarily a diplomatic
personage, but acting in his official capacity, the complaint could be barred by the immunity of the foreign sovereign from suit
without its consent. Suing a representative of a state is believed to be, in effect, suing the state itself. The proscription is not
accorded for the benefit of an individual but for the State, in whose service he is, under the maxim -par in parem, non habet
imperium -that all states are soverr~ign equals and cannot assert jurisdiction over one another. The implication, in broad terms, is
that if the judgment against an official would rec 1uire the state itself to perform an affirmative act to satisfy the award, such as the
appropriation of the amount needed to pay the damages decreed against him, the suit must be regarded as being against the state
itself, although it has not been formally impleaded.21(Emphasis supplied.)

In the same case we also mentioned that in the case of diplomatic immunity, the privilege is not an immunity from the observance of
the law of the territorial sovereign or from ensuing legal liability; it is, rather, an immunity from the exercise of territorial jurisdiction. 22

In United States of America v. Judge Guinto,23 one of the consolidated cases therein involved a Filipino employed at Clark Air Base
who was arrested following a buy-bust operation conducted by two officers of the US Air Force, and was eventually dismissed from
his employment when he was charged in court for violation of R.A. No. 6425. In a complaint for damages filed by the said employee
against the military officers, the latter moved to dismiss the case on the ground that the suit was against the US Government which
had not given its consent. The RTC denied the motion but on a petition for certiorari and prohibition filed before this Court, we
reversed the RTC and dismissed the complaint. We held that petitioners US military officers were acting in the exercise of their
official functions when they conducted the buy-bust operation against the complainant and thereafter testified against him at his trial.
It follows that for discharging their duties as agents of the United States, they cannot be directly impleaded for acts imputable to their
principal, which has not given its consent to be sued.

This traditional rule of State immunity which exempts a State from being sued in the courts of another State without the former's
consent or waiver has evolved into a restrictive doctrine which distinguishes sovereign and governmental acts (Jure imperil") from
private, commercial and proprietary acts (Jure gestionis). Under the restrictive rule of State immunity, State immunity extends only to
acts Jure imperii. 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.24

In Shauf v. Court of Appeals,25 we discussed the limitations of the State immunity principle, thus:

It is a different matter where the public official is made to account in his capacity as such for acts contrary to law and injurious to the
rights of plaintiff. As was clearly set forth by JustiGe Zaldivar in Director of the Bureau of Telecommunications, et al. vs. Aligaen, etc.,
et al. : "Inasmuch as the State authorizes only legal acts by its officers, unauthorized acts of government officials or officers are not
acts of the State, and an action against the officials or officers by one whose rights have been invaded or violated by such acts, for
the protection of his rights, is not a suit against the State within the rule of immunity of the State from suit. In the same tenor, it has
been said that an action at law or suit in equity against a State officer or the director of a State department on the ground that, while
claiming to act for the State, he violates or invades the personal and property rights of the plaintiff, under an unconstitutional act or
under an assumption of authority which he does not have, is not a suit against the State within the constitutional provision that the
State may not be sued without its consent." The rationale for this ruling is that the doctrine of state immunity cannot be used as an
instrument for perpetrating an injustice.

xxxx

The aforecited authorities are clear on the matter. They state that the doctrine of immunity from suit will not apply and may not be
invoked where the public official is being sued in his private and personal capacity as an ordinary citizen. The cloak of protection
afforded the officers and agents of the government is removed the moment they are sued in their individual capacity. This situation
usually arises where the public official acts without authority or in excess of the powers vested in him. It is a well-settled principle of
law that a public official may be liable in his personal private 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. 26 (Emphasis supplied.) In this case, the US
respondents were sued in their official capacity as commanding officers of the US Navy who had control and supervision over the
USS Guardian and its crew. The alleged act or omission resulting in the unfortunate grounding of the USS Guardian on the TRNP
was committed while they we:re performing official military duties. Considering that the satisfaction of a judgment against said
officials will require remedial actions and appropriation of funds by the US government, the suit is deemed to be one against the US
itself. The principle of State immunity therefore bars the exercise of jurisdiction by this Court over the persons of respondents Swift,
Rice and Robling.

During the deliberations, Senior Associate Justice Antonio T. Carpio took the position that the conduct of the US in this case, when
its warship entered a restricted area in violation of R.A. No. 10067 and caused damage to the TRNP reef system, brings the matter
within the ambit of Article 31 of the United Nations Convention on the Law of the Sea (UNCLOS). He explained that while
historically, warships enjoy sovereign immunity from suit as extensions of their flag State, Art. 31 of the UNCLOS creates an
exception to this rule in cases where they fail to comply with the rules and regulations of the coastal State regarding passage
through the latter's internal waters and the territorial sea.

According to Justice Carpio, although the US to date has not ratified the UNCLOS, as a matter of long-standing policy the US
considers itself bound by customary international rules on the "traditional uses of the oceans" as codified in UNCLOS, as can be
gleaned from previous declarations by former Presidents Reagan and Clinton, and the US judiciary in the case of United States v.
Royal Caribbean Cruise Lines, Ltd.27

The international law of the sea is generally defined as "a body of treaty rules arid customary norms governing the uses of the sea,
the exploitation of its resources, and the exercise of jurisdiction over maritime regimes. It is a branch of public international law,
regulating the relations of states with respect to the uses of the oceans."28 The UNCLOS is a multilateral treaty which was opened
for signature on December 10, 1982 at Montego Bay, Jamaica. It was ratified by the Philippines in 1984 but came into force on
November 16, 1994 upon the submission of the 60th ratification.

The UNCLOS is a product of international negotiation that seeks to balance State sovereignty (mare clausum) and the principle of
freedom of the high seas (mare liberum).29 The freedom to use the world's marine waters is one of the oldest customary principles of
international law.30 The UNCLOS gives to the coastal State sovereign rights in varying degrees over the different zones of the sea
which are: 1) internal waters, 2) territorial sea, 3) contiguous zone, 4) exclusive economic zone, and 5) the high seas. It also gives
coastal States more or less jurisdiction over foreign vessels depending on where the vessel is located. 31

Insofar as the internal waters and territorial sea is concerned, the Coastal State exercises sovereignty, subject to the UNCLOS and
other rules of international law. Such sovereignty extends to the air space over the territorial sea as well as to its bed and subsoil. 32

In the case of warships,33 as pointed out by Justice Carpio, they continue to enjoy sovereign immunity subject to the following
exceptions:

Article 30
Non-compliance by warships with the laws and regulations of the coastal State

If any warship does not comply with the laws and regulations of the coastal State concerning passage through the territorial sea and
disregards any request for compliance therewith which is made to it, the coastal State may require it to leave the territorial sea
immediately.

Article 31
Responsibility of the flag State for damage caused by a warship

or other government ship operated for non-commercial purposes

The flag State shall bear international responsibility for any loss or damage to the coastal State resulting from the non-compliance
by a warship or other government ship operated for non-commercial purposes with the laws and regulations of the coastal State
concerning passage through the territorial sea or with the provisions of this Convention or other rules of international law.

Article 32
Immunities of warships and other government ships operated for non-commercial purposes

With such exceptions as are contained in subsection A and in articles 30 and 31, nothing in this Convention affects the immunities of
warships and other government ships operated for non-commercial purposes. (Emphasis supplied.) A foreign warship's
unauthorized entry into our internal waters with resulting damage to marine resources is one situation in which the above provisions
may apply. But what if the offending warship is a non-party to the UNCLOS, as in this case, the US?

An overwhelming majority - over 80% -- of nation states are now members of UNCLOS, but despite this the US, the world's leading
maritime power, has not ratified it.
While the Reagan administration was instrumental in UNCLOS' negotiation and drafting, the U.S. delegation ultimately voted against
and refrained from signing it due to concerns over deep seabed mining technology transfer provisions contained in Part XI. In a
remarkable, multilateral effort to induce U.S. membership, the bulk of UNCLOS member states cooperated over the succeeding
decade to revise the objection.able provisions. The revisions satisfied the Clinton administration, which signed the revised Part XI
implementing agreement in 1994. In the fall of 1994, President Clinton transmitted UNCLOS and the Part XI implementing
agreement to the Senate requesting its advice and consent. Despite consistent support from President Clinton, each of his
successors, and an ideologically diverse array of stakeholders, the Senate has since withheld the consent required for the President
to internationally bind the United States to UNCLOS.

While UNCLOS cleared the Senate Foreign Relations Committee (SFRC) during the 108th and 110th Congresses, its progress
continues to be hamstrung by significant pockets of political ambivalence over U.S. participation in international institutions. Most
recently, 111 th Congress SFRC Chairman Senator John Kerry included "voting out" UNCLOS for full Senate consideration among
his highest priorities. This did not occur, and no Senate action has been taken on UNCLOS by the 112th Congress. 34

Justice Carpio invited our attention to the policy statement given by President Reagan on March 10, 1983 that the US will "recognize
the rights of the other , states in the waters off their coasts, as reflected in the convention [UNCLOS], so long as the rights and
freedom of the United States and others under international law are recognized by such coastal states", and President Clinton's
reiteration of the US policy "to act in a manner consistent with its [UNCLOS] provisions relating to traditional uses of the oceans and
to encourage other countries to do likewise." Since Article 31 relates to the "traditional uses of the oceans," and "if under its policy,
the US 'recognize[s] the rights of the other states in the waters off their coasts,"' Justice Carpio postulates that "there is more reason
to expect it to recognize the rights of other states in their internal waters, such as the Sulu Sea in this case."

As to the non-ratification by the US, Justice Carpio emphasizes that "the US' refusal to join the UN CLOS was centered on its
disagreement with UN CLOS' regime of deep seabed mining (Part XI) which considers the oceans and deep seabed commonly
owned by mankind," pointing out that such "has nothing to do with its [the US'] acceptance of customary international rules on
navigation."

It may be mentioned that even the US Navy Judge Advocate General's Corps publicly endorses the ratification of the UNCLOS, as
shown by the following statement posted on its official website:

The Convention is in the national interest of the United States because it establishes stable maritime zones, including a maximum
outer limit for territorial seas; codifies innocent passage, transit passage, and archipelagic sea lanes passage rights; works against
"jurisdictiomtl creep" by preventing coastal nations from expanding their own maritime zones; and reaffirms sovereign immunity of
warships, auxiliaries anJ government aircraft.

xxxx

Economically, accession to the Convention would support our national interests by enhancing the ability of the US to assert its
sovereign rights over the resources of one of the largest continental shelves in the world. Further, it is the Law of the Sea
Convention that first established the concept of a maritime Exclusive Economic Zone out to 200 nautical miles, and recognized the
rights of coastal states to conserve and manage the natural resources in this Zone.35

We fully concur with Justice Carpio's view that non-membership in the UNCLOS does not mean that the US will disregard the rights
of the Philippines as a Coastal State over its internal waters and territorial sea. We thus expect the US to bear "international
responsibility" under Art. 31 in connection with the USS Guardian grounding which adversely affected the Tubbataha reefs. Indeed,
it is difficult to imagine that our long-time ally and trading partner, which has been actively supporting the country's efforts to
preserve our vital marine resources, would shirk from its obligation to compensate the damage caused by its warship while transiting
our internal waters. Much less can we comprehend a Government exercising leadership in international affairs, unwilling to comply
with the UNCLOS directive for all nations to cooperate in the global task to protect and preserve the marine environment as
provided in Article 197, viz:

Article 197
Cooperation on a global or regional basis

States shall cooperate on a global basis and, as appropriate, on a regional basis, directly or through competent international
organizations, in formulating and elaborating international rules, standards and recommended practices and procedures consistent
with this Convention, for the protection and preservation of the marine environment, taking into account characteristic regional
features.

In fine, the relevance of UNCLOS provisions to the present controversy is beyond dispute. Although the said treaty upholds the
immunity of warships from the jurisdiction of Coastal States while navigating the.latter's territorial sea, the flag States shall be
required to leave the territorial '::;ea immediately if they flout the laws and regulations of the Coastal State, and they will be liable for
damages caused by their warships or any other government vessel operated for non-commercial purposes under Article 31.
Petitioners argue that there is a waiver of immunity from suit found in the VFA. Likewise, they invoke federal statutes in the US
under which agencies of the US have statutorily waived their immunity to any action. Even under the common law tort claims,
petitioners asseverate that the US respondents are liable for negligence, trespass and nuisance.

We are not persuaded.

The VFA is an agreement which defines the treatment of United States troops and personnel visiting the Philippines to promote
"common security interests" between the US and the Philippines in the region. It provides for the guidelines to govern such visits of
military personnel, and further defines the rights of the United States and the Philippine government in the matter of criminal
jurisdiction, movement of vessel and aircraft, importation and exportation of equipment, materials and supplies. 36 The invocation of
US federal tort laws and even common law is thus improper considering that it is the VF A which governs disputes involving US
military ships and crew navigating Philippine waters in pursuance of the objectives of the agreement.

As it is, the waiver of State immunity under the VF A pertains only to criminal jurisdiction and not to special civil actions such as the
present petition for issuance of a writ of Kalikasan. In fact, it can be inferred from Section 17, Rule 7 of the Rules that a criminal
case against a person charged with a violation of an environmental law is to be filed separately:

SEC. 17. Institution of separate actions.-The filing of a petition for the issuance of the writ of kalikasan shall not preclude the filing of
separate civil, criminal or administrative actions.

In any case, it is our considered view that a ruling on the application or non-application of criminal jurisdiction provisions of the VF A
to US personnel who may be found responsible for the grounding of the USS Guardian, would be premature and beyond the
province of a petition for a writ of Kalikasan. We also find it unnecessary at this point to determine whether such waiver of State
immunity is indeed absolute. In the same vein, we cannot grant damages which have resulted from the violation of environmental
laws. The Rules allows the recovery of damages, including the collection of administrative fines under R.A. No. 10067, in a separate
civil suit or that deemed instituted with the criminal action charging the same violation of an environmental law. 37

Section 15, Rule 7 enumerates the reliefs which may be granted in a petition for issuance of a writ of Kalikasan, to wit:

SEC. 15. Judgment.-Within sixty (60) days from the time the petition is submitted for decision, the court shall render judgment
granting or denying the privilege of the writ of kalikasan.

The reliefs that may be granted under the writ are the following:

(a) Directing respondent to permanently cease and desist from committing acts or neglecting the performance of a duty in
violation of environmental laws resulting in environmental destruction or damage;

(b) Directing the respondent public official, govemment agency, private person or entity to protect, preserve, rehabilitate or
restore the environment;

(c) Directing the respondent public official, government agency, private person or entity to monitor strict compliance with
the decision and orders of the court;

(d) Directing the respondent public official, government agency, or private person or entity to make periodic reports on the
execution of the final judgment; and

(e) Such other reliefs which relate to the right of the people to a balanced and healthful ecology or to the protection,
preservation, rehabilitation or restoration of the environment, except the award of damages to individual petitioners.
(Emphasis supplied.)

We agree with respondents (Philippine officials) in asserting that this petition has become moot in the sense that the salvage
operation sought to be enjoined or restrained had already been accomplished when petitioners sought recourse from this Court. But
insofar as the directives to Philippine respondents to protect and rehabilitate the coral reef stn icture and marine habitat adversely
affected by the grounding incident are concerned, petitioners are entitled to these reliefs notwithstanding the completion of the
removal of the USS Guardian from the coral reef. However, we are mindful of the fact that the US and Philippine governments both
expressed readiness to negotiate and discuss the matter of compensation for the damage caused by the USS Guardian. The US
Embassy has also declared it is closely coordinating with local scientists and experts in assessing the extent of the damage and
appropriate methods of rehabilitation.

Exploring avenues for settlement of environmental cases is not proscribed by the Rules. As can be gleaned from the following
provisions, mediation and settlement are available for the consideration of the parties, and which dispute resolution methods are
encouraged by the court, to wit:
RULE3

xxxx

SEC. 3. Referral to mediation.-At the start of the pre-trial conference, the court shall inquire from the parties if they have settled the
dispute; otherwise, the court shall immediately refer the parties or their counsel, if authorized by their clients, to the Philippine
Mediation Center (PMC) unit for purposes of mediation. If not available, the court shall refer the case to the clerk of court or legal
researcher for mediation.

Mediation must be conducted within a non-extendible period of thirty (30) days from receipt of notice of referral to mediation.

The mediation report must be submitted within ten (10) days from the expiration of the 30-day period.

SEC. 4. Preliminary conference.-If mediation fails, the court will schedule the continuance of the pre-trial. Before the scheduled date
of continuance, the court may refer the case to the branch clerk of court for a preliminary conference for the following purposes:

(a) To assist the parties in reaching a settlement;

xxxx

SEC. 5. Pre-trial conference; consent decree.-The judge shall put the parties and their counsels under oath, and they shall remain
under oath in all pre-trial conferences.

The judge shall exert best efforts to persuade the parties to arrive at a settlement of the dispute. The judge may issue a consent
decree approving the agreement between the parties in accordance with law, morals, public order and public policy to protect the
right of the people to a balanced and healthful ecology.

xxxx

SEC. 10. Efforts to settle.- The court shall endeavor to make the parties to agree to compromise or settle in accordance with law at
any stage of the proceedings before rendition of judgment. (Underscoring supplied.)

The Court takes judicial notice of a similar incident in 2009 when a guided-missile cruiser, the USS Port Royal, ran aground about
half a mile off the Honolulu Airport Reef Runway and remained stuck for four days. After spending $6.5 million restoring the coral
reef, the US government was reported to have paid the State of Hawaii $8.5 million in settlement over coral reef damage caused by
the grounding.38

To underscore that the US government is prepared to pay appropriate compensation for the damage caused by the USS Guardian
grounding, the US Embassy in the Philippines has announced the formation of a US interdisciplinary scientific team which will
"initiate discussions with the Government of the Philippines to review coral reef rehabilitation options in Tubbataha, based on
assessments by Philippine-based marine scientists." The US team intends to "help assess damage and remediation options, in
coordination with the Tubbataha Management Office, appropriate Philippine government entities, non-governmental organizations,
and scientific experts from Philippine universities."39

A rehabilitation or restoration program to be implemented at the cost of the violator is also a major relief that may be obtained under
a judgment rendered in a citizens' suit under the Rules, viz:

RULES

SECTION 1. Reliefs in a citizen suit.-If warranted, the court may grant to the plaintiff proper reliefs which shall include the protection,
preservation or rehabilitation of the environment and the payment of attorney's fees, costs of suit and other litigation expenses. It
may also require the violator to submit a program of rehabilitation or restoration of the environment, the costs of which shall be
borne by the violator, or to contribute to a special trust fund for that purpose subject to the control of the court.1wphi1

In the light of the foregoing, the Court defers to the Executive Branch on the matter of compensation and rehabilitation measures
through diplomatic channels. Resolution of these issues impinges on our relations with another State in the context of common
security interests under the VFA. It is settled that "[t]he conduct of the foreign relations of our government is committed by the
Constitution to the executive and legislative-"the political" --departments of the government, and the propriety of what may be done
in the exercise of this political power is not subject to judicial inquiry or decision." 40
On the other hand, we cannot grant the additional reliefs prayed for in the petition to order a review of the VFA and to nullify certain
immunity provisions thereof.

As held in BAYAN (Bagong Alyansang Makabayan) v. Exec. Sec. Zamora,41 the VFA was duly concurred in by the Philippine Senate
and has been recognized as a treaty by the United States as attested and certified by the duly authorized representative of the
United States government. The VF A being a valid and binding agreement, the parties are required as a matter of international law
to abide by its terms and provisions.42 The present petition under the Rules is not the proper remedy to assail the constitutionality of
its provisions. WHEREFORE, the petition for the issuance of the privilege of the Writ of Kalikasan is hereby DENIED.

No pronouncement as to costs.

SO ORDERED.

MARTIN S. VILLARAMA, JR.


Associate Justice

WE CONCUR:

See Concurring Opinion


MARIA LOURDES P. A. SERENO
Chief Justice

ANTONIO T. CARPIO PRESBITERO J. VELASCO, JR.


Associate Justice Associate Justice

TERESITA J. LEONARDO-DE CASTRO ARTURO D. BRION


Associate Justice Associate Justice

DIOSDADO M. PERALTA LUCAS P. BERSAMIN


Associate Justice Associate Justice

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ


Associate Justice Associate Justice

(On official leave)


BIENVENIDO L. REYES
JOSE CATRAL MENDOZA*
Associate Justice
Associate Justice

See Separate Concurring Opinion


ESTELA M. PERLAS-BERNABE
MARVIC M.V.F. LEONEN
Associate Justice
Associate Justice

(No Part)
FRANCIS H. JARDELEZA**
Associate Justice

C E RTI F I CATI O N

Pursuant to Section 13, Article VIII of the 1987 Constitution, it is hereby certified that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the opinion of the Court.

MARIA LOURDES P. A. SERENO


Chief Justice
G.R. No. 188550 August 19, 2013

DEUTSCHE BANK AG MANILA BRANCH, PETITIONER,


vs.
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.

DECISION

SERENO, CJ.:

This is a Petition for Review1 filed by Deutsche Bank AG Manila Branch (petitioner) under Rule 45 of the 1997 Rules of Civil
Procedure assailing the Court of Tax Appeals En Banc (CTA En Banc) Decision 2 dated 29 May 2009 and Resolution3 dated 1 July
2009 in C.T.A. EB No. 456.

THE FACTS

In accordance with Section 28(A)(5)4 of the National Internal Revenue Code (NIRC) of 1997, petitioner withheld and remitted to
respondent on 21 October 2003 the amount of PHP 67,688,553.51, which represented the fifteen percent (15%) branch profit
remittance tax (BPRT) on its regular banking unit (RBU) net income remitted to Deutsche Bank Germany (DB Germany) for 2002
and prior taxable years.5

Believing that it made an overpayment of the BPRT, petitioner filed with the BIR Large Taxpayers Assessment and Investigation
Division on 4 October 2005 an administrative claim for refund or issuance of its tax credit certificate in the total amount of PHP
22,562,851.17. On the same date, petitioner requested from the International Tax Affairs Division (ITAD) a confirmation of its
entitlement to the preferential tax rate of 10% under the RP-Germany Tax Treaty. 6

Alleging the inaction of the BIR on its administrative claim, petitioner filed a Petition for Review 7 with the CTA on 18 October 2005.
Petitioner reiterated its claim for the refund or issuance of its tax credit certificate for the amount of PHP 22,562,851.17 representing
the alleged excess BPRT paid on branch profits remittance to DB Germany.

THE CTA SECOND DIVISION RULING8

After trial on the merits, the CTA Second Division found that petitioner indeed paid the total amount of PHP 67,688,553.51
representing the 15% BPRT on its RBU profits amounting to PHP 451,257,023.29 for 2002 and prior taxable years. Records also
disclose that for the year 2003, petitioner remitted to DB Germany the amount of EURO 5,174,847.38 (or PHP 330,175,961.88 at
the exchange rate of PHP 63.804:1 EURO), which is net of the 15% BPRT.

However, the claim of petitioner for a refund was denied on the ground that the application for a tax treaty relief was not filed with
ITAD prior to the payment by the former of its BPRT and actual remittance of its branch profits to DB Germany, or prior to its
availment of the preferential rate of ten percent (10%) under the RP-Germany Tax Treaty provision. The court a quo held that
petitioner violated the fifteen (15) day period mandated under Section III paragraph (2) of Revenue Memorandum Order (RMO) No.
1-2000.

Further, the CTA Second Division relied on Mirant (Philippines) Operations Corporation (formerly Southern Energy Asia-Pacific
Operations [Phils.], Inc.) v. Commissioner of Internal Revenue9 (Mirant) where the CTA En Banc ruled that before the benefits of the
tax treaty may be extended to a foreign corporation wishing to avail itself thereof, the latter should first invoke the provisions of the
tax treaty and prove that they indeed apply to the corporation.

THE CTA EN BANC RULING10

The CTA En Banc affirmed the CTA Second Divisions Decision dated 29 August 2008 and Resolution dated 14 January 2009. Citing
Mirant, the CTA En Banc held that a ruling from the ITAD of the BIR must be secured prior to the availment of a preferential tax rate
under a tax treaty. Applying the principle of stare decisis et non quieta movere, the CTA En Banc took into consideration that this
Court had denied the Petition in G.R. No. 168531 filed by Mirant for failure to sufficiently show any reversible error in the assailed
judgment.11 The CTA En Banc ruled that once a case has been decided in one way, any other case involving exactly the same point
at issue should be decided in the same manner.

The court likewise ruled that the 15-day rule for tax treaty relief application under RMO No. 1-2000 cannot be relaxed for petitioner,
unlike in CBK Power Company Limited v. Commissioner of Internal Revenue.12 In that case, the rule was relaxed and the claim for
refund of excess final withholding taxes was partially granted. While it issued a ruling to CBK Power Company Limited after the
payment of withholding taxes, the ITAD did not issue any ruling to petitioner even if it filed a request for confirmation on 4 October
2005 that the remittance of branch profits to DB Germany is subject to a preferential tax rate of 10% pursuant to Article 10 of the
RP-Germany Tax Treaty.

ISSUE

This Court is now confronted with the issue of whether the failure to strictly comply with RMO No. 1-2000 will deprive persons or
corporations of the benefit of a tax treaty.

THE COURTS RULING

The Petition is meritorious.

Under Section 28(A)(5) of the NIRC, any profit remitted to its head office shall be subject to a tax of 15% based on the total profits
applied for or earmarked for remittance without any deduction of the tax component. However, petitioner invokes paragraph 6,
Article 10 of the RP-Germany Tax Treaty, which provides that where a resident of the Federal Republic of Germany has a branch in
the Republic of the Philippines, this branch may be subjected to the branch profits remittance tax withheld at source in accordance
with Philippine law but shall not exceed 10% of the gross amount of the profits remitted by that branch to the head office.

By virtue of the RP-Germany Tax Treaty, we are bound to extend to a branch in the Philippines, remitting to its head office in
Germany, the benefit of a preferential rate equivalent to 10% BPRT.

On the other hand, the BIR issued RMO No. 1-2000, which requires that any availment of the tax treaty relief must be preceded by
an application with ITAD at least 15 days before the transaction. The Order was issued to streamline the processing of the
application of tax treaty relief in order to improve efficiency and service to the taxpayers. Further, it also aims to prevent the
consequences of an erroneous interpretation and/or application of the treaty provisions (i.e., filing a claim for a tax refund/credit for
the overpayment of taxes or for deficiency tax liabilities for underpayment).13

The crux of the controversy lies in the implementation of RMO No. 1-2000.

Petitioner argues that, considering that it has met all the conditions under Article 10 of the RP-Germany Tax Treaty, the CTA erred in
denying its claim solely on the basis of RMO No. 1-2000. The filing of a tax treaty relief application is not a condition precedent to
the availment of a preferential tax rate. Further, petitioner posits that, contrary to the ruling of the CTA, Mirant is not a binding judicial
precedent to deny a claim for refund solely on the basis of noncompliance with RMO No. 1-2000.

Respondent counters that the requirement of prior application under RMO No. 1-2000 is mandatory in character. RMO No. 1-2000
was issued pursuant to the unquestioned authority of the Secretary of Finance to promulgate rules and regulations for the effective
implementation of the NIRC. Thus, courts cannot ignore administrative issuances which partakes the nature of a statute and have in
their favor a presumption of legality.

The CTA ruled that prior application for a tax treaty relief is mandatory, and noncompliance with this prerequisite is fatal to the
taxpayers availment of the preferential tax rate.

We disagree.

A minute resolution is not a binding precedent

At the outset, this Courts minute resolution on Mirant is not a binding precedent. The Court has clarified this matter in Philippine
Health Care Providers, Inc. v. Commissioner of Internal Revenue14 as follows:

It is true that, although contained in a minute resolution, our dismissal of the petition was a disposition of the merits of the case.
When we dismissed the petition, we effectively affirmed the CA ruling being questioned. As a result, our ruling in that case has
already become final. When a minute resolution denies or dismisses a petition for failure to comply with formal and substantive
requirements, the challenged decision, together with its findings of fact and legal conclusions, are deemed sustained. But what is its
effect on other cases?

With respect to the same subject matter and the same issues concerning the same parties, it constitutes res judicata. However, if
other parties or another subject matter (even with the same parties and issues) is involved, the minute resolution is not binding
precedent. Thus, in CIR v. Baier-Nickel, the Court noted that a previous case, CIR v. Baier-Nickel involving the same parties and the
same issues, was previously disposed of by the Court thru a minute resolution dated February 17, 2003 sustaining the ruling of the
CA. Nonetheless, the Court ruled that the previous case "ha(d) no bearing" on the latter case because the two cases involved
different subject matters as they were concerned with the taxable income of different taxable years.

Besides, there are substantial, not simply formal, distinctions between a minute resolution and a decision. The constitutional
requirement under the first paragraph of Section 14, Article VIII of the Constitution that the facts and the law on which the judgment
is based must be expressed clearly and distinctly applies only to decisions, not to minute resolutions. A minute resolution is signed
only by the clerk of court by authority of the justices, unlike a decision. It does not require the certification of the Chief Justice.
Moreover, unlike decisions, minute resolutions are not published in the Philippine Reports. Finally, the proviso of Section 4(3) of
Article VIII speaks of a decision. Indeed, as a rule, this Court lays down doctrines or principles of law which constitute binding
precedent in a decision duly signed by the members of the Court and certified by the Chief Justice. (Emphasis supplied)

Even if we had affirmed the CTA in Mirant, the doctrine laid down in that Decision cannot bind this Court in cases of a similar nature.
There are differences in parties, taxes, taxable periods, and treaties involved; more importantly, the disposition of that case was
made only through a minute resolution.

Tax Treaty vs. RMO No. 1-2000

Our Constitution provides for adherence to the general principles of international law as part of the law of the land. 15 The time-
honored international principle of pacta sunt servanda demands the performance in good faith of treaty obligations on the part of the
states that enter into the agreement. Every treaty in force is binding upon the parties, and obligations under the treaty must be
performed by them in good faith.16 More importantly, treaties have the force and effect of law in this jurisdiction.17

Tax treaties are entered into "to reconcile the national fiscal legislations of the contracting parties and, in turn, help the taxpayer
avoid simultaneous taxations in two different jurisdictions."18 CIR v. S.C. Johnson and Son, Inc. further clarifies that "tax conventions
are drafted with a view towards the elimination of international juridical double taxation, which is defined as the imposition of
comparable taxes in two or more states on the same taxpayer in respect of the same subject matter and for identical periods. The
apparent rationale for doing away with double taxation is to encourage the free flow of goods and services and the movement of
capital, technology and persons between countries, conditions deemed vital in creating robust and dynamic economies. Foreign
investments will only thrive in a fairly predictable and reasonable international investment climate and the protection against double
taxation is crucial in creating such a climate."19

Simply put, tax treaties are entered into to minimize, if not eliminate the harshness of international juridical double taxation, which is
why they are also known as double tax treaty or double tax agreements.

"A state that has contracted valid international obligations is bound to make in its legislations those modifications that may be
necessary to ensure the fulfillment of the obligations undertaken."20 Thus, laws and issuances must ensure that the reliefs granted
under tax treaties are accorded to the parties entitled thereto. The BIR must not impose additional requirements that would negate
the availment of the reliefs provided for under international agreements. More so, when the RP-Germany Tax Treaty does not
provide for any pre-requisite for the availment of the benefits under said agreement.

Likewise, it must be stressed that there is nothing in RMO No. 1-2000 which would indicate a deprivation of entitlement to a tax
treaty relief for failure to comply with the 15-day period. We recognize the clear intention of the BIR in implementing RMO No. 1-
2000, but the CTAs outright denial of a tax treaty relief for failure to strictly comply with the prescribed period is not in harmony with
the objectives of the contracting state to ensure that the benefits granted under tax treaties are enjoyed by duly entitled persons or
corporations.

Bearing in mind the rationale of tax treaties, the period of application for the availment of tax treaty relief as required by RMO No. 1-
2000 should not operate to divest entitlement to the relief as it would constitute a violation of the duty required by good faith in
complying with a tax treaty. The denial of the availment of tax relief for the failure of a taxpayer to apply within the prescribed period
under the administrative issuance would impair the value of the tax treaty. At most, the application for a tax treaty relief from the BIR
should merely operate to confirm the entitlement of the taxpayer to the relief.

The obligation to comply with a tax treaty must take precedence over the objective of RMO No. 1-2000.1wphi1 Logically,
noncompliance with tax treaties has negative implications on international relations, and unduly discourages foreign investors. While
the consequences sought to be prevented by RMO No. 1-2000 involve an administrative procedure, these may be remedied through
other system management processes, e.g., the imposition of a fine or penalty. But we cannot totally deprive those who are entitled
to the benefit of a treaty for failure to strictly comply with an administrative issuance requiring prior application for tax treaty relief.

Prior Application vs. Claim for Refund

Again, RMO No. 1-2000 was implemented to obviate any erroneous interpretation and/or application of the treaty provisions. The
objective of the BIR is to forestall assessments against corporations who erroneously availed themselves of the benefits of the tax
treaty but are not legally entitled thereto, as well as to save such investors from the tedious process of claims for a refund due to an
inaccurate application of the tax treaty provisions. However, as earlier discussed, noncompliance with the 15-day period for prior
application should not operate to automatically divest entitlement to the tax treaty relief especially in claims for refund.

The underlying principle of prior application with the BIR becomes moot in refund cases, such as the present case, where the very
basis of the claim is erroneous or there is excessive payment arising from non-availment of a tax treaty relief at the first instance. In
this case, petitioner should not be faulted for not complying with RMO No. 1-2000 prior to the transaction. It could not have applied
for a tax treaty relief within the period prescribed, or 15 days prior to the payment of its BPRT, precisely because it erroneously paid
the BPRT not on the basis of the preferential tax rate under

the RP-Germany Tax Treaty, but on the regular rate as prescribed by the NIRC. Hence, the prior application requirement becomes
illogical. Therefore, the fact that petitioner invoked the provisions of the RP-Germany Tax Treaty when it requested for a confirmation
from the ITAD before filing an administrative claim for a refund should be deemed substantial compliance with RMO No. 1-2000.

Corollary thereto, Section 22921 of the NIRC provides the taxpayer a remedy for tax recovery when there has been an erroneous
payment of tax.1wphi1 The outright denial of petitioners claim for a refund, on the sole ground of failure to apply for a tax treaty
relief prior to the payment of the BPRT, would defeat the purpose of Section 229.

Petitioner is entitled to a refund

It is significant to emphasize that petitioner applied though belatedly for a tax treaty relief, in substantial compliance with RMO
No. 1-2000. A ruling by the BIR would have confirmed whether petitioner was entitled to the lower rate of 10% BPRT pursuant to the
RP-Germany Tax Treaty.

Nevertheless, even without the BIR ruling, the CTA Second Division found as follows:

Based on the evidence presented, both documentary and testimonial, petitioner was able to establish the following facts:

a. That petitioner is a branch office in the Philippines of Deutsche Bank AG, a corporation organized and existing under
the laws of the Federal Republic of Germany;

b. That on October 21, 2003, it filed its Monthly Remittance Return of Final Income Taxes Withheld under BIR Form No.
1601-F and remitted the amount of P67,688,553.51 as branch profits remittance tax with the BIR; and

c. That on October 29, 2003, the Bangko Sentral ng Pilipinas having issued a clearance, petitioner remitted to Frankfurt
Head Office the amount of EUR5,174,847.38 (or P330,175,961.88 at 63.804 Peso/Euro) representing its 2002 profits
remittance.22

The amount of PHP 67,688,553.51 paid by petitioner represented the 15% BPRT on its RBU net income, due for remittance to DB
Germany amounting to PHP 451,257,023.29 for 2002 and prior taxable years.23

Likewise, both the administrative and the judicial actions were filed within the two-year prescriptive period pursuant to Section 229 of
the NIRC.24

Clearly, there is no reason to deprive petitioner of the benefit of a preferential tax rate of 10% BPRT in accordance with the RP-
Germany Tax Treaty.

Petitioner is liable to pay only the amount of PHP 45,125,702.34 on its RBU net income amounting to PHP 451,257,023.29 for 2002
and prior taxable years, applying the 10% BPRT. Thus, it is proper to grant petitioner a refund ofthe difference between the PHP
67,688,553.51 (15% BPRT) and PHP 45,125,702.34 (10% BPRT) or a total of PHP 22,562,851.17.

WHEREFORE, premises considered, the instant Petition is GRANTED. Accordingly, the Court of Tax Appeals En Banc Decision
dated 29 May 2009 and Resolution dated 1 July 2009 are REVERSED and SET ASIDE. A new one is hereby entered ordering
respondent Commissioner of Internal Revenue to refund or issue a tax credit certificate in favor of petitioner Deutsche Bank AG
Manila Branch the amount of TWENTY TWO MILLION FIVE HUNDRED SIXTY TWO THOUSAND EIGHT HUNDRED FIFTY ONE
PESOS AND SEVENTEEN CENTAVOS (PHP 22,562,851.17), Philippine currency, representing the erroneously paid BPRT for
2002 and prior taxable years.

SO ORDERED.

MARIA LOURDES P. A. SERENO


Chief Justice, Chairperson
Republic of the Philippines
Supreme Court
Baguio City

EN BANC

ANG LADLAD LGBT PARTY G.R. No. 190582


represented herein by its Chair,
DANTON REMOTO,
Petitioner, Present:

PUNO, C. J.,
CARPIO,
CORONA,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
LEONARDO-DE CASTRO,
- versus - BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ, and
MENDOZA, JJ.

COMMISSION ON ELECTIONS, Promulgated:


Respondent. April 8, 2010
x--------------------------------------------------------x

DECISION

DEL CASTILLO, J.:

... [F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is
the right to differ as to things that touch the heart of the existing order.

Justice Robert A. Jackson


West Virginia State Board of Education v. Barnette[1]

One unavoidable consequence of everyone having the freedom to choose is that others may make different choices choices we would not make for ourselves, choices

we may disapprove of, even choices that may shock or offend or anger us. However, choices are not to be legally prohibited merely because they are different, and the

right to disagree and debate about important questions of public policy is a core value protected by our Bill of Rights. Indeed, our democracy is built on genuine

recognition of, and respect for, diversity and difference in opinion.

Since ancient times, society has grappled with deep disagreements about the definitions and demands of morality. In many cases, where moral

convictions are concerned, harmony among those theoretically opposed is an insurmountable goal. Yet herein lies the paradox philosophical justifications about what

is moral are indispensable and yet at the same time powerless to create agreement. This Court recognizes, however, that practical solutions are preferable to

ideological stalemates; accommodation is better than intransigence; reason more worthy than rhetoric. This will allow persons of diverse viewpoints to live together, if

not harmoniously, then, at least, civilly.

Factual Background
This is a Petition for Certiorari under Rule 65 of the Rules of Court, with an application for a writ of preliminary mandatory injunction, filed by Ang

Ladlad LGBT Party (Ang Ladlad) against the Resolutions of the Commission on Elections (COMELEC) dated November 11, 2009[2] (the First Assailed Resolution)

and December 16, 2009[3] (the Second Assailed Resolution) in SPP No. 09-228 (PL) (collectively, the Assailed Resolutions). The case has its roots in the

COMELECs refusal to accredit Ang Ladlad as a party-list organization under Republic Act (RA) No. 7941, otherwise known as the Party-List System Act.[4]

Ang Ladlad is an organization composed of men and women who identify themselves as lesbians, gays, bisexuals, or trans-gendered individuals

(LGBTs). Incorporated in 2003, Ang Ladlad first applied for registration with the COMELEC in 2006. The application for accreditation was denied on the ground

that the organization had no substantial membership base. On August 17, 2009, Ang Ladlad again filed a Petition[5] for registration with the COMELEC.

Before the COMELEC, petitioner argued that the LGBT community is a marginalized and under-represented sector that is particularly disadvantaged

because of their sexual orientation and gender identity; that LGBTs are victims of exclusion, discrimination, and violence; that because of negative societal attitudes,

LGBTs are constrained to hide their sexual orientation; and that Ang Ladlad complied with the 8-point guidelines enunciated by this Court in Ang Bagong Bayani-

OFW Labor Party v. Commission on Elections.[6] Ang Ladladlaid out its national membership base consisting of individual members and organizational supporters,

and outlined its platform of governance.[7]

On November 11, 2009, after admitting the petitioners evidence, the COMELEC (Second Division) dismissed the Petition on moral grounds, stating

that:
x x x This Petition is dismissible on moral grounds. Petitioner defines the Filipino Lesbian, Gay, Bisexual and Transgender
(LGBT) Community, thus:

x x x a marginalized and under-represented sector that is particularly disadvantaged because of their sexual
orientation and gender identity.
and proceeded to define sexual orientation as that which:

x x x refers to a persons capacity for profound emotional, affectional and sexual attraction to, and intimate and
sexual relations with, individuals of a different gender, of the same gender, or more than one gender.

This definition of the LGBT sector makes it crystal clear that petitioner tolerates immorality which offends religious beliefs. In Romans 1:26,
27, Paul wrote:

For this cause God gave them up into vile affections, for even their women did change the natural use into that
which is against nature: And likewise also the men, leaving the natural use of the woman, burned in their lust one
toward another; men with men working that which is unseemly, and receiving in themselves that recompense of
their error which was meet.

In the Koran, the hereunder verses are pertinent:

For ye practice your lusts on men in preference to women ye are indeed a people transgressing beyond bounds.
(7.81) And we rained down on them a shower (of brimstone): Then see what was the end of those who indulged in
sin and crime! (7:84) He said: O my Lord! Help Thou me against people who do mischief (29:30).

As correctly pointed out by the Law Department in its Comment dated October 2, 2008:

The ANG LADLAD apparently advocates sexual immorality as indicated in the Petitions par. 6F: Consensual
partnerships or relationships by gays and lesbians who are already of age. It is further indicated in par. 24 of the
Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000 (Genesis 19 is the history of Sodom and Gomorrah).

Laws are deemed incorporated in every contract, permit, license, relationship, or accreditation. Hence, pertinent
provisions of the Civil Code and the Revised Penal Code are deemed part of the requirement to be complied with
for accreditation.
ANG LADLAD collides with Article 695 of the Civil Code which defines nuisance as Any act, omission,
establishment, business, condition of property, or anything else which x x x (3) shocks, defies; or
disregards decency or morality x x x

It also collides with Article 1306 of the Civil Code: The contracting parties may establish such stipulations, clauses,
terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs,
public order or public policy. Art 1409 of the Civil Code provides that Contracts whose cause, object or purpose is
contrary to law, morals, good customs, public order or public policy are inexistent and void from the beginning.

Finally to safeguard the morality of the Filipino community, the Revised Penal Code, as amended, penalizes Immoral doctrines, obscene
publications and exhibitions and indecent shows as follows:

Art. 201. Immoral doctrines, obscene publications and exhibitions, and indecent shows. The penalty of prision
mayor or a fine ranging from six thousand to twelve thousand pesos, or both such imprisonment and fine, shall be
imposed upon:

1. Those who shall publicly expound or proclaim doctrines openly contrary to public morals;

2. (a) The authors of obscene literature, published with their knowledge in any form; the editors publishing such
literature; and the owners/operators of the establishment selling the same;

(b) Those who, in theaters, fairs, cinematographs or any other place, exhibit indecent or immoral plays, scenes,
acts or shows, it being understood that the obscene literature or indecent or immoral plays, scenes, acts or shows,
whether live or in film, which are prescribed by virtue hereof, shall include those which: (1) glorify criminals or
condone crimes; (2) serve no other purpose but to satisfy the market for violence, lust or pornography; (3) offend
any race or religion; (4) tend to abet traffic in and use of prohibited drugs; and (5) are contrary to law, public
order, morals, good customs, established policies, lawful orders, decrees and edicts.

3. Those who shall sell, give away or exhibit films, prints, engravings, sculpture or literature which are offensive to
morals.

Petitioner should likewise be denied accreditation not only for advocating immoral doctrines but likewise for not being truthful when it said
that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules, or regulations relating to the
elections.

Furthermore, should this Commission grant the petition, we will be exposing our youth to an environment that does not conform to the teachings of our
faith. Lehman Strauss, a famous bible teacher and writer in the U.S.A. said in one article that older practicing homosexuals are a threat to
the youth. As an agency of the government, ours too is the States avowed duty under Section 13, Article II of the Constitution to protect our
youth from moral and spiritual degradation.[8]

When Ang Ladlad sought reconsideration,[9] three commissioners voted to overturn the First Assailed Resolution (Commissioners Gregorio Y.

Larrazabal, Rene V. Sarmiento, and Armando Velasco), while three commissioners voted to deny Ang Ladlads Motion for Reconsideration (Commissioners

Nicodemo T. Ferrer, Lucenito N. Tagle, and Elias R. Yusoph). The COMELEC Chairman, breaking the tie and speaking for the majority in his Separate Opinion,

upheld the First Assailed Resolution, stating that:

I. The Spirit of Republic Act No. 7941

Ladlad is applying for accreditation as a sectoral party in the party-list system. Even assuming that it has properly proven its under-
representation and marginalization, it cannot be said that Ladlads expressed sexual orientations per se would benefit the nation as a whole.

Section 2 of the party-list law unequivocally states that the purpose of the party-list system of electing congressional representatives is
to enable Filipino citizens belonging to marginalized and under-represented sectors, organizations and parties, and who lack well-defined
political constituencies but who could contribute to the formulation and enactment of appropriate legislation that will benefit the nation as a
whole, to become members of the House of Representatives.

If entry into the party-list system would depend only on the ability of an organization to represent its constituencies, then all representative
organizations would have found themselves into the party-list race. But that is not the intention of the framers of the law. The party-list
system is not a tool to advocate tolerance and acceptance of misunderstood persons or groups of persons. Rather, the party-list system is a
tool for the realization of aspirations of marginalized individuals whose interests are also the nations only that their interests have not been
brought to the attention of the nation because of their under representation. Until the time comes when Ladlad is able to justify that having
mixed sexual orientations and transgender identities is beneficial to the nation, its application for accreditation under the party-list system
will remain just that.

II. No substantial differentiation


In the United States, whose equal protection doctrine pervades Philippine jurisprudence, courts do not recognize lesbians, gays,
homosexuals, and bisexuals (LGBT) as a special class of individuals. x x x Significantly, it has also been held that homosexuality is not a
constitutionally protected fundamental right, and that nothing in the U.S. Constitution discloses a comparable intent to protect or promote
the social or legal equality of homosexual relations, as in the case of race or religion or belief.

xxxx

Thus, even if societys understanding, tolerance, and acceptance of LGBTs is elevated, there can be no denying that Ladlad constituencies
are still males and females, and they will remain either male or female protected by the same Bill of Rights that applies to all citizens alike.

xxxx

IV. Public Morals

x x x There is no question about not imposing on Ladlad Christian or Muslim religious practices. Neither is there any attempt to any
particular religious groups moral rules on Ladlad. Rather, what are being adopted as moral parameters and precepts are generally accepted
public morals. They are possibly religious-based, but as a society, the Philippines cannot ignore its more than 500 years of Muslim and
Christian upbringing, such that some moral precepts espoused by said religions have sipped [sic] into society and these are not publicly
accepted moral norms.

V. Legal Provisions

But above morality and social norms, they have become part of the law of the land. Article 201 of the Revised Penal Code imposes the
penalty of prision mayor upon Those who shall publicly expound or proclaim doctrines openly contrary to public morals. It penalizes
immoral doctrines, obscene publications and exhibition and indecent shows. Ang Ladlad apparently falls under these legal provisions. This
is clear from its Petitions paragraph 6F: Consensual partnerships or relationships by gays and lesbians who are already of age It is further
indicated in par. 24 of the Petition which waves for the record: In 2007, Men Having Sex with Men or MSMs in the Philippines were
estimated as 670,000. Moreoever, Article 694 of the Civil Code defines nuisance as any act, omission x x x or anything else x x x which
shocks, defies or disregards decency or morality x x x. These are all unlawful.[10]

On January 4, 2010, Ang Ladlad filed this Petition, praying that the Court annul the Assailed Resolutions and direct the COMELEC to grant Ang

Ladlads application for accreditation. Ang Ladlad also sought the issuance ex parte of a preliminary mandatory injunction against the COMELEC, which had

previously announced that it would begin printing the final ballots for the May 2010 elections by January 25, 2010.

On January 6, 2010, we ordered the Office of the Solicitor General (OSG) to file its Comment on behalf of COMELEC not later

than 12:00 noon of January 11, 2010.[11] Instead of filing a Comment, however, the OSG filed a Motion for Extension, requesting that it be given until January 16,

2010 to Comment.[12] Somewhat surprisingly, the OSG later filed a Comment in support of petitioners application. [13] Thus, in order to give COMELEC the

opportunity to fully ventilate its position, we required it to file its own comment. [14] The COMELEC, through its Law Department, filed its Comment on February 2,

2010.[15]

In the meantime, due to the urgency of the petition, we issued a temporary restraining order on January 12, 2010, effective immediately and continuing

until further orders from this Court, directing the COMELEC to cease and desist from implementing the Assailed Resolutions. [16]

Also, on January 13, 2010, the Commission on Human Rights (CHR) filed a Motion to Intervene or to Appear as Amicus Curiae, attaching thereto

its Comment-in-Intervention.[17] The CHR opined that the denial of Ang Ladlads petition on moral grounds violated the standards and principles of the Constitution,

the Universal Declaration of Human Rights (UDHR), and the International Covenant on Civil and Political Rights (ICCPR). On January 19, 2010, we granted the

CHRs motion to intervene.

On January 26, 2010, Epifanio D. Salonga, Jr. filed his Motion to Intervene[18] which motion was granted on February 2, 2010.[19]
The Parties Arguments

Ang Ladlad argued that the denial of accreditation, insofar as it justified the exclusion by using religious dogma, violated the constitutional guarantees

against the establishment of religion. Petitioner also claimed that the Assailed Resolutions contravened its constitutional rights to privacy, freedom of speech and

assembly, and equal protection of laws, as well as constituted violations of the Philippines international obligations against discrimination based on sexual orientation.

The OSG concurred with Ang Ladlads petition and argued that the COMELEC erred in denying petitioners application for registration since there was no basis for

COMELECs allegations of immorality. It also opined that LGBTs have their own special interests and concerns which should have been recognized by the

COMELEC as a separate classification. However, insofar as the purported violations of petitioners freedom of speech, expression, and assembly were concerned, the

OSG maintained that there had been no restrictions on these rights.

In its Comment, the COMELEC reiterated that petitioner does not have a concrete and genuine national political agenda to benefit the nation and that the

petition was validly dismissed on moral grounds. It also argued for the first time that the LGBT sector is not among the sectors enumerated by the Constitution and

RA 7941, and that petitioner made untruthful statements in its petition when it alleged its national existence contrary to actual verification reports by COMELECs

field personnel.

Our Ruling

We grant the petition.

Compliance with the Requirements of the Constitution and Republic Act No. 7941

The COMELEC denied Ang Ladlads application for registration on the ground that the LGBT sector is neither enumerated in the Constitution and RA

7941, nor is it associated with or related to any of the sectors in the enumeration.

Respondent mistakenly opines that our ruling in Ang Bagong Bayani stands for the proposition that only those sectors specifically enumerated in the law

or related to said sectors (labor, peasant, fisherfolk, urban poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas workers, and

professionals) may be registered under the party-list system. As we explicitly ruled in Ang Bagong Bayani-OFW Labor Party v. Commission on Elections,[20] the

enumeration of marginalized and under-represented sectors is not exclusive. The crucial element is not whether a sector is specifically enumerated, but whether a

particular organization complies with the requirements of the Constitution and RA 7941.

Respondent also argues that Ang Ladlad made untruthful statements in its petition when it alleged that it had nationwide existence through its members

and affiliate organizations. The COMELEC claims that upon verification by its field personnel, it was shown that save for a few isolated places in the country,

petitioner does not exist in almost all provinces in the country.[21]

This argument that petitioner made untruthful statements in its petition when it alleged its national existence is a new one; previously, the COMELEC

claimed that petitioner was not being truthful when it said that it or any of its nominees/party-list representatives have not violated or failed to comply with laws, rules,
or regulations relating to the elections. Nowhere was this ground for denial of petitioners accreditation mentioned or even alluded to in the Assailed Resolutions. This,

in itself, is quite curious, considering that the reports of petitioners alleged non-existence were already available to the COMELEC prior to the issuance of the First

Assailed Resolution. At best, this is irregular procedure; at worst, a belated afterthought, a change in respondents theory, and a serious violation of petitioners right to

procedural due process.

Nonetheless, we find that there has been no misrepresentation. A cursory perusal of Ang Ladlads initial petition shows that it never claimed to exist in

each province of the Philippines. Rather, petitioner alleged that the LGBT community in the Philippines was estimated to constitute at least 670,000 persons; that it

had 16,100 affiliates and members around the country, and 4,044 members in its electronic discussion group. [22] Ang Ladlad also represented itself to be a national

LGBT umbrella organization with affiliates around the Philippinescomposed of the following LGBT networks:

Abra Gay Association


Aklan Butterfly Brigade (ABB) Aklan
Albay Gay Association
Arts Center of Cabanatuan City Nueva Ecija
Boys Legion Metro Manila
Cagayan de Oro People Like Us (CDO PLUS)
Cant Live in the Closet, Inc. (CLIC) Metro Manila
Cebu Pride Cebu City
Circle of Friends
Dipolog Gay Association Zamboanga del Norte
Gay, Bisexual, & Transgender Youth Association (GABAY)
Gay and Lesbian Activists Network for Gender Equality (GALANG) Metro Manila
Gay Mens Support Group (GMSG) Metro Manila
Gay United for Peace and Solidarity (GUPS) Lanao del Norte
Iloilo City Gay Association Iloilo City
Kabulig Writers Group Camarines Sur
Lesbian Advocates Philippines, Inc. (LEAP)
LUMINA Baguio City
Marikina Gay Association Metro Manila
Metropolitan Community Church (MCC) Metro Manila
Naga City Gay Association Naga City
ONE BACARDI
Order of St. Aelred (OSAe) Metro Manila
PUP LAKAN
RADAR PRIDEWEAR
Rainbow Rights Project (R-Rights), Inc. Metro Manila
San Jose del Monte Gay Association Bulacan
Sining Kayumanggi Royal Family Rizal
Society of Transexual Women of the Philippines (STRAP) Metro Manila
Soul Jive Antipolo, Rizal
The Link Davao City
Tayabas Gay Association Quezon
Womens Bisexual Network Metro Manila
Zamboanga Gay Association Zamboanga City[23]

Since the COMELEC only searched for the names ANG LADLAD LGBT or LADLAD LGBT, it is no surprise that they found that petitioner had no

presence in any of these regions. In fact, if COMELECs findings are to be believed, petitioner does not even exist in Quezon City, which is registered as Ang

Ladlads principal place of business.

Against this backdrop, we find that Ang Ladlad has sufficiently demonstrated its compliance with the legal requirements for accreditation. Indeed, aside

from COMELECs moral objection and the belated allegation of non-existence, nowhere in the records has the respondent ever found/ruled that Ang Ladlad is not
qualified to register as a party-list organization under any of the requisites under RA 7941 or the guidelines in Ang Bagong Bayani. The difference, COMELEC

claims, lies in Ang Ladlads morality, or lack thereof.

Religion as the Basis for Refusal to Accept Ang Ladlads Petition for Registration

Our Constitution provides in Article III, Section 5 that [n]o law shall be made respecting an establishment of religion, or prohibiting the free exercise

thereof. At bottom, what our non-establishment clause calls for is government neutrality in religious matters. [24] Clearly, governmental reliance on religious

justification is inconsistent with this policy of neutrality.[25] We thus find that it was grave violation of the non-establishment clause for the COMELEC to utilize the

Bible and the Koran to justify the exclusion of Ang Ladlad.

Rather than relying on religious belief, the legitimacy of the Assailed Resolutions should depend, instead, on whether the COMELEC is able to advance

some justification for its rulings beyond mere conformity to religious doctrine. Otherwise stated, government must act for secular purposes and in ways that have

primarily secular effects. As we held in Estrada v. Escritor:[26]

x x x The morality referred to in the law is public and necessarily secular, not religious as the dissent of Mr. Justice Carpio holds. "Religious
teachings as expressed in public debate may influence the civil public order but public moral disputes may be resolved only on grounds
articulable in secular terms." Otherwise, if government relies upon religious beliefs in formulating public policies and morals, the resulting
policies and morals would require conformity to what some might regard as religious programs or agenda. The non-believers would
therefore be compelled to conform to a standard of conduct buttressed by a religious belief, i.e., to a "compelled religion," anathema to
religious freedom. Likewise, if government based its actions upon religious beliefs, it would tacitly approve or endorse that belief and
thereby also tacitly disapprove contrary religious or non-religious views that would not support the policy. As a result, government will not
provide full religious freedom for all its citizens, or even make it appear that those whose beliefs are disapproved are second-class citizens.
In other words, government action, including its proscription of immorality as expressed in criminal law like concubinage, must have a
secular purpose. That is, the government proscribes this conduct because it is "detrimental (or dangerous) to those conditions upon which
depend the existence and progress of human society" and not because the conduct is proscribed by the beliefs of one religion or the other.
Although admittedly, moral judgments based on religion might have a compelling influence on those engaged in public deliberations over
what actions would be considered a moral disapprobation punishable by law. After all, they might also be adherents of a religion and thus
have religious opinions and moral codes with a compelling influence on them; the human mind endeavors to regulate the temporal and
spiritual institutions of society in a uniform manner, harmonizing earth with heaven. Succinctly put, a law could be religious or Kantian or
Aquinian or utilitarian in its deepest roots, but it must have an articulable and discernible secular purpose and justification to pass scrutiny of
the religion clauses. x x x Recognizing the religious nature of the Filipinos and the elevating influence of religion in society, however, the
Philippine constitution's religion clauses prescribe not a strict but a benevolent neutrality. Benevolent neutrality recognizes that government
must pursue its secular goals and interests but at the same time strive to uphold religious liberty to the greatest extent possible within flexible
constitutional limits. Thus, although the morality contemplated by laws is secular, benevolent neutrality could allow for accommodation of
morality based on religion, provided it does not offend compelling state interests.[27]

Public Morals as a Ground to Deny Ang Ladlads Petition for Registration

Respondent suggests that although the moral condemnation of homosexuality and homosexual conduct may be religion-based, it has long been

transplanted into generally accepted public morals. The COMELEC argues:

Petitioners accreditation was denied not necessarily because their group consists of LGBTs but because of the danger it poses to the people
especially the youth. Once it is recognized by the government, a sector which believes that there is nothing wrong in having sexual relations
with individuals of the same gender is a bad example. It will bring down the standard of morals we cherish in our civilized society. Any
society without a set of moral precepts is in danger of losing its own existence.[28]

We are not blind to the fact that, through the years, homosexual conduct, and perhaps homosexuals themselves, have borne the brunt of societal

disapproval. It is not difficult to imagine the reasons behind this censure religious beliefs, convictions about the preservation of marriage, family, and procreation, even
dislike or distrust of homosexuals themselves and their perceived lifestyle. Nonetheless, we recall that the Philippines has not seen fit to criminalize homosexual

conduct. Evidently, therefore, these generally accepted public morals have not been convincingly transplanted into the realm of law.[29]

The Assailed Resolutions have not identified any specific overt immoral act performed by Ang Ladlad. Even the OSG agrees that there should have been a finding

by the COMELEC that the groups members have committed or are committing immoral acts.[30] The OSG argues:

x x x A person may be sexually attracted to a person of the same gender, of a different gender, or more than one gender, but mere attraction
does not translate to immoral acts. There is a great divide between thought and action. Reduction ad absurdum. If immoral thoughts could
be penalized, COMELEC would have its hands full of disqualification cases against both the straights and the gays. Certainly this is not the
intendment of the law.[31]

Respondent has failed to explain what societal ills are sought to be prevented, or why special protection is required for the youth.Neither has the

COMELEC condescended to justify its position that petitioners admission into the party-list system would be so harmful as to irreparably damage the moral fabric of

society. We, of course, do not suggest that the state is wholly without authority to regulate matters concerning morality, sexuality, and sexual relations, and we

recognize that the government will and should continue to restrict behavior considered detrimental to society. Nonetheless, we cannot countenance advocates who,

undoubtedly with the loftiest of intentions, situate morality on one end of an argument or another, without bothering to go through the rigors of legal reasoning and

explanation. In this, the notion of morality is robbed of all value. Clearly then, the bare invocation of morality will not remove an issue from our scrutiny.

We also find the COMELECs reference to purported violations of our penal and civil laws flimsy, at best; disingenuous, at worst. Article 694 of the Civil

Code defines a nuisance as any act, omission, establishment, condition of property, or anything else which shocks, defies, or disregards decency or morality, the

remedies for which are a prosecution under the Revised Penal Code or any local ordinance, a civil action, or abatement without judicial proceedings. [32] A violation of

Article 201 of the Revised Penal Code, on the other hand, requires proof beyond reasonable doubt to support a criminal conviction. It hardly needs to be emphasized

that mere allegation of violation of laws is not proof, and a mere blanket invocation of public morals cannot replace the institution of civil or criminal proceedings and

a judicial determination of liability or culpability.

As such, we hold that moral disapproval, without more, is not a sufficient governmental interest to justify exclusion of homosexuals from participation in

the party-list system. The denial of Ang Ladlads registration on purely moral grounds amounts more to a statement of dislike and disapproval of homosexuals, rather

than a tool to further any substantial public interest. Respondents blanket justifications give rise to the inevitable conclusion that the COMELEC targets homosexuals

themselves as a class, not because of any particular morally reprehensible act. It is this selective targeting that implicates our equal protection clause.

Equal Protection

Despite the absolutism of Article III, Section 1 of our Constitution, which provides nor shall any person be denied equal protection of the laws, courts

have never interpreted the provision as an absolute prohibition on classification. Equality, said Aristotle, consists in the same treatment of similar persons. [33] The equal

protection clause guarantees that no person or class of persons shall be deprived of the same protection of laws which is enjoyed by other persons or other classes in

the same place and in like circumstances.[34]


Recent jurisprudence has affirmed that if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the classification as long as it bears a

rational relationship to some legitimate government end. [35] In Central Bank Employees Association, Inc. v. Banko Sentral ng Pilipinas, [36] we declared that [i]n our

jurisdiction, the standard of analysis of equal protection challenges x x x have followed the rational basis test, coupled with a deferential attitude to legislative

classifications and a reluctance to invalidate a law unless there is a showing of a clear and unequivocal breach of the Constitution. [37]

The COMELEC posits that the majority of the Philippine population considers homosexual conduct as immoral and unacceptable, and this constitutes

sufficient reason to disqualify the petitioner. Unfortunately for the respondent, the Philippine electorate has expressed no such belief. No law exists to criminalize

homosexual behavior or expressions or parties about homosexual behavior. Indeed, even if we were to assume that public opinion is as the COMELEC describes it,

the asserted state interest here that is, moral disapproval of an unpopular minority is not a legitimate state interest that is sufficient to satisfy rational basis review under

the equal protection clause. The COMELECs differentiation, and its unsubstantiated claim that Ang Ladlad cannot contribute to the formulation of legislation that

would benefit the nation, furthers no legitimate state interest other than disapproval of or dislike for a disfavored group.

From the standpoint of the political process, the lesbian, gay, bisexual, and transgender have the same interest in participating in the party-list system on

the same basis as other political parties similarly situated. State intrusion in this case is equally burdensome. Hence, laws of general application should apply with

equal force to LGBTs, and they deserve to participate in the party-list system on the same basis as other marginalized and under-represented sectors.

It bears stressing that our finding that COMELECs act of differentiating LGBTs from heterosexuals insofar as the party-list system is concerned does not

imply that any other law distinguishing between heterosexuals and homosexuals under different circumstances would similarly fail. We disagree with the OSGs

position that homosexuals are a class in themselves for the purposes of the equal protection clause. [38] We are not prepared to single out homosexuals as a separate

class meriting special or differentiated treatment. We have not received sufficient evidence to this effect, and it is simply unnecessary to make such a ruling today.

Petitioner itself has merely demanded that it be recognized under the same basis as all other groups similarly situated, and that the COMELEC made an unwarranted

and impermissible classification not justified by the circumstances of the case.

Freedom of Expression and Association

Under our system of laws, every group has the right to promote its agenda and attempt to persuade society of the validity of its position through normal

democratic means.[39] It is in the public square that deeply held convictions and differing opinions should be distilled and deliberated upon. As we held in Estrada v.

Escritor:[40]

In a democracy, this common agreement on political and moral ideas is distilled in the public square. Where citizens are free, every opinion,
every prejudice, every aspiration, and every moral discernment has access to the public square where people deliberate the order of their life
together. Citizens are the bearers of opinion, including opinion shaped by, or espousing religious belief, and these citizens have equal access
to the public square. In this representative democracy, the state is prohibited from determining which convictions and moral judgments may
be proposed for public deliberation. Through a constitutionally designed process, the people deliberate and decide. Majority rule is a
necessary principle in this democratic governance. Thus, when public deliberation on moral judgments is finally crystallized into law, the
laws will largely reflect the beliefs and preferences of the majority, i.e., the mainstream or median groups. Nevertheless, in the very act of
adopting and accepting a constitution and the limits it specifies including protection of religious freedom "not only for a minority, however
small not only for a majority, however large but for each of us" the majority imposes upon itself a self-denying ordinance. It promises not to
do what it otherwise could do: to ride roughshod over the dissenting minorities.
Freedom of expression constitutes one of the essential foundations of a democratic society, and this freedom applies not only to those that are favorably

received but also to those that offend, shock, or disturb. Any restriction imposed in this sphere must be proportionate to the legitimate aim pursued. Absent any

compelling state interest, it is not for the COMELEC or this Court to impose its views on the populace. Otherwise stated, the COMELEC is certainly not free to

interfere with speech for no better reason than promoting an approved message or discouraging a disfavored one.

This position gains even more force if one considers that homosexual conduct is not illegal in this country. It follows that both expressions concerning

ones homosexuality and the activity of forming a political association that supports LGBT individuals are protected as well.

Other jurisdictions have gone so far as to categorically rule that even overwhelming public perception that homosexual conduct violates public morality

does not justify criminalizing same-sex conduct.[41] European and United Nations judicial decisions have ruled in favor of gay rights claimants on both privacy and

equality grounds, citing general privacy and equal protection provisions in foreign and international texts. [42] To the extent that there is much to learn from other

jurisdictions that have reflected on the issues we face here, such jurisprudence is certainly illuminating. These foreign authorities, while not formally binding on

Philippine courts, may nevertheless have persuasive influence on the Courts analysis.

In the area of freedom of expression, for instance, United States courts have ruled that existing free speech doctrines protect gay and lesbian rights to

expressive conduct. In order to justify the prohibition of a particular expression of opinion, public institutions must show that their actions were caused by something

more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.[43]

With respect to freedom of association for the advancement of ideas and beliefs, in Europe, with its vibrant human rights tradition, the European Court of

Human Rights (ECHR) has repeatedly stated that a political party may campaign for a change in the law or the constitutional structures of a state if it uses legal and

democratic means and the changes it proposes are consistent with democratic principles. The ECHR has emphasized that political ideas that challenge the existing

order and whose realization is advocated by peaceful means must be afforded a proper opportunity of expression through the exercise of the right of association, even

if such ideas may seem shocking or unacceptable to the authorities or the majority of the population. [44] A political group should not be hindered solely because it

seeks to publicly debate controversial political issues in order to find solutions capable of satisfying everyone concerned. [45] Only if a political party incites violence or

puts forward policies that are incompatible with democracy does it fall outside the protection of the freedom of association guarantee.[46]

We do not doubt that a number of our citizens may believe that homosexual conduct is distasteful, offensive, or even defiant. They are entitled to hold

and express that view. On the other hand, LGBTs and their supporters, in all likelihood, believe with equal fervor that relationships between individuals of the same

sex are morally equivalent to heterosexual relationships. They, too, are entitled to hold and express that view. However, as far as this Court is concerned, our

democracy precludes using the religious or moral views of one part of the community to exclude from consideration the values of other members of the community.

Of course, none of this suggests the impending arrival of a golden age for gay rights litigants. It well may be that this Decision will only serve to highlight the

discrepancy between the rigid constitutional analysis of this Court and the more complex moral sentiments of Filipinos. We do not suggest that public opinion, even at

its most liberal, reflect a clear-cut strong consensus favorable to gay rights claims and we neither attempt nor expect to affect individual perceptions of homosexuality

through this Decision.


The OSG argues that since there has been neither prior restraint nor subsequent punishment imposed on Ang Ladlad, and its members have not been deprived of their

right to voluntarily associate, then there has been no restriction on their freedom of expression or association. The OSG argues that:

There was no utterance restricted, no publication censored, or any assembly denied. [COMELEC] simply exercised its authority to review
and verify the qualifications of petitioner as a sectoral party applying to participate in the party-list system. This lawful exercise of duty
cannot be said to be a transgression of Section 4, Article III of the Constitution.

xxxx

A denial of the petition for registration x x x does not deprive the members of the petitioner to freely take part in the conduct of elections.
Their right to vote will not be hampered by said denial. In fact, the right to vote is a constitutionally-guaranteed right which cannot be
limited.

As to its right to be elected in a genuine periodic election, petitioner contends that the denial of Ang Ladlads petition has the clear and
immediate effect of limiting, if not outrightly nullifying the capacity of its members to fully and equally participate in public life through
engagement in the party list elections.

This argument is puerile. The holding of a public office is not a right but a privilege subject to limitations imposed by law. x x
x[47]

The OSG fails to recall that petitioner has, in fact, established its qualifications to participate in the party-list system, and as advanced by the OSG itself

the moral objection offered by the COMELEC was not a limitation imposed by law. To the extent, therefore, that the petitioner has been precluded, because of

COMELECs action, from publicly expressing its views as a political party and participating on an equal basis in the political process with other equally-qualified

party-list candidates, we find that there has, indeed, been a transgression of petitioners fundamental rights.

Non-Discrimination and International Law

In an age that has seen international law evolve geometrically in scope and promise, international human rights law, in particular, has grown dynamically

in its attempt to bring about a more just and humane world order. For individuals and groups struggling with inadequate structural and governmental support,

international human rights norms are particularly significant, and should be effectively enforced in domestic legal systems so that such norms may become actual,

rather than ideal, standards of conduct.

Our Decision today is fully in accord with our international obligations to protect and promote human rights. In particular, we explicitly recognize the

principle of non-discrimination as it relates to the right to electoral participation, enunciated in the UDHR and the ICCPR.

The principle of non-discrimination is laid out in Article 26 of the ICCPR, as follows:

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law
shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

In this context, the principle of non-discrimination requires that laws of general application relating to elections be applied equally to all persons,

regardless of sexual orientation. Although sexual orientation is not specifically enumerated as a status or ratio for discrimination in Article 26 of the ICCPR, the

ICCPR Human Rights Committee has opined that the reference to sex in Article 26 should be construed to include sexual orientation. [48] Additionally, a variety of

United Nations bodies have declared discrimination on the basis of sexual orientation to be prohibited under various international agreements.[49]
The UDHR provides:

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Likewise, the ICCPR states:

Article 25
Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without
unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by
secret ballot, guaranteeing the free expression of the will of the electors;

(c) To have access, on general terms of equality, to public service in his country.

As stated by the CHR in its Comment-in-Intervention, the scope of the right to electoral participation is elaborated by the Human Rights Committee in its General

Comment No. 25 (Participation in Public Affairs and the Right to Vote) as follows:

1. Article 25 of the Covenant recognizes and protects the right of every citizen to take part in the conduct of public affairs, the
right to vote and to be elected and the right to have access to public service. Whatever form of constitution or government is in force, the
Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective
opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in
conformity with the principles of the Covenant.

xxxx

15. The effective implementation of the right and the opportunity to stand for elective office ensures that persons entitled to vote
have a free choice of candidates. Any restrictions on the right to stand for election, such as minimum age, must be justifiable on objective
and reasonable criteria. Persons who are otherwise eligible to stand for election should not be excluded by unreasonable or discriminatory
requirements such as education, residence or descent, or by reason of political affiliation. No person should suffer discrimination or
disadvantage of any kind because of that person's candidacy. States parties should indicate and explain the legislative provisions which
exclude any group or category of persons from elective office.[50]

We stress, however, that although this Court stands willing to assume the responsibility of giving effect to the Philippines international law obligations,

the blanket invocation of international law is not the panacea for all social ills. We refer now to the petitioners invocation of the Yogyakarta Principles (the Application

of International Human Rights Law In Relation to Sexual Orientation and Gender Identity), [51]which petitioner declares to reflect binding principles of international

law.

At this time, we are not prepared to declare that these Yogyakarta Principles contain norms that are obligatory on the Philippines. There are declarations

and obligations outlined in said Principles which are not reflective of the current state of international law, and do not find basis in any of the sources of international

law enumerated under Article 38(1) of the Statute of the International Court of Justice. [52]Petitioner has not undertaken any objective and rigorous analysis of these

alleged principles of international law to ascertain their true status.

We also hasten to add that not everything that society or a certain segment of society wants or demands is automatically a human right. This is not an

arbitrary human intervention that may be added to or subtracted from at will. It is unfortunate that much of what passes for human rights today is a much broader
context of needs that identifies many social desires as rights in order to further claims that international law obliges states to sanction these innovations. This has the

effect of diluting real human rights, and is a result of the notion that if wants are couched in rights language, then they are no longer controversial.

Using even the most liberal of lenses, these Yogyakarta Principles, consisting of a declaration formulated by various international law professors, are at

best de lege ferenda and do not constitute binding obligations on the Philippines. Indeed, so much of contemporary international law is characterized by the soft law

nomenclature, i.e., international law is full of principles that promote international cooperation, harmony, and respect for human rights, most of which amount to no

more than well-meaning desires, without the support of either State practice or opinio juris.[53]

As a final note, we cannot help but observe that the social issues presented by this case are emotionally charged, societal attitudes are in flux, even the

psychiatric and religious communities are divided in opinion. This Courts role is not to impose its own view of acceptable behavior. Rather, it is to apply the

Constitution and laws as best as it can, uninfluenced by public opinion, and confident in the knowledge that our democracy is resilient enough to withstand vigorous

debate.

WHEREFORE, the Petition is hereby GRANTED. The Resolutions of the Commission on Elections dated November 11, 2009 and December 16, 2009 in SPP

No. 09-228 (PL) are hereby SET ASIDE. The Commission on Elections is directed to GRANT petitioners application for party-list accreditation.
SO ORDERED.

Republic of the Philippines


SUPREME COURT
Baguio City

EN BANC

G.R. No. 204819 April 8, 2014

JAMES M. IMBONG and LOVELY-ANN C. IMBONG, for themselves and in behalf of their minor children, LUCIA CARLOS IMBONG
and BERNADETTE CARLOS IMBONG and MAGNIFICAT CHILD DEVELOPMENT CENTER, INC., Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 204934

ALLIANCE FOR THE FAMILY FOUNDATION PHILIPPINES, INC. [ALFI], represented by its President, Maria Concepcion S. Noche,
Spouses Reynaldo S. Luistro & Rosie B . Luistro, Jose S. Sandejas & Elenita S.A. Sandejas, Arturo M. Gorrez & Marietta C. Gorrez,
Salvador S. Mante, Jr. & Hazeleen L. Mante, Rolando M. Bautista & Maria Felisa S. Bautista, Desiderio Racho & Traquilina Racho,
F emand Antonio A. Tansingco & Carol Anne C. Tansingco for themselves and on behalf of their minor children, Therese Antonette
C. Tansingco, Lorenzo Jose C. Tansingco, Miguel F emando C. Tangsingco, Carlo Josemaria C. Tansingco & Juan Paolo C.
Tansingco, Spouses Mariano V. Araneta & Eileen Z. Araneta for themselves and on behalf of their minor children, Ramon Carlos Z.
Araneta & Maya Angelica Z. Araneta, Spouses Renato C. Castor & Mildred C. Castor for themselves and on behalf of their minor
children, Renz Jeffrey C. Castor, Joseph Ramil C. Castor, John Paul C. Castor & Raphael C. Castor, Spouses Alexander R. Racho
& Zara Z. Racho for themselves and on behalf of their minor children Margarita Racho, Mikaela Racho, Martin Racho, Mari Racho &
Manolo Racho, Spouses Alfred R. Racho & Francine V. Racho for themselves and on behalf of their minor children Michael Racho,
Mariana Racho, Rafael Racho, Maxi Racho, Chessie Racho & Laura Racho, Spouses David R. Racho & Armilyn A. Racho for
themselves and on behalf of their minor child Gabriel Racho, Mindy M. Juatas and on behalf of her minor children Elijah Gerald
Juatas and Elian Gabriel Juatas, Salvacion M. Monteiro, Emily R. Laws, Joseph R . Laws & Katrina R. Laws,Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A.
LUISTRO, Secretary, Department of Education, Culture and Sports, HON. CORAZON SOLIMAN, Secretary, Department of Social
Welfare and Development, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, HON.
FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ARSENIO M. BALISACAN, Socio-Economic
Planning Secretary and NEDA Director-General, THE PHILIPPINE COMMISSION ON WOMEN, represented by its Chairperson,
Remedios lgnacio-Rikken, THE PHILIPPINE HEALTH INSURANCE CORPORATION, represented by its President Eduardo
Banzon, THE LEAGUE OF PROVINCES OF THE PHILIPPINES, represented by its President Alfonso Umali, THE LEAGUE OF
CITIES OF THE PHILIPPINES, represented by its President Oscar Rodriguez, and THE LEAGUE OF MUNICIPALITIES OF THE
PHILIPPINES, represented by its President Donato Marcos, Respondents.

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

G.R. No. 204957

TASK FORCE FOR FAMILY AND LIFE VISAYAS, INC. and VALERIANO S. AVILA, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary, Department of Education; and HON. MANUELA. ROXAS II, Secretary,
Department of Interior and Local Government, Respondents.

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

G.R. No. 204988

SERVE LIFE CAGAYAN DE ORO CITY, INC., represented by Dr. Nestor B. Lumicao, M.D., as President and in his personal
capacity, ROSEVALE FOUNDATION INC., represented by Dr. Rodrigo M. Alenton, M.D., as member of the school board and in his
personal capacity, ROSEMARIE R. ALENTON, IMELDA G. IBARRA, CPA, LOVENIAP. NACES, Phd., ANTHONY G. NAGAC, EARL
ANTHONY C. GAMBE and MARLON I. YAP,Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management; HON. ENRIQUE T.
ONA, Secretary, Department of Health; HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUELA.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 205003

EXPEDITO A. BUGARIN, JR., Petitioner,


vs.
OFFICE OF THE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES, HON. SENATE PRESIDENT, HON. SPEAKER OF THE
HOUSE OF REPRESENTATIVES and HON. SOLICITOR GENERAL, Respondents.

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

G.R. No. 205043

EDUARDO B. OLAGUER and THE CATHOLIC XYBRSPACE APOSTOLATE OF THE PHILIPPINES, Petitioners,
vs.
DOH SECRETARY ENRIQUE T. ONA, FDA DIRECTOR SUZETTE H. LAZO, DBM SECRETARY FLORENCIO B. ABAD, DILG
SECRETARY MANUELA. ROXAS II, DECS SECRETARY ARMIN A. LUISTRO, Respondents.

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

G.R. No. 205138


PHILIPPINE ALLIANCE OF XSEMINARIANS, INC. (PAX), herein represented by its National President, Atty. Ricardo M . Ribo, and
in his own behalf, Atty. Lino E.A. Dumas, Romeo B. Almonte, Osmundo C. Orlanes, Arsenio Z. Menor, Samuel J. Yap, Jaime F.
Mateo, Rolly Siguan, Dante E. Magdangal, Michael Eugenio O. Plana, Bienvenido C. Miguel, Jr., Landrito M. Diokno and Baldomero
Falcone, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local Government, HON. CORAZON J. SOLIMAN,
Secretary, Department of Social Welfare and Development, HON. ARSENIO BALISACAN, Director-General, National Economic and
Development Authority, HON. SUZETTE H. LAZO, Director-General, Food and Drugs Administration, THE BOARD OF
DIRECTORS, Philippine Health Insurance Corporation, and THE BOARD OF COMMISSIONERS, Philippine Commission on
Women, Respondents.

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

G.R. No. 205478

REYNALDO J. ECHAVEZ, M.D., JACQUELINE H. KING, M.D., CYNTHIA T. DOMINGO, M.D., AND JOSEPHINE MILLADO-
LUMITAO, M.D., collectively known as Doctors For Life, and ANTHONY PEREZ, MICHAEL ANTHONY G. MAPA, CARLOS
ANTONIO PALAD, WILFREDO JOSE, CLAIRE NAVARRO, ANNA COSIO, and GABRIEL DY LIACCO collectively known as
Filipinos For Life, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary; HON. FLORENCIO B. ABAD, Secretary of the Department of Budget and
Management; HON. ENRIQUE T. ONA, Secretary of the Department of Health; HON. ARMIN A. LUISTRO, Secretary of the
Department of Education; and HON. MANUELA. ROXAS II, Secretary of the Department of Interior and Local
Government, Respondents.

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

G.R. No. 205491

SPOUSES FRANCISCO S. TATAD AND MARIA FENNY C. TATAD & ALA F. PAGUIA, for themselves, their Posterity, and the rest of
Filipino posterity, Petitioners,
vs.
OFFICE OF THE PRESIDENT of the Republic of the Philippines, Respondent.

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

G.R. No. 205720

PRO-LIFE PHILIPPINES FOUNDATION, Inc., represented by Loma Melegrito, as Executive Director, and in her personal capacity,
JOSELYN B. BASILIO, ROBERT Z. CORTES, ARIEL A. CRISOSTOMO, JEREMY I. GATDULA, CRISTINA A. MONTES, RAUL
ANTONIO A. NIDOY, WINSTON CONRAD B. PADOJINOG, RUFINO L. POLICARPIO III, Petitioners,
vs.
OFFICE OF THE PRESIDENT, SENATE OF THE PHILIPPINES, HOUSE OF REPRESENTATIVES, HON. PAQUITO N. OCHOA,
JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and Management, HON. ENRIQUE T.
ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of Education and HON. MANUEL A.
ROXAS II, Secretary, Department of Interior and Local Government, Respondents.

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

G.R. No. 206355

MILLENNIUM SAINT FOUNDATION, INC., ATTY. RAMON PEDROSA, ATTY. CITA BORROMEO-GARCIA, STELLAACEDERA,
ATTY. BERTENI CATALUNA CAUSING, Petitioners,
vs.
OFFICE OF THE PRESIDENT, OFFICE OF THE EXECUTIVE SECRETARY, DEPARTMENT OF HEALTH, DEPARTMENT OF
EDUCATION, Respondents.

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

G.R. No. 207111


JOHN WALTER B. JUAT, MARY M. IMBONG, ANTHONY VICTORIO B. LUMICAO, JOSEPH MARTIN Q. VERDEJO, ANTONIA
EMMA R. ROXAS and LOTA LAT-GUERRERO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUEL A. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207172

COUPLES FOR CHRIST FOUNDATION, INC., SPOUSES JUAN CARLOS ARTADI SARMIENTO AND FRANCESCA ISABELLE
BESINGA-SARMIENTO, AND SPOUSES LUIS FRANCIS A. RODRIGO, JR. and DEBORAH MARIE VERONICA N.
RODRIGO, Petitioners,
vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. FLORENCIO B. ABAD, Secretary, Department of Budget and
Management, HON. ENRIQUE T. ONA, Secretary, Department of Health, HON. ARMIN A. LUISTRO, Secretary, Department of
Education, Culture and Sports and HON. MANUELA. ROXAS II, Secretary, Department of Interior and Local
Government, Respondents.

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

G.R. No. 207563

ALMARIM CENTI TILLAH and ABDULHUSSEIN M. KASHIM, Petitioners,


vs.
HON. PAQUITO N. OCHOA, JR., Executive Secretary, HON. ENRIQUE T. ONA, Secretary of the Department of Health, and HON.
ARMIN A. LUISTRO,Secretary of the Department of Budget and Management, Respondents.

DECISION

MENDOZA, J.:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs , and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."1

To this day, poverty is still a major stumbling block to the nation's emergence as a developed country, leaving our people
beleaguered in a state of hunger, illiteracy and unemployment. While governmental policies have been geared towards the
revitalization of the economy, the bludgeoning dearth in social services remains to be a problem that concerns not only the poor, but
every member of society. The government continues to tread on a trying path to the realization of its very purpose, that is, the
general welfare of the Filipino people and the development of the country as a whole. The legislative branch, as the main facet of a
representative government, endeavors to enact laws and policies that aim to remedy looming societal woes, while the executive is
closed set to fully implement these measures and bring concrete and substantial solutions within the reach of Juan dela Cruz.
Seemingly distant is the judicial branch, oftentimes regarded as an inert governmental body that merely casts its watchful eyes on
clashing stakeholders until it is called upon to adjudicate. Passive, yet reflexive when called into action, the Judiciary then willingly
embarks on its solemn duty to interpret legislation vis-a-vis the most vital and enduring principle that holds Philippine society
together - the supremacy of the Philippine Constitution.

Nothing has polarized the nation more in recent years than the issues of population growth control, abortion and contraception. As in
every democratic society, diametrically opposed views on the subjects and their perceived consequences freely circulate in various
media. From television debates2 to sticker campaigns,3 from rallies by socio-political activists to mass gatherings organized by
members of the clergy4 - the clash between the seemingly antithetical ideologies of the religious conservatives and progressive
liberals has caused a deep division in every level of the society. Despite calls to withhold support thereto, however, Republic Act
(R.A.) No. 10354, otherwise known as the Responsible Parenthood and Reproductive Health Act of 2012 (RH Law), was enacted by
Congress on December 21, 2012.

Shortly after the President placed his imprimatur on the said law, challengers from various sectors of society came knocking on the
doors of the Court, beckoning it to wield the sword that strikes down constitutional disobedience. Aware of the profound and lasting
impact that its decision may produce, the Court now faces the iuris controversy, as presented in fourteen (14) petitions and two (2)
petitions- in-intervention, to wit:
(1) Petition for Certiorari and Prohibition,5 filed by spouses Attys. James M. Imbong and Lovely Ann C. Imbong, in their
personal capacities as citizens, lawyers and taxpayers and on behalf of their minor children; and the Magnificat Child
Leaming Center, Inc., a domestic, privately-owned educational institution (Jmbong);

(2) Petition for Prohibition,6 filed by the Alliance for the Family Foundation Philippines, Inc., through its president, Atty.
Maria Concepcion S. Noche7 and several others8 in their personal capacities as citizens and on behalf of the generations
unborn (ALFI);

(3) Petition for Certiorari,9 filed by the Task Force for Family and Life Visayas, Inc., and Valeriano S. Avila, in their
capacities as citizens and taxpayers (Task Force Family);

(4) Petition for Certiorari and Prohibition,10 filed by Serve Life Cagayan De Oro City, Inc.,11 Rosevale Foundation, Inc.,12 a
domestic, privately-owned educational institution, and several others,13 in their capacities as citizens (Serve Life);

(5) Petition,14 filed by Expedito A. Bugarin, Jr. in his capacity as a citizen (Bugarin);

(6) Petition for Certiorari and Prohibition,15 filed by Eduardo Olaguer and the Catholic Xybrspace Apostolate of the
Philippines,16 in their capacities as a citizens and taxpayers (Olaguer);

(7) Petition for Certiorari and Prohibition,17 filed by the Philippine Alliance of Xseminarians Inc.,18 and several others19 in
their capacities as citizens and taxpayers (PAX);

(8) Petition,20 filed by Reynaldo J. Echavez, M.D. and several others,21 in their capacities as citizens and taxpayers
(Echavez);

(9) Petition for Certiorari and Prohibition,22 filed by spouses Francisco and Maria Fenny C. Tatad and Atty. Alan F. Paguia,
in their capacities as citizens, taxpayers and on behalf of those yet unborn. Atty. Alan F. Paguia is also proceeding in his
capacity as a member of the Bar (Tatad);

(10) Petition for Certiorari and Prohibition,23 filed by Pro-Life Philippines Foundation Inc.24 and several others,25 in their
capacities as citizens and taxpayers and on behalf of its associates who are members of the Bar (Pro-Life);

(11) Petition for Prohibition,26 filed by Millennium Saint Foundation, Inc.,27 Attys. Ramon Pedrosa, Cita Borromeo-Garcia,
Stella Acedera, and Berteni Catalufia Causing, in their capacities as citizens, taxpayers and members of the Bar (MSF);

(12) Petition for Certiorari and Prohibition,28 filed by John Walter B. Juat and several others,29 in their capacities as citizens
(Juat) ;

(13) Petition for Certiorari and Prohibition,30 filed by Couples for Christ Foundation, Inc. and several others,31 in their
capacities as citizens (CFC);

(14) Petition for Prohibition32 filed by Almarim Centi Tillah and Abdulhussein M. Kashim in their capacities as citizens and
taxpayers (Tillah); and

(15) Petition-In-Intervention,33 filed by Atty. Samson S. Alcantara in his capacity as a citizen and a taxpayer (Alcantara);
and

(16) Petition-In-Intervention,34 filed by Buhay Hayaang Yumabong (B UHAY) , an accredited political party.

A perusal of the foregoing petitions shows that the petitioners are assailing the constitutionality of RH Law on the following
GROUNDS:

The RH Law violates the right to life of the unborn. According to the petitioners, notwithstanding its declared policy
against abortion, the implementation of the RH Law would authorize the purchase of hormonal contraceptives, intra-
uterine devices and injectables which are abortives, in violation of Section 12, Article II of the Constitution which
guarantees protection of both the life of the mother and the life of the unborn from conception. 35

The RH Law violates the right to health and the right to protection against hazardous products. The petitioners posit that
the RH Law provides universal access to contraceptives which are hazardous to one's health, as it causes cancer and
other health problems.36
The RH Law violates the right to religious freedom. The petitioners contend that the RH Law violates the constitutional
guarantee respecting religion as it authorizes the use of public funds for the procurement of contraceptives. For the
petitioners, the use of public funds for purposes that are believed to be contrary to their beliefs is included in the
constitutional mandate ensuring religious freedom.37

It is also contended that the RH Law threatens conscientious objectors of criminal prosecution, imprisonment and other forms of
punishment, as it compels medical practitioners 1] to refer patients who seek advice on reproductive health programs to other
doctors; and 2] to provide full and correct information on reproductive health programs and service, although it is against their
religious beliefs and convictions.38

In this connection, Section 5 .23 of the Implementing Rules and Regulations of the RH Law (RH-IRR),39 provides that skilled health
professionals who are public officers such as, but not limited to, Provincial, City, or Municipal Health Officers, medical officers,
medical specialists, rural health physicians, hospital staff nurses, public health nurses, or rural health midwives, who are specifically
charged with the duty to implement these Rules, cannot be considered as conscientious objectors. 40

It is also argued that the RH Law providing for the formulation of mandatory sex education in schools should not be allowed as it is
an affront to their religious beliefs.41

While the petit10ners recognize that the guarantee of religious freedom is not absolute, they argue that the RH Law fails to satisfy
the "clear and present danger test" and the "compelling state interest test" to justify the regulation of the right to free exercise of
religion and the right to free speech.42

The RH Law violates the constitutional provision on involuntary servitude. According to the petitioners, the RH Law
subjects medical practitioners to involuntary servitude because, to be accredited under the PhilHealth program, they are
compelled to provide forty-eight (48) hours of pro bona services for indigent women, under threat of criminal prosecution,
imprisonment and other forms of punishment.43

The petitioners explain that since a majority of patients are covered by PhilHealth, a medical practitioner would effectively be forced
to render reproductive health services since the lack of PhilHealth accreditation would mean that the majority of the public would no
longer be able to avail of the practitioners services.44

The RH Law violates the right to equal protection of the law. It is claimed that the RH Law discriminates against the poor
as it makes them the primary target of the government program that promotes contraceptive use. The petitioners argue
that, rather than promoting reproductive health among the poor, the RH Law seeks to introduce contraceptives that would
effectively reduce the number of the poor.45

The RH Law is "void-for-vagueness" in violation of the due process clause of the Constitution. In imposing the penalty of
imprisonment and/or fine for "any violation," it is vague because it does not define the type of conduct to be treated as
"violation" of the RH Law.46

In this connection, it is claimed that "Section 7 of the RH Law violates the right to due process by removing from them (the people)
the right to manage their own affairs and to decide what kind of health facility they shall be and what kind of services they shall
offer."47 It ignores the management prerogative inherent in corporations for employers to conduct their affairs in accordance with
their own discretion and judgment.

The RH Law violates the right to free speech. To compel a person to explain a full range of family planning methods is
plainly to curtail his right to expound only his own preferred way of family planning. The petitioners note that although
exemption is granted to institutions owned and operated by religious groups, they are still forced to refer their patients to
another healthcare facility willing to perform the service or procedure. 48

The RH Law intrudes into the zone of privacy of one's family protected by the Constitution. It is contended that the RH
Law providing for mandatory reproductive health education intrudes upon their constitutional right to raise their children in
accordance with their beliefs.49

It is claimed that, by giving absolute authority to the person who will undergo reproductive health procedure, the RH Law forsakes
any real dialogue between the spouses and impedes the right of spouses to mutually decide on matters pertaining to the overall
well-being of their family. In the same breath, it is also claimed that the parents of a child who has suffered a miscarriage are
deprived of parental authority to determine whether their child should use contraceptives.50

The RH Law violates the constitutional principle of non-delegation of legislative authority. The petitioners question the
delegation by Congress to the FDA of the power to determine whether a product is non-abortifacient and to be included in
the Emergency Drugs List (EDL).51
The RH Law violates the one subject/one bill rule provision under Section 26( 1 ), Article VI of the Constitution. 52

The RH Law violates Natural Law.53

The RH Law violates the principle of Autonomy of Local Government Units (LGUs) and the Autonomous Region of
Muslim Mindanao {ARMM). It is contended that the RH Law, providing for reproductive health measures at the local
government level and the ARMM, infringes upon the powers devolved to LGUs and the ARMM under the Local
Government Code and R.A . No. 9054.54

Various parties also sought and were granted leave to file their respective comments-in-intervention in defense of the
constitutionality of the RH Law. Aside from the Office of the Solicitor General (OSG) which commented on the petitions in behalf of
the respondents,55 Congressman Edcel C. Lagman,56 former officials of the Department of Health Dr. Esperanza I. Cabral, Jamie
Galvez-Tan, and Dr. Alberto G. Romualdez,57 the Filipino Catholic Voices for Reproductive Health (C4RH), 58 Ana Theresa "Risa"
Hontiveros,59 and Atty. Joan De Venecia60 also filed their respective Comments-in-Intervention in conjunction with several others. On
June 4, 2013, Senator Pia Juliana S. Cayetano was also granted leave to intervene.61

The respondents, aside from traversing the substantive arguments of the petitioners, pray for the dismissal of the petitions for the
principal reasons that 1] there is no actual case or controversy and, therefore, the issues are not yet ripe for judicial determination.;
2] some petitioners lack standing to question the RH Law; and 3] the petitions are essentially petitions for declaratory relief over
which the Court has no original jurisdiction.

Meanwhile, on March 15, 2013, the RH-IRR for the enforcement of the assailed legislation took effect.

On March 19, 2013, after considering the issues and arguments raised, the Court issued the Status Quo Ante Order (SQAO),
enjoining the effects and implementation of the assailed legislation for a period of one hundred and twenty (120) days, or until July
17, 2013.62

On May 30, 2013, the Court held a preliminary conference with the counsels of the parties to determine and/or identify the pertinent
issues raised by the parties and the sequence by which these issues were to be discussed in the oral arguments. On July 9 and 23,
2013, and on August 6, 13, and 27, 2013, the cases were heard on oral argument. On July 16, 2013, the SQAO was ordered
extended until further orders of the Court.63

Thereafter, the Court directed the parties to submit their respective memoranda within sixty (60) days and, at the same time posed
several questions for their clarification on some contentions of the parties.64

The Status Quo Ante

(Population, Contraceptive and Reproductive Health Laws

Prior to the RH Law

Long before the incipience of the RH Law, the country has allowed the sale, dispensation and distribution of contraceptive drugs and
devices. As far back as June 18, 1966, the country enacted R.A. No. 4729 entitled "An Act to Regu,late the Sale, Dispensation,
and/or Distribution of Contraceptive Drugs and Devices." Although contraceptive drugs and devices were allowed, they could not be
sold, dispensed or distributed "unless such sale, dispensation and distribution is by a duly licensed drug store or pharmaceutical
company and with the prescription of a qualified medical practitioner." 65

In addition, R.A. No. 5921,66 approved on June 21, 1969, contained provisions relative to "dispensing of abortifacients or anti-
conceptional substances and devices." Under Section 37 thereof, it was provided that "no drug or chemical product or device
capable of provoking abortion or preventing conception as classified by the Food and Drug Administration shall be delivered or sold
to any person without a proper prescription by a duly licensed physician."

On December 11, 1967, the Philippines, adhering to the UN Declaration on Population, which recognized that the population
problem should be considered as the principal element for long-term economic development, enacted measures that promoted male
vasectomy and tubal ligation to mitigate population growth. 67 Among these measures included R.A. No. 6365, approved on August
16, 1971, entitled "An Act Establishing a National Policy on Population, Creating the Commission on Population and for Other
Purposes. " The law envisioned that "family planning will be made part of a broad educational program; safe and effective means
will be provided to couples desiring to space or limit family size; mortality and morbidity rates will be further reduced."

To further strengthen R.A. No. 6365, then President Ferdinand E . Marcos issued Presidential Decree. (P.D.) No. 79, 68 dated
December 8, 1972, which, among others, made "family planning a part of a broad educational program," provided "family planning
services as a part of over-all health care," and made "available all acceptable methods of contraception, except abortion, to all
Filipino citizens desirous of spacing, limiting or preventing pregnancies."

Through the years, however, the use of contraceptives and family planning methods evolved from being a component of
demographic management, to one centered on the promotion of public health, particularly, reproductive health. 69 Under that policy,
the country gave priority to one's right to freely choose the method of family planning to be adopted, in conformity with its adherence
to the commitments made in the International Conference on Population and Development. 70 Thus, on August 14, 2009, the country
enacted R.A. No. 9710 or "The Magna Carta for Women, " which, among others, mandated the State to provide for comprehensive
health services and programs for women, including family planning and sex education.71

The RH Law

Despite the foregoing legislative measures, the population of the country kept on galloping at an uncontrollable pace. From a paltry
number of just over 27 million Filipinos in 1960, the population of the country reached over 76 million in the year 2000 and over 92
million in 2010.72 The executive and the legislative, thus, felt that the measures were still not adequate. To rein in the problem, the
RH Law was enacted to provide Filipinos, especially the poor and the marginalized, access and information to the full range of
modem family planning methods, and to ensure that its objective to provide for the peoples' right to reproductive health be achieved.
To make it more effective, the RH Law made it mandatory for health providers to provide information on the full range of modem
family planning methods, supplies and services, and for schools to provide reproductive health education. To put teeth to it, the RH
Law criminalizes certain acts of refusals to carry out its mandates.

Stated differently, the RH Law is an enhancement measure to fortify and make effective the current laws on contraception, women's
health and population control.

Prayer of the Petitioners - Maintain the Status Quo

The petitioners are one in praying that the entire RH Law be declared unconstitutional. Petitioner ALFI, in particular, argues that the
government sponsored contraception program, the very essence of the RH Law, violates the right to health of women and the
sanctity of life, which the State is mandated to protect and promote. Thus, ALFI prays that "the status quo ante - the situation prior to
the passage of the RH Law - must be maintained."73 It explains:

x x x. The instant Petition does not question contraception and contraceptives per se. As provided under Republic Act No. 5921 and
Republic Act No. 4729, the sale and distribution of contraceptives are prohibited unless dispensed by a prescription duly licensed by
a physician. What the Petitioners find deplorable and repugnant under the RH Law is the role that the State and its agencies - the
entire bureaucracy, from the cabinet secretaries down to the barangay officials in the remotest areas of the country - is made to play
in the implementation of the contraception program to the fullest extent possible using taxpayers' money. The State then will be the
funder and provider of all forms of family planning methods and the implementer of the program by ensuring the widespread
dissemination of, and universal access to, a full range of family planning methods, devices and supplies. 74

ISSUES

After a scrutiny of the various arguments and contentions of the parties, the Court has synthesized and refined them to the following
principal issues:

I. PROCEDURAL: Whether the Court may exercise its power of judicial review over the controversy.

1] Power of Judicial Review

2] Actual Case or Controversy

3] Facial Challenge

4] Locus Standi

5] Declaratory Relief

6] One Subject/One Title Rule

II. SUBSTANTIVE: Whether the RH law is unconstitutional:

1] Right to Life
2] Right to Health

3] Freedom of Religion and the Right to Free Speech

4] The Family

5] Freedom of Expression and Academic Freedom

6] Due Process

7] Equal Protection

8] Involuntary Servitude

9] Delegation of Authority to the FDA

10] Autonomy of Local Govemments/ARMM

DISCUSSION

Before delving into the constitutionality of the RH Law and its implementing rules, it behooves the Court to resolve some procedural
impediments.

I. PROCEDURAL ISSUE: Whether the Court can exercise its power of judicial review over the controversy.

The Power of Judicial Review

In its attempt to persuade the Court to stay its judicial hand, the OSG asserts that it should submit to the legislative and political
wisdom of Congress and respect the compromises made in the crafting of the RH Law, it being "a product of a majoritarian
democratic process"75 and "characterized by an inordinate amount of transparency."76 The OSG posits that the authority of the Court
to review social legislation like the RH Law by certiorari is "weak," since the Constitution vests the discretion to implement the
constitutional policies and positive norms with the political departments, in particular, with Congress. 77 It further asserts that in view
of the Court's ruling in Southern Hemisphere v. Anti-Terrorism Council,78 the remedies of certiorari and prohibition utilized by the
petitioners are improper to assail the validity of the acts of the legislature. 79

Moreover, the OSG submits that as an "as applied challenge," it cannot prosper considering that the assailed law has yet to be
enforced and applied to the petitioners, and that the government has yet to distribute reproductive health devices that are abortive. It
claims that the RH Law cannot be challenged "on its face" as it is not a speech-regulating measure.80

In many cases involving the determination of the constitutionality of the actions of the Executive and the Legislature, it is often
sought that the Court temper its exercise of judicial power and accord due respect to the wisdom of its co-equal branch on the basis
of the principle of separation of powers. To be clear, the separation of powers is a fundamental principle in our system of
government, which obtains not through express provision but by actual division in our Constitution. Each department of the
government has exclusive cognizance of matters within its jurisdiction and is supreme within its own sphere. 81

Thus, the 1987 Constitution provides that: (a) the legislative power shall be vested in the Congress of the Philippines; 82 (b) the
executive power shall be vested in the President of the Philippines; 83 and (c) the judicial power shall be vested in one Supreme
Court and in such lower courts as may be established by law.84 The Constitution has truly blocked out with deft strokes and in bold
lines, the allotment of powers among the three branches of government.85

In its relationship with its co-equals, the Judiciary recognizes the doctrine of separation of powers which imposes upon the courts
proper restraint, born of the nature of their functions and of their respect for the other branches of government, in striking down the
acts of the Executive or the Legislature as unconstitutional. Verily, the policy is a harmonious blend of courtesy and caution. 86

It has also long been observed, however, that in times of social disquietude or political instability, the great landmarks of the
Constitution are apt to be forgotten or marred, if not entirely obliterated.87 In order to address this, the Constitution impresses upon
the Court to respect the acts performed by a co-equal branch done within its sphere of competence and authority, but at the same
time, allows it to cross the line of separation - but only at a very limited and specific point - to determine whether the acts of the
executive and the legislative branches are null because they were undertaken with grave abuse of discretion. 88 Thus, while the
Court may not pass upon questions of wisdom, justice or expediency of the RH Law, it may do so where an attendant
unconstitutionality or grave abuse of discretion results.89 The Court must demonstrate its unflinching commitment to protect those
cherished rights and principles embodied in the Constitution.

In this connection, it bears adding that while the scope of judicial power of review may be limited, the Constitution makes no
distinction as to the kind of legislation that may be subject to judicial scrutiny, be it in the form of social legislation or otherwise. The
reason is simple and goes back to the earlier point. The Court may pass upon the constitutionality of acts of the legislative and the
executive branches, since its duty is not to review their collective wisdom but, rather, to make sure that they have acted in
consonance with their respective authorities and rights as mandated of them by the Constitution. If after said review, the Court finds
no constitutional violations of any sort, then, it has no more authority of proscribing the actions under review. 90 This is in line with
Article VIII, Section 1 of the Constitution which expressly provides:

Section 1. The judicial power shall be vested in one Supreme Court and in such lower courts as may be established by law.

Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government. [Emphases supplied]

As far back as Tanada v. Angara,91 the Court has unequivocally declared that certiorari, prohibition and mandamus are appropriate
remedies to raise constitutional issues and to review and/or prohibit/nullify, when proper, acts of legislative and executive officials, as
there is no other plain, speedy or adequate remedy in the ordinary course of law. This ruling was later on applied in Macalintal v.
COMELEC,92 Aldaba v. COMELEC,93Magallona v. Ermita,94 and countless others. In Tanada, the Court wrote:

In seeking to nullify an act of the Philippine Senate on the ground that it contravenes the Constitution, the petition no doubt raises a
justiciable controversy. Where an action of the legislative branch is seriously alleged to have infringed the Constitution, it becomes
not only the right but in fact the duty of the judiciary to settle the dispute. "The question thus posed is judicial rather than political.
The duty (to adjudicate) remains to assure that the supremacy of the Constitution is upheld. " Once a "controversy as to the
application or interpretation of constitutional provision is raised before this Court (as in the instant case), it becomes a legal issue
which the Court is bound by constitutional mandate to decide. [Emphasis supplied]

In the scholarly estimation of former Supreme Court Justice Florentino Feliciano, "judicial review is essential for the maintenance
and enforcement of the separation of powers and the balancing of powers among the three great departments of government
through the definition and maintenance of the boundaries of authority and control between them. To him, judicial review is the chief,
indeed the only, medium of participation - or instrument of intervention - of the judiciary in that balancing operation. 95

Lest it be misunderstood, it bears emphasizing that the Court does not have the unbridled authority to rule on just any and every
claim of constitutional violation. Jurisprudence is replete with the rule that the power of judicial review is limited by four exacting
requisites, viz : (a) there must be an actual case or controversy; (b) the petitioners must possess locus standi; (c) the question of
constitutionality must be raised at the earliest opportunity; and (d) the issue of constitutionality must be the lis mota of the case. 96

Actual Case or Controversy

Proponents of the RH Law submit that the subj ect petitions do not present any actual case or controversy because the RH Law has
yet to be implemented.97 They claim that the questions raised by the petitions are not yet concrete and ripe for adjudication since no
one has been charged with violating any of its provisions and that there is no showing that any of the petitioners' rights has been
adversely affected by its operation.98 In short, it is contended that judicial review of the RH Law is premature.

An actual case or controversy means an existing case or controversy that is appropriate or ripe for determination, not conjectural or
anticipatory, lest the decision of the court would amount to an advisory opinion. 99 The rule is that courts do not sit to adjudicate mere
academic questions to satisfy scholarly interest, however intellectually challenging. The controversy must be justiciable-definite and
concrete, touching on the legal relations of parties having adverse legal interests. In other words, the pleadings must show an active
antagonistic assertion of a legal right, on the one hand, and a denial thereof, on the other; that is, it must concern a real, tangible
and not merely a theoretical question or issue. There ought to be an actual and substantial controversy admitting of specific relief
through a decree conclusive in nature, as distinguished from an opinion advising what the law would be upon a hypothetical state of
facts.100

Corollary to the requirement of an actual case or controversy is the requirement of ripeness.101 A question is ripe for adjudication
when the act being challenged has had a direct adverse effect on the individual challenging it. For a case to be considered ripe for
adjudication, it is a prerequisite that something has then been accomplished or performed by either branch before a court may come
into the picture, and the petitioner must allege the existence of an immediate or threatened injury to himself as a result of the
challenged action. He must show that he has sustained or is immediately in danger of sustaining some direct injury as a result of the
act complained of102

In The Province of North Cotabato v. The Government of the Republic of the Philippines, 103 where the constitutionality of an
unimplemented Memorandum of Agreement on the Ancestral Domain (MOA-AD) was put in question, it was argued that the Court
has no authority to pass upon the issues raised as there was yet no concrete act performed that could possibly violate the
petitioners' and the intervenors' rights. Citing precedents, the Court ruled that the fact of the law or act in question being not yet
effective does not negate ripeness. Concrete acts under a law are not necessary to render the controversy ripe. Even a singular
violation of the Constitution and/or the law is enough to awaken judicial duty.

In this case, the Court is of the view that an actual case or controversy exists and that the same is ripe for judicial determination.
Considering that the RH Law and its implementing rules have already taken effect and that budgetary measures to carry out the law
have already been passed, it is evident that the subject petitions present a justiciable controversy. As stated earlier, when an action
of the legislative branch is seriously alleged to have infringed the Constitution, it not only becomes a right, but also a duty of the
Judiciary to settle the dispute.104

Moreover, the petitioners have shown that the case is so because medical practitioners or medical providers are in danger of being
criminally prosecuted under the RH Law for vague violations thereof, particularly public health officers who are threatened to be
dismissed from the service with forfeiture of retirement and other benefits. They must, at least, be heard on the matter NOW.

Facial Challenge

The OSG also assails the propriety of the facial challenge lodged by the subject petitions, contending that the RH Law cannot be
challenged "on its face" as it is not a speech regulating measure.105

The Court is not persuaded.

In United States (US) constitutional law, a facial challenge, also known as a First Amendment Challenge, is one that is launched to
assail the validity of statutes concerning not only protected speech, but also all other rights in the First Amendment. 106 These include
religious freedom, freedom of the press, and the right of the people to peaceably assemble, and to petition the Government for a
redress of grievances.107 After all, the fundamental right to religious freedom, freedom of the press and peaceful assembly are but
component rights of the right to one's freedom of expression, as they are modes which one's thoughts are externalized.

In this jurisdiction, the application of doctrines originating from the U.S. has been generally maintained, albeit with some
modifications. While this Court has withheld the application of facial challenges to strictly penal statues, 108 it has expanded its scope
to cover statutes not only regulating free speech, but also those involving religious freedom, and other fundamental rights. 109 The
underlying reason for this modification is simple. For unlike its counterpart in the U.S., this Court, under its expanded jurisdiction, is
mandated by the Fundamental Law not only to settle actual controversies involving rights which are legally demandable and
enforceable, but also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.110 Verily, the framers of Our Constitution envisioned a
proactive Judiciary, ever vigilant with its duty to maintain the supremacy of the Constitution.

Consequently, considering that the foregoing petitions have seriously alleged that the constitutional human rights to life, speech and
religion and other fundamental rights mentioned above have been violated by the assailed legislation, the Court has authority to take
cognizance of these kindred petitions and to determine if the RH Law can indeed pass constitutional scrutiny. To dismiss these
petitions on the simple expedient that there exist no actual case or controversy, would diminish this Court as a reactive branch of
government, acting only when the Fundamental Law has been transgressed, to the detriment of the Filipino people.

Locus Standi

The OSG also attacks the legal personality of the petitioners to file their respective petitions. It contends that the "as applied
challenge" lodged by the petitioners cannot prosper as the assailed law has yet to be enforced and applied against them, 111 and the
government has yet to distribute reproductive health devices that are abortive.112

The petitioners, for their part, invariably invoke the "transcendental importance" doctrine and their status as citizens and taxpayers in
establishing the requisite locus standi.

Locus standi or legal standing is defined as a personal and substantial interest in a case such that the party has sustained or will
sustain direct injury as a result of the challenged governmental act.113 It requires a personal stake in the outcome of the controversy
as to assure the concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for
illumination of difficult constitutional questions.114

In relation to locus standi, the "as applied challenge" embodies the rule that one can challenge the constitutionality of a statute only
if he asserts a violation of his own rights. The rule prohibits one from challenging the constitutionality of the statute grounded on a
violation of the rights of third persons not before the court. This rule is also known as the prohibition against third-party standing. 115

Transcendental Importance
Notwithstanding, the Court leans on the doctrine that "the rule on standing is a matter of procedure, hence, can be relaxed for non-
traditional plaintiffs like ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is
of transcendental importance, of overreaching significance to society, or of paramount public interest." 116

In Coconut Oil Refiners Association, Inc. v. Torres,117 the Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirement may be relaxed and a suit may be allowed to prosper even where
there is no direct injury to the party claiming the right of judicial review. In the first Emergency Powers Cases, 118 ordinary citizens and
taxpayers were allowed to question the constitutionality of several executive orders although they had only an indirect and general
interest shared in common with the public.

With these said, even if the constitutionality of the RH Law may not be assailed through an "as-applied challenge, still, the Court has
time and again acted liberally on the locus s tandi requirement. It has accorded certain individuals standing to sue, not otherwise
directly injured or with material interest affected by a Government act, provided a constitutional issue of transcendental importance
is invoked. The rule on locus standi is, after all, a procedural technicality which the Court has, on more than one occasion, waived or
relaxed, thus allowing non-traditional plaintiffs, such as concerned citizens, taxpayers, voters or legislators, to sue in the public
interest, albeit they may not have been directly injured by the operation of a law or any other government act. As held in Jaworski v.
PAGCOR:119

Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the transcendental importance of
the issues involved in this case warrants that we set aside the technical defects and take primary jurisdiction over the petition at bar.
One cannot deny that the issues raised herein have potentially pervasive influence on the social and moral well being of this nation,
specially the youth; hence, their proper and just determination is an imperative need. This is in accordance with the well-entrenched
principle that rules of procedure are not inflexible tools designed to hinder or delay, but to facilitate and promote the administration of
justice. Their strict and rigid application, which would result in technicalities that tend to frustrate, rather than promote substantial
justice, must always be eschewed. (Emphasis supplied)

In view of the seriousness, novelty and weight as precedents, not only to the public, but also to the bench and bar, the issues raised
must be resolved for the guidance of all. After all, the RH Law drastically affects the constitutional provisions on the right to life and
health, the freedom of religion and expression and other constitutional rights. Mindful of all these and the fact that the issues of
contraception and reproductive health have already caused deep division among a broad spectrum of society, the Court entertains
no doubt that the petitions raise issues of transcendental importance warranting immediate court adjudication. More importantly,
considering that it is the right to life of the mother and the unborn which is primarily at issue, the Court need not wait for a life to be
taken away before taking action.

The Court cannot, and should not, exercise judicial restraint at this time when rights enshrined in the Constitution are being
imperilled to be violated. To do so, when the life of either the mother or her child is at stake, would lead to irreparable consequences.

Declaratory Relief

The respondents also assail the petitions because they are essentially petitions for declaratory relief over which the Court has no
original jurisdiction.120 Suffice it to state that most of the petitions are praying for injunctive reliefs and so the Court would just
consider them as petitions for prohibition under Rule 65, over which it has original jurisdiction. Where the case has far-reaching
implications and prays for injunctive reliefs, the Court may consider them as petitions for prohibition under Rule 65. 121

One Subject-One Title

The petitioners also question the constitutionality of the RH Law, claiming that it violates Section 26(1 ), Article VI of the
Constitution,122 prescribing the one subject-one title rule. According to them, being one for reproductive health with responsible
parenthood, the assailed legislation violates the constitutional standards of due process by concealing its true intent - to act as a
population control measure.123

To belittle the challenge, the respondents insist that the RH Law is not a birth or population control measure, 124and that the concepts
of "responsible parenthood" and "reproductive health" are both interrelated as they are inseparable. 125

Despite efforts to push the RH Law as a reproductive health law, the Court sees it as principally a population control measure. The
corpus of the RH Law is geared towards the reduction of the country's population. While it claims to save lives and keep our women
and children healthy, it also promotes pregnancy-preventing products. As stated earlier, the RH Law emphasizes the need to provide
Filipinos, especially the poor and the marginalized, with access to information on the full range of modem family planning products
and methods. These family planning methods, natural or modem, however, are clearly geared towards the prevention of pregnancy.

For said reason, the manifest underlying objective of the RH Law is to reduce the number of births in the country.
It cannot be denied that the measure also seeks to provide pre-natal and post-natal care as well. A large portion of the law, however,
covers the dissemination of information and provisions on access to medically-safe, non-abortifacient, effective, legal, affordable,
and quality reproductive health care services, methods, devices, and supplies, which are all intended to prevent pregnancy.

The Court, thus, agrees with the petitioners' contention that the whole idea of contraception pervades the entire RH Law. It is, in
fact, the central idea of the RH Law.126 Indeed, remove the provisions that refer to contraception or are related to it and the RH Law
loses its very foundation.127 As earlier explained, "the other positive provisions such as skilled birth attendance, maternal care
including pre-and post-natal services, prevention and management of reproductive tract infections including HIV/AIDS are already
provided for in the Magna Carta for Women."128

Be that as it may, the RH Law does not violate the one subject/one bill rule. In Benjamin E. Cawaling, Jr. v. The Commission on
Elections and Rep. Francis Joseph G Escudero, it was written:

It is well-settled that the "one title-one subject" rule does not require the Congress to employ in the title of the enactment language of
such precision as to mirror, fully index or catalogue all the contents and the minute details therein. The rule is sufficiently complied
with if the title is comprehensive enough as to include the general object which the statute seeks to effect, and where, as here, the
persons interested are informed of the nature, scope and consequences of the proposed law and its operation. Moreover, this Court
has invariably adopted a liberal rather than technical construction of the rule "so as not to cripple or impede legislation." [Emphases
supplied]

In this case, a textual analysis of the various provisions of the law shows that both "reproductive health" and "responsible
parenthood" are interrelated and germane to the overriding objective to control the population growth. As expressed in the first
paragraph of Section 2 of the RH Law:

SEC. 2. Declaration of Policy. - The State recognizes and guarantees the human rights of all persons including their right to equality
and nondiscrimination of these rights, the right to sustainable human development, the right to health which includes reproductive
health, the right to education and information, and the right to choose and make decisions for themselves in accordance with their
religious convictions, ethics, cultural beliefs, and the demands of responsible parenthood.

The one subject/one title rule expresses the principle that the title of a law must not be "so uncertain that the average person
reading it would not be informed of the purpose of the enactment or put on inquiry as to its contents, or which is misleading, either in
referring to or indicating one subject where another or different one is really embraced in the act, or in omitting any expression or
indication of the real subject or scope of the act."129

Considering the close intimacy between "reproductive health" and "responsible parenthood" which bears to the attainment of the
goal of achieving "sustainable human development" as stated under its terms, the Court finds no reason to believe that Congress
intentionally sought to deceive the public as to the contents of the assailed legislation.

II - SUBSTANTIVE ISSUES:

1-The Right to Life


Position of the Petitioners

The petitioners assail the RH Law because it violates the right to life and health of the unborn child under Section 12, Article II of the
Constitution. The assailed legislation allowing access to abortifacients/abortives effectively sanctions abortion. 130

According to the petitioners, despite its express terms prohibiting abortion, Section 4(a) of the RH Law considers contraceptives that
prevent the fertilized ovum to reach and be implanted in the mother's womb as an abortifacient; thus, sanctioning contraceptives
that take effect after fertilization and prior to implantation, contrary to the intent of the Framers of the Constitution to afford protection
to the fertilized ovum which already has life.

They argue that even if Section 9 of the RH Law allows only "non-abortifacient" hormonal contraceptives, intrauterine devices,
injectables and other safe, legal, non-abortifacient and effective family planning products and supplies, medical research shows that
contraceptives use results in abortion as they operate to kill the fertilized ovum which already has life. 131

As it opposes the initiation of life, which is a fundamental human good, the petitioners assert that the State sanction of contraceptive
use contravenes natural law and is an affront to the dignity of man.132

Finally, it is contended that since Section 9 of the RH Law requires the Food and Drug Administration (FDA) to certify that the
product or supply is not to be used as an abortifacient, the assailed legislation effectively confirms that abortifacients are not
prohibited. Also considering that the FDA is not the agency that will actually supervise or administer the use of these products and
supplies to prospective patients, there is no way it can truthfully make a certification that it shall not be used for abortifacient
purposes.133
Position of the Respondents

For their part, the defenders of the RH Law point out that the intent of the Framers of the Constitution was simply the prohibition of
abortion. They contend that the RH Law does not violate the Constitution since the said law emphasizes that only "non-abortifacient"
reproductive health care services, methods, devices products and supplies shall be made accessible to the public. 134

According to the OSG, Congress has made a legislative determination that contraceptives are not abortifacients by enacting the RH
Law. As the RH Law was enacted with due consideration to various studies and consultations with the World Health Organization
(WHO) and other experts in the medical field, it is asserted that the Court afford deference and respect to such a determination and
pass judgment only when a particular drug or device is later on determined as an abortive. 135

For his part, respondent Lagman argues that the constitutional protection of one's right to life is not violated considering that various
studies of the WHO show that life begins from the implantation of the fertilized ovum. Consequently, he argues that the RH Law is
constitutional since the law specifically provides that only contraceptives that do not prevent the implantation of the fertilized ovum
are allowed.136

The Court's Position

It is a universally accepted principle that every human being enjoys the right to life.137

Even if not formally established, the right to life, being grounded on natural law, is inherent and, therefore, not a creation of, or
dependent upon a particular law, custom, or belief. It precedes and transcends any authority or the laws of men.

In this jurisdiction, the right to life is given more than ample protection. Section 1, Article III of the Constitution provides:

Section 1. No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the
equal protection of the laws.

As expounded earlier, the use of contraceptives and family planning methods in the Philippines is not of recent vintage. From the
enactment of R.A. No. 4729, entitled "An Act To Regulate The Sale, Dispensation, and/or Distribution of Contraceptive Drugs and
Devices "on June 18, 1966, prescribing rules on contraceptive drugs and devices which prevent fertilization, 138 to the promotion of
male vasectomy and tubal ligation,139 and the ratification of numerous international agreements, the country has long recognized the
need to promote population control through the use of contraceptives in order to achieve long-term economic development. Through
the years, however, the use of contraceptives and other family planning methods evolved from being a component of demographic
management, to one centered on the promotion of public health, particularly, reproductive health.140

This has resulted in the enactment of various measures promoting women's rights and health and the overall promotion of the
family's well-being. Thus, aside from R.A. No. 4729, R.A. No. 6365 or "The Population Act of the Philippines" and R.A. No. 9710,
otherwise known as the "The Magna Carta of Women" were legislated. Notwithstanding this paradigm shift, the Philippine national
population program has always been grounded two cornerstone principles: "principle of no-abortion" and the "principle of non-
coercion."141 As will be discussed later, these principles are not merely grounded on administrative policy, but rather, originates from
the constitutional protection expressly provided to afford protection to life and guarantee religious freedom.

When Life Begins*

Majority of the Members of the Court are of the position that the question of when life begins is a scientific and medical issue that
should not be decided, at this stage, without proper hearing and evidence. During the deliberation, however, it was agreed upon that
the individual members of the Court could express their own views on this matter.

In this regard, the ponente, is of the strong view that life begins at fertilization.

In answering the question of when life begins, focus should be made on the particular phrase of Section 12 which reads:

Section 12. The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social
institution. It shall equally protect the life of the mother and the life of the unborn from conception. The natural and primary right and
duty of parents in the rearing of the youth for civic efficiency and the development of moral character shall receive the support of the
Government.

Textually, the Constitution affords protection to the unborn from conception. This is undisputable because before conception, there is
no unborn to speak of. For said reason, it is no surprise that the Constitution is mute as to any proscription prior to conception or
when life begins. The problem has arisen because, amazingly, there are quarters who have conveniently disregarded the scientific
fact that conception is reckoned from fertilization. They are waving the view that life begins at implantation. Hence, the issue of
when life begins.

In a nutshell, those opposing the RH Law contend that conception is synonymous with "fertilization" of the female ovum by the male
sperm.142 On the other side of the spectrum are those who assert that conception refers to the "implantation" of the fertilized ovum in
the uterus.143

Plain and Legal Meaning

It is a canon in statutory construction that the words of the Constitution should be interpreted in their plain and ordinary meaning. As
held in the recent case of Chavez v. Judicial Bar Council:144

One of the primary and basic rules in statutory construction is that where the words of a statute are clear, plain, and free from
ambiguity, it must be given its literal meaning and applied without attempted interpretation. It is a well-settled principle of
constitutional construction that the language employed in the Constitution must be given their ordinary meaning except where
technical terms are employed. As much as possible, the words of the Constitution should be understood in the sense they have in
common use. What it says according to the text of the provision to be construed compels acceptance and negates the power of the
courts to alter it, based on the postulate that the framers and the people mean what they say. Verba legis non est recedendum -
from the words of a statute there should be no departure.

The raison d' etre for the rule is essentially two-fold: First, because it is assumed that the words in which constitutional provisions
are couched express the objective sought to be attained; and second, because the Constitution is not primarily a lawyer's document
but essentially that of the people, in whose consciousness it should ever be present as an important condition for the rule of law to
prevail.

In conformity with the above principle, the traditional meaning of the word "conception" which, as described and defined by all
reliable and reputable sources, means that life begins at fertilization.

Webster's Third New International Dictionary describes it as the act of becoming pregnant, formation of a viable zygote; the
fertilization that results in a new entity capable of developing into a being like its parents. 145

Black's Law Dictionary gives legal meaning to the term "conception" as the fecundation of the female ovum by the male
spermatozoon resulting in human life capable of survival and maturation under normal conditions. 146

Even in jurisprudence, an unborn child has already a legal personality. In Continental Steel Manufacturing Corporation v. Hon.
Accredited Voluntary Arbitrator Allan S. Montano,147 it was written:

Life is not synonymous with civil personality. One need not acquire civil personality first before he/she could die. Even a child inside
the womb already has life. No less than the Constitution recognizes the life of the unborn from conception, that the State must
protect equally with the life of the mother. If the unborn already has life, then the cessation thereof even prior to the child being
delivered, qualifies as death. [Emphases in the original]

In Gonzales v. Carhart,148 Justice Anthony Kennedy, writing for the US Supreme Court, said that the State "has respect for human
life at all stages in the pregnancy" and "a legitimate and substantial interest in preserving and promoting fetal life." Invariably, in the
decision, the fetus was referred to, or cited, as a baby or a child.149

Intent of the Framers

Records of the Constitutional Convention also shed light on the intention of the Framers regarding the term "conception" used in
Section 12, Article II of the Constitution. From their deliberations, it clearly refers to the moment of "fertilization." The records reflect
the following:

Rev. Rigos: In Section 9, page 3, there is a sentence which reads:

"The State shall equally protect the life of the mother and the life of the unborn from the moment of conception."

When is the moment of conception?

xxx

Mr. Villegas: As I explained in the sponsorship speech, it is when the ovum is fertilized by the sperm that there is human life. x x x. 150
xxx

As to why conception is reckoned from fertilization and, as such, the beginning of human life, it was explained:

Mr. Villegas: I propose to review this issue in a biological manner. The first question that needs to be answered is: Is the fertilized
ovum alive? Biologically categorically says yes, the fertilized ovum is alive. First of all, like all living organisms, it takes in nutrients
which it processes by itself. It begins doing this upon fertilization. Secondly, as it takes in these nutrients, it grows from within.
Thirdly, it multiplies itself at a geometric rate in the continuous process of cell division. All these processes are vital signs of life.
Therefore, there is no question that biologically the fertilized ovum has life.

The second question: Is it human? Genetics gives an equally categorical "yes." At the moment of conception, the nuclei of the ovum
and the sperm rupture. As this happens 23 chromosomes from the ovum combine with 23 chromosomes of the sperm to form a total
of 46 chromosomes. A chromosome count of 46 is found only - and I repeat, only in human cells. Therefore, the fertilized ovum is
human.

Since these questions have been answered affirmatively, we must conclude that if the fertilized ovum is both alive and human, then,
as night follows day, it must be human life. Its nature is human.151

Why the Constitution used the phrase "from the moment of conception" and not "from the moment of fertilization" was not because
of doubt when human life begins, but rather, because:

Mr. Tingson: x x x x the phrase from the moment of conception" was described by us here before with the scientific phrase "fertilized
ovum" may be beyond the comprehension of some people; we want to use the simpler phrase "from the moment of conception." 152

Thus, in order to ensure that the fertilized ovum is given ample protection under the Constitution, it was discussed:

Rev. Rigos: Yes, we think that the word "unborn" is sufficient for the purpose of writing a Constitution, without specifying "from the
moment of conception."

Mr. Davide: I would not subscribe to that particular view because according to the Commissioner's own admission, he would leave it
to Congress to define when life begins. So, Congress can define life to begin from six months after fertilization; and that would really
be very, very, dangerous. It is now determined by science that life begins from the moment of conception. There can be no doubt
about it. So we should not give any doubt to Congress, too.153

Upon further inquiry, it was asked:

Mr. Gascon: Mr. Presiding Officer, I would like to ask a question on that point. Actually, that is one of the questions I was going to
raise during the period of interpellations but it has been expressed already. The provision, as proposed right now states:

The State shall equally protect the life of the mother and the life of the unborn from the moment of conception.

When it speaks of "from the moment of conception," does this mean when the egg meets the sperm?

Mr. Villegas: Yes, the ovum is fertilized by the sperm.

Mr. Gascon: Therefore that does not leave to Congress the right to determine whether certain contraceptives that we know today
are abortifacient or not because it is a fact that some of the so-called contraceptives deter the rooting of the ovum in the uterus. If
fertilization has already occurred, the next process is for the fertilized ovum to travel towards the uterus and to take root. What
happens with some contraceptives is that they stop the opportunity for the fertilized ovum to reach the uterus. Therefore, if we take
the provision as it is proposed, these so called contraceptives should be banned.

Mr. Villegas: Yes, if that physical fact is established, then that is what is called abortifacient and, therefore, would be unconstitutional
and should be banned under this provision.

Mr. Gascon: Yes. So my point is that I do not think it is up to Congress to state whether or not these certain contraceptives are
abortifacient. Scientifically and based on the provision as it is now proposed, they are already considered abortifacient. 154

From the deliberations above-quoted, it is apparent that the Framers of the Constitution emphasized that the State shall provide
equal protection to both the mother and the unborn child from the earliest opportunity of life, that is, upon fertilization or upon the
union of the male sperm and the female ovum. It is also apparent is that the Framers of the Constitution intended that to prohibit
Congress from enacting measures that would allow it determine when life begins.
Equally apparent, however, is that the Framers of the Constitution did not intend to ban all contraceptives for being unconstitutional.
In fact, Commissioner Bernardo Villegas, spearheading the need to have a constitutional provision on the right to life, recognized
that the determination of whether a contraceptive device is an abortifacient is a question of fact which should be left to the courts to
decide on based on established evidence.155

From the discussions above, contraceptives that kill or destroy the fertilized ovum should be deemed an abortive and thus
prohibited. Conversely, contraceptives that actually prevent the union of the male sperm and the female ovum, and those that
similarly take action prior to fertilization should be deemed non-abortive, and thus, constitutionally permissible.

As emphasized by the Framers of the Constitution:

xxx xxx xxx

Mr. Gascon: xx xx. As I mentioned in my speech on the US bases, I am pro-life, to the point that I would like not only to protect the
life of the unborn, but also the lives of the millions of people in the world by fighting for a nuclear-free world. I would just like to be
assured of the legal and pragmatic implications of the term "protection of the life of the unborn from the moment of conception." I
raised some of these implications this afternoon when I interjected in the interpellation of Commissioner Regalado. I would like to
ask that question again for a categorical answer.

I mentioned that if we institutionalize the term "the life of the unborn from the moment of conception" we are also actually saying
"no," not "maybe," to certain contraceptives which are already being encouraged at this point in time. Is that the sense of the
committee or does it disagree with me?

Mr. Azcuna: No, Mr. Presiding Officer, because contraceptives would be preventive. There is no unborn yet. That is yet unshaped.

Mr. Gascon: Yes, Mr. Presiding Officer, but I was speaking more about some contraceptives, such as the intra-uterine device which
actually stops the egg which has already been fertilized from taking route to the uterus. So if we say "from the moment of
conception," what really occurs is that some of these contraceptives will have to be unconstitutionalized.

Mr. Azcuna: Yes, to the extent that it is after the fertilization.

Mr. Gascon: Thank you, Mr. Presiding Officer.156

The fact that not all contraceptives are prohibited by the 1987 Constitution is even admitted by petitioners during the oral arguments.
There it was conceded that tubal ligation, vasectomy, even condoms are not classified as abortifacients.157

Atty. Noche:

Before the union of the eggs, egg and the sperm, there is no life yet.

Justice Bersamin:

There is no life.

Atty. Noche:

So, there is no life to be protected.

Justice Bersamin:

To be protected.

Atty. Noche:

Under Section 12, yes.

Justice Bersamin:
So you have no objection to condoms?

Atty. Noche:

Not under Section 12, Article II.

Justice Bersamin:

Even if there is already information that condoms sometimes have porosity?

Atty. Noche:

Well, yes, Your Honor, there are scientific findings to that effect, Your Honor, but I am discussing here Section 12, Article II, Your
Honor, yes.

Justice Bersamin:

Alright.

Atty. Noche:

And it's not, I have to admit it's not an abortifacient, Your Honor.158

Medical Meaning

That conception begins at fertilization is not bereft of medical foundation. Mosby s Medical, Nursing, and Allied Health Dictionary
defines conception as "the beginning of pregnancy usually taken to be the instant a spermatozoon enters an ovum and forms a
viable zygote."159

It describes fertilization as "the union of male and female gametes to form a zygote from which the embryo develops." 160

The Textbook of Obstetrics (Physiological & Pathological Obstetrics),161 used by medical schools in the Philippines, also concludes
that human life (human person) begins at the moment of fertilization with the union of the egg and the sperm resulting in the
formation of a new individual, with a unique genetic composition that dictates all developmental stages that ensue.

Similarly, recent medical research on the matter also reveals that: "Human development begins after the union of male and female
gametes or germ cells during a process known as fertilization (conception). Fertilization is a sequence of events that begins with the
contact of a sperm (spermatozoon) with a secondary oocyte (ovum) and ends with the fusion of their pronuclei (the haploid nuclei of
the sperm and ovum) and the mingling of their chromosomes to form a new cell. This fertilized ovum, known as a zygote, is a large
diploid cell that is the beginning, or primordium, of a human being."162

The authors of Human Embryology & Teratology163 mirror the same position. They wrote: "Although life is a continuous process,
fertilization is a critical landmark because, under ordinary circumstances, a new, genetically distinct human organism is thereby
formed.... The combination of 23 chromosomes present in each pronucleus results in 46 chromosomes in the zygote. Thus the
diploid number is restored and the embryonic genome is formed. The embryo now exists as a genetic unity."

In support of the RH Bill, The Philippine Medical Association came out with a "Paper on the Reproductive Health Bill (Responsible
Parenthood Bill)" and therein concluded that:

CONCLUSION

The PMA throws its full weight in supporting the RH Bill at the same time that PMA maintains its strong position that fertilization is
sacred because it is at this stage that conception, and thus human life, begins. Human lives are sacred from the moment of
conception, and that destroying those new lives is never licit, no matter what the purported good outcome would be. In terms of
biology and human embryology, a human being begins immediately at fertilization and after that, there is no point along the
continuous line of human embryogenesis where only a "potential" human being can be posited. Any philosophical, legal, or political
conclusion cannot escape this objective scientific fact.
The scientific evidence supports the conclusion that a zygote is a human organism and that the life of a new human being
commences at a scientifically well defined "moment of conception." This conclusion is objective, consistent with the factual
evidence, and independent of any specific ethical, moral, political, or religious view of human life or of human embryos. 164

Conclusion: The Moment of Conception is Reckoned from


Fertilization

In all, whether it be taken from a plain meaning, or understood under medical parlance, and more importantly, following the intention
of the Framers of the Constitution, the undeniable conclusion is that a zygote is a human organism and that the life of a new human
being commences at a scientifically well-defined moment of conception, that is, upon fertilization.

For the above reasons, the Court cannot subscribe to the theory advocated by Hon. Lagman that life begins at
implantation.165 According to him, "fertilization and conception are two distinct and successive stages in the reproductive process.
They are not identical and synonymous."166 Citing a letter of the WHO, he wrote that "medical authorities confirm that the
implantation of the fertilized ovum is the commencement of conception and it is only after implantation that pregnancy can be
medically detected."167

This theory of implantation as the beginning of life is devoid of any legal or scientific mooring. It does not pertain to the beginning of
life but to the viability of the fetus. The fertilized ovum/zygote is not an inanimate object - it is a living human being complete with
DNA and 46 chromosomes.168 Implantation has been conceptualized only for convenience by those who had population control in
mind. To adopt it would constitute textual infidelity not only to the RH Law but also to the Constitution.

Not surprisingly, even the OSG does not support this position.

If such theory would be accepted, it would unnervingly legitimize the utilization of any drug or device that would prevent the
implantation of the fetus at the uterine wall. It would be provocative and further aggravate religious-based divisiveness.

It would legally permit what the Constitution proscribes - abortion and abortifacients.

The RH Law and Abortion

The clear and unequivocal intent of the Framers of the 1987 Constitution in protecting the life of the unborn from conception was to
prevent the Legislature from enacting a measure legalizing abortion. It was so clear that even the Court cannot interpret it otherwise.
This intent of the Framers was captured in the record of the proceedings of the 1986 Constitutional Commission. Commissioner
Bernardo Villegas, the principal proponent of the protection of the unborn from conception, explained:

The intention .. .is to make sure that there would be no pro-abortion laws ever passed by Congress or any pro-abortion decision
passed by the Supreme Court.169

A reading of the RH Law would show that it is in line with this intent and actually proscribes abortion. While the Court has opted not
to make any determination, at this stage, when life begins, it finds that the RH Law itself clearly mandates that protection be afforded
from the moment of fertilization. As pointed out by Justice Carpio, the RH Law is replete with provisions that embody the policy of
the law to protect to the fertilized ovum and that it should be afforded safe travel to the uterus for implantation. 170

Moreover, the RH Law recognizes that abortion is a crime under Article 256 of the Revised Penal Code, which penalizes the
destruction or expulsion of the fertilized ovum. Thus:

1] xx x.

Section 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

xxx.

(q) Reproductive health care refers to the access to a full range of methods, facilities, services and supplies that contribute to
reproductive health and well-being by addressing reproductive health-related problems. It also includes sexual health, the purpose
of which is the enhancement of life and personal relations. The elements of reproductive health care include the following:

xxx.

(3) Proscription of abortion and management of abortion complications;


xxx.

2] xx x.

Section 4. x x x.

(s) Reproductive health rights refers to the rights of individuals and couples, to decide freely and responsibly whether or not to have
children; the number, spacing and timing of their children; to make other decisions concerning reproduction, free of discrimination,
coercion and violence; to have the information and means to do so; and to attain the highest standard of sexual health and
reproductive health: Provided, however, That reproductive health rights do not include abortion, and access to abortifacients.

3] xx x.

SEC. 29. Repealing Clause. - Except for prevailing laws against abortion, any law, presidential decree or issuance, executive order,
letter of instruction, administrative order, rule or regulation contrary to or is inconsistent with the provisions of this Act including
Republic Act No. 7392, otherwise known as the Midwifery Act, is hereby repealed, modified or amended accordingly.

The RH Law and Abortifacients

In carrying out its declared policy, the RH Law is consistent in prohibiting abortifacients. To be clear, Section 4(a) of the RH Law
defines an abortifacient as:

Section 4. Definition of Terms - x x x x

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.

As stated above, the RH Law mandates that protection must be afforded from the moment of fertilization. By using the word " or,"
the RH Law prohibits not only drugs or devices that prevent implantation, but also those that induce abortion and those that induce
the destruction of a fetus inside the mother's womb. Thus, an abortifacient is any drug or device that either:

(a) Induces abortion; or

(b) Induces the destruction of a fetus inside the mother's womb; or

(c) Prevents the fertilized ovum to reach and be implanted in the mother's womb, upon determination of the FDA.

Contrary to the assertions made by the petitioners, the Court finds that the RH Law, consistent with the Constitution, recognizes that
the fertilized ovum already has life and that the State has a bounden duty to protect it. The conclusion becomes clear because the
RH Law, first, prohibits any drug or device that induces abortion (first kind), which, as discussed exhaustively above, refers to that
which induces the killing or the destruction of the fertilized ovum, and, second, prohibits any drug or device the fertilized ovum to
reach and be implanted in the mother's womb (third kind).

By expressly declaring that any drug or device that prevents the fertilized ovum to reach and be implanted in the mother's womb is
an abortifacient (third kind), the RH Law does not intend to mean at all that life only begins only at implantation, as Hon. Lagman
suggests. It also does not declare either that protection will only be given upon implantation, as the petitioners likewise suggest.
Rather, it recognizes that: one, there is a need to protect the fertilized ovum which already has life, and two, the fertilized ovum must
be protected the moment it becomes existent - all the way until it reaches and implants in the mother's womb. After all, if life is only
recognized and afforded protection from the moment the fertilized ovum implants - there is nothing to prevent any drug or device
from killing or destroying the fertilized ovum prior to implantation.

From the foregoing, the Court finds that inasmuch as it affords protection to the fertilized ovum, the RH Law does not sanction
abortion. To repeat, it is the Court's position that life begins at fertilization, not at implantation. When a fertilized ovum is implanted in
the uterine wall , its viability is sustained but that instance of implantation is not the point of beginning of life. It started earlier. And as
defined by the RH Law, any drug or device that induces abortion, that is, which kills or destroys the fertilized ovum or prevents the
fertilized ovum to reach and be implanted in the mother's womb, is an abortifacient.

Proviso Under Section 9 of the RH Law

This notwithstanding, the Court finds that the proviso under Section 9 of the law that "any product or supply included or to be
included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it is
not to be used as an abortifacient" as empty as it is absurd. The FDA, with all its expertise, cannot fully attest that a drug or device
will not all be used as an abortifacient, since the agency cannot be present in every instance when the contraceptive product or
supply will be used.171

Pursuant to its declared policy of providing access only to safe, legal and non-abortifacient contraceptives, however, the Court finds
that the proviso of Section 9, as worded, should bend to the legislative intent and mean that "any product or supply included or to be
included in the EDL must have a certification from the FDA that said product and supply is made available on the condition that it
cannot be used as abortifacient." Such a construction is consistent with the proviso under the second paragraph of the same section
that provides:

Provided, further, That the foregoing offices shall not purchase or acquire by any means emergency contraceptive pills, postcoital
pills, abortifacients that will be used for such purpose and their other forms or equivalent.

Abortifacients under the RH-IRR

At this juncture, the Court agrees with ALFI that the authors of the RH-IRR gravely abused their office when they redefined the
meaning of abortifacient. The RH Law defines "abortifacient" as follows:

SEC. 4. Definition of Terms. - For the purpose of this Act, the following terms shall be defined as follows:

(a) Abortifacient refers to any drug or device that induces abortion or the destruction of a fetus inside the mother's womb or the
prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the FDA.

Section 3.0l (a) of the IRR, however, redefines "abortifacient" as:

Section 3.01 For purposes of these Rules, the terms shall be defined as follows:

a) Abortifacient refers to any drug or device that primarily induces abortion or the destruction of a fetus inside the mother's womb or
the prevention of the fertilized ovum to reach and be implanted in the mother's womb upon determination of the Food and Drug
Administration (FDA). [Emphasis supplied]

Again in Section 3.0lG) of the RH-IRR, "contraceptive," is redefined, viz:

j) Contraceptive refers to any safe, legal, effective and scientifically proven modern family planning method, device, or health
product, whether natural or artificial, that prevents pregnancy but does not primarily destroy a fertilized ovum or prevent a fertilized
ovum from being implanted in the mother's womb in doses of its approved indication as determined by the Food and Drug
Administration (FDA).

The above-mentioned section of the RH-IRR allows "contraceptives" and recognizes as "abortifacient" only those that primarily
induce abortion or the destruction of a fetus inside the mother's womb or the prevention of the fertilized ovum to reach and be
implanted in the mother's womb.172

This cannot be done.

In this regard, the observations of Justice Brion and Justice Del Castillo are well taken. As they pointed out, with the insertion of the
word "primarily," Section 3.0l(a) and G) of the RH-IRR173 must be struck down for being ultra vires.

Evidently, with the addition of the word "primarily," in Section 3.0l(a) and G) of the RH-IRR is indeed ultra vires. It contravenes
Section 4(a) of the RH Law and should, therefore, be declared invalid. There is danger that the insertion of the qualifier "primarily"
will pave the way for the approval of contraceptives which may harm or destroy the life of the unborn from conception/fertilization in
violation of Article II, Section 12 of the Constitution. With such qualification in the RH-IRR, it appears to insinuate that a
contraceptive will only be considered as an "abortifacient" if its sole known effect is abortion or, as pertinent here, the prevention of
the implantation of the fertilized ovum.

For the same reason, this definition of "contraceptive" would permit the approval of contraceptives which are actually abortifacients
because of their fail-safe mechanism.174

Also, as discussed earlier, Section 9 calls for the certification by the FDA that these contraceptives cannot act as abortive. With this,
together with the definition of an abortifacient under Section 4 (a) of the RH Law and its declared policy against abortion, the
undeniable conclusion is that contraceptives to be included in the PNDFS and the EDL will not only be those contraceptives that do
not have the primary action of causing abortion or the destruction of a fetus inside the mother's womb or the prevention of the
fertilized ovum to reach and be implanted in the mother's womb, but also those that do not have the secondary action of acting the
same way.

Indeed, consistent with the constitutional policy prohibiting abortion, and in line with the principle that laws should be construed in a
manner that its constitutionality is sustained, the RH Law and its implementing rules must be consistent with each other in
prohibiting abortion. Thus, the word " primarily" in Section 3.0l(a) and G) of the RH-IRR should be declared void. To uphold the
validity of Section 3.0l(a) and G) of the RH-IRR and prohibit only those contraceptives that have the primary effect of being an
abortive would effectively "open the floodgates to the approval of contraceptives which may harm or destroy the life of the unborn
from conception/fertilization in violation of Article II, Section 12 of the Constitution." 175

To repeat and emphasize, in all cases, the "principle of no abortion" embodied in the constitutional protection of life must be upheld.

2-The Right to Health

The petitioners claim that the RH Law violates the right to health because it requires the inclusion of hormonal contraceptives,
intrauterine devices, injectables and family products and supplies in the National Drug Formulary and the inclusion of the same in
the regular purchase of essential medicines and supplies of all national hospitals.176 Citing various studies on the matter, the
petitioners posit that the risk of developing breast and cervical cancer is greatly increased in women who use oral contraceptives as
compared to women who never use them. They point out that the risk is decreased when the use of contraceptives is discontinued.
Further, it is contended that the use of combined oral contraceptive pills is associated with a threefold increased risk of venous
thromboembolism, a twofold increased risk of ischematic stroke, and an indeterminate effect on risk of myocardial
infarction.177 Given the definition of "reproductive health" and "sexual health" under Sections 4(p)178 and (w)179 of the RH Law, the
petitioners assert that the assailed legislation only seeks to ensure that women have pleasurable and satisfying sex lives. 180

The OSG, however, points out that Section 15, Article II of the Constitution is not self-executory, it being a mere statement of the
administration's principle and policy. Even if it were self-executory, the OSG posits that medical authorities refute the claim that
contraceptive pose a danger to the health of women.181

The Court's Position

A component to the right to life is the constitutional right to health. In this regard, the Constitution is replete with provisions protecting
and promoting the right to health. Section 15, Article II of the Constitution provides:

Section 15. The State shall protect and promote the right to health of the people and instill health consciousness among them.

A portion of Article XIII also specifically provides for the States' duty to provide for the health of the people, viz:

HEALTH

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make
essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

Section 12. The State shall establish and maintain an effective food and drug regulatory system and undertake appropriate health,
manpower development, and research, responsive to the country's health needs and problems.

Section 13. The State shall establish a special agency for disabled person for their rehabilitation, self-development, and self-
reliance, and their integration into the mainstream of society.

Finally, Section 9, Article XVI provides:

Section 9. The State shall protect consumers from trade malpractices and from substandard or hazardous products.

Contrary to the respondent's notion, however, these provisions are self-executing. Unless the provisions clearly express the
contrary, the provisions of the Constitution should be considered self-executory. There is no need for legislation to implement these
self-executing provisions.182 In Manila Prince Hotel v. GSIS,183 it was stated:

x x x Hence, unless it is expressly provided that a legislative act is necessary to enforce a constitutional mandate, the presumption
now is that all provisions of the constitution are self-executing. If the constitutional provisions are treated as requiring legislation
instead of self-executing, the legislature would have the power to ignore and practically nullify the mandate of the fundamental law.
This can be cataclysmic. That is why the prevailing view is, as it has always been, that
... in case of doubt, the Constitution should be considered self-executing rather than non-self-executing. . . . Unless the contrary is
clearly intended, the provisions of the Constitution should be considered self-executing, as a contrary rule would give the legislature
discretion to determine when, or whether, they shall be effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by simply refusing to pass the needed implementing statute.
(Emphases supplied)

This notwithstanding, it bears mentioning that the petitioners, particularly ALFI, do not question contraception and contraceptives per
se.184 In fact, ALFI prays that the status quo - under R.A. No. 5921 and R.A. No. 4729, the sale and distribution of contraceptives are
not prohibited when they are dispensed by a prescription of a duly licensed by a physician - be maintained. 185

The legislative intent in the enactment of the RH Law in this regard is to leave intact the provisions of R.A. No. 4729. There is no
intention at all to do away with it. It is still a good law and its requirements are still in to be complied with. Thus, the Court agrees
with the observation of respondent Lagman that the effectivity of the RH Law will not lead to the unmitigated proliferation of
contraceptives since the sale, distribution and dispensation of contraceptive drugs and devices will still require the prescription of a
licensed physician. With R.A. No. 4729 in place, there exists adequate safeguards to ensure the public that only contraceptives that
are safe are made available to the public. As aptly explained by respondent Lagman:

D. Contraceptives cannot be
dispensed and used without
prescription

108. As an added protection to voluntary users of contraceptives, the same cannot be dispensed and used without prescription.

109. Republic Act No. 4729 or "An Act to Regulate the Sale, Dispensation, and/ or Distribution of Contraceptive Drugs and Devices"
and Republic Act No. 5921 or "An Act Regulating the Practice of Pharmacy and Setting Standards of Pharmaceutical Education in
the Philippines and for Other Purposes" are not repealed by the RH Law and the provisions of said Acts are not inconsistent with the
RH Law.

110. Consequently, the sale, distribution and dispensation of contraceptive drugs and devices are particularly governed by RA No.
4729 which provides in full:

"Section 1. It shall be unlawful for any person, partnership, or corporation, to sell, dispense or otherwise distribute whether for or
without consideration, any contraceptive drug or device, unless such sale, dispensation or distribution is by a duly licensed drug
store or pharmaceutical company and with the prescription of a qualified medical practitioner.

"Sec. 2 . For the purpose of this Act:

"(a) "Contraceptive drug" is any medicine, drug, chemical, or portion which is used exclusively for the purpose of
preventing fertilization of the female ovum: and

"(b) "Contraceptive device" is any instrument, device, material, or agent introduced into the female reproductive system for
the primary purpose of preventing conception.

"Sec. 3 Any person, partnership, or corporation, violating the provisions of this Act shall be punished with a fine of not more than five
hundred pesos or an imprisonment of not less than six months or more than one year or both in the discretion of the Court.

"This Act shall take effect upon its approval.

"Approved: June 18, 1966"

111. Of the same import, but in a general manner, Section 25 of RA No. 5921 provides:

"Section 25. Sale of medicine, pharmaceuticals, drugs and devices. No medicine, pharmaceutical, or drug of whatever nature and
kind or device shall be compounded, dispensed, sold or resold, or otherwise be made available to the consuming public except
through a prescription drugstore or hospital pharmacy, duly established in accordance with the provisions of this Act.

112. With all of the foregoing safeguards, as provided for in the RH Law and other relevant statutes, the pretension of the petitioners
that the RH Law will lead to the unmitigated proliferation of contraceptives, whether harmful or not, is completely unwarranted and
baseless.186 [Emphases in the Original. Underlining supplied.]

In Re: Section 10 of the RH Law:


The foregoing safeguards should be read in connection with Section 10 of the RH Law which provides:

SEC. 10. Procurement and Distribution of Family Planning Supplies. - The DOH shall procure, distribute to LGUs and monitor the
usage of family planning supplies for the whole country. The DOH shall coordinate with all appropriate local government bodies to
plan and implement this procurement and distribution program. The supply and budget allotments shall be based on, among others,
the current levels and projections of the following:

(a) Number of women of reproductive age and couples who want to space or limit their children;

(b) Contraceptive prevalence rate, by type of method used; and

(c) Cost of family planning supplies.

Provided, That LGUs may implement its own procurement, distribution and monitoring program consistent with the overall provisions
of this Act and the guidelines of the DOH.

Thus, in the distribution by the DOH of contraceptive drugs and devices, it must consider the provisions of R.A. No. 4729, which is
still in effect, and ensure that the contraceptives that it will procure shall be from a duly licensed drug store or pharmaceutical
company and that the actual dispensation of these contraceptive drugs and devices will done following a prescription of a qualified
medical practitioner. The distribution of contraceptive drugs and devices must not be indiscriminately done. The public health must
be protected by all possible means. As pointed out by Justice De Castro, a heavy responsibility and burden are assumed by the
government in supplying contraceptive drugs and devices, for it may be held accountable for any injury, illness or loss of life
resulting from or incidental to their use.187

At any rate, it bears pointing out that not a single contraceptive has yet been submitted to the FDA pursuant to the RH Law. It
behooves the Court to await its determination which drugs or devices are declared by the FDA as safe, it being the agency tasked to
ensure that food and medicines available to the public are safe for public consumption. Consequently, the Court finds that, at this
point, the attack on the RH Law on this ground is premature. Indeed, the various kinds of contraceptives must first be measured up
to the constitutional yardstick as expounded herein, to be determined as the case presents itself.

At this point, the Court is of the strong view that Congress cannot legislate that hormonal contraceptives and intra-uterine devices
are safe and non-abortifacient. The first sentence of Section 9 that ordains their inclusion by the National Drug Formulary in the EDL
by using the mandatory "shall" is to be construed as operative only after they have been tested, evaluated, and approved by the
FDA. The FDA, not Congress, has the expertise to determine whether a particular hormonal contraceptive or intrauterine device is
safe and non-abortifacient. The provision of the third sentence concerning the requirements for the inclusion or removal of a
particular family planning supply from the EDL supports this construction.

Stated differently, the provision in Section 9 covering the inclusion of hormonal contraceptives, intra-uterine devices, injectables, and
other safe, legal, non-abortifacient and effective family planning products and supplies by the National Drug Formulary in the EDL is
not mandatory. There must first be a determination by the FDA that they are in fact safe, legal, non-abortifacient and effective family
planning products and supplies. There can be no predetermination by Congress that the gamut of contraceptives are "safe, legal,
non-abortifacient and effective" without the proper scientific examination.

3 -Freedom of Religion
and the Right to Free Speech

Position of the Petitioners:

1. On Contraception

While contraceptives and procedures like vasectomy and tubal ligation are not covered by the constitutional proscription, there are
those who, because of their religious education and background, sincerely believe that contraceptives, whether abortifacient or not,
are evil. Some of these are medical practitioners who essentially claim that their beliefs prohibit not only the use of contraceptives
but also the willing participation and cooperation in all things dealing with contraceptive use. Petitioner PAX explained that
"contraception is gravely opposed to marital chastity, it is contrary to the good of the transmission of life, and to the reciprocal self-
giving of the spouses; it harms true love and denies the sovereign rule of God in the transmission of Human life." 188

The petitioners question the State-sponsored procurement of contraceptives, arguing that the expenditure of their taxes on
contraceptives violates the guarantee of religious freedom since contraceptives contravene their religious beliefs. 189

2. On Religious Accommodation and


The Duty to Refer
Petitioners Imbong and Luat note that while the RH Law attempts to address religious sentiments by making provisions for a
conscientious objector, the constitutional guarantee is nonetheless violated because the law also imposes upon the conscientious
objector the duty to refer the patient seeking reproductive health services to another medical practitioner who would be able to
provide for the patient's needs. For the petitioners, this amounts to requiring the conscientious objector to cooperate with the very
thing he refuses to do without violating his/her religious beliefs. 190

They further argue that even if the conscientious objector's duty to refer is recognized, the recognition is unduly limited, because
although it allows a conscientious objector in Section 23 (a)(3) the option to refer a patient seeking reproductive health services and
information - no escape is afforded the conscientious objector in Section 23 (a)(l) and (2), i.e. against a patient seeking reproductive
health procedures. They claim that the right of other individuals to conscientiously object, such as: a) those working in public health
facilities referred to in Section 7; b) public officers involved in the implementation of the law referred to in Section 23(b ); and c)
teachers in public schools referred to in Section 14 of the RH Law, are also not recognize. 191

Petitioner Echavez and the other medical practitioners meanwhile, contend that the requirement to refer the matter to another health
care service provider is still considered a compulsion on those objecting healthcare service providers. They add that compelling
them to do the act against their will violates the Doctrine of Benevolent Neutrality. Sections 9, 14 and 1 7 of the law are too secular
that they tend to disregard the religion of Filipinos. Authorizing the use of contraceptives with abortive effects, mandatory sex
education, mandatory pro-bono reproductive health services to indigents encroach upon the religious freedom of those upon whom
they are required.192

Petitioner CFC also argues that the requirement for a conscientious objector to refer the person seeking reproductive health care
services to another provider infringes on one's freedom of religion as it forces the objector to become an unwilling participant in the
commission of a serious sin under Catholic teachings. While the right to act on one's belief may be regulated by the State, the acts
prohibited by the RH Law are passive acts which produce neither harm nor injury to the public.193

Petitioner CFC adds that the RH Law does not show compelling state interest to justify regulation of religious freedom because it
mentions no emergency, risk or threat that endangers state interests. It does not explain how the rights of the people (to equality,
non-discrimination of rights, sustainable human development, health, education, information, choice and to make decisions
according to religious convictions, ethics, cultural beliefs and the demands of responsible parenthood) are being threatened or are
not being met as to justify the impairment of religious freedom.194

Finally, the petitioners also question Section 15 of the RH Law requiring would-be couples to attend family planning and responsible
parenthood seminars and to obtain a certificate of compliance. They claim that the provision forces individuals to participate in the
implementation of the RH Law even if it contravenes their religious beliefs.195 As the assailed law dangles the threat of penalty of
fine and/or imprisonment in case of non-compliance with its provisions, the petitioners claim that the RH Law forcing them to
provide, support and facilitate access and information to contraception against their beliefs must be struck down as it runs afoul to
the constitutional guarantee of religious freedom.

The Respondents' Positions

The respondents, on the other hand, contend that the RH Law does not provide that a specific mode or type of contraceptives be
used, be it natural or artificial. It neither imposes nor sanctions any religion or belief.196 They point out that the RH Law only seeks to
serve the public interest by providing accessible, effective and quality reproductive health services to ensure maternal and child
health, in line with the State's duty to bring to reality the social justice health guarantees of the Constitution, 197 and that what the law
only prohibits are those acts or practices, which deprive others of their right to reproductive health. 198 They assert that the assailed
law only seeks to guarantee informed choice, which is an assurance that no one will be compelled to violate his religion against his
free will.199

The respondents add that by asserting that only natural family planning should be allowed, the petitioners are effectively going
against the constitutional right to religious freedom, the same right they invoked to assail the constitutionality of the RH Law. 200 In
other words, by seeking the declaration that the RH Law is unconstitutional, the petitioners are asking that the Court recognize only
the Catholic Church's sanctioned natural family planning methods and impose this on the entire citizenry. 201

With respect to the duty to refer, the respondents insist that the same does not violate the constitutional guarantee of religious
freedom, it being a carefully balanced compromise between the interests of the religious objector, on one hand, who is allowed to
keep silent but is required to refer -and that of the citizen who needs access to information and who has the right to expect that the
health care professional in front of her will act professionally. For the respondents, the concession given by the State under Section
7 and 23(a)(3) is sufficient accommodation to the right to freely exercise one's religion without unnecessarily infringing on the rights
of others.202

Whatever burden is placed on the petitioner's religious freedom is minimal as the duty to refer is limited in duration, location and
impact.203
Regarding mandatory family planning seminars under Section 15 , the respondents claim that it is a reasonable regulation providing
an opportunity for would-be couples to have access to information regarding parenthood, family planning, breastfeeding and infant
nutrition. It is argued that those who object to any information received on account of their attendance in the required seminars are
not compelled to accept information given to them. They are completely free to reject any information they do not agree with and
retain the freedom to decide on matters of family life without intervention of the State.204

For their part, respondents De Venecia et al., dispute the notion that natural family planning is the only method acceptable to
Catholics and the Catholic hierarchy. Citing various studies and surveys on the matter, they highlight the changing stand of the
Catholic Church on contraception throughout the years and note the general acceptance of the benefits of contraceptives by its
followers in planning their families.

The Church and The State

At the outset, it cannot be denied that we all live in a heterogeneous society. It is made up of people of diverse ethnic, cultural and
religious beliefs and backgrounds. History has shown us that our government, in law and in practice, has allowed these various
religious, cultural, social and racial groups to thrive in a single society together. It has embraced minority groups and is tolerant
towards all - the religious people of different sects and the non-believers. The undisputed fact is that our people generally believe in
a deity, whatever they conceived Him to be, and to whom they call for guidance and enlightenment in crafting our fundamental law.
Thus, the preamble of the present Constitution reads:

We, the sovereign Filipino people, imploring the aid of Almighty God, in order to build a just and humane society, and establish a
Government that shall embody our ideals and aspirations, promote the common good, conserve and develop our patrimony, and
secure to ourselves and our posterity, the blessings of independence and democracy under the rule of law and a regime of truth,
justice, freedom, love, equality, and peace, do ordain and promulgate this Constitution.

The Filipino people in "imploring the aid of Almighty God " manifested their spirituality innate in our nature and consciousness as a
people, shaped by tradition and historical experience. As this is embodied in the preamble, it means that the State recognizes with
respect the influence of religion in so far as it instills into the mind the purest principles of morality. 205 Moreover, in recognition of the
contributions of religion to society, the 1935, 1973 and 1987 constitutions contain benevolent and accommodating provisions
towards religions such as tax exemption of church property, salary of religious officers in government institutions, and optional
religious instructions in public schools.

The Framers, however, felt the need to put up a strong barrier so that the State would not encroach into the affairs of the church,
and vice-versa. The principle of separation of Church and State was, thus, enshrined in Article II, Section 6 of the 1987 Constitution,
viz:

Section 6. The separation of Church and State shall be inviolable.

Verily, the principle of separation of Church and State is based on mutual respect.1wphi1 Generally, the State cannot meddle in the
internal affairs of the church, much less question its faith and dogmas or dictate upon it. It cannot favor one religion and discriminate
against another. On the other hand, the church cannot impose its beliefs and convictions on the State and the rest of the citizenry. It
cannot demand that the nation follow its beliefs, even if it sincerely believes that they are good for the country.

Consistent with the principle that not any one religion should ever be preferred over another, the Constitution in the above-cited
provision utilizes the term "church" in its generic sense, which refers to a temple, a mosque, an iglesia, or any other house of God
which metaphorically symbolizes a religious organization. Thus, the "Church" means the religious congregations collectively.

Balancing the benefits that religion affords and the need to provide an ample barrier to protect the State from the pursuit of its
secular objectives, the Constitution lays down the following mandate in Article III, Section 5 and Article VI, Section 29 (2), of the
1987 Constitution:

Section. 5. No law shall be made respecting an establishment of religion, or prohibiting the free exercise thereof. The free exercise
and enjoyment of religious profession and worship, without discrimination or preference, shall forever be allowed. No religious test
shall be required for the exercise of civil or political rights.

Section 29.

xxx.

No public money or property shall be appropriated, applied, paid, or employed, directly or indirectly, for the use, benefit, or support
of any sect, church, denomination, sectarian institution, or system of religion, or of any priest, preacher, minister, other religious
teacher, or dignitary as such, except when such priest, preacher, minister, or dignitary is assigned to the armed forces, or to any
penal institution, or government orphanage or leprosarium.
In short, the constitutional assurance of religious freedom provides two guarantees: the Establishment Clause and the Free Exercise
Clause.

The establishment clause "principally prohibits the State from sponsoring any religion or favoring any religion as against other
religions. It mandates a strict neutrality in affairs among religious groups." 206 Essentially, it prohibits the establishment of a state
religion and the use of public resources for the support or prohibition of a religion.

On the other hand, the basis of the free exercise clause is the respect for the inviolability of the human conscience. 207 Under this
part of religious freedom guarantee, the State is prohibited from unduly interfering with the outside manifestations of one's belief and
faith.208 Explaining the concept of religious freedom, the Court, in Victoriano v. Elizalde Rope Workers Union 209 wrote:

The constitutional provisions not only prohibits legislation for the support of any religious tenets or the modes of worship of any sect,
thus forestalling compulsion by law of the acceptance of any creed or the practice of any form of worship (U.S. Ballard, 322 U.S. 78,
88 L. ed. 1148, 1153), but also assures the free exercise of one's chosen form of religion within limits of utmost amplitude. It has
been said that the religion clauses of the Constitution are all designed to protect the broadest possible liberty of conscience, to allow
each man to believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the
liberty of others and with the common good. Any legislation whose effect or purpose is to impede the observance of one or all
religions, or to discriminate invidiously between the religions, is invalid, even though the burden may be characterized as being only
indirect. (Sherbert v. Verner, 374 U.S. 398, 10 L.ed.2d 965, 83 S. Ct. 1970) But if the state regulates conduct by enacting, within its
power, a general law which has for its purpose and effect to advance the state's secular goals, the statute is valid despite its indirect
burden on religious observance, unless the state can accomplish its purpose without imposing such burden. (Braunfeld v. Brown,
366 U.S. 599, 6 Led. 2d. 563, 81 S. Ct. 144; McGowan v. Maryland, 366 U.S. 420, 444-5 and 449).

As expounded in Escritor,

The establishment and free exercise clauses were not designed to serve contradictory purposes. They have a single goal-to
promote freedom of individual religious beliefs and practices. In simplest terms, the free exercise clause prohibits government from
inhibiting religious beliefs with penalties for religious beliefs and practice, while the establishment clause prohibits government from
inhibiting religious belief with rewards for religious beliefs and practices. In other words, the two religion clauses were intended to
deny government the power to use either the carrot or the stick to influence individual religious beliefs and practices. 210

Corollary to the guarantee of free exercise of one's religion is the principle that the guarantee of religious freedom is comprised of
two parts: the freedom to believe, and the freedom to act on one's belief. The first part is absolute. As explained in Gerona v.
Secretary of Education:211

The realm of belief and creed is infinite and limitless bounded only by one's imagination and thought. So is the freedom of belief,
including religious belief, limitless and without bounds. One may believe in most anything, however strange, bizarre and
unreasonable the same may appear to others, even heretical when weighed in the scales of orthodoxy or doctrinal standards. But
between the freedom of belief and the exercise of said belief, there is quite a stretch of road to travel. 212

The second part however, is limited and subject to the awesome power of the State and can be enjoyed only with proper regard to
the rights of others. It is "subject to regulation where the belief is translated into external acts that affect the public welfare." 213

Legislative Acts and the

Free Exercise Clause

Thus, in case of conflict between the free exercise clause and the State, the Court adheres to the doctrine of benevolent neutrality.
This has been clearly decided by the Court in Estrada v. Escritor, (Escritor)214 where it was stated "that benevolent neutrality-
accommodation, whether mandatory or permissive, is the spirit, intent and framework underlying the Philippine Constitution." 215 In
the same case, it was further explained that"

The benevolent neutrality theory believes that with respect to these governmental actions, accommodation of religion may be
allowed, not to promote the government's favored form of religion, but to allow individuals and groups to exercise their religion
without hindrance. "The purpose of accommodation is to remove a burden on, or facilitate the exercise of, a person's or institution's
religion."216 "What is sought under the theory of accommodation is not a declaration of unconstitutionality of a facially neutral law, but
an exemption from its application or its 'burdensome effect,' whether by the legislature or the courts." 217

In ascertaining the limits of the exercise of religious freedom, the compelling state interest test is proper. 218Underlying the compelling
state interest test is the notion that free exercise is a fundamental right and that laws burdening it should be subject to strict
scrutiny.219 In Escritor, it was written:
Philippine jurisprudence articulates several tests to determine these limits. Beginning with the first case on the Free Exercise
Clause, American Bible Society, the Court mentioned the "clear and present danger" test but did not employ it. Nevertheless, this
test continued to be cited in subsequent cases on religious liberty. The Gerona case then pronounced that the test of permissibility
of religious freedom is whether it violates the established institutions of society and law. The Victoriano case mentioned the
"immediate and grave danger" test as well as the doctrine that a law of general applicability may burden religious exercise provided
the law is the least restrictive means to accomplish the goal of the law. The case also used, albeit inappropriately, the "compelling
state interest" test. After Victoriano , German went back to the Gerona rule. Ebralinag then employed the "grave and immediate
danger" test and overruled the Gerona test. The fairly recent case of Iglesia ni Cristo went back to the " clear and present danger"
test in the maiden case of A merican Bible Society. Not surprisingly, all the cases which employed the "clear and present danger" or
"grave and immediate danger" test involved, in one form or another, religious speech as this test is often used in cases on freedom
of expression. On the other hand, the Gerona and German cases set the rule that religious freedom will not prevail over established
institutions of society and law. Gerona, however, which was the authority cited by German has been overruled by Ebralinag which
employed the "grave and immediate danger" test . Victoriano was the only case that employed the "compelling state interest" test,
but as explained previously, the use of the test was inappropriate to the facts of the case.

The case at bar does not involve speech as in A merican Bible Society, Ebralinag and Iglesia ni Cristo where the "clear and present
danger" and "grave and immediate danger" tests were appropriate as speech has easily discernible or immediate effects. The
Gerona and German doctrine, aside from having been overruled, is not congruent with the benevolent neutrality approach, thus not
appropriate in this jurisdiction. Similar to Victoriano, the present case involves purely conduct arising from religious belief. The
"compelling state interest" test is proper where conduct is involved for the whole gamut of human conduct has different effects on
the state's interests: some effects may be immediate and short-term while others delayed and far-reaching. A test that would protect
the interests of the state in preventing a substantive evil, whether immediate or delayed, is therefore necessary. However, not any
interest of the state would suffice to prevail over the right to religious freedom as this is a fundamental right that enjoys a preferred
position in the hierarchy of rights - "the most inalienable and sacred of all human rights", in the words of Jefferson. This right is
sacred for an invocation of the Free Exercise Clause is an appeal to a higher sovereignty. The entire constitutional order of limited
government is premised upon an acknowledgment of such higher sovereignty, thus the Filipinos implore the "aid of Almighty God in
order to build a just and humane society and establish a government." As held in Sherbert, only the gravest abuses, endangering
paramount interests can limit this fundamental right. A mere balancing of interests which balances a right with just a colorable state
interest is therefore not appropriate. Instead, only a compelling interest of the state can prevail over the fundamental right to
religious liberty. The test requires the state to carry a heavy burden, a compelling one, for to do otherwise would allow the state to
batter religion, especially the less powerful ones until they are destroyed. In determining which shall prevail between the state's
interest and religious liberty, reasonableness shall be the guide. The "compelling state interest" serves the purpose of revering
religious liberty while at the same time affording protection to the paramount interests of the state. This was the test used in
Sherbert which involved conduct, i.e. refusal to work on Saturdays. In the end, the "compelling state interest" test, by upholding the
paramount interests of the state, seeks to protect the very state, without which, religious liberty will not be preserved. [Emphases in
the original. Underlining supplied.]

The Court's Position

In the case at bench, it is not within the province of the Court to determine whether the use of contraceptives or one's participation in
the support of modem reproductive health measures is moral from a religious standpoint or whether the same is right or wrong
according to one's dogma or belief. For the Court has declared that matters dealing with "faith, practice, doctrine, form of worship,
ecclesiastical law, custom and rule of a church ... are unquestionably ecclesiastical matters which are outside the province of the
civil courts."220 The jurisdiction of the Court extends only to public and secular morality. Whatever pronouncement the Court makes
in the case at bench should be understood only in this realm where it has authority. Stated otherwise, while the Court stands without
authority to rule on ecclesiastical matters, as vanguard of the Constitution, it does have authority to determine whether the RH Law
contravenes the guarantee of religious freedom.

At first blush, it appears that the RH Law recognizes and respects religion and religious beliefs and convictions. It is replete with
assurances the no one can be compelled to violate the tenets of his religion or defy his religious convictions against his free will.
Provisions in the RH Law respecting religious freedom are the following:

1. The State recognizes and guarantees the human rights of all persons including their right to equality and nondiscrimination of
these rights, the right to sustainable human development, the right to health which includes reproductive health, the right to
education and information, and the right to choose and make decisions for themselves in accordance with their religious convictions,
ethics, cultural beliefs, and the demands of responsible parenthood. [Section 2, Declaration of Policy]

2 . The State recognizes marriage as an inviolable social institution and the foundation of the family which in turn is the foundation of
the nation. Pursuant thereto, the State shall defend:

(a) The right of spouses to found a family in accordance with their religious convictions and the demands of responsible
parenthood." [Section 2, Declaration of Policy]

3. The State shall promote and provide information and access, without bias, to all methods of family planning, including effective
natural and modern methods which have been proven medically safe, legal, non-abortifacient, and effective in accordance with
scientific and evidence-based medical research standards such as those registered and approved by the FDA for the poor and
marginalized as identified through the NHTS-PR and other government measures of identifying marginalization: Provided, That the
State shall also provide funding support to promote modern natural methods of family planning, especially the Billings Ovulation
Method, consistent with the needs of acceptors and their religious convictions. [Section 3(e), Declaration of Policy]

4. The State shall promote programs that: (1) enable individuals and couples to have the number of children they desire with due
consideration to the health, particularly of women, and the resources available and affordable to them and in accordance with
existing laws, public morals and their religious convictions. [Section 3CDJ

5. The State shall respect individuals' preferences and choice of family planning methods that are in accordance with their religious
convictions and cultural beliefs, taking into consideration the State's obligations under various human rights instruments. [Section
3(h)]

6. Active participation by nongovernment organizations (NGOs) , women's and people's organizations, civil society, faith-based
organizations, the religious sector and communities is crucial to ensure that reproductive health and population and development
policies, plans, and programs will address the priority needs of women, the poor, and the marginalized. [Section 3(i)]

7. Responsible parenthood refers to the will and ability of a parent to respond to the needs and aspirations of the family and
children. It is likewise a shared responsibility between parents to determine and achieve the desired number of children, spacing
and timing of their children according to their own family life aspirations, taking into account psychological preparedness, health
status, sociocultural and economic concerns consistent with their religious convictions. [Section 4(v)] (Emphases supplied)

While the Constitution prohibits abortion, laws were enacted allowing the use of contraceptives. To some medical practitioners,
however, the whole idea of using contraceptives is an anathema. Consistent with the principle of benevolent neutrality, their beliefs
should be respected.

The Establishment Clause

and Contraceptives

In the same breath that the establishment clause restricts what the government can do with religion, it also limits what religious
sects can or cannot do with the government. They can neither cause the government to adopt their particular doctrines as policy for
everyone, nor can they not cause the government to restrict other groups. To do so, in simple terms, would cause the State to
adhere to a particular religion and, thus, establishing a state religion.

Consequently, the petitioners are misguided in their supposition that the State cannot enhance its population control program
through the RH Law simply because the promotion of contraceptive use is contrary to their religious beliefs. Indeed, the State is not
precluded to pursue its legitimate secular objectives without being dictated upon by the policies of any one religion. One cannot
refuse to pay his taxes simply because it will cloud his conscience. The demarcation line between Church and State demands that
one render unto Caesar the things that are Caesar's and unto God the things that are God's.221

The Free Exercise Clause and the Duty to Refer

While the RH Law, in espousing state policy to promote reproductive health manifestly respects diverse religious beliefs in line with
the Non-Establishment Clause, the same conclusion cannot be reached with respect to Sections 7, 23 and 24 thereof. The said
provisions commonly mandate that a hospital or a medical practitioner to immediately refer a person seeking health care and
services under the law to another accessible healthcare provider despite their conscientious objections based on religious or ethical
beliefs.

In a situation where the free exercise of religion is allegedly burdened by government legislation or practice, the compelling state
interest test in line with the Court's espousal of the Doctrine of Benevolent Neutrality in Escritor, finds application. In this case, the
conscientious objector's claim to religious freedom would warrant an exemption from obligations under the RH Law, unless the
government succeeds in demonstrating a more compelling state interest in the accomplishment of an important secular objective.
Necessarily so, the plea of conscientious objectors for exemption from the RH Law deserves no less than strict scrutiny.

In applying the test, the first inquiry is whether a conscientious objector's right to religious freedom has been burdened. As in
Escritor, there is no doubt that an intense tug-of-war plagues a conscientious objector. One side coaxes him into obedience to the
law and the abandonment of his religious beliefs, while the other entices him to a clean conscience yet under the pain of penalty.
The scenario is an illustration of the predicament of medical practitioners whose religious beliefs are incongruent with what the RH
Law promotes.

The Court is of the view that the obligation to refer imposed by the RH Law violates the religious belief and conviction of a
conscientious objector. Once the medical practitioner, against his will, refers a patient seeking information on modem reproductive
health products, services, procedures and methods, his conscience is immediately burdened as he has been compelled to perform
an act against his beliefs. As Commissioner Joaquin A. Bernas (Commissioner Bernas) has written, "at the basis of the free exercise
clause is the respect for the inviolability of the human conscience.222

Though it has been said that the act of referral is an opt-out clause, it is, however, a false compromise because it makes pro-life
health providers complicit in the performance of an act that they find morally repugnant or offensive. They cannot, in conscience, do
indirectly what they cannot do directly. One may not be the principal, but he is equally guilty if he abets the offensive act by indirect
participation.

Moreover, the guarantee of religious freedom is necessarily intertwined with the right to free speech, it being an externalization of
one's thought and conscience. This in turn includes the right to be silent. With the constitutional guarantee of religious freedom
follows the protection that should be afforded to individuals in communicating their beliefs to others as well as the protection for
simply being silent. The Bill of Rights guarantees the liberty of the individual to utter what is in his mind and the liberty not to utter
what is not in his mind.223 While the RH Law seeks to provide freedom of choice through informed consent, freedom of choice
guarantees the liberty of the religious conscience and prohibits any degree of compulsion or burden, whether direct or indirect, in the
practice of one's religion.224

In case of conflict between the religious beliefs and moral convictions of individuals, on one hand, and the interest of the State, on
the other, to provide access and information on reproductive health products, services, procedures and methods to enable the
people to determine the timing, number and spacing of the birth of their children, the Court is of the strong view that the religious
freedom of health providers, whether public or private, should be accorded primacy. Accordingly, a conscientious objector should be
exempt from compliance with the mandates of the RH Law. If he would be compelled to act contrary to his religious belief and
conviction, it would be violative of "the principle of non-coercion" enshrined in the constitutional right to free exercise of religion.

Interestingly, on April 24, 2013, Scotland's Inner House of the Court of Session, found in the case of Doogan and Wood v. NHS
Greater Glasgow and Clyde Health Board,225 that the midwives claiming to be conscientious objectors under the provisions of
Scotland's Abortion Act of 1967, could not be required to delegate, supervise or support staff on their labor ward who were involved
in abortions.226 The Inner House stated "that if 'participation' were defined according to whether the person was taking part 'directly'
or ' indirectly' this would actually mean more complexity and uncertainty." 227

While the said case did not cover the act of referral, the applicable principle was the same - they could not be forced to assist
abortions if it would be against their conscience or will.

Institutional Health Providers

The same holds true with respect to non-maternity specialty hospitals and hospitals owned and operated by a religious group and
health care service providers. Considering that Section 24 of the RH Law penalizes such institutions should they fail or refuse to
comply with their duty to refer under Section 7 and Section 23(a)(3), the Court deems that it must be struck down for being violative
of the freedom of religion. The same applies to Section 23(a)(l) and (a)(2) in relation to Section 24, considering that in the
dissemination of information regarding programs and services and in the performance of reproductive health procedures, the
religious freedom of health care service providers should be respected.

In the case of Islamic Da'wah Council of the Philippines, Inc. v. Office of the Executive Secretary 228 it was stressed:

Freedom of religion was accorded preferred status by the framers of our fundamental law. And this Court has consistently affirmed
this preferred status, well aware that it is "designed to protect the broadest possible liberty of conscience, to allow each man to
believe as his conscience directs, to profess his beliefs, and to live as he believes he ought to live, consistent with the liberty of
others and with the common good."10

The Court is not oblivious to the view that penalties provided by law endeavour to ensure compliance. Without set consequences for
either an active violation or mere inaction, a law tends to be toothless and ineffectual. Nonetheless, when what is bartered for an
effective implementation of a law is a constitutionally-protected right the Court firmly chooses to stamp its disapproval. The
punishment of a healthcare service provider, who fails and/or refuses to refer a patient to another, or who declines to perform
reproductive health procedure on a patient because incompatible religious beliefs, is a clear inhibition of a constitutional guarantee
which the Court cannot allow.

The Implementing Rules and Regulation (RH-IRR)

The last paragraph of Section 5.24 of the RH-IRR reads:

Provided, That skilled health professional such as provincial, city or municipal health officers, chiefs of hospital, head nurses,
supervising midwives, among others, who by virtue of their office are specifically charged with the duty to implement the provisions
of the RPRH Act and these Rules, cannot be considered as conscientious objectors.
This is discriminatory and violative of the equal protection clause. The conscientious objection clause should be equally protective of
the religious belief of public health officers. There is no perceptible distinction why they should not be considered exempt from the
mandates of the law. The protection accorded to other conscientious objectors should equally apply to all medical practitioners
without distinction whether they belong to the public or private sector. After all, the freedom to believe is intrinsic in every individual
and the protective robe that guarantees its free exercise is not taken off even if one acquires employment in the government.

It should be stressed that intellectual liberty occupies a place inferior to none in the hierarchy of human values. The mind must be
free to think what it wills, whether in the secular or religious sphere, to give expression to its beliefs by oral discourse or through the
media and, thus, seek other candid views in occasions or gatherings or in more permanent aggrupation. Embraced in such concept
then are freedom of religion, freedom of speech, of the press, assembly and petition, and freedom of association.229

The discriminatory provision is void not only because no such exception is stated in the RH Law itself but also because it is violative
of the equal protection clause in the Constitution. Quoting respondent Lagman, if there is any conflict between the RH-IRR and the
RH Law, the law must prevail.

Justice Mendoza:

I'll go to another point. The RH law .. .in your Comment- in-Intervention on page 52, you mentioned RH Law is replete with
provisions in upholding the freedom of religion and respecting religious convictions. Earlier, you affirmed this with qualifications.
Now, you have read, I presumed you have read the IRR-Implementing Rules and Regulations of the RH Bill?

Congressman Lagman:

Yes, Your Honor, I have read but I have to admit, it's a long IRR and I have not thoroughly dissected the nuances of the provisions.

Justice Mendoza:

I will read to you one provision. It's Section 5.24. This I cannot find in the RH Law. But in the IRR it says: " .... skilled health
professionals such as provincial, city or municipal health officers, chief of hospitals, head nurses, supervising midwives, among
others, who by virtue of their office are specifically charged with the duty to implement the provisions of the RPRH Act and these
Rules, cannot be considered as conscientious objectors." Do you agree with this?

Congressman Lagman:

I will have to go over again the provisions, Your Honor.

Justice Mendoza:

In other words, public health officers in contrast to the private practitioners who can be conscientious objectors, skilled health
professionals cannot be considered conscientious objectors. Do you agree with this? Is this not against the constitutional right to the
religious belief?

Congressman Lagman:

Your Honor, if there is any conflict between the IRR and the law, the law must prevail.230

Compelling State Interest

The foregoing discussion then begets the question on whether the respondents, in defense of the subject provisions, were able to:
1] demonstrate a more compelling state interest to restrain conscientious objectors in their choice of services to render; and 2]
discharge the burden of proof that the obligatory character of the law is the least intrusive means to achieve the objectives of the
law.

Unfortunately, a deep scrutiny of the respondents' submissions proved to be in vain. The OSG was curiously silent in the
establishment of a more compelling state interest that would rationalize the curbing of a conscientious objector's right not to adhere
to an action contrary to his religious convictions. During the oral arguments, the OSG maintained the same silence and evasion. The
Transcripts of the Stenographic Notes disclose the following:

Justice De Castro:
Let's go back to the duty of the conscientious objector to refer. ..

Senior State Solicitor Hilbay:

Yes, Justice.

Justice De Castro:

... which you are discussing awhile ago with Justice Abad. What is the compelling State interest in imposing this duty to refer to a
conscientious objector which refuses to do so because of his religious belief?

Senior State Solicitor Hilbay:

Ahh, Your Honor, ..

Justice De Castro:

What is the compelling State interest to impose this burden?

Senior State Solicitor Hilbay:

In the first place, Your Honor, I don't believe that the standard is a compelling State interest, this is an ordinary health legislation
involving professionals. This is not a free speech matter or a pure free exercise matter. This is a regulation by the State of the
relationship between medical doctors and their patients.231

Resultantly, the Court finds no compelling state interest which would limit the free exercise clause of the conscientious objectors,
however few in number. Only the prevention of an immediate and grave danger to the security and welfare of the community can
justify the infringement of religious freedom. If the government fails to show the seriousness and immediacy of the threat, State
intrusion is constitutionally unacceptable.232

Freedom of religion means more than just the freedom to believe. It also means the freedom to act or not to act according to what
one believes. And this freedom is violated when one is compelled to act against one's belief or is prevented from acting according to
one's belief.233

Apparently, in these cases, there is no immediate danger to the life or health of an individual in the perceived scenario of the subject
provisions. After all, a couple who plans the timing, number and spacing of the birth of their children refers to a future event that is
contingent on whether or not the mother decides to adopt or use the information, product, method or supply given to her or whether
she even decides to become pregnant at all. On the other hand, the burden placed upon those who object to contraceptive use is
immediate and occurs the moment a patient seeks consultation on reproductive health matters.

Moreover, granting that a compelling interest exists to justify the infringement of the conscientious objector's religious freedom, the
respondents have failed to demonstrate "the gravest abuses, endangering paramount interests" which could limit or override a
person's fundamental right to religious freedom. Also, the respondents have not presented any government effort exerted to show
that the means it takes to achieve its legitimate state objective is the least intrusive means. 234 Other than the assertion that the act of
referring would only be momentary, considering that the act of referral by a conscientious objector is the very action being contested
as violative of religious freedom, it behooves the respondents to demonstrate that no other means can be undertaken by the State
to achieve its objective without violating the rights of the conscientious objector. The health concerns of women may still be
addressed by other practitioners who may perform reproductive health-related procedures with open willingness and motivation.
Suffice it to say, a person who is forced to perform an act in utter reluctance deserves the protection of the Court as the last
vanguard of constitutional freedoms.

At any rate, there are other secular steps already taken by the Legislature to ensure that the right to health is protected. Considering
other legislations as they stand now, R.A . No. 4 729 or the Contraceptive Act, R.A. No. 6365 or "The Population Act of the
Philippines" and R.A. No. 9710, otherwise known as "The Magna Carta of Women," amply cater to the needs of women in relation to
health services and programs. The pertinent provision of Magna Carta on comprehensive health services and programs for women,
in fact, reads:

Section 17. Women's Right to Health. - (a) Comprehensive Health Services. - The State shall, at all times, provide for a
comprehensive, culture-sensitive, and gender-responsive health services and programs covering all stages of a woman's life cycle
and which addresses the major causes of women's mortality and morbidity: Provided, That in the provision for comprehensive health
services, due respect shall be accorded to women's religious convictions, the rights of the spouses to found a family in accordance
with their religious convictions, and the demands of responsible parenthood, and the right of women to protection from hazardous
drugs, devices, interventions, and substances.

Access to the following services shall be ensured:

(1) Maternal care to include pre- and post-natal services to address pregnancy and infant health and nutrition;

(2) Promotion of breastfeeding;

(3) Responsible, ethical, legal, safe, and effective methods of family planning;

(4) Family and State collaboration in youth sexuality education and health services without prejudice to the
primary right and duty of parents to educate their children;

(5) Prevention and management of reproductive tract infections, including sexually transmitted diseases, HIV,
and AIDS;

(6) Prevention and management of reproductive tract cancers like breast and cervical cancers, and other
gynecological conditions and disorders;

(7) Prevention of abortion and management of pregnancy-related complications;

(8) In cases of violence against women and children, women and children victims and survivors shall be
provided with comprehensive health services that include psychosocial, therapeutic, medical, and legal
interventions and assistance towards healing, recovery, and empowerment;

(9) Prevention and management of infertility and sexual dysfunction pursuant to ethical norms and medical
standards;

(10) Care of the elderly women beyond their child-bearing years; and

(11) Management, treatment, and intervention of mental health problems of women and girls. In addition,
healthy lifestyle activities are encouraged and promoted through programs and projects as strategies in the
prevention of diseases.

(b) Comprehensive Health Information and Education. - The State shall provide women in all sectors with appropriate, timely,
complete, and accurate information and education on all the above-stated aspects of women's health in government education and
training programs, with due regard to the following:

(1) The natural and primary right and duty of parents in the rearing of the youth and the development of moral
character and the right of children to be brought up in an atmosphere of morality and rectitude for the
enrichment and strengthening of character;

(2) The formation of a person's sexuality that affirms human dignity; and

(3) Ethical, legal, safe, and effective family planning methods including fertility awareness.

As an afterthought, Asst. Solicitor General Hilbay eventually replied that the compelling state interest was "Fifteen maternal deaths
per day, hundreds of thousands of unintended pregnancies, lives changed, x x x."235 He, however, failed to substantiate this point by
concrete facts and figures from reputable sources.

The undisputed fact, however, is that the World Health Organization reported that the Filipino maternal mortality rate dropped to 48
percent from 1990 to 2008, 236 although there was still no RH Law at that time. Despite such revelation, the proponents still insist
that such number of maternal deaths constitute a compelling state interest.

Granting that there are still deficiencies and flaws in the delivery of social healthcare programs for Filipino women, they could not be
solved by a measure that puts an unwarrantable stranglehold on religious beliefs in exchange for blind conformity.

Exception: Life Threatening Cases


All this notwithstanding, the Court properly recognizes a valid exception set forth in the law. While generally healthcare service
providers cannot be forced to render reproductive health care procedures if doing it would contravene their religious beliefs, an
exception must be made in life-threatening cases that require the performance of emergency procedures. In these situations, the
right to life of the mother should be given preference, considering that a referral by a medical practitioner would amount to a denial
of service, resulting to unnecessarily placing the life of a mother in grave danger. Thus, during the oral arguments, Atty. Liban,
representing CFC, manifested: "the forced referral clause that we are objecting on grounds of violation of freedom of religion does
not contemplate an emergency."237

In a conflict situation between the life of the mother and the life of a child, the doctor is morally obliged always to try to save both
lives. If, however, it is impossible, the resulting death to one should not be deliberate. Atty. Noche explained:

Principle of Double-Effect. - May we please remind the principal author of the RH Bill in the House of Representatives of the
principle of double-effect wherein intentional harm on the life of either the mother of the child is never justified to bring about a
"good" effect. In a conflict situation between the life of the child and the life of the mother, the doctor is morally obliged always to try
to save both lives. However, he can act in favor of one (not necessarily the mother) when it is medically impossible to save both,
provided that no direct harm is intended to the other. If the above principles are observed, the loss of the child's life or the mother's
life is not intentional and, therefore, unavoidable. Hence, the doctor would not be guilty of abortion or murder. The mother is never
pitted against the child because both their lives are equally valuable. 238

Accordingly, if it is necessary to save the life of a mother, procedures endangering the life of the child may be resorted to even if is
against the religious sentiments of the medical practitioner. As quoted above, whatever burden imposed upon a medical practitioner
in this case would have been more than justified considering the life he would be able to save.

Family Planning Seminars

Anent the requirement imposed under Section 15239 as a condition for the issuance of a marriage license, the Court finds the same
to be a reasonable exercise of police power by the government. A cursory reading of the assailed provision bares that the religious
freedom of the petitioners is not at all violated. All the law requires is for would-be spouses to attend a seminar on parenthood,
family planning breastfeeding and infant nutrition. It does not even mandate the type of family planning methods to be included in
the seminar, whether they be natural or artificial. As correctly noted by the OSG, those who receive any information during their
attendance in the required seminars are not compelled to accept the information given to them, are completely free to reject the
information they find unacceptable, and retain the freedom to decide on matters of family life without the intervention of the State.

4-The Family and the Right to Privacy

Petitioner CFC assails the RH Law because Section 23(a) (2) (i) thereof violates the provisions of the Constitution by intruding into
marital privacy and autonomy. It argues that it cultivates disunity and fosters animosity in the family rather than promote its solidarity
and total development.240

The Court cannot but agree.

The 1987 Constitution is replete with provisions strengthening the family as it is the basic social institution. In fact, one article, Article
XV, is devoted entirely to the family.

ARTICLE XV
THE FAMILY

Section 1. The State recognizes the Filipino family as the foundation of the nation. Accordingly, it shall strengthen its solidarity and
actively promote its total development.

Section 2. Marriage, as an inviolable social institution, is the foundation of the family and shall be protected by the State.

Section 3. The State shall defend:

The right of spouses to found a family in accordance with their religious convictions and the demands of responsible parenthood;

The right of children to assistance, including proper care and nutrition, and special protection from all forms of neglect, abuse,
cruelty, exploitation and other conditions prejudicial to their development;

The right of the family to a family living wage and income; and
The right of families or family assoc1at1ons to participate in the planning and implementation of policies and programs that affect
them.

In this case, the RH Law, in its not-so-hidden desire to control population growth, contains provisions which tend to wreck the family
as a solid social institution. It bars the husband and/or the father from participating in the decision making process regarding their
common future progeny. It likewise deprives the parents of their authority over their minor daughter simply because she is already a
parent or had suffered a miscarriage.

The Family and Spousal Consent

Section 23(a) (2) (i) of the RH Law states:

The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall: ...

(2) refuse to perform legal and medically-safe reproductive health procedures on any person of legal age on the ground of lack of
consent or authorization of the following persons in the following instances:

(i) Spousal consent in case of married persons: provided, That in case of disagreement, the decision of the one undergoing the
procedures shall prevail. [Emphasis supplied]

The above provision refers to reproductive health procedures like tubal litigation and vasectomy which, by their very nature, should
require mutual consent and decision between the husband and the wife as they affect issues intimately related to the founding of a
family. Section 3, Art. XV of the Constitution espouses that the State shall defend the "right of the spouses to found a family." One
person cannot found a family. The right, therefore, is shared by both spouses. In the same Section 3, their right "to participate in the
planning and implementation of policies and programs that affect them " is equally recognized.

The RH Law cannot be allowed to infringe upon this mutual decision-making. By giving absolute authority to the spouse who would
undergo a procedure, and barring the other spouse from participating in the decision would drive a wedge between the husband and
wife, possibly result in bitter animosity, and endanger the marriage and the family, all for the sake of reducing the population. This
would be a marked departure from the policy of the State to protect marriage as an inviolable social institution. 241

Decision-making involving a reproductive health procedure is a private matter which belongs to the couple, not just one of them. Any
decision they would reach would affect their future as a family because the size of the family or the number of their children
significantly matters. The decision whether or not to undergo the procedure belongs exclusively to, and shared by, both spouses as
one cohesive unit as they chart their own destiny. It is a constitutionally guaranteed private right. Unless it prejudices the State,
which has not shown any compelling interest, the State should see to it that they chart their destiny together as one family.

As highlighted by Justice Leonardo-De Castro, Section 19( c) of R.A. No. 9710, otherwise known as the "Magna Carta for Women,"
provides that women shall have equal rights in all matters relating to marriage and family relations, including the joint decision on the
number and spacing of their children. Indeed, responsible parenthood, as Section 3(v) of the RH Law states, is a shared
responsibility between parents. Section 23(a)(2)(i) of the RH Law should not be allowed to betray the constitutional mandate to
protect and strengthen the family by giving to only one spouse the absolute authority to decide whether to undergo reproductive
health procedure.242

The right to chart their own destiny together falls within the protected zone of marital privacy and such state intervention would
encroach into the zones of spousal privacy guaranteed by the Constitution. In our jurisdiction, the right to privacy was first
recognized in Marje v. Mutuc,243 where the Court, speaking through Chief Justice Fernando, held that "the right to privacy as such is
accorded recognition independently of its identification with liberty; in itself, it is fully deserving of constitutional protection." 244 Marje
adopted the ruling of the US Supreme Court in Griswold v. Connecticut,245 where Justice William O. Douglas wrote:

We deal with a right of privacy older than the Bill of Rights -older than our political parties, older than our school system. Marriage is
a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that
promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it
is an association for as noble a purpose as any involved in our prior decisions.

Ironically, Griswold invalidated a Connecticut statute which made the use of contraceptives a criminal offense on the ground of its
amounting to an unconstitutional invasion of the right to privacy of married persons. Nevertheless, it recognized the zone of privacy
rightfully enjoyed by couples. Justice Douglas in Grisworld wrote that "specific guarantees in the Bill of Rights have penumbras,
formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy." 246
At any rate, in case of conflict between the couple, the courts will decide.

The Family and Parental Consent

Equally deplorable is the debarment of parental consent in cases where the minor, who will be undergoing a procedure, is already a
parent or has had a miscarriage. Section 7 of the RH law provides:

SEC. 7. Access to Family Planning. x x x.

No person shall be denied information and access to family planning services, whether natural or artificial: Provided, That minors will
not be allowed access to modern methods of family planning without written consent from their parents or guardian/s except when
the minor is already a parent or has had a miscarriage.

There can be no other interpretation of this provision except that when a minor is already a parent or has had a miscarriage, the
parents are excluded from the decision making process of the minor with regard to family planning. Even if she is not yet
emancipated, the parental authority is already cut off just because there is a need to tame population growth.

It is precisely in such situations when a minor parent needs the comfort, care, advice, and guidance of her own parents. The State
cannot replace her natural mother and father when it comes to providing her needs and comfort. To say that their consent is no
longer relevant is clearly anti-family. It does not promote unity in the family. It is an affront to the constitutional mandate to protect
and strengthen the family as an inviolable social institution.

More alarmingly, it disregards and disobeys the constitutional mandate that "the natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and the development of moral character shall receive the support of the Government." 247 In
this regard, Commissioner Bernas wrote:

The 1987 provision has added the adjective "primary" to modify the right of parents. It imports the assertion that the right of parents
is superior to that of the State.248 [Emphases supplied]

To insist on a rule that interferes with the right of parents to exercise parental control over their minor-child or the right of the
spouses to mutually decide on matters which very well affect the very purpose of marriage, that is, the establishment of conjugal
and family life, would result in the violation of one's privacy with respect to his family. It would be dismissive of the unique and
strongly-held Filipino tradition of maintaining close family ties and violative of the recognition that the State affords couples entering
into the special contract of marriage to as one unit in forming the foundation of the family and society.

The State cannot, without a compelling state interest, take over the role of parents in the care and custody of a minor child, whether
or not the latter is already a parent or has had a miscarriage. Only a compelling state interest can justify a state substitution of their
parental authority.

First Exception: Access to Information

Whether with respect to the minor referred to under the exception provided in the second paragraph of Section 7 or with respect to
the consenting spouse under Section 23(a)(2)(i), a distinction must be made. There must be a differentiation between access to
information about family planning services, on one hand, and access to the reproductive health procedures and modern family
planning methods themselves, on the other. Insofar as access to information is concerned, the Court finds no constitutional
objection to the acquisition of information by the minor referred to under the exception in the second paragraph of Section 7 that
would enable her to take proper care of her own body and that of her unborn child. After all, Section 12, Article II of the Constitution
mandates the State to protect both the life of the mother as that of the unborn child. Considering that information to enable a person
to make informed decisions is essential in the protection and maintenance of ones' health, access to such information with respect
to reproductive health must be allowed. In this situation, the fear that parents might be deprived of their parental control is
unfounded because they are not prohibited to exercise parental guidance and control over their minor child and assist her in
deciding whether to accept or reject the information received.

Second Exception: Life Threatening Cases

As in the case of the conscientious objector, an exception must be made in life-threatening cases that require the performance of
emergency procedures. In such cases, the life of the minor who has already suffered a miscarriage and that of the spouse should
not be put at grave risk simply for lack of consent. It should be emphasized that no person should be denied the appropriate medical
care urgently needed to preserve the primordial right, that is, the right to life.

In this connection, the second sentence of Section 23(a)(2)(ii)249 should be struck down. By effectively limiting the requirement of
parental consent to "only in elective surgical procedures," it denies the parents their right of parental authority in cases where what
is involved are "non-surgical procedures." Save for the two exceptions discussed above, and in the case of an abused child as
provided in the first sentence of Section 23(a)(2)(ii), the parents should not be deprived of their constitutional right of parental
authority. To deny them of this right would be an affront to the constitutional mandate to protect and strengthen the family.

5 - Academic Freedom

It is asserted that Section 14 of the RH Law, in relation to Section 24 thereof, mandating the teaching of Age-and Development-
Appropriate Reproductive Health Education under threat of fine and/or imprisonment violates the principle of academic freedom .
According to the petitioners, these provisions effectively force educational institutions to teach reproductive health education even if
they believe that the same is not suitable to be taught to their students. 250 Citing various studies conducted in the United States and
statistical data gathered in the country, the petitioners aver that the prevalence of contraceptives has led to an increase of out-of-
wedlock births; divorce and breakdown of families; the acceptance of abortion and euthanasia; the "feminization of poverty"; the
aging of society; and promotion of promiscuity among the youth.251

At this point, suffice it to state that any attack on the validity of Section 14 of the RH Law is premature because the Department of
Education, Culture and Sports has yet to formulate a curriculum on age-appropriate reproductive health education. One can only
speculate on the content, manner and medium of instruction that will be used to educate the adolescents and whether they will
contradict the religious beliefs of the petitioners and validate their apprehensions. Thus, considering the premature nature of this
particular issue, the Court declines to rule on its constitutionality or validity.

At any rate, Section 12, Article II of the 1987 Constitution provides that the natural and primary right and duty of parents in the
rearing of the youth for civic efficiency and development of moral character shall receive the support of the Government. Like the
1973 Constitution and the 1935 Constitution, the 1987 Constitution affirms the State recognition of the invaluable role of parents in
preparing the youth to become productive members of society. Notably, it places more importance on the role of parents in the
development of their children by recognizing that said role shall be "primary," that is, that the right of parents in upbringing the youth
is superior to that of the State.252

It is also the inherent right of the State to act as parens patriae to aid parents in the moral development of the youth. Indeed, the
Constitution makes mention of the importance of developing the youth and their important role in nation building. 253 Considering that
Section 14 provides not only for the age-appropriate-reproductive health education, but also for values formation; the development
of knowledge and skills in self-protection against discrimination; sexual abuse and violence against women and children and other
forms of gender based violence and teen pregnancy; physical, social and emotional changes in adolescents; women's rights and
children's rights; responsible teenage behavior; gender and development; and responsible parenthood, and that Rule 10, Section
11.01 of the RH-IRR and Section 4(t) of the RH Law itself provides for the teaching of responsible teenage behavior, gender
sensitivity and physical and emotional changes among adolescents - the Court finds that the legal mandate provided under the
assailed provision supplements, rather than supplants, the rights and duties of the parents in the moral development of their
children.

Furthermore, as Section 14 also mandates that the mandatory reproductive health education program shall be developed in
conjunction with parent-teacher-community associations, school officials and other interest groups, it could very well be said that it
will be in line with the religious beliefs of the petitioners. By imposing such a condition, it becomes apparent that the petitioners'
contention that Section 14 violates Article XV, Section 3(1) of the Constitution is without merit. 254

While the Court notes the possibility that educators might raise their objection to their participation in the reproductive health
education program provided under Section 14 of the RH Law on the ground that the same violates their religious beliefs, the Court
reserves its judgment should an actual case be filed before it.

6 - Due Process

The petitioners contend that the RH Law suffers from vagueness and, thus violates the due process clause of the Constitution.
According to them, Section 23 (a)(l) mentions a "private health service provider" among those who may be held punishable but does
not define who is a "private health care service provider." They argue that confusion further results since Section 7 only makes
reference to a "private health care institution."

The petitioners also point out that Section 7 of the assailed legislation exempts hospitals operated by religious groups from
rendering reproductive health service and modern family planning methods. It is unclear, however, if these institutions are also
exempt from giving reproductive health information under Section 23(a)(l), or from rendering reproductive health procedures under
Section 23(a)(2).

Finally, it is averred that the RH Law punishes the withholding, restricting and providing of incorrect information, but at the same time
fails to define "incorrect information."

The arguments fail to persuade.


A statute or act suffers from the defect of vagueness when it lacks comprehensible standards that men of common intelligence must
necessarily guess its meaning and differ as to its application. It is repugnant to the Constitution in two respects: (1) it violates due
process for failure to accord persons, especially the parties targeted by it, fair notice of the conduct to avoid; and (2) it leaves law
enforcers unbridled discretion in carrying out its provisions and becomes an arbitrary flexing of the Government
muscle.255 Moreover, in determining whether the words used in a statute are vague, words must not only be taken in accordance
with their plain meaning alone, but also in relation to other parts of the statute. It is a rule that every part of the statute must be
interpreted with reference to the context, that is, every part of it must be construed together with the other parts and kept subservient
to the general intent of the whole enactment.256

As correctly noted by the OSG, in determining the definition of "private health care service provider," reference must be made to
Section 4(n) of the RH Law which defines a "public health service provider," viz:

(n) Public health care service provider refers to: (1) public health care institution, which is duly licensed and accredited and devoted
primarily to the maintenance and operation of facilities for health promotion, disease prevention, diagnosis, treatment and care of
individuals suffering from illness, disease, injury, disability or deformity, or in need of obstetrical or other medical and nursing care;
(2) public health care professional, who is a doctor of medicine, a nurse or a midvvife; (3) public health worker engaged in the
delivery of health care services; or (4) barangay health worker who has undergone training programs under any accredited
government and NGO and who voluntarily renders primarily health care services in the community after having been accredited to
function as such by the local health board in accordance with the guidelines promulgated by the Department of Health (DOH) .

Further, the use of the term "private health care institution" in Section 7 of the law, instead of "private health care service provider,"
should not be a cause of confusion for the obvious reason that they are used synonymously.

The Court need not belabor the issue of whether the right to be exempt from being obligated to render reproductive health service
and modem family planning methods, includes exemption from being obligated to give reproductive health information and to render
reproductive health procedures. Clearly, subject to the qualifications and exemptions earlier discussed, the right to be exempt from
being obligated to render reproductive health service and modem family planning methods, necessarily includes exemption from
being obligated to give reproductive health information and to render reproductive health procedures. The terms "service" and
"methods" are broad enough to include the providing of information and the rendering of medical procedures.

The same can be said with respect to the contention that the RH Law punishes health care service providers who intentionally
withhold, restrict and provide incorrect information regarding reproductive health programs and services. For ready reference, the
assailed provision is hereby quoted as follows:

SEC. 23. Prohibited Acts. - The following acts are prohibited:

(a) Any health care service provider, whether public or private, who shall:

(1) Knowingly withhold information or restrict the dissemination thereof, and/ or intentionally provide incorrect information regarding
programs and services on reproductive health including the right to informed choice and access to a full range of legal, medically-
safe, non-abortifacient and effective family planning methods;

From its plain meaning, the word "incorrect" here denotes failing to agree with a copy or model or with established rules; inaccurate,
faulty; failing to agree with the requirements of duty, morality or propriety; and failing to coincide with the truth. 257 On the other hand,
the word "knowingly" means with awareness or deliberateness that is intentional. 258 Used together in relation to Section 23(a)(l), they
connote a sense of malice and ill motive to mislead or misrepresent the public as to the nature and effect of programs and services
on reproductive health. Public health and safety demand that health care service providers give their honest and correct medical
information in accordance with what is acceptable in medical practice. While health care service providers are not barred from
expressing their own personal opinions regarding the programs and services on reproductive health, their right must be tempered
with the need to provide public health and safety. The public deserves no less.

7-Egual Protection

The petitioners also claim that the RH Law violates the equal protection clause under the Constitution as it discriminates against the
poor because it makes them the primary target of the government program that promotes contraceptive use . They argue that,
rather than promoting reproductive health among the poor, the RH Law introduces contraceptives that would effectively reduce the
number of the poor. Their bases are the various provisions in the RH Law dealing with the poor, especially those mentioned in the
guiding principles259 and definition of terms260 of the law.

They add that the exclusion of private educational institutions from the mandatory reproductive health education program imposed
by the RH Law renders it unconstitutional.

In Biraogo v. Philippine Truth Commission,261 the Court had the occasion to expound on the concept of equal protection. Thus:
One of the basic principles on which this government was founded is that of the equality of right which is embodied in Section 1,
Article III of the 1987 Constitution. The equal protection of the laws is embraced in the concept of due process, as every unfair
discrimination offends the requirements of justice and fair play. It has been embodied in a separate clause, however, to provide for a
more specific guaranty against any form of undue favoritism or hostility from the government. Arbitrariness in general may be
challenged on the basis of the due process clause. But if the particular act assailed partakes of an unwarranted partiality or
prejudice, the sharper weapon to cut it down is the equal protection clause.

"According to a long line of decisions, equal protection simply requires that all persons or things similarly situated should be treated
alike, both as to rights conferred and responsibilities imposed." It "requires public bodies and inst itutions to treat similarly situated
individuals in a similar manner." "The purpose of the equal protection clause is to secure every person within a state's jurisdiction
against intentional and arbitrary discrimination, whether occasioned by the express terms of a statue or by its improper execution
through the state's duly constituted authorities." "In other words, the concept of equal justice under the law requires the state to
govern impartially, and it may not draw distinctions between individuals solely on differences that are irrelevant to a legitimate
governmental objective."

The equal protection clause is aimed at all official state actions, not just those of the legislature. Its inhibitions cover all the
departments of the government including the political and executive departments, and extend to all actions of a state denying equal
protection of the laws, through whatever agency or whatever guise is taken.

It, however, does not require the universal application of the laws to all persons or things without distinction. What it simply requires
is equality among equals as determined according to a valid classification. Indeed, the equal protection clause permits classification.
Such classification, however, to be valid must pass the test of reasonableness. The test has four requisites: (1) The classification
rests on substantial distinctions; (2) It is germane to the purpose of the law; (3) It is not limited to existing conditions only; and (4) It
applies equally to all members of the same class. "Superficial differences do not make for a valid classification."

For a classification to meet the requirements of constitutionality, it must include or embrace all persons who naturally belong to the
class. "The classification will be regarded as invalid if all the members of the class are not similarly treated, both as to rights
conferred and obligations imposed. It is not necessary that the classification be made with absolute symmetry, in the sense that the
members of the class should possess the same characteristics in equal degree. Substantial similarity will suffice; and as long as this
is achieved, all those covered by the classification are to be treated equally. The mere fact that an individual belonging to a class
differs from the other members, as long as that class is substantially distinguishable from all others, does not justify the non-
application of the law to him."

The classification must not be based on existing circumstances only, or so constituted as to preclude addition to the number
included in the class. It must be of such a nature as to embrace all those who may thereafter be in similar circumstances and
conditions. It must not leave out or "underinclude" those that should otherwise fall into a certain classification. [Emphases supplied;
citations excluded]

To provide that the poor are to be given priority in the government's reproductive health care program is not a violation of the equal
protection clause. In fact, it is pursuant to Section 11, Article XIII of the Constitution which recognizes the distinct necessity to
address the needs of the underprivileged by providing that they be given priority in addressing the health development of the people.
Thus:

Section 11. The State shall adopt an integrated and comprehensive approach to health development which shall endeavor to make
essential goods, health and other social services available to all the people at affordable cost. There shall be priority for the needs of
the underprivileged, sick, elderly, disabled, women, and children. The State shall endeavor to provide free medical care to paupers.

It should be noted that Section 7 of the RH Law prioritizes poor and marginalized couples who are suffering from fertility issues and
desire to have children. There is, therefore, no merit to the contention that the RH Law only seeks to target the poor to reduce their
number. While the RH Law admits the use of contraceptives, it does not, as elucidated above, sanction abortion. As Section 3(1)
explains, the "promotion and/or stabilization of the population growth rate is incidental to the advancement of reproductive health."

Moreover, the RH Law does not prescribe the number of children a couple may have and does not impose conditions upon couples
who intend to have children. While the petitioners surmise that the assailed law seeks to charge couples with the duty to have
children only if they would raise them in a truly humane way, a deeper look into its provisions shows that what the law seeks to do is
to simply provide priority to the poor in the implementation of government programs to promote basic reproductive health care.

With respect to the exclusion of private educational institutions from the mandatory reproductive health education program under
Section 14, suffice it to state that the mere fact that the children of those who are less fortunate attend public educational institutions
does not amount to substantial distinction sufficient to annul the assailed provision. On the other hand, substantial distinction rests
between public educational institutions and private educational institutions, particularly because there is a need to recognize the
academic freedom of private educational institutions especially with respect to religious instruction and to consider their sensitivity
towards the teaching of reproductive health education.
8-Involuntary Servitude

The petitioners also aver that the RH Law is constitutionally infirm as it violates the constitutional prohibition against involuntary
servitude. They posit that Section 17 of the assailed legislation requiring private and non-government health care service providers
to render forty-eight (48) hours of pro bono reproductive health services, actually amounts to involuntary servitude because it
requires medical practitioners to perform acts against their will.262

The OSG counters that the rendition of pro bono services envisioned in Section 17 can hardly be considered as forced labor
analogous to slavery, as reproductive health care service providers have the discretion as to the manner and time of giving pro bono
services. Moreover, the OSG points out that the imposition is within the powers of the government, the accreditation of medical
practitioners with PhilHealth being a privilege and not a right.

The point of the OSG is well-taken.

It should first be mentioned that the practice of medicine is undeniably imbued with public interest that it is both a power and a duty
of the State to control and regulate it in order to protect and promote the public welfare. Like the legal profession, the practice of
medicine is not a right but a privileged burdened with conditions as it directly involves the very lives of the people. A fortiori, this
power includes the power of Congress263 to prescribe the qualifications for the practice of professions or trades which affect the
public welfare, the public health, the public morals, and the public safety; and to regulate or control such professions or trades, even
to the point of revoking such right altogether.264

Moreover, as some petitioners put it, the notion of involuntary servitude connotes the presence of force, threats, intimidation or other
similar means of coercion and compulsion.265 A reading of the assailed provision, however, reveals that it only encourages private
and non- government reproductive healthcare service providers to render pro bono service. Other than non-accreditation with
PhilHealth, no penalty is imposed should they choose to do otherwise. Private and non-government reproductive healthcare service
providers also enjoy the liberty to choose which kind of health service they wish to provide, when, where and how to provide it or
whether to provide it all. Clearly, therefore, no compulsion, force or threat is made upon them to render pro bono service against
their will. While the rendering of such service was made a prerequisite to accreditation with PhilHealth, the Court does not consider
the same to be an unreasonable burden, but rather, a necessary incentive imposed by Congress in the furtherance of a perceived
legitimate state interest.

Consistent with what the Court had earlier discussed, however, it should be emphasized that conscientious objectors are exempt
from this provision as long as their religious beliefs and convictions do not allow them to render reproductive health service, pro
bona or otherwise.

9-Delegation of Authority to the FDA

The petitioners likewise question the delegation by Congress to the FDA of the power to determine whether or not a supply or
product is to be included in the Essential Drugs List (EDL).266

The Court finds nothing wrong with the delegation. The FDA does not only have the power but also the competency to evaluate,
register and cover health services and methods. It is the only government entity empowered to render such services and highly
proficient to do so. It should be understood that health services and methods fall under the gamut of terms that are associated with
what is ordinarily understood as "health products."

In this connection, Section 4 of R.A. No. 3 720, as amended by R.A. No. 9711 reads:

SEC. 4. To carry out the provisions of this Act, there is hereby created an office to be called the Food and Drug Administration (FDA)
in the Department of Health (DOH). Said Administration shall be under the Office of the Secretary and shall have the following
functions, powers and duties:

"(a) To administer the effective implementation of this Act and of the rules and regulations issued pursuant to the same;

"(b) To assume primary jurisdiction in the collection of samples of health products;

"(c) To analyze and inspect health products in connection with the implementation of this Act;

"(d) To establish analytical data to serve as basis for the preparation of health products standards, and to recommend
standards of identity, purity, safety, efficacy, quality and fill of container;

"(e) To issue certificates of compliance with technical requirements to serve as basis for the issuance of appropriate
authorization and spot-check for compliance with regulations regarding operation of manufacturers, importers, exporters,
distributors, wholesalers, drug outlets, and other establishments and facilities of health products, as determined by the
FDA;

"x x x

"(h) To conduct appropriate tests on all applicable health products prior to the issuance of appropriate authorizations to
ensure safety, efficacy, purity, and quality;

"(i) To require all manufacturers, traders, distributors, importers, exporters, wholesalers, retailers, consumers, and non-
consumer users of health products to report to the FDA any incident that reasonably indicates that said product has
caused or contributed to the death, serious illness or serious injury to a consumer, a patient, or any person;

"(j) To issue cease and desist orders motu propio or upon verified complaint for health products, whether or not registered
with the FDA Provided, That for registered health products, the cease and desist order is valid for thirty (30) days and may
be extended for sixty ( 60) days only after due process has been observed;

"(k) After due process, to order the ban, recall, and/or withdrawal of any health product found to have caused death,
serious illness or serious injury to a consumer or patient, or is found to be imminently injurious, unsafe, dangerous, or
grossly deceptive, and to require all concerned to implement the risk management plan which is a requirement for the
issuance of the appropriate authorization;

x x x.

As can be gleaned from the above, the functions, powers and duties of the FDA are specific to enable the agency to carry out the
mandates of the law. Being the country's premiere and sole agency that ensures the safety of food and medicines available to the
public, the FDA was equipped with the necessary powers and functions to make it effective. Pursuant to the principle of necessary
implication, the mandate by Congress to the FDA to ensure public health and safety by permitting only food and medicines that are
safe includes "service" and "methods." From the declared policy of the RH Law, it is clear that Congress intended that the public be
given only those medicines that are proven medically safe, legal, non-abortifacient, and effective in accordance with scientific and
evidence-based medical research standards. The philosophy behind the permitted delegation was explained in Echagaray v.
Secretary of Justice,267 as follows:

The reason is the increasing complexity of the task of the government and the growing inability of the legislature to cope directly with
the many problems demanding its attention. The growth of society has ramified its activities and created peculiar and sophisticated
problems that the legislature cannot be expected reasonably to comprehend. Specialization even in legislation has become
necessary. To many of the problems attendant upon present day undertakings, the legislature may not have the competence, let
alone the interest and the time, to provide the required direct and efficacious, not to say specific solutions.

10- Autonomy of Local Governments and the Autonomous Region

of Muslim Mindanao (ARMM)

As for the autonomy of local governments, the petitioners claim that the RH Law infringes upon the powers devolved to local
government units (LGUs) under Section 17 of the Local Government Code. Said Section 17 vested upon the LGUs the duties and
functions pertaining to the delivery of basic services and facilities, as follows:

SECTION 17. Basic Services and Facilities.

(a) Local government units shall endeavor to be self-reliant and shall continue exercising the powers and discharging the
duties and functions currently vested upon them. They shall also discharge the functions and responsibilities of national
agencies and offices devolved to them pursuant to this Code. Local government units shall likewise exercise such other
powers and discharge such other functions and responsibilities as are necessary, appropriate, or incidental to efficient and
effective provision of the basic services and facilities enumerated herein.

(b) Such basic services and facilities include, but are not limited to, x x x.

While the aforementioned provision charges the LGUs to take on the functions and responsibilities that have already been
devolved upon them from the national agencies on the aspect of providing for basic services and facilities in their
respective jurisdictions, paragraph (c) of the same provision provides a categorical exception of cases involving nationally-
funded projects, facilities, programs and services.268Thus:
(c) Notwithstanding the provisions of subsection (b) hereof, public works and infrastructure projects and other facilities,
programs and services funded by the National Government under the annual General Appropriations Act, other special
laws, pertinent executive orders, and those wholly or partially funded from foreign sources, are not covered under this
Section, except in those cases where the local government unit concerned is duly designated as the implementing agency
for such projects, facilities, programs and services. [Emphases supplied]

The essence of this express reservation of power by the national government is that, unless an LGU is particularly designated as
the implementing agency, it has no power over a program for which funding has been provided by the national government under
the annual general appropriations act, even if the program involves the delivery of basic services within the jurisdiction of the
LGU.269 A complete relinquishment of central government powers on the matter of providing basic facilities and services cannot be
implied as the Local Government Code itself weighs against it.270

In this case, a reading of the RH Law clearly shows that whether it pertains to the establishment of health care facilities, 271 the hiring
of skilled health professionals,272 or the training of barangay health workers,273 it will be the national government that will provide for
the funding of its implementation. Local autonomy is not absolute. The national government still has the say when it comes to
national priority programs which the local government is called upon to implement like the RH Law.

Moreover, from the use of the word "endeavor," the LG Us are merely encouraged to provide these services. There is nothing in the
wording of the law which can be construed as making the availability of these services mandatory for the LGUs. For said reason, it
cannot be said that the RH Law amounts to an undue encroachment by the national government upon the autonomy enjoyed by the
local governments.

The ARMM

The fact that the RH Law does not intrude in the autonomy of local governments can be equally applied to the ARMM. The RH Law
does not infringe upon its autonomy. Moreover, Article III, Sections 6, 10 and 11 of R.A. No. 9054, or the organic act of the ARMM,
alluded to by petitioner Tillah to justify the exemption of the operation of the RH Law in the autonomous region, refer to the policy
statements for the guidance of the regional government. These provisions relied upon by the petitioners simply delineate the powers
that may be exercised by the regional government, which can, in no manner, be characterized as an abdication by the State of its
power to enact legislation that would benefit the general welfare. After all, despite the veritable autonomy granted the ARMM, the
Constitution and the supporting jurisprudence, as they now stand, reject the notion of imperium et imperio in the relationship
between the national and the regional governments.274 Except for the express and implied limitations imposed on it by the
Constitution, Congress cannot be restricted to exercise its inherent and plenary power to legislate on all subjects which extends to
all matters of general concern or common interest.275

11 - Natural Law

With respect to the argument that the RH Law violates natural law,276 suffice it to say that the Court does not duly recognize it as a
legal basis for upholding or invalidating a law. Our only guidepost is the Constitution. While every law enacted by man emanated
from what is perceived as natural law, the Court is not obliged to see if a statute, executive issuance or ordinance is in conformity to
it. To begin with, it is not enacted by an acceptable legitimate body. Moreover, natural laws are mere thoughts and notions on
inherent rights espoused by theorists, philosophers and theologists. The jurists of the philosophical school are interested in the law
as an abstraction, rather than in the actual law of the past or present.277 Unless, a natural right has been transformed into a written
law, it cannot serve as a basis to strike down a law. In Republic v. Sandiganbayan, 278 the very case cited by the petitioners, it was
explained that the Court is not duty-bound to examine every law or action and whether it conforms with both the Constitution and
natural law. Rather, natural law is to be used sparingly only in the most peculiar of circumstances involving rights inherent to man
where no law is applicable.279

At any rate, as earlier expounded, the RH Law does not sanction the taking away of life. It does not allow abortion in any shape or
form. It only seeks to enhance the population control program of the government by providing information and making non-
abortifacient contraceptives more readily available to the public, especially to the poor.

Facts and Fallacies

and the Wisdom of the Law

In general, the Court does not find the RH Law as unconstitutional insofar as it seeks to provide access to medically-safe, non-
abortifacient, effective, legal, affordable, and quality reproductive healthcare services, methods, devices, and supplies. As earlier
pointed out, however, the religious freedom of some sectors of society cannot be trampled upon in pursuit of what the law hopes to
achieve. After all, the Constitutional safeguard to religious freedom is a recognition that man stands accountable to an authority
higher than the State.
In conformity with the principle of separation of Church and State, one religious group cannot be allowed to impose its beliefs on the
rest of the society. Philippine modem society leaves enough room for diversity and pluralism. As such, everyone should be tolerant
and open-minded so that peace and harmony may continue to reign as we exist alongside each other.

As healthful as the intention of the RH Law may be, the idea does not escape the Court that what it seeks to address is the problem
of rising poverty and unemployment in the country. Let it be said that the cause of these perennial issues is not the large population
but the unequal distribution of wealth. Even if population growth is controlled, poverty will remain as long as the country's wealth
remains in the hands of the very few.

At any rate, population control may not be beneficial for the country in the long run. The European and Asian countries, which
embarked on such a program generations ago , are now burdened with ageing populations. The number of their young workers is
dwindling with adverse effects on their economy. These young workers represent a significant human capital which could have
helped them invigorate, innovate and fuel their economy. These countries are now trying to reverse their programs, but they are still
struggling. For one, Singapore, even with incentives, is failing.

And in this country, the economy is being propped up by remittances from our Overseas Filipino Workers. This is because we have
an ample supply of young able-bodied workers. What would happen if the country would be weighed down by an ageing population
and the fewer younger generation would not be able to support them? This would be the situation when our total fertility rate would
go down below the replacement level of two (2) children per woman.280

Indeed, at the present, the country has a population problem, but the State should not use coercive measures (like the penal
provisions of the RH Law against conscientious objectors) to solve it. Nonetheless, the policy of the Court is non-interference in the
wisdom of a law.

x x x. But this Court cannot go beyond what the legislature has laid down. Its duty is to say what the law is as enacted by the
lawmaking body. That is not the same as saying what the law should be or what is the correct rule in a given set of circumstances. It
is not the province of the judiciary to look into the wisdom of the law nor to question the policies adopted by the legislative branch.
Nor is it the business of this Tribunal to remedy every unjust situation that may arise from the application of a particular law. It is for
the legislature to enact remedial legislation if that would be necessary in the premises. But as always, with apt judicial caution and
cold neutrality, the Court must carry out the delicate function of interpreting the law, guided by the Constitution and existing
legislation and mindful of settled jurisprudence. The Court's function is therefore limited, and accordingly, must confine itself to the
judicial task of saying what the law is, as enacted by the lawmaking body. 281

Be that as it may, it bears reiterating that the RH Law is a mere compilation and enhancement of the prior existing contraceptive and
reproductive health laws, but with coercive measures. Even if the Court decrees the RH Law as entirely unconstitutional, there will
still be the Population Act (R.A. No. 6365), the Contraceptive Act (R.A. No. 4729) and the reproductive health for women or The
Magna Carta of Women (R.A. No. 9710), sans the coercive provisions of the assailed legislation. All the same, the principle of "no-
abortion" and "non-coercion" in the adoption of any family planning method should be maintained.

WHEREFORE, the petitions are PARTIALLY GRANTED. Accordingly, the Court declares R.A. No. 10354 as NOT
UNCONSTITUTIONAL except with respect to the following provisions which are declared UNCONSTITUTIONAL:

1) Section 7 and the corresponding provision in the RH-IRR insofar as they: a) require private health facilities and non-
maternity specialty hospitals and hospitals owned and operated by a religious group to refer patients, not in an emergency
or life-threatening case, as defined under Republic Act No. 8344, to another health facility which is conveniently
accessible; and b) allow minor-parents or minors who have suffered a miscarriage access to modem methods of family
planning without written consent from their parents or guardian/s;

2) Section 23(a)(l) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they
punish any healthcare service provider who fails and or refuses to disseminate information regarding programs and
services on reproductive health regardless of his or her religious beliefs.

3) Section 23(a)(2)(i) and the corresponding provision in the RH-IRR insofar as they allow a married individual, not in an
emergency or life-threatening case, as defined under Republic Act No. 8344, to undergo reproductive health procedures
without the consent of the spouse;

4) Section 23(a)(2)(ii) and the corresponding provision in the RH-IRR insofar as they limit the requirement of parental
consent only to elective surgical procedures.

5) Section 23(a)(3) and the corresponding provision in the RH-IRR, particularly Section 5.24 thereof, insofar as they
punish any healthcare service provider who fails and/or refuses to refer a patient not in an emergency or life-threatening
case, as defined under Republic Act No. 8344, to another health care service provider within the same facility or one
which is conveniently accessible regardless of his or her religious beliefs;
6) Section 23(b) and the corresponding provision in the RH-IRR, particularly Section 5 .24 thereof, insofar as they punish
any public officer who refuses to support reproductive health programs or shall do any act that hinders the full
implementation of a reproductive health program, regardless of his or her religious beliefs;

7) Section 17 and the corresponding prov1s10n in the RH-IRR regarding the rendering of pro bona reproductive health
service in so far as they affect the conscientious objector in securing PhilHealth accreditation; and

8) Section 3.0l(a) and Section 3.01 G) of the RH-IRR, which added the qualifier "primarily" in defining abortifacients and
contraceptives, as they are ultra vires and, therefore, null and void for contravening Section 4(a) of the RH Law and
violating Section 12, Article II of the Constitution.

The Status Quo Ante Order issued by the Court on March 19, 2013 as extended by its Order, dated July 16, 2013 , is hereby
LIFTED, insofar as the provisions of R.A. No. 10354 which have been herein declared as constitutional.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

WE CONCUR:

Tingnan ang aking opinyong


Sumasang-ayon at SumasalungatMARIA LOURDES P. A. SERENO
Chief Justice

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 179267 June 25, 2013

JESUS C. GARCIA, Petitioner,


vs.
THE HONORABLE RAY ALAN T. DRILON, Presiding Judge, Regional Trial Court-Branch 41, Bacolod City, and ROSALIE JAYPE-
GARCIA, for herself and in behalf of minor children, namely: JO-ANN, JOSEPH EDUARD, JESSE ANTHONE, all surnamed
GARCIA, Respondents.

DECISION

PERLAS-BERNABE, J.:

Hailed as the bastion of Christianity in Asia, the Philippines boasts of 86.8 million Filipinos- or 93 percent of a total population of 93.3
million adhering to the teachings of Jesus Christ.1 Yet, the admonition for husbands to love their wives as their own bodies just as
Christ loved the church and gave himself up for her2 failed to prevent, or even to curb, the pervasiveness of violence against Filipino
women. The National Commission on the Role of Filipino Women (NCRFW) reported that, for the years 2000-2003, "female
violence comprised more than 90o/o of all forms of abuse and violence and more than 90% of these reported cases were committed
by the women's intimate partners such as their husbands and live-in partners." 3

Thus, on March 8, 2004, after nine (9) years of spirited advocacy by women's groups, Congress enacted Republic Act (R.A.) No.
9262, entitled "An Act Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims,
Prescribing Penalties Therefor, and for Other Purposes." It took effect on March 27, 2004.4

R.A. 9262 is a landmark legislation that defines and criminalizes acts of violence against women and their children (VAWC)
perpetrated by women's intimate partners, i.e, husband; former husband; or any person who has or had a sexual or dating
relationship, or with whom the woman has a common child.5 The law provides for protection orders from the barangay and the
courts to prevent the commission of further acts of VAWC; and outlines the duties and responsibilities of barangay officials, law
enforcers, prosecutors and court personnel, social workers, health care providers, and other local government officials in responding
to complaints of VAWC or requests for assistance.

A husband is now before the Court assailing the constitutionality of R.A. 9262 as being violative of the equal protection and due
process clauses, and an undue delegation of judicial power to barangay officials.

The Factual Antecedents

On March 23, 2006, Rosalie Jaype-Garcia (private respondent) filed, for herself and in behalf of her minor children, a verified
petition6 (Civil Case No. 06-797) before the Regional Trial Court (RTC) of Bacolod City for the issuance of a Temporary Protection
Order (TPO) against her husband, Jesus C. Garcia (petitioner), pursuant to R.A. 9262. She claimed to be a victim of physical abuse;
emotional, psychological, and economic violence as a result of marital infidelity on the part of petitioner, with threats of deprivation of
custody of her children and of financial support.7

Private respondent's claims

Private respondent married petitioner in 2002 when she was 34 years old and the former was eleven years her senior. They have
three (3) children, namely: Jo-Ann J. Garcia, 17 years old, who is the natural child of petitioner but whom private respondent
adopted; Jessie Anthone J. Garcia, 6 years old; and Joseph Eduard J. Garcia, 3 years old.8

Private respondent described herself as a dutiful and faithful wife, whose life revolved around her husband. On the other hand,
petitioner, who is of Filipino-Chinese descent, is dominant, controlling, and demands absolute obedience from his wife and children.
He forbade private respondent to pray, and deliberately isolated her from her friends. When she took up law, and even when she
was already working part time at a law office, petitioner trivialized her ambitions and prevailed upon her to just stay at home. He was
often jealous of the fact that his attractive wife still catches the eye of some men, at one point threatening that he would have any
man eyeing her killed.9

Things turned for the worse when petitioner took up an affair with a bank manager of Robinson's Bank, Bacolod City, who is the
godmother of one of their sons. Petitioner admitted to the affair when private respondent confronted him about it in 2004. He even
boasted to the household help about his sexual relations with said bank manager. Petitioner told private respondent, though, that he
was just using the woman because of their accounts with the bank.10

Petitioner's infidelity spawned a series of fights that left private respondent physically and emotionally wounded. In one of their
quarrels, petitioner grabbed private respondent on both arms and shook her with such force that caused bruises and hematoma. At
another time, petitioner hit private respondent forcefully on the lips that caused some bleeding. Petitioner sometimes turned his ire
on their daughter, Jo-Ann, who had seen the text messages he sent to his paramour and whom he blamed for squealing on him. He
beat Jo-Ann on the chest and slapped her many times. When private respondent decided to leave petitioner, Jo-Ann begged her
mother to stay for fear that if the latter leaves, petitioner would beat her up. Even the small boys are aware of private respondent's
sufferings. Their 6-year-old son said that when he grows up, he would beat up his father because of his cruelty to private
respondent.11

All the emotional and psychological turmoil drove private respondent to the brink of despair. On December 17, 2005, while at home,
she attempted suicide by cutting her wrist. She was found by her son bleeding on the floor. Petitioner simply fled the house instead
of taking her to the hospital. Private respondent was hospitalized for about seven (7) days in which time petitioner never bothered to
visit, nor apologized or showed pity on her. Since then, private respondent has been undergoing therapy almost every week and is
taking anti-depressant medications.12

When private respondent informed the management of Robinson's Bank that she intends to file charges against the bank manager,
petitioner got angry with her for jeopardizing the manager's job. He then packed his things and told private respondent that he was
leaving her for good. He even told private respondent's mother, who lives with them in the family home, that private respondent
should just accept his extramarital affair since he is not cohabiting with his paramour and has not sired a child with her. 13

Private respondent is determined to separate from petitioner but she is afraid that he would take her children from her and deprive
her of financial support. Petitioner had previously warned her that if she goes on a legal battle with him, she would not get a single
centavo.14

Petitioner controls the family businesses involving mostly the construction of deep wells. He is the President of three corporations
326 Realty Holdings, Inc., Negros Rotadrill Corporation, and J-Bros Trading Corporation of which he and private respondent are
both stockholders. In contrast to the absolute control of petitioner over said corporations, private respondent merely draws a monthly
salary of P20,000.00 from one corporation only, the Negros Rotadrill Corporation. Household expenses amounting to not less
than P200,000.00 a month are paid for by private respondent through the use of credit cards, which, in turn, are paid by the same
corporation together with the bills for utilities.15
On the other hand, petitioner receives a monthly salary of P60,000.00 from Negros Rotadrill Corporation, and enjoys unlimited cash
advances and other benefits in hundreds of thousands of pesos from the corporations.16After private respondent confronted him
about the affair, petitioner forbade her to hold office at JBTC Building, Mandalagan, where all the businesses of the corporations are
conducted, thereby depriving her of access to full information about said businesses. Until the filing of the petition a quo, petitioner
has not given private respondent an accounting of the businesses the value of which she had helped raise to millions of pesos. 17

Action of the RTC of Bacolod City

Finding reasonable ground to believe that an imminent danger of violence against the private respondent and her children exists or
is about to recur, the RTC issued a TPO18 on March 24, 2006 effective for thirty (30) days, which is quoted hereunder:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:

a) Ordered to remove all his personal belongings from the conjugal dwelling or family home within 24 hours from receipt of
the Temporary Restraining Order and if he refuses, ordering that he be removed by police officers from the conjugal
dwelling; this order is enforceable notwithstanding that the house is under the name of 236 Realty Holdings Inc. (Republic
Act No. 9262 states "regardless of ownership"), this is to allow the Petitioner (private respondent herein) to enter the
conjugal dwelling without any danger from the Respondent.

After the Respondent leaves or is removed from the conjugal dwelling, or anytime the Petitioner decides to return to the
conjugal dwelling to remove things, the Petitioner shall be assisted by police officers when re-entering the family home.

The Chief of Police shall also give the Petitioner police assistance on Sunday, 26 March 2006 because of the danger that
the Respondent will attempt to take her children from her when he arrives from Manila and finds out about this suit.

b) To stay away from the petitioner and her children, mother and all her household help and driver from a distance of
1,000 meters, and shall not enter the gate of the subdivision where the Petitioner may be temporarily residing.

c) Not to harass, annoy, telephone, contact or otherwise communicate with the Petitioner, directly or indirectly, or through
other persons, or contact directly or indirectly her children, mother and household help, nor send gifts, cards, flowers,
letters and the like. Visitation rights to the children may be subject of a modified TPO in the future.

d) To surrender all his firearms including a .9MM caliber firearm and a Walther PPK and ordering the Philippine National
Police Firearms and Explosives Unit and the Provincial Director of the PNP to cancel all the Respondent's firearm
licenses. He should also be ordered to surrender any unlicensed firearms in his possession or control.

e) To pay full financial support for the Petitioner and the children, including rental of a house for them, and educational and
medical expenses.

f) Not to dissipate the conjugal business.

g) To render an accounting of all advances, benefits, bonuses and other cash he received from all the corporations from 1
January 2006 up to 31 March 2006, which himself and as President of the corporations and his Comptroller, must submit
to the Court not later than 2 April 2006. Thereafter, an accounting of all these funds shall be reported to the court by the
Comptroller, copy furnished to the Petitioner, every 15 days of the month, under pain of Indirect Contempt of Court.

h) To ensure compliance especially with the order granting support pendente lite, and considering the financial resources
of the Respondent and his threat that if the Petitioner sues she will not get a single centavo, the Respondent is ordered to
put up a BOND TO KEEP THE PEACE in the amount of FIVE MILLION PESOS, in two sufficient sureties.

On April 24, 2006, upon motion19 of private respondent, the trial court issued an amended TPO,20 effective for thirty (30)
days, which included the following additional provisions:

i) The petitioners (private respondents herein) are given the continued use of the Nissan Patrol and the Starex Van which
they are using in Negros Occidental.

j) The petitioners are given the continued use and occupation of the house in Paraaque, the continued use of the Starex
van in Metro Manila, whenever they go to Manila.

k) Respondent is ordered to immediately post a bond to keep the peace, in two sufficient sureties.
l) To give monthly support to the petitioner provisionally fixed in the sum of One Hundred Fifty Thousand Pesos (Php
150,000.00) per month plus rental expenses of Fifty Thousand Pesos (Php 50,000.00) per month until the matter of
support could be finally resolved.

Two days later, or on April 26, 2006, petitioner filed an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO 21 seeking
the denial of the renewal of the TPO on the grounds that it did not (1) comply with the three-day notice rule, and (2) contain a notice
of hearing. He further asked that the TPO be modified by (1) removing one vehicle used by private respondent and returning the
same to its rightful owner, the J-Bros Trading Corporation, and (2) cancelling or reducing the amount of the bond
from P5,000,000.00 to a more manageable level at P100,000.00.

Subsequently, on May 23, 2006, petitioner moved22 for the modification of the TPO to allow him visitation rights to his children.

On May 24, 2006, the TPO was renewed and extended yet again, but subject only to the following modifications prayed for by
private respondent:

a) That respondent (petitioner herein) return the clothes and other personal belongings of Rosalie and her children to
Judge Jesus Ramos, co-counsel for Petitioner, within 24 hours from receipt of the Temporary Protection Order by his
counsel, otherwise be declared in Indirect Contempt of Court;

b) Respondent shall make an accounting or list of furniture and equipment in the conjugal house in Pitimini St., Capitolville
Subdivision, Bacolod City within 24 hours from receipt of the Temporary Protection Order by his counsel;

c) Ordering the Chief of the Women's Desk of the Bacolod City Police Headquarters to remove Respondent from the
conjugal dwelling within eight (8) hours from receipt of the Temporary Protection Order by his counsel, and that he cannot
return until 48 hours after the petitioners have left, so that the petitioner Rosalie and her representatives can remove
things from the conjugal home and make an inventory of the household furniture, equipment and other things in the
conjugal home, which shall be submitted to the Court.

d) Deliver full financial support of Php200,000.00 and Php50,000.00 for rental and Php25,000.00 for clothes of the three
petitioners (sic) children within 24 hours from receipt of the Temporary Protection Order by his counsel, otherwise be
declared in indirect contempt of Court;

e) That respondent surrender his two firearms and all unlicensed firearms to the Clerk of Court within 24 hours from
receipt of the Temporary Protection Order by his counsel;

f) That respondent shall pay petitioner educational expenses of the children upon presentation of proof of payment of such
expenses.23

Claiming that petitioner continued to deprive them of financial support; failed to faithfully comply with the TPO; and committed new
acts of harassment against her and their children, private respondent filed another application 24for the issuance of a TPO ex parte.
She alleged inter

alia that petitioner contrived a replevin suit against himself by J-Bros Trading, Inc., of which the latter was purportedly no longer
president, with the end in view of recovering the Nissan Patrol and Starex Van used by private respondent and the children. A writ of
replevin was served upon private respondent by a group of six or seven policemen with long firearms that scared the two small
boys, Jessie Anthone and Joseph Eduard.25

While Joseph Eduard, then three years old, was driven to school, two men allegedly attempted to kidnap him, which incident
traumatized the boy resulting in his refusal to go back to school. On another occasion, petitioner allegedly grabbed their daughter,
Jo-Ann, by the arm and threatened her.26 The incident was reported to the police, and Jo-Ann subsequently filed a criminal
complaint against her father for violation of R.A. 7610, also known as the "Special Protection of Children Against Child Abuse,
Exploitation and Discrimination Act."

Aside from the replevin suit, petitioner's lawyers initiated the filing by the housemaids working at the conjugal home of a complaint
for kidnapping and illegal detention against private respondent. This came about after private respondent, armed with a TPO, went
to said home to get her and her children's belongings. Finding some of her things inside a housemaid's (Sheryl Jamola) bag in the
maids' room, private respondent filed a case for qualified theft against Jamola.27

On August 23, 2006, the RTC issued a TPO,28 effective for thirty (30) days, which reads as follows:

Respondent (petitioner herein), Jesus Chua Garcia, is hereby:


1) Prohibited from threatening to commit or committing, personally or through another, acts of violence against the
offended party;

2) Prohibited from harassing, annoying, telephoning, contacting or otherwise communicating in any form with the offended
party, either directly or indirectly;

3) Required to stay away, personally or through his friends, relatives, employees or agents, from all the Petitioners
Rosalie J. Garcia and her children, Rosalie J. Garcia's three brothers, her mother Primitiva Jaype, cook Novelita Caranzo,
driver Romeo Hontiveros, laundrywoman Mercedita Bornales, security guard Darwin Gayona and the petitioner's other
household helpers from a distance of 1,000 meters, and shall not enter the gate of the subdivision where the Petitioners
are temporarily residing, as well as from the schools of the three children; Furthermore, that respondent shall not contact
the schools of the children directly or indirectly in any manner including, ostensibly to pay for their tuition or other fees
directly, otherwise he will have access to the children through the schools and the TPO will be rendered nugatory;

4) Directed to surrender all his firearms including .9MM caliber firearm and a Walther PPK to the Court;

5) Directed to deliver in full financial support of Php200,000.00 a month and Php50,000.00 for rental for the period from
August 6 to September 6, 2006; and support in arrears from March 2006 to August 2006 the total amount of
Php1,312,000.00;

6) Directed to deliver educational expenses for 2006-2007 the amount of Php75,000.00 and Php25,000.00;

7) Directed to allow the continued use of a Nissan Patrol with Plate No. FEW 508 and a Starex van with Plate No. FFD
991 and should the respondent fail to deliver said vehicles, respondent is ordered to provide the petitioner another vehicle
which is the one taken by J Bros Tading;

8) Ordered not to dissipate, encumber, alienate, sell, lease or otherwise dispose of the conjugal assets, or those real
properties in the name of Jesus Chua Garcia only and those in which the conjugal partnership of gains of the Petitioner
Rosalie J. Garcia and respondent have an interest in, especially the conjugal home located in No. 14, Pitimini St.,
Capitolville Subdivision, Bacolod City, and other properties which are conjugal assets or those in which the conjugal
partnership of gains of Petitioner Rosalie J. Garcia and the respondent have an interest in and listed in Annexes "I," "I-1,"
and "I-2," including properties covered by TCT Nos. T-186325 and T-168814;

9) Ordered that the Register of Deeds of Bacolod City and E.B. Magalona shall be served a copy of this TEMPORARY
PROTECTION ORDER and are ordered not to allow the transfer, sale, encumbrance or disposition of these above-cited
properties to any person, entity or corporation without the personal presence of petitioner Rosalie J. Garcia, who shall
affix her signature in the presence of the Register of Deeds, due to the fear of petitioner Rosalie that her signature will be
forged in order to effect the encumbrance or sale of these properties to defraud her or the conjugal partnership of gains.

In its Order29 dated September 26, 2006, the trial court extended the aforequoted TPO for another ten (10) days, and gave petitioner
a period of five (5) days within which to show cause why the TPO should not be renewed, extended, or modified. Upon petitioner's
manifestation,30 however, that he has not received a copy of private respondent's motion to modify/renew the TPO, the trial court
directed in its Order31 dated October 6, 2006 that petitioner be furnished a copy of said motion. Nonetheless, an Order 32 dated a day
earlier, October 5, had already been issued renewing the TPO dated August 23, 2006. The pertinent portion is quoted hereunder:

xxxx

x x x it appearing further that the hearing could not yet be finally terminated, the Temporary Protection Order issued on August 23,
2006 is hereby renewed and extended for thirty (30) days and continuously extended and renewed for thirty (30) days, after each
expiration, until further orders, and subject to such modifications as may be ordered by the court.

After having received a copy of the foregoing Order, petitioner no longer submitted the required comment to private respondent's
motion for renewal of the TPO arguing that it would only be an "exercise in futility." 33

Proceedings before the CA

During the pendency of Civil Case No. 06-797, petitioner filed before the Court of Appeals (CA) a petition 34 for prohibition (CA-G.R.
CEB-SP. No. 01698), with prayer for injunction and temporary restraining order, challenging (1) the constitutionality of R.A. 9262 for
being violative of the due process and the equal protection clauses, and (2) the validity of the modified TPO issued in the civil case
for being "an unwanted product of an invalid law."
On May 26, 2006, the appellate court issued a 60-day Temporary Restraining Order36 (TRO) against the enforcement of the TPO,
the amended TPOs and other orders pursuant thereto.

Subsequently, however, on January 24, 2007, the appellate court dismissed36 the petition for failure of petitioner to raise the
constitutional issue in his pleadings before the trial court in the civil case, which is clothed with jurisdiction to resolve the same.
Secondly, the challenge to the validity

of R.A. 9262 through a petition for prohibition seeking to annul the protection orders issued by the trial court constituted a collateral
attack on said law.

His motion for reconsideration of the foregoing Decision having been denied in the Resolution 37 dated August 14, 2007, petitioner is
now before us alleging that

The Issues

I.

THE COURT OF APPEALS ERRED IN DISMISSING THE PETITION ON THE THEORY THAT THE ISSUE OF
CONSTITUTIONALITY WAS NOT RAISED AT THE EARLIEST OPPORTUNITY AND THAT, THE PETITION CONSTITUTES A
COLLATERAL ATTACK ON THE VALIDITY OF THE LAW.

II.

THE COURT OF APPEALS COMMITTED SERIOUS ERROR IN FAILING TO CONCLUDE THAT R.A. 9262 IS DISCRIMINATORY,
UNJUST, AND VIOLATIVE OF THE EQUAL PROTECTION CLAUSE.

III.

THE COURT OF APPEALS COMMITTED GRAVE MISTAKE IN NOT FINDING THAT R.A. 9262 RUNS COUNTER TO THE DUE
PROCESS CLAUSE OF THE CONSTITUTION.

IV.

THE COURT OF APPEALS ERRED IN NOT FINDING THAT THE LAW DOES VIOLENCE TO THE POLICY OF THE STATE TO
PROTECT THE FAMILY AS A BASIC SOCIAL INSTITUTION.

V.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT DECLARING R.A. No. 9262 AS INVALID AND UNCONSTITUTIONAL
BECAUSE IT ALLOWS AN UNDUE DELEGATION OF JUDICIAL POWER TO THE BARANGAY OFFICIALS. 38

The Ruling of the Court

Before delving into the arguments propounded by petitioner against the constitutionality of R.A. 9262, we shall first tackle the
propriety of the dismissal by the appellate court of the petition for prohibition (CA-G.R. CEB-SP. No. 01698) filed by petitioner.

As a general rule, the question of constitutionality must be raised at the earliest opportunity so that if not raised in the pleadings,
ordinarily it may not be raised in the trial, and if not raised in the trial court, it will not be considered on appeal. 39 Courts will not
anticipate a question of constitutional law in advance of the necessity of deciding it.40

In defending his failure to attack the constitutionality of R.A. 9262 before the RTC of Bacolod City, petitioner argues that the Family
Court has limited authority and jurisdiction that is "inadequate to tackle the complex issue of constitutionality." 41

We disagree.

Family Courts have authority and jurisdiction to consider the constitutionality of a statute.

At the outset, it must be stressed that Family Courts are special courts, of the same level as Regional Trial Courts. Under R.A. 8369,
otherwise known as the "Family Courts Act of 1997," family courts have exclusive original jurisdiction to hear and decide cases of
domestic violence against women and children.42 In accordance with said law, the Supreme Court designated from among the
branches of the Regional Trial Courts at least one Family Court in each of several key cities identified. 43 To achieve harmony with
the first mentioned law, Section 7 of R.A. 9262 now provides that Regional Trial Courts designated as Family Courts shall have
original and exclusive jurisdiction over cases of VAWC defined under the latter law, viz:

SEC. 7. Venue. The Regional Trial Court designated as a Family Court shall have original and exclusive jurisdiction over cases of
violence against women and their children under this law. In the absence of such court in the place where the offense was
committed, the case shall be filed in the Regional Trial Court where the crime or any of its elements was committed at the option of
the complainant. (Emphasis supplied)

Inspite of its designation as a family court, the RTC of Bacolod City remains possessed of authority as a court of general original
jurisdiction to pass upon all kinds of cases whether civil, criminal, special proceedings, land registration, guardianship,
naturalization, admiralty or insolvency.44 It is settled that RTCs have jurisdiction to resolve the constitutionality of a statute,45 "this
authority being embraced in the general definition of the judicial power to determine what are the valid and binding laws by the
criterion of their conformity to the fundamental law."46 The Constitution vests the power of judicial review or the power to declare the
constitutionality or validity of a law, treaty, international or executive agreement, presidential decree, order, instruction, ordinance, or
regulation not only in this Court, but in all RTCs.47 We said in J.M. Tuason and Co., Inc. v. CA48 that, "plainly the Constitution
contemplates that the inferior courts should have jurisdiction in cases involving constitutionality of any treaty or law, for it speaks of
appellate review of final judgments of inferior courts in cases where such constitutionality happens to be in issue." Section 5, Article
VIII of the 1987 Constitution reads in part as follows:

SEC. 5. The Supreme Court shall have the following powers:

xxx

2. Review, revise, reverse, modify, or affirm on appeal or certiorari, as the law or the Rules of Court may provide, final judgments
and orders of lower courts in:

a. All cases in which the constitutionality or validity of any treaty, international or executive agreement, law, presidential decree,
proclamation, order, instruction, ordinance, or regulation is in question.

xxxx

Thus, contrary to the posturing of petitioner, the issue of constitutionality of R.A. 9262 could have been raised at the earliest
opportunity in his Opposition to the petition for protection order before the RTC of Bacolod City, which had jurisdiction to determine
the same, subject to the review of this Court.

Section 20 of A.M. No. 04-10-11-SC, the Rule on Violence Against Women and Their Children, lays down a new kind of procedure
requiring the respondent to file an opposition to the petition and not an answer. 49 Thus:

SEC. 20. Opposition to petition. (a) The respondent may file an opposition to the petition which he himself shall verify. It must be
accompanied by the affidavits of witnesses and shall show cause why a temporary or permanent protection order should not be
issued.

(b) Respondent shall not include in the opposition any counterclaim, cross-claim or third-party complaint, but any cause of action
which could be the subject thereof may be litigated in a separate civil action. (Emphasis supplied)

We cannot subscribe to the theory espoused by petitioner that, since a counterclaim, cross-claim and third-party complaint are to be
excluded from the opposition, the issue of constitutionality cannot likewise be raised therein. A counterclaim is defined as any claim
for money or other relief which a defending party may have against an opposing party.50 A cross-claim, on the other hand, is any
claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original
action or of a counterclaim therein.51Finally, a third-party complaint is a claim that a defending party may, with leave of court, file
against a person not a party to the action for contribution, indemnity, subrogation or any other relief, in respect of his opponent's
claim.52 As pointed out by Justice Teresita J. Leonardo-De Castro, the unconstitutionality of a statute is not a cause of action that
could be the subject of a counterclaim, cross-claim or a third-party complaint. Therefore, it is not prohibited from being raised in the
opposition in view of the familiar maxim expressio unius est exclusio alterius.

Moreover, it cannot be denied that this issue affects the resolution of the case a quo because the right of private respondent to a
protection order is founded solely on the very statute the validity of which is being attacked 53 by petitioner who has sustained, or will
sustain, direct injury as a result of its enforcement. The alleged unconstitutionality of R.A. 9262 is, for all intents and purposes, a
valid cause for the non-issuance of a protection order.
That the proceedings in Civil Case No. 06-797 are summary in nature should not have deterred petitioner from raising the same in
his Opposition. The question relative to the constitutionality of a statute is one of law which does not need to be supported by
evidence.54 Be that as it may, Section 25 of A.M. No. 04-10-11-SC nonetheless allows the conduct of a hearing to determine legal
issues, among others, viz:

SEC. 25. Order for further hearing. - In case the court determines the need for further hearing, it may issue an order containing the
following:

(a) Facts undisputed and admitted;

(b) Factual and legal issues to be resolved;

(c) Evidence, including objects and documents that have been marked and will be presented;

(d) Names of witnesses who will be ordered to present their direct testimonies in the form of affidavits; and

(e) Schedule of the presentation of evidence by both parties which shall be done in one day, to the extent possible, within
the 30-day period of the effectivity of the temporary protection order issued. (Emphasis supplied)

To obviate potential dangers that may arise concomitant to the conduct of a hearing when necessary, Section 26 (b) of A.M. No. 04-
10-11-SC provides that if a temporary protection order issued is due to expire, the trial court may extend or renew the said order for
a period of thirty (30) days each time until final judgment is rendered. It may likewise modify the extended or renewed temporary
protection order as may be necessary to meet the needs of the parties. With the private respondent given ample protection,
petitioner could proceed to litigate the constitutional issues, without necessarily running afoul of the very purpose for the adoption of
the rules on summary procedure.

In view of all the foregoing, the appellate court correctly dismissed the petition for prohibition with prayer for injunction and
temporary restraining order (CA-G.R. CEB - SP. No. 01698). Petitioner may have proceeded upon an honest belief that if he finds
succor in a superior court, he could be granted an injunctive relief. However, Section 22(j) of A.M. No. 04-10-11-SC expressly
disallows the filing of a petition for certiorari, mandamus or prohibition against any interlocutory order issued by the trial court.
Hence, the 60-day TRO issued by the appellate court in this case against the enforcement of the TPO, the amended TPOs and
other orders pursuant thereto was improper, and it effectively hindered the case from taking its normal course in an expeditious and
summary manner.

As the rules stand, a review of the case by appeal or certiorari before judgment is prohibited. Moreover, if the appeal of a judgment
granting permanent protection shall not stay its enforcement,55 with more reason that a TPO, which is valid only for thirty (30) days
at a time,56 should not be enjoined.

The mere fact that a statute is alleged to be unconstitutional or invalid, does not of itself entitle a litigant to have the same
enjoined.57 In Younger v. Harris, Jr.,58 the Supreme Court of the United States declared, thus:

Federal injunctions against state criminal statutes, either in their entirety or with respect to their separate and distinct prohibitions,
are not to be granted as a matter of course, even if such statutes are unconstitutional. No citizen or member of the community is
immune from prosecution, in good faith, for his alleged criminal acts. The imminence of such a prosecution even though alleged to
be unauthorized and, hence, unlawful is not alone ground for relief in equity which exerts its extraordinary powers only to prevent
irreparable injury to the plaintiff who seeks its aid. (Citations omitted)

The sole objective of injunctions is to preserve the status quo until the trial court hears fully the merits of the case. It bears stressing,
however, that protection orders are granted ex parte so as to protect women and their children from acts of violence. To issue an
injunction against such orders will defeat the very purpose of the law against VAWC.

Notwithstanding all these procedural flaws, we shall not shirk from our obligation to determine novel issues, or issues of first
impression, with far-reaching implications. We have, time and again, discharged our solemn duty as final arbiter of constitutional
issues, and with more reason now, in view of private respondent's plea in her Comment59 to the instant Petition that we should put
the challenge to the constitutionality of R.A. 9262 to rest. And so we shall.

Intent of Congress in enacting R.A. 9262.

Petitioner claims that since R.A. 9262 is intended to prevent and criminalize spousal and child abuse, which could very well be
committed by either the husband or the wife, gender alone is not enough basis to deprive the husband/father of the remedies under
the law.60
A perusal of the deliberations of Congress on Senate Bill No. 2723,61 which became R.A. 9262, reveals that while the sponsor,
Senator Luisa Pimentel-Ejercito (better known as Senator Loi Estrada), had originally proposed what she called a "synthesized
measure"62 an amalgamation of two measures, namely, the "Anti-Domestic Violence Act" and the "Anti-Abuse of Women in
Intimate Relationships Act"63 providing protection to "all family members, leaving no one in isolation" but at the same time giving
special attention to women as the "usual victims" of violence and abuse,64 nonetheless, it was eventually agreed that men be denied
protection under the same measure. We quote pertinent portions of the deliberations:

Wednesday, December 10, 2003

Senator Pangilinan. I just wanted to place this on record, Mr. President. Some women's groups have expressed concerns and
relayed these concerns to me that if we are to include domestic violence apart from against women as well as other members of the
household, including children or the husband, they fear that this would weaken the efforts to address domestic violence of which the
main victims or the bulk of the victims really are the wives, the spouses or the female partners in a relationship. We would like to
place that on record. How does the good Senator respond to this kind of observation?

Senator Estrada. Yes, Mr. President, there is this group of women who call themselves "WIIR" Women in Intimate Relationship.
They do not want to include men in this domestic violence. But plenty of men are also being abused by women. I am playing safe so
I placed here members of the family, prescribing penalties therefor and providing protective measures for victims. This includes the
men, children, live-in, common-law wives, and those related with the family. 65

xxx

Wednesday, January 14, 2004

xxxx

The President Pro Tempore. x x x

Also, may the Chair remind the group that there was the discussion whether to limit this to women and not to families which was the
issue of the AWIR group. The understanding that I have is that we would be having a broader scope rather than just women, if I
remember correctly, Madam sponsor.

Senator Estrada. Yes, Mr. President.

As a matter of fact, that was brought up by Senator Pangilinan during the interpellation period.

I think Senator Sotto has something to say to that.

Senator Legarda. Mr. President, the reason I am in support of the measure. Do not get me wrong. However, I believe that there is a
need to protect women's rights especially in the domestic environment.

As I said earlier, there are nameless, countless, voiceless women who have not had the opportunity to file a case against their
spouses, their live-in partners after years, if not decade, of battery and abuse. If we broaden the scope to include even the men,
assuming they can at all be abused by the women or their spouses, then it would not equalize the already difficult situation for
women, Mr. President.

I think that the sponsor, based on our earlier conversations, concurs with this position. I am sure that the men in this Chamber who
love their women in their lives so dearly will agree with this representation. Whether we like it or not, it is an unequal world. Whether
we like it or not, no matter how empowered the women are, we are not given equal opportunities especially in the domestic
environment where the macho Filipino man would always feel that he is stronger, more superior to the Filipino woman.

xxxx

The President Pro Tempore. What does the sponsor say?

Senator Estrada. Mr. President, before accepting this, the committee came up with this bill because the family members have been
included in this proposed measure since the other members of the family other than women are also possible victims of violence.
While women are most likely the intended victims, one reason incidentally why the measure focuses on women, the fact remains
that in some relatively few cases, men also stand to be victimized and that children are almost always the helpless victims of
violence. I am worried that there may not be enough protection extended to other family members particularly children who are
excluded. Although Republic Act No. 7610, for instance, more or less, addresses the special needs of abused children. The same
law is inadequate. Protection orders for one are not available in said law.

I am aware that some groups are apprehensive about granting the same protection to men, fearing that they may use this law to
justify their abusive behavior against women. However, we should also recognize that there are established procedures and
standards in our courts which give credence to evidentiary support and cannot just arbitrarily and whimsically entertain baseless
complaints.

Mr. President, this measure is intended to harmonize family relations and to protect the family as the basic social institution. Though
I recognize the unequal power relations between men and women in our society, I believe we have an obligation to uphold inherent
rights and dignity of both husband and wife and their immediate family members, particularly children.

While I prefer to focus mainly on women, I was compelled to include other family members as a critical input arrived at after a series
of consultations/meetings with various NGOs, experts, sports groups and other affected sectors, Mr. President.

Senator Sotto. Mr. President.

The President Pro Tempore. Yes, with the permission of the other senators.

Senator Sotto. Yes, with the permission of the two ladies on the Floor.

The President Pro Tempore. Yes, Sen. Vicente C. Sotto III is recognized.

Senator Sotto. I presume that the effect of the proposed amendment of Senator Legarda would be removing the "men and children"
in this particular bill and focus specifically on women alone. That will be the net effect of that proposed amendment. Hearing the
rationale mentioned by the distinguished sponsor, Sen. Luisa "Loi" Ejercito Estrada, I am not sure now whether she is inclined to
accept the proposed amendment of Senator Legarda.

I am willing to wait whether she is accepting this or not because if she is going to accept this, I will propose an amendment to the
amendment rather than object to the amendment, Mr. President.

xxxx

Senator Estrada. The amendment is accepted, Mr. President.

The President Pro Tempore. Is there any objection?

xxxx

Senator Sotto. x x x May I propose an amendment to the amendment.

The President Pro Tempore. Before we act on the amendment?

Senator Sotto. Yes, Mr. President.

The President Pro Tempore. Yes, please proceed.

Senator Sotto. Mr. President, I am inclined to believe the rationale used by the distinguished proponent of the amendment. As a
matter of fact, I tend to agree. Kung may maaabuso, mas malamang iyong babae kaysa sa lalake. At saka iyong mga lalake,
puwede na talagang magulpi iyan. Okey lang iyan. But I cannot agree that we remove the children from this particular measure.

So, if I may propose an amendment

The President Pro Tempore. To the amendment.

Senator Sotto. more than the women, the children are very much abused. As a matter of fact, it is not limited to minors. The abuse
is not limited to seven, six, 5-year-old children. I have seen 14, 15-year-old children being abused by their fathers, even by their
mothers. And it breaks my heart to find out about these things.
Because of the inadequate existing law on abuse of children, this particular measure will update that. It will enhance and hopefully
prevent the abuse of children and not only women.

SOTTO-LEGARDA AMENDMENTS

Therefore, may I propose an amendment that, yes, we remove the aspect of the men in the bill but not the children.

Senator Legarda. I agree, Mr. President, with the Minority Leader.

The President Pro Tempore. Effectively then, it will be women AND CHILDREN.

Senator Sotto. Yes, Mr. President.

Senator Estrada. It is accepted, Mr. President.

The President Pro Tempore. Is there any objection? [Silence] There being none, the amendment, as amended, is approved. 66

It is settled that courts are not concerned with the wisdom, justice, policy, or expediency of a statute.67 Hence, we dare not venture
into the real motivations and wisdom of the members of Congress in limiting the protection against violence and abuse under R.A.
9262 to women and children only. No proper challenge on said grounds may be entertained in this proceeding. Congress has made
its choice and it is not our prerogative to supplant this judgment. The choice may be perceived as erroneous but even then, the
remedy against it is to seek its amendment or repeal by the legislative. By the principle of separation of powers, it is the legislative
that determines the necessity, adequacy, wisdom and expediency of any law.68 We only step in when there is a violation of the
Constitution. However, none was sufficiently shown in this case.

R.A. 9262 does not violate the guaranty of equal protection of the laws.

Equal protection simply requires that all persons or things similarly situated should be treated alike, both as to rights conferred and
responsibilities imposed. The oft-repeated disquisition in the early case of Victoriano v. Elizalde Rope Workers' Union 69 is instructive:

The guaranty of equal protection of the laws is not a guaranty of equality in the application of the laws upon all citizens of the state.
It is not, therefore, a requirement, in order to avoid the constitutional prohibition against inequality, that every man, woman and child
should be affected alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on persons merely as
such, but on persons according to the circumstances surrounding them. It guarantees equality, not identity of rights. The
Constitution does not require that things which are different in fact be treated in law as though they were the same. The equal
protection clause does not forbid discrimination as to things that are different. It does not prohibit legislation which is limited either in
the object to which it is directed or by the territory within which it is to operate.

The equal protection of the laws clause of the Constitution allows classification. Classification in law, as in the other departments of
knowledge or practice, is the grouping of things in speculation or practice because they agree with one another in certain particulars.
A law is not invalid because of simple inequality. The very idea of classification is that of inequality, so that it goes without saying that
the mere fact of inequality in no manner determines the matter of constitutionality. All that is required of a valid classification is that it
be reasonable, which means that the classification should be based on substantial distinctions which make for real differences; that
it must be germane to the purpose of the law; that it must not be limited to existing conditions only; and that it must apply equally to
each member of the class. This Court has held that the standard is satisfied if the classification or distinction is based on a
reasonable foundation or rational basis and is not palpably arbitrary. (Emphasis supplied)

Measured against the foregoing jurisprudential yardstick, we find that R.A. 9262 is based on a valid classification as shall hereinafter
be discussed and, as such, did not violate the equal protection clause by favoring women over men as victims of violence and
abuse to whom the State extends its protection.

I. R.A. 9262 rests on substantial distinctions.

The unequal power relationship between women and men; the fact that women are more likely than men to be victims of violence;
and the widespread gender bias and prejudice against women all make for real differences justifying the classification under the law.
As Justice McIntyre succinctly states, "the accommodation of differences ... is the essence of true equality." 70

A. Unequal power relationship between men and women

According to the Philippine Commission on Women (the National Machinery for Gender Equality and Women's Empowerment),
violence against women (VAW) is deemed to be closely linked with the unequal power relationship between women and men
otherwise known as "gender-based violence". Societal norms and traditions dictate people to think men are the leaders, pursuers,
providers, and take on dominant roles in society while women are nurturers, men's companions and supporters, and take on
subordinate roles in society. This perception leads to men gaining more power over women. With power comes the need to control
to retain that power. And VAW is a form of men's expression of controlling women to retain power. 71

The United Nations, which has long recognized VAW as a human rights issue, passed its Resolution 48/104 on the Declaration on
Elimination of Violence Against Women on December 20, 1993 stating that "violence against women is a manifestation of historically
unequal power relations between men and women, which have led to domination over and discrimination against women by men
and to the prevention of the full advancement of women, and that violence against women is one of the crucial social mechanisms
by which women are forced into subordinate positions, compared with men."72

Then Chief Justice Reynato S. Puno traced the historical and social context of gender-based violence and developments in
advocacies to eradicate VAW, in his remarks delivered during the Joint Launching of R.A. 9262 and its Implementing Rules last
October 27, 2004, the pertinent portions of which are quoted hereunder:

History reveals that most societies sanctioned the use of violence against women. The patriarch of a family was accorded the right
to use force on members of the family under his control. I quote the early studies:

Traditions subordinating women have a long history rooted in patriarchy the institutional rule of men. Women were seen in virtually
all societies to be naturally inferior both physically and intellectually. In ancient Western societies, women whether slave, concubine
or wife, were under the authority of men. In law, they were treated as property.

The Roman concept of patria potestas allowed the husband to beat, or even kill, his wife if she endangered his property right over
her. Judaism, Christianity and other religions oriented towards the patriarchal family strengthened the male dominated structure of
society.

English feudal law reinforced the tradition of male control over women. Even the eminent Blackstone has been quoted in his
commentaries as saying husband and wife were one and that one was the husband. However, in the late 1500s and through the
entire 1600s, English common law began to limit the right of husbands to chastise their wives. Thus, common law developed the
rule of thumb, which allowed husbands to beat their wives with a rod or stick no thicker than their thumb.

In the later part of the 19th century, legal recognition of these rights to chastise wives or inflict corporeal punishment ceased. Even
then, the preservation of the family was given more importance than preventing violence to women.

The metamorphosis of the law on violence in the United States followed that of the English common law. In 1871, the Supreme
Court of Alabama became the first appellate court to strike down the common law right of a husband to beat his wife:

The privilege, ancient though it may be, to beat one's wife with a stick, to pull her hair, choke her, spit in her face or kick her about
the floor, or to inflict upon her like indignities, is not now acknowledged by our law... In person, the wife is entitled to the same
protection of the law that the husband can invoke for himself.

As time marched on, the women's advocacy movement became more organized. The temperance leagues initiated it. These
leagues had a simple focus. They considered the evils of alcoholism as the root cause of wife abuse. Hence, they demonstrated and
picketed saloons, bars and their husbands' other watering holes. Soon, however, their crusade was joined by suffragette
movements, expanding the liberation movement's agenda. They fought for women's right to vote, to own property, and more. Since
then, the feminist movement was on the roll.

The feminist movement exposed the private invisibility of the domestic violence to the public gaze. They succeeded in transforming
the issue into an important public concern. No less than the United States Supreme Court, in 1992 case Planned Parenthood v.
Casey, noted:

In an average 12-month period in this country, approximately two million women are the victims of severe assaults by their male
partners. In a 1985 survey, women reported that nearly one of every eight husbands had assaulted their wives during the past year.
The [American Medical Association] views these figures as "marked underestimates," because the nature of these incidents
discourages women from reporting them, and because surveys typically exclude the very poor, those who do not speak English well,
and women who are homeless or in institutions or hospitals when the survey is conducted. According to the AMA, "researchers on
family violence agree that the true incidence of partner violence is probably double the above estimates; or four million severely
assaulted women per year."

Studies on prevalence suggest that from one-fifth to one-third of all women will be physically assaulted by a partner or ex-partner
during their lifetime... Thus on an average day in the United States, nearly 11,000 women are severely assaulted by their male
partners. Many of these incidents involve sexual assault... In families where wife beating takes place, moreover, child abuse is often
present as well.
Other studies fill in the rest of this troubling picture. Physical violence is only the most visible form of abuse. Psychological abuse,
particularly forced social and economic isolation of women, is also common.

Many victims of domestic violence remain with their abusers, perhaps because they perceive no superior alternative...Many abused
women who find temporary refuge in shelters return to their husbands, in large part because they have no other source of income...
Returning to one's abuser can be dangerous. Recent Federal Bureau of Investigation statistics disclose that 8.8 percent of all
homicide victims in the United States are killed by their spouses...Thirty percent of female homicide victims are killed by their male
partners.

Finally in 1994, the United States Congress enacted the Violence Against Women Act.

In the International front, the women's struggle for equality was no less successful. The United States Charter and the Universal
Declaration of Human Rights affirmed the equality of all human beings. In 1979, the UN General Assembly adopted the landmark
Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW). In 1993, the UN General Assembly also
adopted the Declaration on the Elimination of Violence Against Women. World conferences on the role and rights of women have
been regularly held in Mexico City, Copenhagen, Nairobi and Beijing. The UN itself established a Commission on the Status of
Women.

The Philippines has been in cadence with the half and full steps of all these women's movements. No less than Section 14,
Article II of our 1987 Constitution mandates the State to recognize the role of women in nation building and to ensure the
fundamental equality before the law of women and men. Our Senate has ratified the CEDAW as well as the Convention on the
Rights of the Child and its two protocols. To cap it all, Congress, on March 8, 2004, enacted Rep. Act No. 9262, entitled "An Act
Defining Violence Against Women and Their Children, Providing for Protective Measures for Victims, Prescribing Penalties therefor
and for other Purposes." (Citations omitted)

B. Women are the "usual" and "most likely"

victims of violence.

At the time of the presentation of Senate Bill No. 2723, official statistics on violence against women and children show that

x x x physical injuries had the highest number of cases at 5,058 in 2002 representing 55.63% of total cases reported (9,903). And for
the first semester of 2003, there were 2,381 reported cases out of 4,354 cases which represent 54.31%. xxx (T)he total number of
women in especially difficult circumstances served by the Department of Social Welfare and Development (DSWD) for the year
2002, there are 1,417 physically abused/maltreated cases out of the total of 5,608 cases. xxx (T)here are 1,091 DSWD cases out of
a total number of 3,471 cases for the first semester of 2003. Female violence comprised more than 90% of all forms of abuse and
violence and more than 90% of these reported cases were committed by the women's intimate partners such as their husbands and
live-in partners.73

Recently, the Philippine Commission on Women presented comparative statistics on violence against women across an eight-year
period from 2004 to August of 2011 with violations under R.A. 9262 ranking first among the different VAW categories since its
implementation in 2004,74 thus:

Table 1. Annual Comparative Statistics on Violence Against Women, 2004 - 2011*

Reported
2004 2005 2006 2007 2008 2009 2010 2011
Cases

Rape 997 927 659 837 811 770 1,042 832

Incestuous Rape 38 46 26 22 28 27 19 23

Attempted Rape 194 148 185 147 204 167 268 201

Acts of
580 536 382 358 445 485 745 625
Lasciviousness
Physical
3,553 2,335 1,892 1,505 1,307 1,498 2,018 1,588
Injuries

Sexual
53 37 38 46 18 54 83 63
Harassment

RA 9262 218 924 1,269 2,387 3,599 5,285 9,974 9,021

Threats 319 223 199 182 220 208 374 213

Seduction 62 19 29 30 19 19 25 15

Concubinage 121 102 93 109 109 99 158 128

RA 9208 17 11 16 24 34 152 190 62

Abduction
16 34 23 28 18 25 22
/Kidnapping 29

Unjust Vexation 90 50 59 59 83 703 183 155

Total 6,271 5,374 4,881 5,729 6,905 9,485 15,104 12,948

*2011 report covers only from January to August

Source: Philippine National Police Women and Children Protection Center (WCPC)

On the other hand, no reliable estimates may be obtained on domestic abuse and violence against men in the Philippines because
incidents thereof are relatively low and, perhaps, because many men will not even attempt to report the situation. In the United
Kingdom, 32% of women who had ever experienced domestic violence did so four or five (or more) times, compared with 11% of the
smaller number of men who had ever experienced domestic violence; and women constituted 89% of all those who had experienced
4 or more incidents of domestic violence.75 Statistics in Canada show that spousal violence by a woman against a man is less likely
to cause injury than the other way around (18 percent versus 44 percent). Men, who experience violence from their spouses are
much less likely to live in fear of violence at the hands of their spouses, and much less likely to experience sexual assault. In fact,
many cases of physical violence by a woman against a spouse are in self-defense or the result of many years of physical or
emotional abuse.76

While there are, indeed, relatively few cases of violence and abuse perpetrated against men in the Philippines, the same cannot
render R.A. 9262 invalid.

In a 1960 case involving the violation of a city ordinance requiring drivers of animal-drawn vehicles to pick up, gather and deposit in
receptacles the manure emitted or discharged by their vehicle-drawing animals in any public highways, streets, plazas, parks or
alleys, said ordinance was challenged as violative of the guaranty of equal protection of laws as its application is limited to owners
and drivers of vehicle-drawing animals and not to those animals, although not utilized, but similarly pass through the same streets.

The ordinance was upheld as a valid classification for the reason that, while there may be non-vehicle-drawing animals that also
traverse the city roads, "but their number must be negligible and their appearance therein merely occasional, compared to the rig-
drawing ones, as not to constitute a menace to the health of the community."77 The mere fact that the legislative classification may
result in actual inequality is not violative of the right to equal protection, for every classification of persons or things for regulation by
law produces inequality in some degree, but the law is not thereby rendered invalid.78
C. Gender bias and prejudices

From the initial report to the police through prosecution, trial, and sentencing, crimes against women are often treated differently and
less seriously than other crimes. This was argued by then United States Senator Joseph R. Biden, Jr., now Vice President, chief
sponsor of the Violence Against Women Act (VAWA), in defending the civil rights remedy as a valid exercise of the U.S. Congress'
authority under the Commerce and Equal Protection Clauses. He stressed that the widespread gender bias in the U.S. has
institutionalized historic prejudices against victims of rape or domestic violence, subjecting them to "double victimization" first at
the hands of the offender and then of the legal system.79

Our own Senator Loi Estrada lamented in her Sponsorship Speech for Senate Bill No. 2723 that "(w)henever violence occurs in the
family, the police treat it as a private matter and advise the parties to settle the conflict themselves. Once the complainant brings the
case to the prosecutor, the latter is hesitant to file the complaint for fear that it might later be withdrawn. This lack of response or
reluctance to be involved by the police and prosecution reinforces the escalating, recurring and often serious nature of domestic
violence."80

Sadly, our own courts, as well, have exhibited prejudices and biases against our women.

In a recent case resolved on March 9, 2011, we fined RTC Judge Venancio J. Amila for Conduct Unbecoming of a Judge. He used
derogatory and irreverent language in reference to the complainant in a petition for TPO and PPO under R.A. 9262, calling her as
"only a live-in partner" and presenting her as an "opportunist" and a "mistress" in an "illegitimate relationship." Judge Amila even
called her a "prostitute," and accused her of being motivated by "insatiable greed" and of absconding with the contested
property.81 Such remarks betrayed Judge Amila's prejudices and lack of gender sensitivity.

The enactment of R.A. 9262 aims to address the discrimination brought about by biases and prejudices against women. As
emphasized by the CEDAW Committee on the Elimination of Discrimination against Women, addressing or correcting discrimination
through specific measures focused on women does not discriminate against men.82 Petitioner's contention,83 therefore, that R.A.
9262 is discriminatory and that it is an "anti-male," "husband-bashing," and "hate-men" law deserves scant consideration. As a State
Party to the CEDAW, the Philippines bound itself to take all appropriate measures "to modify the social and cultural patterns of
conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are
based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women." 84 Justice
Puno correctly pointed out that "(t)he paradigm shift changing the character of domestic violence from a private affair to a public
offense will require the development of a distinct mindset on the part of the police, the prosecution and the judges." 85

II. The classification is germane to the purpose of the law.

The distinction between men and women is germane to the purpose of R.A. 9262, which is to address violence committed against
women and children, spelled out in its Declaration of Policy, as follows:

SEC. 2. Declaration of Policy. It is hereby declared that the State values the dignity of women and children and guarantees full
respect for human rights. The State also recognizes the need to protect the family and its members particularly women and children,
from violence and threats to their personal safety and security.

Towards this end, the State shall exert efforts to address violence committed against women and children in keeping with the
fundamental freedoms guaranteed under the Constitution and the provisions of the Universal Declaration of Human Rights, the
Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Rights of the Child and other
international human rights instruments of which the Philippines is a party.

In 1979, the U.N. General Assembly adopted the CEDAW, which the Philippines ratified on August 5, 1981. Subsequently, the
Optional Protocol to the CEDAW was also ratified by the Philippines on October 6, 2003.86 This Convention mandates that State
parties shall accord to women equality with men before the law87 and shall take all appropriate measures to eliminate discrimination
against women in all matters relating to marriage and family relations on the basis of equality of men and women. 88 The Philippines
likewise ratified the Convention on the Rights of the Child and its two protocols.89 It is, thus, bound by said Conventions and their
respective protocols.

III. The classification is not limited to existing

conditions only, and apply equally to all members

Moreover, the application of R.A. 9262 is not limited to the existing conditions when it was promulgated, but to future conditions as
well, for as long as the safety and security of women and their children are threatened by violence and abuse.

R.A. 9262 applies equally to all women and children who suffer violence and abuse. Section 3 thereof defines VAWC as:
x x x any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with
whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether
legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological
harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation
of liberty. It includes, but is not limited to, the following acts:

A. "Physical Violence" refers to acts that include bodily or physical harm;

B. "Sexual violence" refers to an act which is sexual in nature, committed against a woman or her child. It includes, but is not limited
to:

a) rape, sexual harassment, acts of lasciviousness, treating a woman or her child as a sex object, making
demeaning and sexually suggestive remarks, physically attacking the sexual parts of the victim's body, forcing
her/him to watch obscene publications and indecent shows or forcing the woman or her child to do indecent
acts and/or make films thereof, forcing the wife and mistress/lover to live in the conjugal home or sleep together
in the same room with the abuser;

b) acts causing or attempting to cause the victim to engage in any sexual activity by force, threat of force,
physical or other harm or threat of physical or other harm or coercion;

c) Prostituting the woman or child.

C. "Psychological violence" refers to acts or omissions causing or likely to cause mental or emotional suffering of the victim such as
but not limited to intimidation, harassment, stalking, damage to property, public ridicule or humiliation, repeated verbal abuse and
marital infidelity. It includes causing or allowing the victim to witness the physical, sexual or psychological abuse of a member of the
family to which the victim belongs, or to witness pornography in any form or to witness abusive injury to pets or to unlawful or
unwanted deprivation of the right to custody and/or visitation of common children.

D. "Economic abuse" refers to acts that make or attempt to make a woman financially dependent which includes, but is not limited to
the following:

1. withdrawal of financial support or preventing the victim from engaging in any legitimate profession,
occupation, business or activity, except in cases wherein the other spouse/partner objects on valid, serious and
moral grounds as defined in Article 73 of the Family Code;

2. deprivation or threat of deprivation of financial resources and the right to the use and enjoyment of the
conjugal, community or property owned in common;

3. destroying household property;

4. controlling the victims' own money or properties or solely controlling the conjugal money or properties.

It should be stressed that the acts enumerated in the aforequoted provision are attributable to research that has exposed the
dimensions and dynamics of battery. The acts described here are also found in the U.N. Declaration on the Elimination of Violence
Against Women.90 Hence, the argument advanced by petitioner that the definition of what constitutes abuse removes the difference
between violent action and simple marital tiffs is tenuous.

There is nothing in the definition of VAWC that is vague and ambiguous that will confuse petitioner in his defense. The acts
enumerated above are easily understood and provide adequate contrast between the innocent and the prohibited acts. They are
worded with sufficient definiteness that persons of ordinary intelligence can understand what conduct is prohibited, and need not
guess at its meaning nor differ in its application.91 Yet, petitioner insists92 that phrases like "depriving or threatening to deprive the
woman or her child of a legal right," "solely controlling the conjugal or common money or properties," "marital infidelity," and
"causing mental or emotional anguish" are so vague that they make every quarrel a case of spousal abuse. However, we have
stressed that the "vagueness" doctrine merely requires a reasonable degree of certainty for the statute to be upheld not absolute
precision or mathematical exactitude, as petitioner seems to suggest. Flexibility, rather than meticulous specificity, is permissible as
long as the metes and bounds of the statute are clearly delineated. An act will not be held invalid merely because it might have been
more explicit in its wordings or detailed in its provisions.93

There is likewise no merit to the contention that R.A. 9262 singles out the husband or father as the culprit. As defined above, VAWC
may likewise be committed "against a woman with whom the person has or had a sexual or dating relationship." Clearly, the use of
the gender-neutral word "person" who has or had a sexual or dating relationship with the woman encompasses even lesbian
relationships. Moreover, while the law provides that the offender be related or connected to the victim by marriage, former marriage,
or a sexual or dating relationship, it does not preclude the application of the principle of conspiracy under the Revised Penal Code
(RPC). Thus, in the case of Go-Tan v. Spouses Tan,94 the parents-in-law of Sharica Mari L. Go-Tan, the victim, were held to be
proper respondents in the case filed by the latter upon the allegation that they and their son (Go-Tan's husband) had community of
design and purpose in tormenting her by giving her insufficient financial support; harassing and pressuring her to be ejected from
the family home; and in repeatedly abusing her verbally, emotionally, mentally and physically.

R.A. 9262 is not violative of the


due process clause of the Constitution.

Petitioner bewails the disregard of R.A. 9262, specifically in the issuance of POs, of all protections afforded by the due process
clause of the Constitution. Says he: "On the basis of unsubstantiated allegations, and practically no opportunity to respond, the
husband is stripped of family, property, guns, money, children, job, future employment and reputation, all in a matter of seconds,
without an inkling of what happened."95

A protection order is an order issued to prevent further acts of violence against women and their children, their family or household
members, and to grant other necessary reliefs. Its purpose is to safeguard the offended parties from further harm, minimize any
disruption in their daily life and facilitate the opportunity and ability to regain control of their life. 96

"The scope of reliefs in protection orders is broadened to ensure that the victim or offended party is afforded all the remedies
necessary to curtail access by a perpetrator to the victim. This serves to safeguard the victim from greater risk of violence; to accord
the victim and any designated family or household member safety in the family residence, and to prevent the perpetrator from
committing acts that jeopardize the employment and support of the victim. It also enables the court to award temporary custody of
minor children to protect the children from violence, to prevent their abduction by the perpetrator and to ensure their financial
support."97

The rules require that petitions for protection order be in writing, signed and verified by the petitioner 98 thereby undertaking full
responsibility, criminal or civil, for every allegation therein. Since "time is of the essence in cases of VAWC if further violence is to be
prevented,"99 the court is authorized to issue ex parte a TPO after raffle but before notice and hearing when the life, limb or property
of the victim is in jeopardy and there is reasonable ground to believe that the order is necessary to protect the victim from the
immediate and imminent danger of VAWC or to prevent such violence, which is about to recur.100

There need not be any fear that the judge may have no rational basis to issue an ex parte order. The victim is required not only to
verify the allegations in the petition, but also to attach her witnesses' affidavits to the petition.101

The grant of a TPO ex parte cannot, therefore, be challenged as violative of the right to due process. Just like a writ of preliminary
attachment which is issued without notice and hearing because the time in which the hearing will take could be enough to enable
the defendant to abscond or dispose of his property,102 in the same way, the victim of VAWC may already have suffered harrowing
experiences in the hands of her tormentor, and possibly even death, if notice and hearing were required before such acts could be
prevented. It is a constitutional commonplace that the ordinary requirements of procedural due process must yield to the necessities
of protecting vital public interests,103 among which is protection of women and children from violence and threats to their personal
safety and security.

It should be pointed out that when the TPO is issued ex parte, the court shall likewise order that notice be immediately given to the
respondent directing him to file an opposition within five (5) days from service. Moreover, the court shall order that notice, copies of
the petition and TPO be served immediately on the respondent by the court sheriffs. The TPOs are initially effective for thirty (30)
days from service on the respondent.104

Where no TPO is issued ex parte, the court will nonetheless order the immediate issuance and service of the notice upon the
respondent requiring him to file an opposition to the petition within five (5) days from service. The date of the preliminary conference
and hearing on the merits shall likewise be indicated on the notice.105

The opposition to the petition which the respondent himself shall verify, must be accompanied by the affidavits of witnesses and
shall show cause why a temporary or permanent protection order should not be issued.106

It is clear from the foregoing rules that the respondent of a petition for protection order should be apprised of the charges imputed to
him and afforded an opportunity to present his side. Thus, the fear of petitioner of being "stripped of family, property, guns, money,
children, job, future employment and reputation, all in a matter of seconds, without an inkling of what happened" is a mere product
of an overactive imagination. The essence of due process is to be found in the reasonable opportunity to be heard and submit any
evidence one may have in support of one's defense. "To be heard" does not only mean verbal arguments in court; one may be
heard also through pleadings. Where opportunity to be heard, either through oral arguments or pleadings, is accorded, there is no
denial of procedural due process.107

It should be recalled that petitioner filed on April 26, 2006 an Opposition to the Urgent Ex-Parte Motion for Renewal of the TPO that
was granted only two days earlier on April 24, 2006. Likewise, on May 23, 2006, petitioner filed a motion for the modification of the
TPO to allow him visitation rights to his children. Still, the trial court in its Order dated September 26, 2006, gave him five days (5)
within which to show cause why the TPO should not be renewed or extended. Yet, he chose not to file the required comment
arguing that it would just be an "exercise in futility," conveniently forgetting that the renewal of the questioned TPO was only for a
limited period (30 days) each time, and that he could prevent the continued renewal of said order if he can show sufficient cause
therefor. Having failed to do so, petitioner may not now be heard to complain that he was denied due process of law.

Petitioner next laments that the removal and exclusion of the respondent in the VAWC case from the residence of the victim,
regardless of ownership of the residence, is virtually a "blank check" issued to the wife to claim any property as her conjugal
home.108

The wording of the pertinent rule, however, does not by any stretch of the imagination suggest that this is so. It states:

SEC. 11. Reliefs available to the offended party. -- The protection order shall include any, some or all of the following reliefs:

xxxx

(c) Removing and excluding the respondent from the residence of the offended party, regardless of ownership of the residence,
either temporarily for the purpose of protecting the offended party, or permanently where no property rights are violated. If the
respondent must remove personal effects from the residence, the court shall direct a law enforcement agent to accompany the
respondent to the residence, remain there until the respondent has gathered his things and escort him from the residence;

xxxx

Indubitably, petitioner may be removed and excluded from private respondent's residence, regardless of ownership, only temporarily
for the purpose of protecting the latter. Such removal and exclusion may be permanent only where no property rights are violated.
How then can the private respondent just claim any property and appropriate it for herself, as petitioner seems to suggest?

The non-referral of a VAWC case


to a mediator is justified.

Petitioner argues that "by criminalizing run-of-the-mill arguments, instead of encouraging mediation and counseling, the law has
done violence to the avowed policy of the State to "protect and strengthen the family as a basic autonomous social institution." 109

Under Section 23(c) of A.M. No. 04-10-11-SC, the court shall not refer the case or any issue thereof to a mediator. The reason
behind this provision is well-explained by the Commentary on Section 311 of the Model Code on Domestic and Family Violence as
follows:110

This section prohibits a court from ordering or referring parties to mediation in a proceeding for an order for protection. Mediation is
a process by which parties in equivalent bargaining positions voluntarily reach consensual agreement about the issue at hand.
Violence, however, is not a subject for compromise. A process which involves parties mediating the issue of violence implies that the
victim is somehow at fault. In addition, mediation of issues in a proceeding for an order of protection is problematic because the
petitioner is frequently unable to participate equally with the person against whom the protection order has been sought. (Emphasis
supplied)

There is no undue delegation of


judicial power to barangay officials.

Petitioner contends that protection orders involve the exercise of judicial power which, under the Constitution, is placed upon the
"Supreme Court and such other lower courts as may be established by law" and, thus, protests the delegation of power to barangay
officials to issue protection orders.111 The pertinent provision reads, as follows:

SEC. 14. Barangay Protection Orders (BPOs); Who May Issue and How. Barangay Protection Orders (BPOs) refer to the
protection order issued by the Punong Barangay ordering the perpetrator to desist from committing acts under Section 5 (a) and (b)
of this Act.1wphi1 A Punong Barangay who receives applications for a BPO shall issue the protection order to the applicant on the
date of filing after ex parte determination of the basis of the application. If the Punong Barangay is unavailable to act on the
application for a BPO, the application shall be acted upon by any available Barangay Kagawad. If the BPO is issued by a Barangay
Kagawad, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable
at the time of the issuance of the BPO. BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte
BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same on the respondent, or direct any
barangay official to effect its personal service.

The parties may be accompanied by a non-lawyer advocate in any proceeding before the Punong Barangay.
Judicial power includes the duty of the courts of justice to settle actual controversies involving rights which are legally demandable
and enforceable, and to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government.112 On the other hand, executive power "is generally
defined as the power to enforce and administer the laws. It is the power of carrying the laws into practical operation and enforcing
their due observance."113

As clearly delimited by the aforequoted provision, the BPO issued by the Punong Barangay or, in his unavailability, by any available
Barangay Kagawad, merely orders the perpetrator to desist from (a) causing physical harm to the woman or her child; and (2)
threatening to cause the woman or her child physical harm. Such function of the Punong Barangay is, thus, purely executive in
nature, in pursuance of his duty under the Local Government Code to "enforce all laws and ordinances," and to "maintain public
order in the barangay."114

We have held that "(t)he mere fact that an officer is required by law to inquire into the existence of certain facts and to apply the law
thereto in order to determine what his official conduct shall be and the fact that these acts may affect private rights do not constitute
an exercise of judicial powers."115

In the same manner as the public prosecutor ascertains through a preliminary inquiry or proceeding "whether there is reasonable
ground to believe that an offense has been committed and the accused is probably guilty thereof," the Punong Barangay must
determine reasonable ground to believe that an imminent danger of violence against the woman and her children exists or is about
to recur that would necessitate the issuance of a BPO. The preliminary investigation conducted by the prosecutor is, concededly, an
executive, not a judicial, function. The same holds true with the issuance of a BPO.

We need not even belabor the issue raised by petitioner that since barangay officials and other law enforcement agencies are
required to extend assistance to victims of violence and abuse, it would be very unlikely that they would remain objective and
impartial, and that the chances of acquittal are nil. As already stated, assistance by barangay officials and other law enforcement
agencies is consistent with their duty to enforce the law and to maintain peace and order.

Conclusion

Before a statute or its provisions duly challenged are voided, an unequivocal breach of, or a clear conflict with the Constitution, not
merely a doubtful or argumentative one, must be demonstrated in such a manner as to leave no doubt in the mind of the Court. In
other words, the grounds for nullity must be beyond reasonable doubt.116 In the instant case, however, no concrete evidence and
convincing arguments were presented by petitioner to warrant a declaration of the unconstitutionality of R.A. 9262, which is an act of
Congress and signed into law by the highest officer of the co-equal executive department. As we said in Estrada v.
Sandiganbayan, 117 courts must assume that the legislature is ever conscious of the borders and edges of its plenary powers, and
passed laws with full knowledge of the facts and for the purpose of promoting what is right and advancing the welfare of the majority.

We reiterate here Justice Puno's observation that "the history of the women's movement against domestic violence shows that one
of its most difficult struggles was the fight against the violence of law itself. If we keep that in mind, law will not again be a hindrance
to the struggle of women for equality but will be its fulfillment."118Accordingly, the constitutionality of R.A. 9262 is, as it should be,
sustained.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 198780 October 16, 2013

REPUBLIC OF THE PHILIPPINES, Petitioner,


vs.
LIBERTY D. ALBIOS, Respondent.

DECISION
MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules t of Court assailing the September 29, 2011 Decision 1 of the
Court of Appeals (CA), in CA-G.R. CV No. 95414, which affirmed the April 25, 2008Decision 2 of the Regional Trial Court, Imus,
Cavite (RTC). declaring the marriage of Daniel Lee Fringer (Fringer) and respondent Liberty Albios (A/bios) as void from the
beginning.

The facts

On October 22, 2004, Fringer, an American citizen, and Albios were married before Judge Ofelia I. Calo of the Metropolitan Trial
Court, Branch59, Mandaluyong City (MeTC), as evidenced by a Certificate of Marriage with Register No. 2004-1588. 3

On December 6, 2006, Albios filed with the RTC a petition for declaration of nullity 4 of her marriage with Fringer. She alleged that
immediately after their marriage, they separated and never lived as husband and wife because they never really had any intention of
entering into a married state or complying with any of their essential marital obligations. She described their marriage as one made
in jest and, therefore, null and void ab initio .

Summons was served on Fringer but he did not file his answer. On September 13, 2007, Albios filed a motion to set case for pre-trial
and to admit her pre-trial brief. The RTC ordered the Assistant Provincial Prosecutor to conduct an investigation and determine the
existence of a collusion. On October 2, 2007, the Assistant Prosecutor complied and reported that she could not make a
determination for failure of both parties to appear at the scheduled investigation.

At the pre-trial, only Albios, her counsel and the prosecutor appeared. Fringer did not attend the hearing despite being duly notified
of the schedule. After the pre-trial, hearing on the merits ensued.

Ruling of the RTC

In its April 25, 2008 Decision,5 the RTC declared the marriage void ab initio, the dispositive portion of which reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring the marriage of Liberty Albios and Daniel Lee Fringer
as void from the very beginning. As a necessary consequence of this pronouncement, petitioner shall cease using the surname of
respondent as she never acquired any right over it and so as to avoid a misimpression that she remains the wife of respondent.

xxxx

SO ORDERED.6

The RTC was of the view that the parties married each other for convenience only. Giving credence to the testimony of Albios, it
stated that she contracted Fringer to enter into a marriage to enable her to acquire American citizenship; that in consideration
thereof, she agreed to pay him the sum of $2,000.00; that after the ceremony, the parties went their separate ways; that Fringer
returned to the United States and never again communicated with her; and that, in turn, she did not pay him the $2,000.00 because
he never processed her petition for citizenship. The RTC, thus, ruled that when marriage was entered into for a purpose other than
the establishment of a conjugal and family life, such was a farce and should not be recognized from its inception.

Petitioner Republic of the Philippines, represented by the Office of the Solicitor General (OSG), filed a motion for reconsideration.
The RTC issued the Order, 7 dated February 5, 2009, denying the motion for want of merit. It explained that the marriage was
declared void because the parties failed to freely give their consent to the marriage as they had no intention to be legally bound by it
and used it only as a means to acquire American citizenship in consideration of $2,000.00.

Not in conformity, the OSG filed an appeal before the CA.

Ruling of the CA

In its assailed decision, dated September 29, 2011, the CA affirmed the RTC ruling which found that the essential requisite of
consent was lacking. The CA stated that the parties clearly did not understand the nature and consequence of getting married and
that their case was similar to a marriage in jest. It further explained that the parties never intended to enter into the marriage contract
and never intended to live as husband and wife or build a family. It concluded that their purpose was primarily for personal gain, that
is, for Albios to obtain foreign citizenship, and for Fringer, the consideration of $2,000.00.

Hence, this petition.


Assignment of Error

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWWHEN IT HELD THAT A MARRIAGE CONTRACTED FOR
THEPURPOSE OF OBTAINING FOREIGN CITIZENSHIP WAS DONEIN JEST, HENCE, LACKING IN THE ESSENTIAL ELEMENT
OFCONSENT.8

The OSG argues that albeit the intention was for Albios to acquire American citizenship and for Fringer to be paid $2,000.00, both
parties freely gave their consent to the marriage, as they knowingly and willingly entered into that marriage and knew the benefits
and consequences of being bound by it. According to the OSG, consent should be distinguished from motive, the latter being
inconsequential to the validity of marriage.

The OSG also argues that the present case does not fall within the concept of a marriage in jest. The parties here intentionally
consented to enter into a real and valid marriage, for if it were otherwise, the purpose of Albios to acquire American citizenship
would be rendered futile.

On October 29, 2012, Albios filed her Comment9 to the petition, reiterating her stand that her marriage was similar to a marriage by
way of jest and, therefore, void from the beginning.

On March 22, 2013, the OSG filed its Reply10 reiterating its arguments in its petition for review on certiorari.

Ruling of the Court

The resolution of this case hinges on this sole question of law: Is a marriage, contracted for the sole purpose of acquiring American
citizenship in consideration of $2,000.00, void ab initio on the ground of lack of consent?

The Court resolves in the negative.

Before the Court delves into its ruling, It shall first examine the phenomenon of marriage fraud for the purposes of immigration.

Marriage Fraud in Immigration

The institution of marriage carries with it concomitant benefits. This has led to the development of marriage fraud for the sole
purpose of availing of particular benefits. In the United States, marriages where a couple marries only to achieve a particular
purpose or acquire specific benefits, have been referred to as "limited purpose" marriages.11 A common limited purpose marriage is
one entered into solely for the legitimization of a child.12Another, which is the subject of the present case, is for immigration
purposes. Immigration law is usually concerned with the intention of the couple at the time of their marriage, 13 and it attempts to filter
out those who use marriage solely to achieve immigration status.14

In 1975, the seminal case of Bark v. Immigration and Naturalization Service,15 established the principal test for determining the
presence of marriage fraud in immigration cases. It ruled that a "marriage is a sham if the bride and groom did not intend to
establish a life together at the time they were married. "This standard was modified with the passage of the Immigration Marriage
Fraud Amendment of 1986 (IMFA), which now requires the couple to instead demonstrate that the marriage was not "entered into
for the purpose of evading the immigration laws of the United States." The focus, thus, shifted from determining the intention to
establish a life together, to determining the intention of evading immigration laws. 16 It must be noted, however, that this standard is
used purely for immigration purposes and, therefore, does not purport to rule on the legal validity or existence of a marriage.

The question that then arises is whether a marriage declared as a sham or fraudulent for the limited purpose of immigration is also
legally void and in existent. The early cases on limited purpose marriages in the United States made no definitive ruling. In 1946, the
notable case of

United States v. Rubenstein17 was promulgated, wherein in order to allow an alien to stay in the country, the parties had agreed to
marry but not to live together and to obtain a divorce within six months. The Court, through Judge Learned Hand, ruled that a
marriage to convert temporary into permanent permission to stay in the country was not a marriage, there being no consent, to wit:

x x x But, that aside, Spitz and Sandler were never married at all. Mutual consent is necessary to every contract; and no matter what
forms or ceremonies the parties may go through indicating the contrary, they do not contract if they do not in fact assent, which may
always be proved. x x x Marriage is no exception to this rule: a marriage in jest is not a marriage at all. x x x It is quite true that a
marriage without subsequent consummation will be valid; but if the spouses agree to a marriage only for the sake of representing it
as such to the outside world and with the understanding that they will put an end to it as soon as it has served its purpose to
deceive, they have never really agreed to be married at all. They must assent to enter into the relation as it is ordinarily understood,
and it is not ordinarily understood as merely a pretence, or cover, to deceive others.18
(Italics supplied)

On the other end of the spectrum is the 1969 case of Mpiliris v. Hellenic Lines,19 which declared as valid a marriage entered into
solely for the husband to gain entry to the United States, stating that a valid marriage could not be avoided "merely because the
marriage was entered into for a limited purpose."20 The 1980 immigration case of Matter of McKee,21 further recognized that a
fraudulent or sham marriage was intrinsically different from a non subsisting one.

Nullifying these limited purpose marriages for lack of consent has, therefore, been recognized as problematic. The problem being
that in order to obtain an immigration benefit, a legal marriage is first necessary. 22 At present, United States courts have generally
denied annulments involving" limited purpose" marriages where a couple married only to achieve a particular purpose, and have
upheld such marriages as valid.23

The Court now turns to the case at hand.

Respondents marriage not void

In declaring the respondents marriage void, the RTC ruled that when a marriage was entered into for a purpose other than the
establishment of a conjugal and family life, such was a farce and should not be recognized from its inception. In its resolution
denying the OSGs motion for reconsideration, the RTC went on to explain that the marriage was declared void because the parties
failed to freely give their consent to the marriage as they had no intention to be legally bound by it and used it only as a means for
the respondent to acquire American citizenship. Agreeing with the RTC, the CA ruled that the essential requisite of consent was
lacking. It held that the parties clearly did not understand the nature and consequence of getting married. As in the Rubenstein case,
the CA found the marriage to be similar to a marriage in jest considering that the parties only entered into the marriage for the
acquisition of American citizenship in exchange of $2,000.00. They never intended to enter into a marriage contract and never
intended to live as husband and wife or build a family.

The CAs assailed decision was, therefore, grounded on the parties supposed lack of consent. Under Article 2 of the Family Code,
consent is an essential requisite of marriage. Article 4 of the same Code provides that the absence of any essential requisite shall
render a marriage void ab initio.

Under said Article 2, for consent to be valid, it must be (1) freely given and (2) made in the presence of a solemnizing officer. A
"freely given" consent requires that the contracting parties willingly and deliberately enter into the marriage. Consent must be real in
the sense that it is not vitiated nor rendered defective by any of the vices of consent under Articles45 and 46 of the Family Code,
such as fraud, force, intimidation, and undue influence.24 Consent must also be conscious or intelligent, in that the parties must be
capable of intelligently understanding the nature of, and both the beneficial or unfavorable consequences of their act. 25 Their
understanding should not be affected by insanity, intoxication, drugs, or hypnotism.26

Based on the above, consent was not lacking between Albios and Fringer. In fact, there was real consent because it was not vitiated
nor rendered defective by any vice of consent. Their consent was also conscious and intelligent as they understood the nature and
the beneficial and inconvenient consequences of their marriage, as nothing impaired their ability to do so. That their consent was
freely given is best evidenced by their conscious purpose of acquiring American citizenship through marriage. Such plainly
demonstrates that they willingly and deliberately contracted the marriage. There was a clear intention to enter into a real and valid
marriage so as to fully comply with the requirements of an application for citizenship. There was a full and complete understanding
of the legal tie that would be created between them, since it was that precise legal tie which was necessary to accomplish their goal.

In ruling that Albios marriage was void for lack of consent, the CA characterized such as akin to a marriage by way of jest. A
marriage in jest is a pretended marriage, legal in form but entered into as a joke, with no real intention of entering into the actual
marriage status, and with a clear understanding that the parties would not be bound. The ceremony is not followed by any conduct
indicating a purpose to enter into such a relation.27 It is a pretended marriage not intended to be real and with no intention to create
any legal ties whatsoever, hence, the absence of any genuine consent. Marriages in jest are void ab initio, not for vitiated, defective,
or unintelligent consent, but for a complete absence of consent. There is no genuine consent because the parties have absolutely
no intention of being bound in any way or for any purpose.

The respondents marriage is not at all analogous to a marriage in jest.1wphi1 Albios and Fringer had an undeniable intention to be
bound in order to create the very bond necessary to allow the respondent to acquire American citizenship. Only a genuine consent
to be married would allow them to further their objective, considering that only a valid marriage can properly support an application
for citizenship. There was, thus, an apparent intention to enter into the actual marriage status and to create a legal tie, albeit for a
limited purpose. Genuine consent was, therefore, clearly present.

The avowed purpose of marriage under Article 1 of the Family Code is for the couple to establish a conjugal and family life. The
possibility that the parties in a marriage might have no real intention to establish a life together is, however, insufficient to nullify a
marriage freely entered into in accordance with law. The same Article 1 provides that the nature, consequences, and incidents of
marriage are governed by law and not subject to stipulation. A marriage may, thus, only be declared void or voidable under the
grounds provided by law. There is no law that declares a marriage void if it is entered into for purposes other than what the
Constitution or law declares, such as the acquisition of foreign citizenship. Therefore, so long as all the essential and formal
requisites prescribed by law are present, and it is not void or voidable under the grounds provided by law, it shall be declared valid. 28

Motives for entering into a marriage are varied and complex. The State does not and cannot dictate on the kind of life that a couple
chooses to lead. Any attempt to regulate their lifestyle would go into the realm of their right to privacy and would raise serious
constitutional questions.29 The right to marital privacy allows married couples to structure their marriages in almost any way they see
fit, to live together or live apart, to have children or no children, to love one another or not, and so on. 30 Thus, marriages entered into
for other purposes, limited or otherwise, such as convenience, companionship, money, status, and title, provided that they comply
with all the legal requisites,31 are equally valid. Love, though the ideal consideration in a marriage contract, is not the only valid
cause for marriage. Other considerations, not precluded by law, may validly support a marriage.

Although the Court views with disdain the respondents attempt to utilize marriage for dishonest purposes, It cannot declare the
marriage void. Hence, though the respondents marriage may be considered a sham or fraudulent for the purposes of immigration, it
is not void ab initio and continues to be valid and subsisting.

Neither can their marriage be considered voidable on the ground of fraud under Article 45 (3) of the Family Code. Only the
circumstances listed under Article 46 of the same Code may constitute fraud, namely, (1) non- disclosure of a previous conv1ctwn
involving moral turpitude; (2) concealment by the wife of a pregnancy by another man; (3) concealment of a sexually transmitted
disease; and (4) concealment of drug addiction, alcoholism, or homosexuality. No other misrepresentation or deceit shall constitute
fraud as a ground for an action to annul a marriage. Entering into a marriage for the sole purpose of evading immigration laws does
not qualify under any of the listed circumstances. Furthermore, under Article 47 (3), the ground of fraud may only be brought by the
injured or innocent party. In the present case, there is no injured party because Albios and Fringer both conspired to enter into the
sham marriage.

Albios has indeed made a mockery of the sacred institution of marriage. Allowing her marriage with Fringer to be declared void
would only further trivialize this inviolable institution. The Court cannot declare such a marriage void in the event the parties fail to
qualify for immigration benefits, after they have availed of its benefits, or simply have no further use for it. These unscrupulous
individuals cannot be allowed to use the courts as instruments in their fraudulent schemes. Albios already misused a judicial
institution to enter into a marriage of convenience; she should not be allowed to again abuse it to get herself out of an inconvenient
situation.

No less than our Constitution declares that marriage, as an in violable social institution, is the foundation of the family and shall be
protected by the State.32 It must, therefore, be safeguarded from the whims and caprices of the contracting parties. This Court
cannot leave the impression that marriage may easily be entered into when it suits the needs of the parties, and just as easily
nullified when no longer needed.

WHEREFORE, the petition is GRANTED. The September 29, 2011 Decision of the Court of Appeals in CA-G.R. CV No. 95414 is
ANNULLED, and Civil Case No. 1134-06 is DISMISSED for utter lack of merit.

SO ORDERED.

JOSE CATRAL MENDOZA


Associate Justice

G.R. No. 209271, December 08, 2015 - INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH
APPLICATIONS, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO
SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIO, DR. BEN MALAYANG III, DR.
ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ,
Respondents.; CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.; G.R. No. 209276 - ENVIRONMENTAL
MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES, BUREAU OF PLANT
INDUSTRY AND FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF AGRICULTURE, Petitioners, v.
COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ,
RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.; G.R. No. 209301 - UNIVERSITY OF THE
PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES),
MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN
MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA,
JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. HARRY R.
ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN
MARTHINE LOPEZ, Respondents.; G.R. No. 209430 - UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE
SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG),
REP. TEODORO CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE
UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR.
WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR
EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

EN BANC

G.R. No. 209271, December 08, 2015

INTERNATIONAL SERVICE FOR THE ACQUISITION OF AGRI-BIOTECH APPLICATIONS,


INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKA AT SIYENTIPIKO SA
PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASIO, DR. BEN MALAYANG III, DR. ANGELINA
GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY
MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.

CROP LIFE PHILIPPINES, INC., Petitioner-in-Intervention.

G.R. No. 209276

ENVIRONMENTAL MANAGEMENT BUREAU OF THE DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES,


BUREAU OF PLANT INDUSTRY AND FERTILIZER AND PESTICIDE AUTHORITY OF THE DEPARTMENT OF
AGRICULTURE, Petitioners, v. COURT OF APPEALS, GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT
SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR., ATTY. H. HARRY ROQUE, JR., FORMER
SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE LOPEZ,
RESPONDENTS. CROP LIFE PHILIPPINES, INC. Petitioner-in-Intervention.

G.R. No. 209301

UNIVERSITY OF THE PHILIPPINES LOS BANOS FOUNDATION, INC., Petitioner, v. GREENPEACE SOUTHEAST ASIA
(PHILIPPINES), MAGSASAKAAT SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO
CASINO, DR. BEN MALAYANG III, DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY.
MARIA PAZ LUNA, JUANITO MODINA, DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, JR.,
ATTY. HARRY R. ROQUE, JR., FORMER SEN. ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S.
HAGEDORN AND EDWIN MARTHINE LOPEZ, Respondents.

G.R. No. 209430

UNIVERSITY OF THE PHILIPPINES, Petitioner, v. GREENPEACE SOUTHEAST ASIA (PHILIPPINES), MAGSASAKAAT


SIYENTIPIKO SA PAGPAPAUNLAD NG AGRIKULTURA (MASIPAG), REP. TEODORO CASINO, DR. BEN MALAYANG III,
DR. ANGELINA GALANG, LEONARDO AVILA III, CATHERINE UNTALAN, ATTY. MARIA PAZ LUNA, JUANITO MODINA,
DAGOHOY MAGAWAY, DR. ROMEO QUIJANO, DR. WENCESLAO KIAT, ATTY. HARRY R. ROQUE, JR., FORMER SEN.
ORLANDO MERCADO, NOEL CABANGON, MAYOR EDWARD S. HAGEDORN AND EDWIN MARTHINE
LOPEZ, Respondents.

DECISION

VILLARAMA, JR., J.:

The consolidated petitions before Us seek the reversal of the Decision 1 dated May 17, 2013 and Resolution2 dated
September 20, 2013 of the Court of Appeals (CA) in CA-G.R. SP No. 00013 which permanently enjoined the
conduct of field trials for genetically modified eggplant.

The Parties

Respondent Greenpeace Southeast Asia (Philippines) is the Philippine branch of Greenpeace Southeast Asia, a
regional office of Greenpeace International registered in Thailand. 3 Greenpeace is a non-governmental
environmental organization which operates in over 40 countries and with an international coordinating body in
Amsterdam, Netherlands. It is well known for independent direct actions in the global campaign to preserve the
environment and promote peace.

Petitioner International Service for the Acquisition of Agri-Biotech Applications, Inc. (ISAAA) is an international
non-profit organization founded in 1990 "to facilitate the acquisition and transfer of agricultural biotechnology
applications from the industrial countries, for the benefit of resource-poor farmers in the developing world" and
ultimately "to alleviate hunger and poverty in the developing countries." Partly funded by the United States Agency
for International Development (USAID), ISAAA promotes the use of agricultural biotechnology, such as genetically
modified organisms (GMOs).4

Respondent Magsasaka at Siyentipiko sa Pagpapaunlad ng Agrikultura (MASIPAG) is a coalition of local farmers,


scientists and NGOs working towards "the sustainable use and management of biodiversity through farmers'
control of genetic and biological resources, agricultural production, and associated knowledge."

The University of the Philippines Los Bafios (UPLB) is an autonomous constituent of the University of the Philippines
(UP), originally established as the UP College of Agriculture. It is the center of biotechnology education and
research in Southeast Asia and home to at least four international research and extension centers. Petitioner UPLB
Foundation, Inc. (UPLBFI) is a private corporation organized "to be an instrument for institutionalizing a rational
system of utilizing UPLB expertise and other assets for generating additional revenues and other resources needed
by [UPLB]". Its main purpose is to assist UPLB in "expanding and optimally utilizing its human, financial, and
material resources towards a focused thrust in agriculture, biotechnology, engineering and environmental sciences
and related academic programs and activities." A memorandum of agreement between UPLBFI and UPLB allows the
former to use available facilities for its activities and the latter to designate from among its staff such personnel
needed by projects.5

Petitioner University of the Philippines (UP) is an institution of higher learning founded in 1908. Under its new
charter, Republic Act 9500,6 approved on April 29, 2008 by President Gloria Macapagal-Arroyo, UP was declared as
the national university tasked "to perform its unique and distinctive leadership in higher education and
development." Among others, UP was mandated to "serve as a research university in various fields of expertise
and specialization by conducting basic and applied research and development, and promoting research in various
colleges and universities, and contributing to the dissemination and application of knowledge." 7

The other individual respondents are Filipino scientists, professors, public officials and ordinary citizens invoking
their constitutionally guaranteed right to health and balanced ecology, and suing on their behalf and on behalf of
future generations of Filipinos.

Factual Background

Biotechnology is a multi-disciplinary field which may be defined as "any technique that uses living organisms or
substances from those organisms to make or modify a product, to improve plants or animals, or to develop
microorganisms for specific uses."8 Its many applications include agricultural production, livestock, industrial
chemicals and pharmaceuticals.

In 1979, President Ferdinand Marcos approved and provided funding for the establishment of the National Institute
for Applied Microbiology and Biotechnology (BIOTECH) at UPLB. It is the premier national research and
development (R & D) institution applying traditional and modern biotechnologies in innovating products, processes,
testing and analytical services for agriculture, health, energy, industry and development. 9
In 1990, President Corazon C. Aquino signed Executive Order (EO) No. 430 creating the National Committee on
Biosafety of the Philippines (NCBP). NCBP was tasked, among others, to "identify and evaluate potential hazards
involved in initiating genetic engineering experiments or the introduction of new species and genetically engineered
organisms and recommend measures to minimize risks" and to "formulate and review national policies and
guidelines on biosafety, such as the safe conduct of work on genetic engineering, pests and their genetic materials
for the protection of public health, environment and personnel and supervise the implementation thereof."

In 1991, NCBP formulated the Philippine Biosafety Guidelines, which governs the regulation of the importation or
introduction, movement and field release of potentially hazardous biological materials in the Philippines. The
guidelines also describe the required physical and biological containment and safety procedures in handling
biological materials. This was followed in 1998 by the "Guidelines on Planned Release of Genetically Manipulated
Organisms (GMOs) and Potentially Harmful Exotic Species (PHES)."10

On December 29, 1993, the Convention on Biological Diversity (CBD) came into force. This multilateral treaty
recognized that "modern biotechnology has great potential for human well-being if developed and used with
adequate safety measures for the environment and human health." Its main objectives, as spelled out in Article 1,
are the "conservation of biological diversity, the sustainable use of its components and the fair and equitable
sharing of the benefits arising out of the utilization of genetic resources."

In January 2000, an agreement was reached on the Cartagena Protocol on Biosafety (Cartagena Protocol), a
supplemental to the CBD. The Cartagena Protocol aims "to contribute to ensuring an adequate level of the safe
transfer, handling and use of living modified organisms resulting from modern biotechnology that may have
adverse effects on the conservation and sustainable use of biological diversity, taking into account risks to human
health, and specifically focusing on transboundary movements."

On May 24, 2000, the Philippines signed the Cartagena Protocol, which came into force on September 11, 2003. On
August 14, 2006, the Philippine Senate adopted Senate Resolution No. 92 or the "Resolution Concurring in the
Ratification of the Cartagena Protocol on Biosafety (CPB) to the UN Convention on Biological Diversity."

On July 16, 2001, President Gloria Macapagal-Arroyo issued a policy statement reiterating the government policy of
promoting the safe and responsible use of modern biotechnology and its products as one of several means to
achieve and sustain food security, equitable access to health services, sustainable and safe environment and
industry development.11

In April 2002, the Department of Agriculture (DA) issued DA-Administrative Order (AO) No. 08 providing rules and
regulations for the importation and release into the environment of plants and plant products derived from the use
of modem biotechnology.

DAO-08-2002 covers the importation or release into the environment of: (1) any plant which has been altered or
produced through the use of modem biotechnology if the donor organism, host organism, or vector or vector agent
belongs to the genera or taxa classified by the Bureau of Plant Industry (BPI) as meeting the definition of plant
pest or is a medium for the introduction of noxious weeds; or (2) any plant or plant product altered through the
use of modem biotechnology which may pose significant risks to human health and the environment based on
available scientific and technical information.

The country's biosafety regulatory system was further strengthened with the issuance of EO No. 514 (EO 514) on
March 17, 2006, "Establishing the National Biosafety Framework (NBF), Prescribing Guidelines for its
Implementation, and Strengthening the NCBP." The NBF shall apply to the development, adoption and
implementation of all biosafety policies, measures and guidelines and in making decisions concerning the research,
development, handling and use, transboundary movement, release into the environment and management of
regulated articles.12

EO 514 expressly provides that, unless amended by the issuing departments or agencies, DAO 08-2002, the NCBP
Guidelines on the Contained Use of Genetically Modified Organisms, except for provisions on potentially harmful
exotic species which were repealed, and all issuances of the Bureau of Food and Drugs Authority (FDA) on products
of modem biotechnology, shall continue to be in force and effect. 13

On September 24, 2010, a Memorandum of Undertaking14 (MOU) was executed between UPLBFI, ISAAA and UP
Mindanao Foundation, Inc.

(UPMFI), in pursuance of a collaborative research and development project on eggplants that are resistant to the
fruit and shoot borer. Other partner agencies involved in the project were UPLB through its Institute of Plant
Breeding, Maharastra Hybrid Seed Company (MAHYCO) of India, Cornell University and the Agricultural
Biotechnology Support Project II (ABSPII) of US AID.
As indicated in the Field Trial Proposal15 submitted by the implementing institution (UPLB), the pest-resistant crop
subject of the field trial was described as a "bioengineered eggplant." The crystal toxin genes from the soil
bacterium Bacillus thuringiensis (Bt) were incorporated into the eggplant (talong) genome to produce the
protein CrylAc which is toxic to the target insect pests. CrylAc protein is said to be highly specific to lepidopteran
larvae such as the fruit and shoot borer (FSB), the most destructive insect pest of eggplant.

Under the regulatory supervision of NCBP, a contained experiment was started in 2007 and officially completed on
March 3, 2009. The NCBP thus issued a Certificate of Completion of Contained Experiment stating that "During the
conduct of the experiment, all the biosafety measures have been complied with and no untoward incident has
occurred."16

BPI issued Biosafety Permits17 to UPLB on March 16, 2010 and June 28, 2010. Thereafter, field testing of Bt
talong commenced on various dates in the following approved trial sites: Kabacan, North Cotabato; Sta. Maria,
Pangasinan; Pili, Camarines Sur; Bago Oshiro, Davao City; and Bay, Laguna.

On April 26, 2012, Greenpeace, MASIPAG and individual respondents (Greenpeace, et al.) filed a petition for writ
of kalikasan and writ of continuing mandamus with prayer for the issuance of a Temporary Environmental
Protection Order (TEPO). They alleged that the Bt talong field trials violate their constitutional right to health and a
balanced ecology considering that (1) the required environmental compliance certificate under Presidential Decree
(PD) No. 1151 was not secured prior to the project implementation; (2) as a regulated article under DAO 08-
2002, Bt talong is presumed harmful to human health and the environment, and there is no independent, peer-
reviewed study on the safety of Bt talong for human consumption and the environment; (3) a study conducted by
Professor Gilles-Eric Seralini showed adverse effects on rats who were fed Bt corn, while local scientists also
attested to the harmful effects of GMOs to human and animal health; (4) Bt crops can be directly toxic to non-
target species as highlighted by a research conducted in the US which demonstrated that pollen from Bt maize was
toxic to the Monarch butterfly; (5) data from the use of Bt CrylAb maize indicate that beneficial insects have
increased mortality when fed on larvae of a maize pest, the corn borer, which had been fed on Bt, and hence non-
target beneficial species that may feed on eggplant could be similarly affected; (6) data from China show that the
use of Bt crops (Bt cotton) can exacerbate populations of other secondary pests; (7) the built-in pesticides
of Bt crops will lead to Bt resistant pests, thus increasing the use of pesticides contrary to the claims by GMO
manufacturers; and (8) the 200 meters perimeter pollen trap area in the field testing area set by BPI is not
sufficient to stop contamination of nearby non-Bt eggplants because pollinators such as honeybees can fly as far as
four kilometers and an eggplant is 48% insect-pollinated. The full acceptance by the project proponents of the
findings in the MAHYCO Dossier was strongly assailed on the ground that these do not precisely and adequately
assess the numerous hazards posed by Bt talong and its field trial.

Greenpeace, et al. further claimed that the Bt talong field test project did not comply with the required public
consultation under Sections 26 & 27 of the Local Government Code, A random survey by Greenpeace on July 21,
2011 revealed that ten households living in the area immediately around the Bt talong experimental farm in Bay,
Laguna expressed lack of knowledge about the field testing in their locality. The Sangguniang Barangay of
Pangasugan in Baybay, Leyte complained about the lack of information on the nature and uncertainties of the Bt
talong field testing in their barangay. The Davao City Government likewise opposed the project due to lack of
transparency and public consultation. It ordered the uprooting of Bt eggplants at the trial site and disposed them
strictly in accordance with protocols relayed by the BPI through Ms. Merle Palacpac. Such action highlighted the
city government's policy on "sustainable and safe practices." On the other hand, the Sangguniang Bayan of Sta.
Barbara, Iloilo passed a resolution suspending the field testing due to the following: lack of public consultation;
absence of adequate study to determine the effect of Bt talong field testing on friendly insects; absence of risk
assessment on the potential impacts of genetically modified (GM) crops on human health and the environment;
and the possibility of cross-pollination of Bt eggplants with native species or variety of eggplants, and serious
threat to human health if these products were sold to the market.

Greenpeace, et al. argued that this case calls for the application of the precautionary principle, the Bt talong field
testing being a classic environmental case where scientific evidence as to the health, environmental and socio-
economic safety is insufficient or uncertain and preliminary scientific evaluation indicates reasonable grounds for
concern that there are potentially dangerous effects on human health and the environment.

The following reliefs are thus prayed for:


a. Upon the filing [of this petition], a Temporary Environment Protection Order should be issued: (i) enjoining
public respondents BPI and FPA of the DA from processing for field testing, and registering as herbicidal
product, Bt talong in the Philippines; (ii) stopping all pending field testing of Bt talong anywhere in the Philippines;
and (in) ordering the uprooting of planted Bt talong for field trials as their very presence pose significant and
irreparable risks to human health and the environment.

b. Upon the filing [of this petition], issue a writ of continuing mandamus commanding:
(i) Respondents to submit to and undergo the process of environmental impact statement system under the
Environmental Management Bureau;
(ii) Respondents to submit independent, comprehensive, and rigid risk assessment, field tests report, regulatory
compliance reports and supporting documents, and other material particulars of the Bt talong field trial;

(iii) Respondents to submit all its issued certifications on public information, public consultation, public
participation, and consent of the local government units in the barangays, municipalities, and provinces affected by
the field testing of Bt talong;

(iv) Respondent regulator, in coordination with relevant government agencies and in consultation with
stakeholders, to submit an acceptable draft of an amendment of the National Bio-Safety Framework of the
Philippines, and DA Administrative Order No. 08, defining or incorporating an independent, transparent, and
comprehensive scientific and socio-economic risk assessment, public information, consultation, and participation,
and providing for their effective implementation, in accord with international safety standards; and,

(v) Respondent BPI of the DA, in coordination with relevant government agencies, to conduct balanced nationwide
public information on the nature of Bt talong and Bt talong field trial, and a survey of social acceptability of the
same.
c. Upon filing [of this petition], issue a writ of kalikasan commanding Respondents to file their respective returns
and explain why they should not be judicially sanctioned for violating or threatening to violate or allowing the
violation of the above-enumerated laws, principles, and international principle and standards, or committing acts,
which would result into an environmental damage of such magnitude as to prejudice the life, health, or property of
petitioners in particular and of the Filipino people in general.

d. After hearing and judicial determination, to cancel all Bt talong field experiments that are found to be violating
the abovementioned laws, principles, and international standards; and recommend to Congress curative
legislations to effectuate such order.18ChanRoblesVirtualawlibrary
On May 2, 2012, the Court issued the writ of kalikasan against ISAAA, Environmental Management Bureau
(EMB)/BPI/Fertilizer and Pesticide Authority (FPA) and UPLB,18-a ordering them to make a verified return within a
non-extendible period often (10) days, as provided in Sec. 8, Rule 7 of the Rules of Procedure for Environmental
Cases.19

ISAAA, EMB/BPI/FPA, UPLBFI and UPMFI filed their respective verified returns. They all argued that the issuance of
writ of kalikasan is not proper because in the implementation of the Bt talong project, all environmental laws were
complied with, including public consultations in the affected communities, to ensure that the people's right to a
balanced and healthful ecology was protected and respected. They also asserted that the Bt talong project is not
covered by the Philippine Environmental Impact Statement (PEIS) Law and that Bt talong field trials will not
significantly affect the quality of the environment nor pose a hazard to human health. ISAAA contended that the
NBF amply safeguards the environment policies and goals promoted by the PEIS Law. On its part, UPLBFI asserted
that there is a "plethora of scientific works and literature, peer-reviewed, on the safety of Bt talong for human
consumption."20 UPLB, which filed an Answer21 to the petition before the CA, adopted said position of UPLBFI.

ISAAA argued that the allegations regarding the safety of Bt talong as food are irrelevant in the field trial stage as
none of the eggplants will be consumed by humans or animals, and all materials that will not be used for analyses
will be chopped, boiled and buried following the Biosafety Permit requirements. It cited a 50-year history of safe
use and consumption of agricultural products sprayed with commercial Bt microbial pesticides and a 14-year
history of safe consumption of food and feed derived from Bt crops. Also mentioned is the almost 2 million hectares
of land in the Philippines which have been planted with Bt corn since 2003, and the absence of documented
significant and negative impact to the environment and human health. The statements given by scientists and
experts in support of the allegations of Greenpeace, et al. on the safety of Bt corn was also addressed by citing the
contrary findings in other studies which have been peer-reviewed and published in scientific journals.

On the procedural aspect, ISAAA sought the dismissal of the petition for writ of kalikasan for non-observance of the
rule on hierarchy of courts and the allegations therein being mere assertions and baseless conclusions of law. EMB,
BPI and FPA questioned the legal standing of Greenpeace, et al. in filing the petition for writ of kalikasan as they do
not stand to suffer any direct injury as a result of the Bt talong field tests. They likewise prayed for the denial of
the petition for continuing mandamus for failure to state a cause of action and for utter lack of merit.

UPMFI also questioned the legal standing of Greenpeace, et al. for failing to allege that they have been prejudiced
or damaged, or their constitutional rights to health and a balanced ecology were violated or threatened to be
violated by the conduct of Bt talong field trials. Insofar as the field trials in Davao City, the actual field trials at
Bago Oshiro started on November 25, 2010 but the plants were uprooted by Davao City officials on December 17-
18, 2010. There were no further field trials conducted and hence no violation of constitutional rights of persons or
damage to the environment, with respect to Davao City, occurred which will justify the issuance of a writ
of kalikasan. UPMFI emphasized that under the MOU, its responsibility was only to handle the funds for the project
in their trial site. It pointed out that in the Field Trial Proposal, Public Information Sheet, Biosafety Permit for Field
Testing, and Terminal Report (Davao City Government) by respondent Leonardo R. Avila III, nowhere does UPMFI
appear either as project proponent, partner or implementing arm. Since UPMFI, which is separate and distinct from
UP, undertook only the fund management of Bt talong field test project the duration of which expired on July 1,
2011, it had nothing to do with any field trials conducted in other parts of the country.

Finally, it is argued that the precautionary principle is not applicable considering that the field testing is only a part
of a continuing study being done to ensure that the field trials have no significant and negative impact on the
environment. There is thus no resulting environmental damage of such magnitude as to prejudice the life, health,
property of inhabitants in two or more cities or provinces. Moreover, the issues raised by Greenpeace, et al. largely
involve technical matters which pertain to the special competence of BPI whose determination thereon is entitled to
great respect and even finality.

By Resolution dated July 10, 2012, the Court referred this case to the CA for acceptance of the return of the writ
and for hearing, reception of evidence and rendition of judgment. 22

CA Proceedings and Judgment

At the preliminary conference held on September 12, 2012, the parties submitted the following procedural issues:
(1) whether or not Greenpeace, et al. have legal standing to file the petition for writ of kalikasan; (2) whether or
not said petition had been rendered moot and academic by the alleged termination of the Bt talong field testing;
and (3) whether or not the case presented a justiciable controversy.

Under Resolution23 dated October 12, 2012, the CA resolved that: (1) Greenpeace, et al. possess the requisite legal
standing to file the petition for writ of kalikasan; (2) assuming arguendo that the field trials have already been
terminated, the case is not yet moot since it is capable of repetition yet evading review; and (3) the alleged non-
compliance with environmental and local government laws present justiciable controversies for resolution by the
court.

The CA then proceeded to hear the merits of the case, adopting the "hot-tub" method wherein the expert witnesses
of both parties testify at the same time. Greenpeace, et al. presented the following as expert witnesses: Dr. Ben
Malayang III (Dr. Malayang), Dr. Charito Medina (Dr. Medina), and Dr. Tushar Chakraborty (Dr. Chakraborty). On
the opposing side were the expert witnesses in the persons of Dr. Reynaldo Ebora (Dr. Ebora), Dr. Saturnina Halos
(Dr. Halos), Dr. Flerida Cario (Dr. Cario), and Dr. Peter Davies (Dr. Davies). Other witnesses who testified were:
Atty. Carmelo Segui (Atty. Segui), Ms. Merle Palacpac (Ms. Palacpac), Mr. Mario Navasero (Mr. Navasero) and Dr.
Randy Hautea (Dr. Hautea).

On November 20, 2012, Biotechnology Coalition of the Philippines, Inc. (BCPI) filed an Urgent Motion for Leave to
Intervene as Respondent.24 It claimed to have a legal interest in the subject matter of the case as a broad-based
coalition of advocates for the advancement of modern biotechnology in the Philippines.

In its Resolution25 dated January 16, 2013, the CA denied BCPI's motion for intervention stating that the latter had
no direct and specific interest in the conduct of Bt talong field trials.

On May 17, 2013, the CA rendered a Decision in favor of Greenpeace, et al., as follows:
WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us GRANTING the petition filed in
this case. The respondents are DIRECTED to:chanRoblesvirtualLawlibrary

(a) Permanently cease and desist from further conducting bt talong field trials; and

(b) Protect, preserve, rehabilitate and restore the environment in accordance with the foregoing judgment of this
Court.

No costs.

SO ORDERED.26ChanRoblesVirtualawlibrary
The CA found that existing regulations issued by the DA and the Department of Science and Technology (DOST)
are insufficient to guarantee the safety of the environment and health of the people. Concurring with Dr.
Malayang's view that the government must exercise precaution "under the realm of public policy" and beyond
scientific debate, the appellate court noted the possible irreversible effects of the field trials and the introduction
of Bt talong to the market.

After scrutinizing the parties' arguments and evidence, the CA concluded that the precautionary principle set forth
in Section 1, Rule 20 of the Rules of Procedure for Environmental Cases27 finds relevance in the present
controversy. Stressing the fact that the "over-all safety guarantee of the bt talong" remains unknown, the appellate
court cited the testimony of Dr. Cario who admitted that the product is not yet safe for consumption because a
safety assessment is still to be done. Again, the Decision quoted from Dr. Malayang who testified that the question
of Bt talong's safety demands maximum precaution and utmost prudence, bearing in mind the country's rich
biodiversity. Amid the uncertainties surrounding the Bt talong, the CA thus upheld the primacy of the people's
constitutional right to health and a balanced ecology.

Denying the motions for reconsideration filed by ISAAA, EMB/BPI/FPA, UPLB and UPLBFI, the CA in its Resolution
dated September 20, 2013 rejected the argument of UPLB that the appellate court's ruling violated UPLB's
constitutional right to academic freedom. The appellate court pointed out that the writ of kalikasan originally issued
by this Court did not stop research on Bt talong but only the particular procedure adopted in doing field trials and
only at this time when there is yet no law in the form of a congressional enactment for ensuring its safety and
levels of acceptable risks when introduced into the open environment. Since the writ stops the field trials of Bt
talong as a procedure but does not stop Bt talong research, there is no assault on academic freedom.

The CA then justified its ruling by expounding on the theory that introducing a genetically modified plant into our
ecosystem is an "ecologically imbalancing act." Thus:
We suppose that it is of universal and general knowledge that an ecosystem is a universe of biotic (living) and non-
biotic things interacting as a living community in a particular space and time. In the ecosystem are found specific
and particular biotic and non-biotic entities which depend on each other for the biotic entities to survive and
maintain life. A critical element for biotic entities to maintain life would be that their populations are in a proper
and natural proportion to others so that, in the given limits of available non-biotic entities in the ecosystem, no one
population overwhelms another. In the case of the Philippines, it is considered as one of the richest countries in
terms of biodiversity. It has so many plants and animals. It also has many kinds of other living things than many
countries in the world. We do not fully know how all these living things or creatures interact among themselves.
But, for sure, there is a perfect and sound balance of our biodiversity as created or brought about by God out of
His infinite and absolute wisdom. In other words, every living creature has been in existence or has come into
being for a purpose. So, we humans are not supposed to tamper with any one element in this swirl of
interrelationships among living things in our ecosystem. Now, introducing a genetically modified plant in our
intricate world of plants by humans certainly appears to be an ecologically imbalancing act. The damage that it will
cause may be irreparable and irreversible.

At this point, it is significant to note that during the hearing conducted by this Court on November 20, 2012
wherein the testimonies of seven experts were given, Dr. Peter J. Davies (Ph.D in Plant [Physiology]), Dr. Tuskar
Chakraborty (Ph.D in Biochemistry and Molecular Biology), Dr. Charito Medina (Ph.D in Environmental Biology), Dr.
Reginaldo Ebora (Ph.D in Entomology), Dr. Flerida Cario (Ph.D in Insecticide Toxicology), Dr. Ben Malayang (Ph.D
in Wildland Resource Science) and Dr. Saturnina Halos (Ph.D in Genetics) were in unison in admitting that bt
talong is an altered plant. x x x

xxxx

Thus, it is evident and clear that bt talong is a technology involving the deliberate alteration of an otherwise natural
state of affairs. It is designed and intended to alter natural feed-feeder relationships of the eggplant. It is a
deliberate genetic reconstruction of the eggplant to alter its natural order which is meant to eliminate one feeder
(the borer) in order to give undue advantage to another feeder (the humans). The genetic transformation is one
designed to make bt talong toxic to its pests (the targeted organisms). In effect, bt talong kills its targeted
organisms. Consequently, the testing or introduction of bt talong into the Philippines, by its nature and intent, is a
grave and present danger to (and an assault on) the Filipinos' constitutional right to a balanced ecology because, in
any book and by any yardstick, it is an ecologically imbalancing event or phenomenon. It is a willful and deliberate
tampering of a naturally ordained feed-feeder relationship in our environment. It destroys the balance of our
biodiversity. Because it violates the conjunct right of our people to a balanced ecology, the whole constitutional
right of our people (as legally and logically construed) is violated.

Of course, the bt talong's threat to the human health of the Filipinos as of now remains uncertain. This is because
while, on one hand, no Filipinos has ever eaten it yet, and so, there is no factual evidence of it actually causing
acute or chronic harm to any or a number of ostensibly identifiable perms, on the other hand, there is
correspondingly no factual evidence either of it not causing harm to anyone. However, in a study published on
September 20, 2012 in "Food and Chemical Toxicology", a team of scientists led by Professor Gilles-Eric Seralini
from the University of Caen and backed by the France-based Committee of Independent Research and Information
on Genetic Engineering came up with a finding that rats fed with Roundup-tolerant genetically modified corn for
two years developed cancers, tumors and multiple organ damage. The seven expert witnesses who testified in this
Court in the hearing conducted on November 20, 2012 were duly confronted with this finding and they were not
able to convincingly rebut it. That is why we, in deciding this case, applied the precautionary principle in granting
the petition filed in the case at bench.

Prescinding from the foregoing premises, therefore, because one conjunct right in the whole Constitutional
guarantee is factually and is undoubtedly at risk, and the other still factually uncertain, the entire constitutional
right of the Filipino people to a balanced and healthful ecology is at risk. Hence, the issuance of the writ
of kalikasan and the continuing writ of mandamus is justified and warranted. 28 (Additional Emphasis supplied.)
Petitioners' Arguments

G.R. No. 209271

ISAAA advances the following arguments in support of its petition:


I

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING
MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME IS ALREADY MOOT AND ACADEMIC.

II

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING
MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT THE SAME RAISES POLITICAL QUESTIONS.

A. IN SEEKING TO COMPEL THE REGULATORY AGENCIES "TO SUBMIT AN ACCEPTABLE DRAFT OF


THE AMENDMENT OF THE NATIONAL BIO-SAFETY FRAMEWORK OF THE PHILIPPINES, AND DA
ADMINISTRATIVE ORDER NO. 08," AND IN PRAYING THAT THE COURT OF APPEALS
"RECOMMEND TO CONGRESS CURATIVE LEGISLATIONS," RESPONDENTS SEEK TO REVIEW THE
WISDOM OF THE PHILIPPINE REGULATORY SYSTEM FOR GMOS, WHICH THE COURT OF APPEALS
IS WITHOUT JURISDICTION TO DO SO.

B. WORSE, THE COURT OF APPEALS EVEN HELD THAT THERE ARE NO LAWS GOVERNING THE
STUDY, INTRODUCTION AND USE OF GMOS IN THE PHILIPPINES AND COMPLETELY
DISREGARDED E.O. NO. 514 AND DA- AO 08-2002.

III

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING
MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT RESPONDENTS FAILED TO EXHAUST ADMINISTRATIVE
REMEDIES.

IV

THE COURT OF APPEALS GRAVELY ERRED IN REFUSING TO DISMISS THE PETITION FOR WRIT OF CONTINUING
MANDAMUS AND WRIT OF KALIKASAN CONSIDERING THAT PRIMARY JURISDICTION OVER THE SAME LIES WITH
THE REGULATORY AGENCIES.

THE COURT OF APPEALS EXHIBITED BIAS AND PARTIALITY AND PREJUDGED THE INSTANT CASE WHEN IT
RENDERED THE ASSAILED DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013.

VI

THE COURT OF APPEALS GRAVELY ERRED IN GRANTING THE WRIT OF KALIKASAN IN FAVOR OF RESPONDENTS.

A. THE EVIDENCE ON RECORD SHOWS THAT THE PROJECT PROPONENTS OF THE BT TALONG FIELD
TRIALS COMPLIED WITH ALL ENVIRONMENTAL LAWS, RULES AND REGULATIONS IN ORDER TO
ENSURE THAT THE PEOPLE'S RIGHT TO A BALANCED AND HEALTHFUL ECOLOGY ARE
PROTECTED AND RESPECTED.

B. THE EVIDENCE ON RECORD SHOWS THAT THE BT TALONG FIELD TRIALS DO NOT CAUSE
ENVIRONMENTAL DAMAGE AND DO NOT PREJUDICE THE LIFE, HEALTH AND PROPERTY OF
INHABITANTS OF TWO OR MORE PROVINCES OR CITIES.

C. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING THE PRECAUTIONARY PRINCIPLE IN THIS
CASE DESPITE THE FACT THAT RESPONDENTS FAILED TO PRESENT AN IOTA OF EVIDENCE TO
PROVE THEIR CLAIM.

VII
THE COURT OF APPEALS GRAVELY ERRED IN GRANTING A WRIT OF CONTINUING MANDAMUS AGAINST
PETITIONER ISAAA.

VIII

THE COURT OF APPEALS' DECISION DATED 17 MAY 2013 AND RESOLUTION DATED 20 SEPTEMBER 2013 IS AN
AFFRONT TO ACADEMIC FREEDOM AND SCIENTIFIC PROGRESS.29ChanRoblesVirtualawlibrary
G.R. No. 209276

Petitioners EMB, BPI and FPA, represented by the Office of the Solicitor General (OSG) assails the CA Decision
granting the petition for writ of kalikasan and writ of continuing mandamus despite the failure of Greenpeace, et al.
(respondents) to prove the requisites for their issuance.

Petitioners contend that while respondents presented purported studies that supposedly show signs of toxicity in
genetically engineered eggplant and other crops, these studies are insubstantial as they were not published in
peer-reviewed scientific journals. Respondents thus failed to present evidence to prove their claim that the Bt
talong field trials violated environmental laws and rules.

As to the application of the precautionary principle, petitioners asserted that its application in this case is
misplaced. The paper by Prof. Seralini which was relied upon by the CA, was not formally offered in evidence. In
volunteering the said article to the parties, petitioners lament that the CA manifested its bias towards respondents'
position and did not even consider the testimony of Dr. Davies who stated that "Seralini's work has been refuted by
International committees of scientists"30 as shown by published articles critical of Seralini's work.

Petitioners aver that there was no damage to human health since no Bt talong will be ingested by any human being
during the field trial stage. Besides, if the results of said testing are adverse, petitioners will not allow the release
of Bt talong to the environment, in line with the guidelines set by EO 514. The CA thus misappreciated the
regulatory process as approval for field testing does not automatically mean approval for propagation of the same
product. And even assuming that the field trials may indeed cause adverse environmental or health effects, the
requirement of unlawful act or omission on the part of petitioners or any of the proponents, was still absent.
Respondents clearly failed to prove there was any unlawful deviation from the provisions of DAO 08-2002. The
BPI's factual finding on the basis of risk assessment on the Bt talong project should thus be accorded respect, if not
finality by the courts.

Petitioners likewise fault the CA in giving such ambiguous and general directive for them to protect, preserve,
rehabilitate and restore the environment, lacking in specifics which only indicates that there was really nothing to
preserve, rehabilitate or restore as there was nothing damaged or adversely affected in the first place. As to the
supposed inadequacy and ineffectiveness of existing regulations, these are all political questions and policy issues
best left to the discretion of the policy-makers, the Legislative and Executive branches of government. Petitioners
add that the CA treads on judicial legislation when it recommended the re-examination of country's existing laws
and regulations governing studies and research on GMOs.

GR. No. 209301

Petitioner UPLBFI argues that respondents failed to adduce the quantum of evidence necessary to prove actual or
imminent injury to them or the environment as to render the controversy ripe for judicial determination. It points
out that nowhere in the testimonies during the "hot-tub" presentation of expert witnesses did the witnesses for
respondents claim actual or imminent injury to them or to the environment as a result of the Bt talong field tests,
as they spoke only of injury in the speculative, imagined kind without any factual basis. Further, the petition for
writ of kalikasan has been mooted by the termination of the field trials as of August 10, 2012.

Finding the CA decision as a judgment not based on fact, UPLBFI maintains that by reason of the nature, character,
scale, duration, design, processes undertaken, risk assessments and strategies employed, results heretofore
recorded, scientific literature, the safeguards and other precautionary measures undertaken and applied, the Bt
talong field tests did not or could not have violated the right of respondents to a balanced and healthful ecology.
The appellate court apparently misapprehended the nature, character, design of the field trials as one for
"consumption" rather than for "field testing" as defined in DAO 08-2002, the sole purpose of which is for the
"efficacy" of the eggplant variety's resistance to the FSB.

Against the respondents' bare allegations, UPLBFI submits the following "specific facts borne by competent
evidence on record" (admitted exhibits) 31:
118. Since the technology's inception 50 years ago, studies have shown that genetically modified crops,
including Bt talong, significantly reduce the use of pesticides by farmers in growing eggplants, lessening
pesticide poisoning to humans.

119. Pesticide use globally has decreased in the last [14-15] years owing to the use of insect-resistant genetically
modified crops. Moreover, that insect-resistant genetically modified crops significantly reduce the use of
pesticides in growing plants thus lessening pesticide poisoning in humans, reducing pesticide load in the
environment and encouraging more biodiversity in farms.

120. Global warming is likewise reduced as more crops can be grown.

121. Transgenic Bacillus thuringensis (Bt) cotton has had a major impact on the Australian cotton industry by
largely controlling Lepidopteran pests. To date, it had no significant impact on the invertebrate community
studied.

122. Feeding on CrylAcc contaminated non-target herbivores does not harm predatory heteropterans and,
therefore, cultivation of Bt cotton may provide an opportunity for conservation of these predators in cotton
ecosystems by reducing insecticide use.

123. The Bt protein in Bt corn only affects target insects and that Bt corn pollens do not negatively affect monarch
butterflies.

124. The field trials will not cause "contamination" as feared by the petitioners because flight distance of the
pollinators is a deterrent to cross pollination. Studies reveal that there can be no cross pollination more than
a fifty (50) meter distance.

xxx
x

135. There is a 50 year history of safe use and consumption of agricultural products sprayed with
commercial Bt microbial pesticides and a 14 year history of safe consumption of food and feed derived from
Bt crops.

xxx
x

140. In separate reviews by the European Food Safety Agency (EFSA) and the Food Standards Australia and New
Zealand (FSANZ), the "work" of one Prof. Seralini relied upon by [respondents] was dismissed as
"scientifically flawed", thus providing no plausible basis to the proposition that Bt talong is dangerous to
public health.

141. In a learned treatise by James Clive entitled "Global Status of Commercialized Biotech/GM Crops: 2011," the
Philippines was cited to be the first country in the ASEAN region to implement a regulatory system for
transgenic crops (which includes DAO 08-[2]002). Accordingly, the said regulatory system has also served as
a model for other countries in the region and other developing countries outside of Asia.
On the precautionary principle, UPLBFI contends that the CA misapplied it in this case. The testimonial and
documentary evidence of respondents, taken together, do not amount to "scientifically plausible" evidence of
threats of serious and irreversible damage to the environment. In fact, since BPI started regulating GM crops in
2002, they have monitored 171 field trials all over the Philippines and said agency has not observed any adverse
environmental effect caused by said field trials. Plainly, respondents failed to show proof of "specific facts" of
environmental damage of the magnitude contemplated under the Rules of Procedure for Environmental Cases as to
warrant sanctions over the Bt talong field trials.

Lastly, UPLBFI avers that the Bt talong field trial was an exercise of the constitutional liberty of scientists and other
academicians of UP, of which they have been deprived without due process of law. Stressing that a possibility is
not a fact, UPLBFI deplores the CA decision's pronouncement of their guilt despite the preponderance of evidence
on the environmental safety of the field trials, as evident from its declaration that "the over-all safety guarantee
of Bt talong remains to be still unknown." It thus asks if in the meantime, petitioners must bear the judicial stigma
of being cast as violators of the right of the people to a balanced and healthful ecology for an injury or
damage unsubstantiated by evidence of scientific plausibility.

G.R. No. 209430

Petitioner UP reiterates UPLBFI's argument that the Bt talong field testing was conducted in the exercise of UPLB's
academic freedom, which is a constitutional right. In this case, there is nothing based on evidence on record or
overwhelming public welfare concern, such as the right of the people to a balanced and healthful ecology, which
would warrant restraint on UPLB's exercise of academic freedom. Considering that UPLB complied with all laws,
rules and regulations regarding the application and conduct of field testing of GM eggplant, and was performing
such field tests within the prescribed limits of DAO 08-2002, and there being no harm to the environment or
prejudice that will be caused to the life, health or property of inhabitants in two or more cities or provinces, to
restrain it from performing the said field testing is unjustified.

Petitioner likewise objects to the CA's application of the precautionary principle in this case, in violation of the
standards set by the Rules of Procedure for Environmental Cases. It points out that the Bt eggplants are not yet
intended to be introduced into the Philippine ecosystem nor to the local market for human consumption.

Cited were the testimonies of two expert witnesses presented before the CA: Dr. Navasero who is an entomologist
and expert in integrated pest management and insect taxonomy, and Dr. Davies, a member of the faculty of the
Department of Plant Biology and Horticulture at Cornell University for 43 years and served as a senior science
advisor in agricultural technology to the United States Department of State. Both had testified that based on
generally accepted and scientific methodology, the field trial of Bt crops do not cause damage to the environment
or human health.

Petitioner assails the CA in relying instead on the conjectural statements of Dr. Malayang. It asserts that the CA
could not support its Decision and Resolution on the pure conjectures and imagination of one witness. Basic is the
rule that a decision must be supported by evidence on record.

Respondents' Consolidated Comment

Respondents aver that Bt talong became the subject of public protest in our country precisely because of the
serious safety concerns on the impact of Bt talong toxin on human and animal health and the environment
through field trial contamination. They point out that the inherent and potential risks and adverse effects of GM
crops are recognized in the Cartagena Protocol and our biosafety regulations (EO 514 and DAO 08-2002).
Contamination may occur through pollination, ingestion by insects and other animals, water and soil run off,
human error, mechanical accident and even by stealing was inevitable in growing Bt talong in an open environment
for field trial. Such contamination may manifest even after many years and in places very far away from the trial
sites.

Contrary to petitioners' claim that they did not violate any law or regulation, or unlawful omission, respondents
assert that, in the face of scientific uncertainties on the safety and effects of Bt talong, petitioners omitted their
crucial duties to conduct environmental impact assessment (EIA); evaluate health impacts; get the free, prior and
informed consent of the people in the host communities; and provide remedial and liability processes in the
approval of the biosafety permit and conduct of the field trials in its five sites located in five provinces. These
omissions have put the people and the environment at serious and irreversible risks.

Respondents cite the numerous studies contained in "Adverse Impacts of Transgenic Crops/Foods: A Compilation
of Scientific References with Abstracts" printed by Coalition for a GMO-Free India; a study on Bt corn in the
Philippines, "Socio-economic Impacts of Genetically Modified Corn in the Philippines" published by MASIPAG in
2013; and the published report of the investigation conducted by Greenpeace, "White Corn in the Philippines:
Contaminated with Genetically Modified Corn Varieties" which revealed positive results for samples purchased from
different stores in Sultan Kudarat, Mindanao, indicating that they were contaminated with GM corn varieties,
specifically the herbicide tolerant and Bt insect resistant genes from Monsanto, the world's largest biotech company
based in the US.

To demonstrate the health hazards posed by Bt crops, respondents cite the following sources: the studies of Drs. L.
Moreno-Fierros, N. Garcia, R. Gutierrez, R. Lopez-Revilla, and RI Vazquez-Padron, all from the Universidad Nacional
Autonoma de Mexico; the conclusion made by Prof. Eric-Gilles Seralini of the University of Caen, France, who is
also the president of the Scientific Council of the Committee for Independent Research and Information on Genetic
Engineering (CRIIGEN), in his review, commissioned by Greenpeace, of Mahyco's data submitted in support of the
application to grow and market Bt eggplant in India; and the medical interpretations of Prof. Seralini's findings by
Filipino doctors Dr. Romeo Quijano of the University of the Philippines-Philippine General Hospital and Dr. Wency
Kiat, Jr. of St. Luke's Medical Center (Joint Affidavit).

According to respondents, the above findings and interpretations on serious health risks are strengthened by the
findings of a review of the safety claims in the MAHYCO Dossier authored by Prof. David A. Andow of the University
of Minnesota, an expert in environmental assessment in crop science. The review was made upon the request in
2010 of His Honorable Shri Jairam Ramesh of the Ministry of Environment and Forests of India, where MAHYCO is
based. MAHYCO is the corporate creator and patent owner of the Bt gene inserted in Bt talong.

The conclusions of health hazards from the above studies were summarized 32 by respondents, as follows:
Studies/interpretation by Conclusion/interpretation

Drs. L. Moreno-Fierros, N. Garcia, R. For Bt modified crops (like Bt talong), there is concern over its
Gutierrez, R. potential

Lopez-Revilla, and RI Vazquez-Padron allergenicity. CrylAcc (the gene inserted in Bt talong) protoxin is a
potent immunogen (triggers immune response); the protoxin is
immunogenic by both the intraperitoneal (injected) and intragastric
(ingested) route; the immune response to the protoxin is both
systemic and mucosal; and CrylAcc protoxin binds to surface proteins
in the mouse small intestine. These suggest that extreme caution is
required in the use of CrylAcc in food crops.

Prof. Eric-Gilles Seralini His key findings showed statistical significant differences between
group of animals fed GM and non-GM eggplant that raise food safety
concerns and warrant further investigation.

Dr. Romeo Quijano & Dr. Wency Kiat, Jr. Interpreting Prof. Seralini's findings, the altered condition of
rats symptomatically indicate hazards for human health.

Prof. David A. Andow The MAHYCO dossier is inadequate to support the needed
environmental risk assessment; MAHYCO's food safety assessment
does not comply with international standards; and that MAHYCO
relied on dubious scientific assumptions and disregarded real
environmental threats.
As to environmental effects, respondents said these include the potential for living modified organisms, such as Bt
talong tested in the field or released into the environment, to contaminate non-GM traditional varieties and other
wild eggplant relatives and turn them into novel pests, outcompete and replace their wild relatives, increase
dependence on pesticides, or spread their introduced genes to weedy relatives, potentially creating superweeds,
and kill beneficial insects.

Respondents then gave the following tabulated summary 33 of field trial contamination cases drawn from various
news reports and some scientific literature submitted to the court:
What happened Impact How did it occur

During 2006 and 2007, traces of three In July 2011, Bayer eventually agreed to a Field trials were conducted
varieties of unapproved genetically $750m US dollar settlement resolving between the mid-1990s and
modified rice owned by Bayer Crop claims with about 11,000 US farmers for early 2000s. The US
Science were found in US rice exports market losses and clean-up costs. Department of Agriculture
in over 30 countries worldwide. (USDA) reported these field
The total costs to the rice industry are trials were the likely sources
likely to have been over $1bn worldwide. of the contamination between
the modified rice and
conventional varieties.
However, it was unable to
conclude [if it] was caused by
gene flow (cross pollination)
or mechanical mixing.

In 2009, unauthorised GElinseed (also Canada lost exports to its main European In the late 1980s a public
known as 'flax') produced by a public market worth hundreds of millions of research institution, the Crop
research institution was discovered in dollars and non-GElinseed farmers have Development Centre in
food in several EU countries, having faced huge costs and market losses. Saskatoon, Saskat-chewan,
been imported from Canada. developed a GElinseed variety
FP96believed to be the
origin of the contamination.

During 2004, the Thai government Exports of papaya to Europe have been hit GEpapaya is not grown
found that papaya samples from 85 because of fears that contamination could commercially in Thailand, so it
farms were genetically modified. The have spread. The Thai government said it was clear that the
contamination continued into 2006 and was taking action to destroy the contamination originated from
it is likely that the GE contamination contaminated trees. the government station
reached the food chain. experimentally breeding GE
papaya trees. Tests that
showed that one third of
papaya orchards tested in the
eastern province of Rayong
and the north-eastern
provinces of Mahasarakham,
Chaiyaphum and Kalasinhad
GE- contaminated papaya
seeds in July 2005. The
owners said that a research
station gave them the seeds.

In the US in 2002, seeds from a Prodigene, the company responsible, was Seeds from the GEmaize crop
GEmaize pharma-crop containing a pig fined $3m for tainting half a million sprouted voluntarily in the
vaccine grew independently among bushels of soya bean with a trial vaccine following season.
normal soybean crops. used to prevent stomach upsets in piglets.
Prodigene agreed to pay a fine of
$250,000 and to repay the government for
the cost of incinerating the soya bean that
had been contaminated with genetically
altered corn.

In 2005, Greenpeace discovered that The European Commission adopted The source of the
GE rice seeds had been illegally sold in emergency measures (on 15 August 2008) contamination appears to
Hubei, China. Then, in 2006, GE rice to require compulsory certification for the have been the result of illegal
event Bt63 was found in baby food sold imports of Chinese rice products that could planting of GEseeds. Seed
in Beijing, Guangzhou and Hong Kong. contain the unauthorised GE rice Bt63. companies in China found to
In late 2006, GE rice Bt63 was found to have sold GErice hybrid seed
be contaminating exports in Austria, The Chinese government took several to farmers operated directly
France, the UK and Germany. In 2007 measures to try to stop the contamination, under the university
it was again found in EU imports to which included punishing seed companies, developing GM rice. It has
Cyprus, Germany, Greece, Italy and confiscating GEseed, destroying GErice been reported that the key
Sweden. grown in the field and tightening control scientist sat on the board of
over the food chain. one GEseed company.

In 2005, the European Commission The European Commission blocked US The contamination arose
announced that illegal Bt10 GEmaize grain import unless they could be because Syngenta's quality
produced by GEseed company guaranteed free of Bt10. The USDA fined control procedures did not
Syngenta had entered the European Syngenta $375,000. There are no figures differentiate between Bt10
food chain. The GEmaize Bt10 contains for the wider costs. and its sister commercial line,
a marker gene that codes for the Bt11. As a result, the
widely-used antibiotic ampicillin, while experimental and substantially
the Bt11 does not. According to the different Bt10 line was
international Codex Alimentarius mistakenly used in breeding.
Guideline for Conduct of Food Safety The error was detected four
Assessment of Foods Derived from years later when one of the
Recombinant-DNA:Plants: 'Antibiotic seed companies developing
resistance genes used in food Bt11 varieties adopted more
production that encode resistance to sophisticated analytical
clinically used antibiotics should not be techniques.
present in foods' because it increases
the risk of antibiotic resistance in the
population.
Refuting the claim of petitioners that contamination is nil or minimal because the scale of Bt talong field trial is
isolated, restricted and that "each experiment per site per season consists of a maximum net area planted
to Bt eggplant of between 480 sq. meters to 1,080 sq. meters," 34 respondents emphasize that as shown by the
above, contamination knows no size and boundaries in an open environment.

With regard to the required geographical coverage of environmental damage for the issuance of writ of kalikasan,
respondents assert that while the Bt talong field trials were conducted in only five provinces, the environmental
damage prejudicial to health extends beyond the health of the present generation of inhabitants in those provinces.

On petitioners' insistence in demanding that those who allege injury must prove injury, respondents said that
biosafety evidence could not be readily contained in a corpus delicti to be presented in court. Indeed, the inherent
and potential risks and adverse effects brought by GMOs are not like dead bodies or wounds that are immediately
and physically identifiable to an eyewitness and which are resulting from a common crime. Precisely, this is why
the Cartagena Protocol's foundation is on the precautionary principle and development of sound science and its
links, to social and human rights law through its elements of public awareness, public participation and public right
to know. This is also why the case was brought under the Rules of Procedure for Environmental Cases and not
under ordinary or other rules, on the grounds of violation of the rights of the Filipino people to health, to a
balanced and healthful ecology, to information on matters of national concern, and to participation. The
said Rules specifically provides that the appreciation of evidence in a case like this must be guided by the
precautionary principle.

As to the non-exhaustion of administrative remedies being raised by petitioners as ground to dismiss the present
petition, respondents said that nowhere in the 22 sections of DAO 08-2002 that one can find a remedy to appeal
the decision of the DA issuing the field testing permit. What is only provided for is a mechanism for applicants of a
permit, not stakeholders like farmers, traders and consumers to appeal a decision by the BPI-DA in case of denial
of their application for field testing. Moreover, DAO 08-2002 is silent on appeal after the issuance of the biosafety
permit.

Finally, on the propriety of the writ of continuing mandamus, respondents argue that EO 514 explicitly states that
the application of biosafety regulations shall be made in accordance with existing laws and the guidelines therein
provided. Hence, aside from risk assessment requirement of the biosafety regulations, pursuant to the PEISS law
and Sections 12 and 13 of the Philippine Fisheries Code of 1998, an environmental impact statement (EIS) is
required and an environmental compliance certificate (ECC) is necessary before such Bt crop field trials can be
conducted.

Petitioners' Replies

G.R. No. 209271

ISAAA contends that the Precautionary Principle and the Rules of Procedure for Environmental Cases do not
empower courts to adjudicate a controversy that is moot and academic. It points out that respondents failed to
satisfy all the requirements of the exception to the rule on actual controversies. The Biosafety Permit is valid for
only two years, while the purported stages in the commercialization, propagation and registration of Bt talong still
cannot confer jurisdiction on the CA to decide a moot and academic case.

As to the propriety of the writ of continuing mandamus, ISAAA maintains that public petitioners do not have
"mandatory" and "ministerial" duty to re-examine and reform the biosafety regulatory system, and to propose
curative legislation. The law (EO 514) cited by respondents does not impose such duty on public petitioners. As for
the Cartagena Protocol, it laid down a procedure for the evaluation of the Protocol itself, not of the Philippine
biosafety regulatory system. ISAAA stresses that the CA is without jurisdiction to review the soundness and
wisdom of existing laws, policy and regulations. Indeed, the questions posed by the respondents are political
questions, which must be resolved by the executive and legislative departments in deference to separation of
powers.

On the availability of administrative remedies, ISAAA asserts that respondents are mistaken in saying that these
are limited to appeals. The concerned public may invoke Section 8 (G) of DAO 08-2002 which grants them the right
to submit their written comments on the BPI regarding the field testing permits, or Section 8 (P) for the revocation
and cancellation of a field testing permit. Respondents' failure to resort to the internal mechanisms provided in
DAO 08-2002 violates the rule on exhaustion of administrative remedies, which warrants the dismissal of
respondents' petition.

ISAAA points out that under Section 7 of DAO 08-2002, the BPI is the approving authority for field testing permits,
while under Title IV, Chapter 4, Section 19 of the Administrative Code of 1987, the DA through the BPI, is
responsible for the production of improved planting materials and protection of agricultural crops from pests and
diseases. In bypassing the administrative remedies available, respondents not only failed to exhaust a less costly
and speedier remedy, it also deprived the parties of an opportunity to be heard by the BPI which has primary
jurisdiction and knowledgeable on the issues they sought to raise.

Rejecting the scientific data presented by the respondents, petitioners found Annex "A" of the Consolidated
Comment as irrelevant because it was not formally offered in evidence and are hearsay. Majority of those records
contain incomplete information and none of them pertain to the Bt talong. Respondents likewise presented two
misleading scientific studies which have already been discredited: the 2013 study by B.P. Mezzomo, et al. and the
study by Prof. Seralini in 2012. Petitioner notes that both articles have been withdrawn from publication.

ISAAA further describes Annex "A" as a mere compilation of records of flawed studies with only 126 usable records
out of the 338 records. In contrast, petitioner cites the work of Nicolia, A., A. Manzo, F. Veronesi, and D. Rosellini,
entitled "An overview of the last 10 years of genetically engineered crop safety research." The authors evaluated
1,783 scientific records of GE crop safety research papers, reviews, relevant opinions and scientific reports from
2002-2012. Their findings concluded that "the scientific research conducted so far has not detected any significant
hazards directly connected with the use of GE crops." In the article "Impacts of GM crops on biodiversity," in which
scientific findings concluded that "[o]verall, x x x currently commercialized GM crops have reduced the impacts of
agriculture on biodiversity, through enhanced adoption of conservation tillage practices, reduction of insecticide use
and use of more environmentally benign herbicides and increasing yields to alleviate pressure to convert additional
land into agricultural use."

Debunking the supposed inherent risks and potential dangers of GMOs, petitioner cites EUR 24473-A decade of EU-
funded GMO research (2001-2010), concluded from more than 130 research projects, covering a period of 25 years
of research, and involving more than 500 independent research groups, that "biotechnology, and in particular
GMOs, are not per se more risky than e.g. conventional plant breeding technologies." Another article cited is
"Assessment of the health impact of GM plant diets in long-term and multigenerational animal feeding trials: A
literature review" which states that scientific findings show that GM crops do not suggest any health hazard, and
are nutritionally equivalent to their non-GM counterparts and can be safely used in food and feed.

Addressing the studies relied upon by respondents on the alleged adverse environmental effects of GM crops,
petitioner cites the article "Ecological Impacts of Genetically Modified Crops: Ten Years of Field Research and
Commercial Cultivation" which concluded that "[T]he data available so far provide no scientific evidence that the
cultivation of the presently commercialized GM crops has caused environmental harm." A related article, "A Meta-
Analysis of Effects of Bt Cotton and Maize on Non-target Invertebrates" states that scientific findings show that
non-target insects are more abundant in GM crop fields like Bt cotton and Bt maize fields than in non-GM crops
that are sprayed with insecticides.

The two tables/summaries of studies submitted by respondents are likewise rejected by ISAAA, which presented
the following comments and criticisms on each of the paper/article cited, thus:
With respect to the study made by L. Moreno-Fierros, et al., the same should be rejected considering that this was
not formally offered as evidence by respondents. Hence, the same may not be considered by the Honorable Court.
(Section 34, Rule 132 of the Rules of Court; Heirs of Pedro Pasag v. Spouses Parocha, supra)

Further, the study is irrelevant and immaterial. The CrylAcc protein used in the study was from engineered E.
coli and may have been contaminated by endotoxin. The CrylAcc used in the study was not from Bt talong. Hence,
respondents' attempt to extrapolate the interpretation and conclusion of this study to Bt talong is grossly erroneous
and calculated to mislead and deceive the Honorable Court.

Moreover, in a review by Bruce D. Hammond and Michael S. Koch of the said study by L. Moreno-Fierros, et al.,
which was published in an article entitled A Review of the Food Safety of Bt Crops, the authors reported that Adel-
Patient, et al. tried and failed to reproduce the results obtained by the study made by L. Moreno-Fierros, et al. The
reason is because of endotoxin contamination in the preparation of the CrylAc protein. Further, when purified Cry
protein was injected to mice through intra-gastric administration, there was no impact on the immune response of
the mice.

In addition, the biological relevance of the study made by L. Moreno-Fierros, et al. to assessing potential health
risks from human consumption of foods derived from Bt crops can be questioned because the doses tested in mice
is irrelevant to human dietary exposure, i.e., the doses given were "far in excess of potential human intakes".

With respect to the interpretation made by Prof. Eric-Gilles Seralini, the same is not entitled to any weight and
consideration because his sworn statement was not admitted in evidence by the Court of Appeals.

Further, Seralini's findings are seriously flawed. Food safety experts explained the differences observed by
Seralini's statistical analysis as examples of random biological variation that occurs when many measurements are
made on test animals, and which have no biological significance. Hence, there are no food safety concerns.
Further, petitioner ISAAA presented in evidence the findings of regulatory bodies, particularly the EFSA and the
FSANZ, to controvert Seralini's findings. The EFSA and the FSANZ rejected Seralini's findings because the same
were based on questionable statistical procedure employed in maize in 2007.

In addition, it must be pointed out that the Indian regulatory authority, GEAC, has not revised its earlier decision
approving the safety of Bt eggplant notwithstanding the findings of Seralini's assessment. In effect, Seralini's
findings and interpretation were rejected by the Indian regulatory agency.

With respect to the interpretation made by Drs. Romeo Quijano and Wency Kiat, the same is not entitled to any
weight and consideration because the Court of Appeals did not admit their sworn statement. Further, Drs. Romeo
Quijano and Wency Kiat sought to interpret a seriously flawed study, making their sworn statements equally
flawed.

In an attempt to mislead the Honorable Court, respondents tried to pass off the review of Prof. David A. Andow as
the work of the National Academy of Sciences of the USA. Such claim is grossly misleading. In truth, as Prof. David
A. Andow indicated in the preface, the report was produced upon the request of Aruna Rodriguez, a known anti-GM
campaigner.

Further, Prof. David A. Andow's review did not point to any negative impact to the environment of Mahyco's Bt
brinjal (Indian name for Bt talong) during the entire period of conduct of field trials all over the country. He
concluded, however, that the dossier is inadequate for ERA. This is perplexing considering this is the same gene
that has been used in Bt cotton since 1996. Scores of environmental and food safety risk assessment studies have
been conducted and there is wealth of information and experience on its safety. Various meta-analyses indicate
that delaying the use of this already effective Bt brinjal for managing this devastating pest only ensures the
continued use of frequent insecticide sprays with proven harm to human and animal health and the environment
and loss of potential income of resource-poor small farmers.

Notwithstanding the conclusions of Prof. David A. Andow, to date, it is worth repeating that the Indian regulatory
body, GEAC, has not revised its earlier decision approving the safety of Bt eggplant based on the recommendation
of two expert committees which found the Mahyco regulatory dossier compliant to the ERA stipulated by the Indian
regulatory body. In effect, like Seralini, Andow's findings and interpretation were also rejected by the Indian
regulatory agency.35ChanRoblesVirtualawlibrary
Petitioner reiterates that the PEIS law does not apply to field testing of Bt talong and the rigid requirements under
Section 8 of DAO 08-2002 already takes into consideration any and all significant risks not only to the environment
but also to human health. The requirements under Sections 26 and 27 of the Local Government Code are also
inapplicable because the field testing is not among the six environmentally sensitive activities mentioned therein;
the public consultations and prior local government unit (LGU) approval, were nevertheless complied with.
Moreover, the field testing is an exercise of academic freedom protected by the Constitution, the possibility of Bt
talong's commercialization in the future is but incidental to, and fruit of the experiment.

As to the "commissioned studies" on Bt corn in the Philippines, petitioner asserts that these are inadmissible,
hearsay and unreliable. These were not formally offered in evidence; self-serving as it was conducted by
respondents Greenpeace and MASIPAG themselves; the persons who prepared the same were not presented in
court to identify and testify on its findings; and the methods used in the investigation and research were not
scientific. Said studies failed to establish any correlation between Bt corn and the purported environmental and
health problems.

G.R. No. 209276

EMB, BPI and FPA joined in objecting to Annex "A" of respondents' consolidated comment, for the same reasons
given by ISAAA. They noted that the affidavit of Prof. Seralini, and the joint affidavit of Dr. Kiat and Dr. Quijano
were denied admission by the CA. Given the failure of the respondents to present scientific evidence to prove the
claim of environmental and health damages, respondents are not entitled to the writ of kalikasan.

Public petitioners reiterate that in issuing the Biosafety Permits to UPLB, they made sure that the latter complied
with all the requirements under DAO 08-2002, including the conduct of risk assessment. The applications for field
testing of Bt talong thus underwent the following procedures:
Having completed the contained experiment on the Bt talong, UPLB filed with BPI several applications for issuance
of Biosafety Permits to conduct multi-locational field testing of Bt talong. Even before the proponent submitted its
application, petitioner BPI conducted a consultative meeting with the proponent to enlighten the latter about the
requirements set out by DA AO No. 8.

Thereafter, petitioner BPI evaluated UPLB's applications vis-a-vis the requirements of Section 8 of DA AO No. 8 and
found them to be sufficient in form and substance, to wit:
First. The applications were in the proper format and contained all of the relevant information as required in
Section 8 (A) (1) of DA AO No. 08.
Second. The applications were accompanied by a (i) Certification from the NCBP that the regulated article has
undergone satisfactory testing under contained conditions in the Philippines, (ii) technical dossier consisting of
scientific literature and other scientific materials relied upon by the applicant showing that Bt talong will not pose
any significant risks to human health and the environment, and (iii) copy of the proposed PIS for Field Testing as
prescribed by Section 8 (A) (2) of DA AO No. 08; and

Third. The applications contained the Endorsement of proposal for field testing, duly approved by the majority of all
the members of the respective Institutional Biosafety Committees (IBC), including at least one community
representative, as required by Section 8 (E) of DA AO No. 08.

a. Under Sections 1 (L) and 8 (D) of DA AO No. 08, the IBC is responsible for the initial evaluation of the risk
assessment and risk management strategies of the applicant for field testing using the NCBP guidelines. The IBC
shall determine if the data obtained under contained conditions provide sufficient basis to authorize the field testing
of the regulated article. In making the determination, the IBC shall ensure that field testing does not pose any
significant risks to human health and the environment. The IBC may, in its discretion, require the proponent to
perform additional experiments under contained conditions before acting on the field testing proposal. The IBC
shall either endorse the field testing proposal to the BPI or reject it for failing the scientific risk assessment.

b. Relatedly, UPLB had previously complied with Section 1 (L) of DA AO No. 08 which requires an applicant for field
testing to establish an IBC in preparation for the field testing of a regulated article and whose membership has
been approved by the BPI. Section 1 (L) of DA AO No. 08, requires that the IBC shall be composed of at least five
(5) members, three (3) of whom shall be designated as "scientist-members" who shall possess scientific and
technological knowledge and expertise sufficient to enable them to evaluate and monitor properly any work of the
applicant relating to the field testing of a regulated article, and the other members are designated as "community
representatives" who are in a position to represent the interest of the communities where the field testing is to be
conducted.
Before approving the intended multi-locations [field] trials, petitioner BPI, pursuant to Section 8 (F) of DA AO No.
08, forwarded the complete documents to three (3) independent Scientific Technical Review Panel (STRP)
members. Pending receipt of the risk assessment reports of the three STRP members, petitioner BPI conducted its
own risk assessment.

Thereafter, on separate occasions, petitioner BPI received the final risk assessment reports of the three STRP
members recommending the grant of Biosafety Permits to UPLB after a thorough risk assessment and evaluation of
UPLB's application for field trial of Bt talong.

Meanwhile, petitioner BPI received from UPLB proofs of posting of the PISs for Field Testing in each concerned
barangays and city/municipal halls of the localities having jurisdiction over its proposed field trial sites.

In addition to the posting of the PISs for Field Testing, petitioner BPI conducted consultative meetings and public
seminars in order to provide public information and in order to give an opportunity to the public to raise their
questions and/or concerns regarding the Bt talong field trials.36ChanRoblesVirtualawlibrary
Petitioners maintain that Sections 26 and 27 of the Local Government Code are inapplicable to the Bt talong field
testing considering that its subject matter is not mass production for human consumption. The project entails only
the planting of Bt eggplants and cultivation in a controlled environment; indeed, the conduct of a field trial is not a
guarantee that the Bt talong will be commercialized and allowed for cultivation in the Philippines.

On the non-exhaustion of administrative remedies by the respondents, petitioners note that during the period of
public consultation under DAO 08-2002, it is BPI which processes written comments on the application for field
testing of a regulated article, and has the authority to approve or disapprove the application. Also, under Section 8
(P), BPI may revoke a biosafety permit issued on the ground of, among others, receipt of new information that the
field testing poses significant risks to human health and the environment. Petitioners assert they were never remiss
in the performance of their mandated functions, as shown by their immediate action with respect to the defective
certification of posting of PIS in Kabacan, North Cotabato. Upon receiving the letter-complaint on January 24,
2012, BPI readily ordered their re-posting. The same incident occurred in Davao City, where BPI refused to lift the
suspension of biosafety permits until "rectification of the conditions for public consultation is carried out."

To underscore respondents' blatant disregard of the administrative process, petitioners refer to documented
instances when respondents took the law in their own hands. Greenpeace barged into one of the Bt talong field trial
sites at Bgy. Paciano Rizal, Bay, Laguna, forcibly entered the entrance gate through the use of a bolt cutter, and
then proceeded to uproot the experimental crops without permission from BPI or the project proponents.
Petitioners submit that the non-observance of the doctrine of exhaustion of administrative remedies results in lack
of cause of action, one of the grounds under the Rules of Court justifying the dismissal of a complaint.

Petitions-in-Intervention
Crop Life Philippines, Inc. (Crop Life)

Crop Life is an association of companies which belongs to a global (Crop Life International) as well as regional
(Crop Life Asia) networks of member-companies representing the plant science industry. It aims to "help improve
the productivity of Filipino farmers and contribute to Philippine food security in a sustainable way." It supports
"innovation, research and development in agriculture through the use of biology, chemistry, biotechnology, plant
breeding, other techniques and disciplines."

On procedural grounds, Crop Life assails the CA in rendering judgment in violation of petitioners' right to due
process because it was prevented from cross-examining the respondents' expert witnesses and conducting re-
direct examination of petitioners' own witnesses, and being an evidently partial and prejudiced court. It said the
petition for writ of kalikasan should have been dismissed outright as it effectively asks the Court to engage in
"judicial legislation" to "cure" what respondents feel is an inadequate regulatory framework for field testing of
GMOs in the Philippines. Respondents also violated the doctrine of exhaustion of administrative remedies, and their
petition is barred by estoppel and laches.

Crop Life concurs with the petitioners in arguing that respondents failed to specifically allege and prove the
particular environmental damage resulting from the Bt talong field testing. It cites the scientific evidence on record
and the internationally accepted scientific standards on GMOs and GMO field testing, and considering the
experience of various countries engaged in testing GMOs, telling us that GMO field testing will not damage the
environment nor harm human health and more likely bring about beneficial improvements.

Crop Life likewise assails the application of the Precautionary Principle by the CA which erroneously equated field
testing of Bt talong with Bt talong itself; failed to recognize that in this case, there was no particular environmental
damage identified, much less proven; relied upon the article of Prof. Seralini that was retracted by the scientific
journal which published it; there is no scientific uncertainty on the adverse effects of GMOs to environment and
human health; and did not consider respondents' failure to prove the insufficiency of the regulatory framework
under DAO 08-2002.

On policy grounds, Crop Life argues that requiring all organisms/plants to be considered absolutely safe before any
field testing may be allowed, would result in permanently placing the Philippines in the shadows of more developed
nations (whose economies rest on emerging markets importing products from them). It points out that the testing
of Bt talong specifically addresses defined problems such as the need to curb the misuse of chemical pesticides.

Biotechnology Coalition of the Philippines (BCP)

BCP is a non-stock, non-profit membership association, a broad-based multi-sectoral coalition of advocates of


modern biotechnology in the Philippines.

Reversal of the CA ruling is sought on the following grounds:


I.

THE COURT OF APPEALS ERRED IN TAKING COGNIZANCE OF THE KALIKASAN PETITION IN THE ABSENCE OF ANY
JUSTICIABLE CONTROVERSY.

II.

EXISTING LEGISLATION AND ADMINISTRATIVE REGULATIONS ALREADY INCORPORATE THE PRECAUTIONARY


PRINCIPLE AS A GUIDING PRINCIPLE IN RELATION TO GMOs.

III.

THE CA DECISION AND THE CA RESOLUTION IMPROPERLY APPLIED THE PRECAUTIONARY PRINCIPLE.

IV.

THE COURT OF APPEALS' ERRONEOUS APPLICATION OF THE PRECAUTIONARY PRINCIPLE, IF SUSTAINED, WOULD
PRODUCE A DANGEROUS PRECEDENT THAT IS ANTI-PROGRESS, ANTI-TECHNOLOGY AND, ULTIMATELY,
DETRIMENTAL TO THE FILIPINO PEOPLE.37ChanRoblesVirtualawlibrary
BCP argued that in the guise of taking on a supposed justiciable controversy, despite the Bt talong field trials
having been terminated, the CA entertained a prohibited collateral attack on the sufficiency of DAO 08-2002.
Though not invalidating the issuance, which the CA knew was highly improper, it nonetheless granted the petition
for writ of kalikasan on the theory that "mere biosafety regulations" were insufficient to guarantee the safety of the
environment and the health of the people.
Also reiterated were those grounds for dismissal already raised by the petitioners: failure to exhaust administrative
remedies and finality of findings of administrative agencies.

BCP further asserts that the application of a stringent "risk assessment" process to regulated articles prior to any
release in the environment for field testing mandated by AO No. 8 sufficiently complies with the rationale behind
the development of the precautionary principle. By implementing the stringent provisions of DAO 08-2002, in
conjunction with the standards set by EO 514 and the NBF, the government preemptively intervenes and takes
precautionary measures prior to the release of any potentially harmful substance or article into the environment.
Thus, any potential damage to the environment is prevented or negated. Moreover, international instruments
ratified and formally adopted by the Philippines (CBD and the Cartagena Protocol) provide additional support in the
proper application of the precautionary principle in relation to GMOs and the environment.

On the "misapplication" by the CA of the precautionary principle, BCP explains that the basic premise for its
application is the existence of threat of harm or damage to the environment, which must be backed by a
reasonable scientific basis and not based on mere hypothetical allegation, before the burden of proof is shifted to
the public respondents in a petition for writ of kalikasan. Here, the CA relied heavily on its observation that "... field
trials of bt talong could not be declared ... as safe to human health and to ecology, with full scientific certainty,
being an alteration of an otherwise natural state of affairs in our ecology" and "introducing a genetically modified
plant in our intricate world of plants by humans certainly appears to be an ecologically imbalancing act," among
others. BCP finds that this pronouncement of the CA constitutes an indictment not only against Bt talong but
against all GMOs as well. The appellate court's opinion is thus highly speculative, sweeping and laced with obvious
bias.

There being no credible showing in the record that the conduct of Bt talong field trials entails real threats and that
these threats pertain to serious and irreversible damage to the environment, BCP maintains that the precautionary
principle finds no application in this case. While Rule 20 of the Rules of Procedure for Environmental Cases states
that "[w]hen there is a lack of full scientific certainty in establishing a causal link between human activity and
environmental effect, the court shall apply the precautionary principle in resolving the case before it," the CA failed
to note that the element of lack of full scientific certainty pertains merely to the causal link between human activity
and environmental effect, and not the existence or risk of environmental effect.

BCP laments that sustaining the CA's line of reasoning would produce a chilling effect against technological
advancements, especially those in agriculture. Affirming the CA decision thus sets a dangerous precedent where
any and all human activity may be enjoined based on unfounded fears of possible damage to health or the
environment.

Issues

From the foregoing submissions, the Court is presented with the following issues for resolution:

1. Legal standing of respondents;

2. Mootness;

3. Violation of the doctrines of primary jurisdiction and exhaustion of administrative remedies;

4. Application of the law on environmental impact statement/assessment on projects involving the


introduction and propagation of GMOs in the country;

5. Evidence of damage or threat of damage to human health and the environment in two or more
provinces, as a result of the Bt talong field trials;

6. Neglect or unlawful omission committed by the public respondents in connection with the
processing and evaluation of the applications for Bt talong field testing; and

7. Application of the Precautionary Principle.

The Court's Ruling

Legal Standing

Locus standi is "a right of appearance in a court of justice on a given question." 38 It refers particularly to "a party's
personal and substantial interest in a case where he has sustained or will sustain direct injury as a result" of the
act being challenged, and "calls for more than just a generalized grievance." 39
However, the rule on standing is a matter of procedure which can be relaxed for non-traditional plaintiffs like
ordinary citizens, taxpayers, and legislators when the public interest so requires, such as when the matter is of
transcendental importance, of overreaching significance to society, or of paramount public interest. 40 The Court
thus had invariably adopted a liberal policy on standing to allow ordinary citizens and civic organizations to
prosecute actions before this Court questioning the constitutionality or validity of laws, acts, rulings or orders of
various government agencies or instrumentalities.41

Oposa v. Factor an, Jr.42 signaled an even more liberalized policy on locus standi in public suits. In said case, we
recognized the "public right" of citizens to "a balanced and healthful ecology which, for the first time in our nation's
constitutional history, is solemnly incorporated in the fundamental law." We held that such right need not be
written in the Constitution for it is assumed, like other civil and political rights guaranteed in the Bill of Rights, to
exist from the inception of mankind and it is an issue of transcendental importance with intergenerational
implications. Such right carries with it the correlative duty to refrain from impairing the environment.

Since the Oposa ruling, ordinary citizens not only have legal standing to sue for the enforcement of environmental
rights, they can do so in representation of their own and future generations. Thus:
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. 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. 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. 43(Emphasis
supplied.)
The liberalized rule on standing is now enshrined in the Rules of Procedure for Environmental Cases which allows
the filing of a citizen suit in environmental cases.44 The provision on citizen suits in the Rules "collapses the
traditional rule on personal and direct interest, on the principle that humans are stewards of nature," and aims to
"further encourage the protection of the environment."45

There is therefore no dispute on the standing of respondents to file before this Court their petition for writ
of kalikasan and writ of continuing mandamus.

Mootness

It is argued that this case has been mooted by the termination of all field trials on August 10, 2012. In fact, the
validity of all Biosafety permits issued to UPLB expired in June 2012.

An action is considered 'moot' when it no longer presents a justiciable controversy because the issues involved
have become academic or dead, or when the matter in dispute has already been resolved and hence, one is not
entitled to judicial intervention unless the issue is likely to be raised again between the parties. 46 Time and again,
courts have refrained from even expressing an opinion in a case where the issues have become moot and
academic, there being no more justiciable controversy to speak of, so that a determination thereof would be of no
practical use or value.47

Nonetheless, courts will decide cases, otherwise moot and academic if: first, there is a grave violation of the
Constitution; second, the exceptional character of the situation and the paramount public interest is
involved; third, when the constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar and the public; and fourth, the case is capable of repetition yet evading review. 48 We find that the
presence of the second and fourth exceptions justified the CA in not dismissing the case despite the termination
of Bt talong field trials.

While it may be that the project proponents of Bt talong have terminated the subject field trials, it is not certain if
they have actually completed the field trial stage for the purpose of data gathering. At any rate, it is on record that
the proponents expect to proceed to the next phase of the project, the preparation for commercial propagation of
the Bt eggplants. Biosafety permits will still be issued by the BPI for Bt talong or other GM crops. Hence, not only
does this case fall under the "capable of repetition yet evading review" exception to the mootness principle, the
human and environmental health hazards posed by the introduction of a genetically modified plant, a very popular
staple vegetable among Filipinos, is an issue of paramount public interest.

Primary Jurisdiction and Exhaustion of Administrative Remedies


In Republic v. Lacap,49 the Court explained the related doctrines of primary jurisdiction and exhaustion of
administrative remedies, as follows:
The general rule is that before a party may seek the intervention of the court, he should first avail of all the means
afforded him by administrative processes. The issues which administrative agencies are authorized to decide should
not be summarily taken from them and submitted to a court without first giving such administrative agency the
opportunity to dispose of the same after due deliberation.

Corollary to the doctrine of exhaustion of administrative remedies is the doctrine of primary jurisdiction; that is,
courts cannot or will not determine a controversy involving a question which is within the jurisdiction of the
administrative tribunal prior to the resolution of that question by the administrative tribunal, where the question
demands the exercise of sound administrative discretion requiring the special knowledge, experience and services
of the administrative tribunal to determine technical and intricate matters of fact.

Nonetheless, the doctrine of exhaustion of administrative remedies and the corollary doctrine of primary
jurisdiction, which are based on sound public policy and practical considerations, are not inflexible rules. There are
many accepted exceptions, such as: (a) where there is estoppel on the part of the party invoking the doctrine; (b)
where the challenged administrative act is patently illegal, amounting to lack of jurisdiction; (c) where there is
unreasonable delay or official inaction that will irretrievably prejudice the complainant; (d) where the amount
involved is relatively small so as to make the rule impractical and oppressive; (e) where the question involved is
purely legal and will ultimately have to be decided by the courts of justice; (f) where judicial intervention is urgent;
(g) when its application may cause great and irreparable damage; (h) where the controverted acts violate due
process; (i) when the issue of non-exhaustion of administrative remedies has been rendered moot; (j) when there
is no other plain, speedy and adequate remedy; (k) when strong public interest is involved; and, (1) in quo
warranto proceedings. x x x (Emphasis supplied)
Under DAO 08-2002, the public is invited to submit written comments for evaluation by BPI after public information
sheets have been posted (Section 7[G]). Section 7(P) also provides for revocation of field testing permit on certain
grounds, to wit:
P. Revocation of Permit to Field Test. - A Permit to Field Test may be revoked for any of the following grounds:

1. Provision of false information in the Application to Field Test;

2. Violation of SPS or biosafety rules and regulations or of any conditions specified in the permit;

3. Failure to allow the inspection of the field testing site;

4. Receipt by BPI of new information that the field testing of the regulated article poses significant
risks to human health and the environment;

5. Whether the regulated article was imported, misdeclaration of shipment; or

6. Such other grounds as BPI may deem reasonable to prevent significant risks to human health and
the environment.

Respondents sought relief under the Rules of Procedure for Environmental Cases, claiming serious health and
environmental adverse effects of the Bt talong field trials due to "inherent risks" associated with genetically
modified crops and herbicides. They sought the immediate issuance of a TEPO to enjoin the processing for field
testing and registering Bt talong as herbicidal product in the Philippines, stopping all pending field trials of Bt
talong anywhere in the country, and ordering the uprooting of planted Bt talong in the field trial sites.

In addition to the TEPO and writ of kalikasan, respondents also sought the issuance of a writ of continuing
mandamus commanding the respondents to: (1) comply with the requirement of environmental impact statement;
(2) submit comprehensive risk assessments, field test reports, regulatory compliance reports and other material
documents on Bt talong including issued certifications on public consultation with LGUs; (3) work with other
agencies to submit a draft amendment to biosafety regulations; and (4) BPI, in coordination with relevant
government agencies, conduct balanced nationwide public information on the nature of Bt talong field trial, and a
survey of its social acceptability.

Clearly, the provisions of DAO 08-2002 do not provide a speedy, or adequate remedy for the respondents "to
determine the questions of unique national and local importance raised here that pertain to laws and rules for
environmental protection, thus [they were] justified in coming to this Court." 50 We take judicial notice of the fact
that genetically modified food is an intensely debated global issue, and despite the entry of GMO crops (Bt corn)
into the Philippines in the last decade, it is only now that such controversy involving alleged damage or threat to
human health and the environment from GMOs has reached the courts.
Genetic Engineering

Genetic manipulation has long been practiced by conventional breeders of plant or animal to fulfill specific
purposes. The basic strategy employed is to use the sexual mechanism to reorganize the genomes of two
individuals in a new genetic matrix, and select for individuals in the progeny with the desirable combination of the
parental characteristics. Hybridization is the conventional way of creating variation. In animals, mating is effected
by introducing the desired sperm donor to the female at the right time. In plants, pollen grains from the desired
source are deposited on the stigma of a receptive female plant. Pollination or mating is followed by fertilization and
subsequently development into an embryo. The effect of this action is the reorganization of the genomes of two
parents into a new genetic matrix to create new individuals expressing traits from both parents. The ease of
crossing of mating varies from one species to another. However, conventional breeding technologies are limited by
their long duration, need for sexual compatibility, low selection efficiency, and restricted gene pool. 51

Recombinant DNA (rDNA) technology, often referred to as genetic engineering, allows scientists to transfer genes
from one organism to any other, circumventing the sexual process. For example, a gene from a bacterium can be
transferred to corn. Consequently, DNA technology allowed scientists to treat all living things as belonging to one
giant breeding pool. Unlike other natural genome rearrangements phenomena, rDNA introduces alien DNA
sequences into the genome. Even though crossing of two sexually compatible individuals produces recombinant
progeny, the term recombinant DNA is restricted to the product of the union of DNA segments of different
biological origins. The product of recombinant DNA manipulation is called a transgenic organism. rDNA is the core
technology of biotechnology.52

The organism that is created through genetic engineering is called a genetically modified organism (GMO). Since
the production of the first GMOs in the 1970s, genes have been transferred between animal species, between plant
species, and from animal species to plant species. Some genes can make an animal or plant grow faster or larger,
or both. A gene produced by flounder (anti-freeze) was transplanted into salmon so that salmon can be farmed in
colder climates. Many species offish are genetically engineered to speed growth, to alter flesh quality, and to
increase cold and disease resistance. In farm animals such as cattle, genes can be inserted to reduce the amount
of fat in meat, to increase milk production, and to increase superior cheese-making proteins in milk. Biotechnology
has also modified plants to produce its own pesticide, resist common diseases or to tolerate weed-killing herbicide
sprays.53

Despite these promising innovations, there has been a great deal of controversy over bioengineered foods. Some
scientists believe genetic engineering dangerously tampers with the most fundamental natural components of life;
that genetic engineering is scientifically unsound; and that when scientists transfer genes into a new organism, the
results could be unexpected and dangerous. But no long-term studies have been done to determine what effects
GMO foods might have on human health.54

Genetically Modified Foods

The term GM food refers to crop plants created for human or animal consumption using the latest molecular
biology techniques. These plants are modified in the laboratory to enhance desired traits such as increased
resistance to herbicides or improved nutritional content. 55 Genetic modification of plants occurs in several stages:

1. An organism that has the desired characteristic is identified and the specific gene producing this
characteristic is located and the DNA is cut off.

2. The gene is then attached to a carrier in order to introduce the gene into the cells of the plant to
be modified. Mostly plasmid (piece of bacterial DNA) acts as a carrier.

3. Along with the gene and carrier a 'promoter' is also added to ensure that the gene works
adequately when it is introduced into the plant.

4. The gene of interest together with carrier and promoter is then inserted into bacterium, and is
allowed to reproduce to create many copies of the gene which are then transferred into the plant
being modified.

5. The plants are examined to ensure that they have the desired physical characteristic conferred by
the new gene.

6. The genetically modified plants are bred with conventional plants of the same variety to produce
seed for further testing and possibly for future commercial use. The entire process from the initial
gene selection to commercial production can take up to ten years or more. 56
Benefits of GM Foods

The application of biotechnology in agricultural production promises to overcome the major constraints being faced
in farming such as insect pest infestation and diseases which lead to substantial yield losses. Pest-resistant crops
could substantially improve yields in developing countries where pest damage is rampant and reduce the use of
chemical pesticides. Crop plants which have been genetically engineered to withstand the application of powerful
herbicides57 using genes from soil bacteria eliminates the time-consuming and not cost-effective physical removal
of weeds by tilling. The herbicides to which the GM crops are tolerant are "broad spectrum" weedkillers, which
means they can be sprayed over the entire field, killing all plants apart from the GM crop. Herbicide-tolerant crops
include transgenes providing tolerance to the herbicides (glyphosate or glufosinate ammonium). These herbicides
kill nearly all kinds of plants except those that have the tolerance gene. Another important benefit is that this class
of herbicides breaks down quickly in the soil, eliminating residue carryover problems and reducing adverse
environmental impacts.58

Some plants are genetically engineered to withstand cold climates such as GM strawberries or soybeans,
expressing the anti-freeze gene of arctic flounder, to protect themselves against the damaging effects of the frost;
and GM tobacco and potato with anti-freeze gene from cold water fish. Crops could also be genetically modified to
produce micronutrients vital to the human diet such as the "golden rice" genetically modified to produce beta-
carotene, which can solve Vitamin A deficiency and prevent night blindness in pre-school children. Other efforts to
enhance nutritional content of plants include the genetic modification of canola to enhance Vitamin E content or
better balance fatty acids, cereals for specific starch or protein, rice for increased iron to reduce anemia, and plant
oils to adjust cholesterol levels. There are also food crops engineered to produce edible vaccines against infectious
diseases that would make vaccination more readily available to children around the world. For example, transgenic
bananas containing inactivated viruses protecting against common developing world diseases such as cholera,
hepatitis B and diarrhea, have been produced. These vaccines will be much easier to ship, store and administer
than traditional injectable vaccines.59

Overall, biotechnology is perceived as having the potential to either help or hinder reconciling of the often opposing
goals of meeting the human demand for food, nutrition, fiber, timber, and other natural resources. Biotech crops
could put more food on the table per unit of land and water used in agriculture, thus resulting in decreased land
and water diverted to human uses. Increasing crop yields and reducing the amount of cultivated land necessary
would also reduce the area subject to soil erosion from agricultural practices, which in turn would limit associated
environmental effects on water bodies and aquatic species and would reduce loss of carbon sinks and stores into
the atmosphere.60

Adverse Health Effects of GMOs

Along with the much heralded benefits of GM crops to human health and environment, there emerged controversial
issues concerning GM foods.

In 1999, it was found that genetically engineered foods can have negative health effects. Based on scientific
studies, these foods can unleash new pathogens, contain allergens and toxins, and increase the risk of cancer,
herbicide exposure, and harm to fetuses and infants.61 Independent studies conducted went as far to conclude that
GM food and feed are "inherently hazardous to health."62

A widely reported case is that of the Brazil nut gene expressed in soybean in order to increase the methionine
content for animal feed. The protein was subsequently shown to be an allergen and the product was never
marketed. Genetically modified foods can introduce novel proteins into the food supply from organisms that are
never consumed as foods, which may pose a health risk. This may elicit potentially harmful immunological
responses, including allergic hypersensitivity. 63

A feeding experiment conducted by Dr. Arpad Pusztai also demonstrated that potatoes genetically altered to
produce lectins, natural insecticides, to protect them against aphids, damaged the animals' gut, other organs, and
immune system. Dr. Pusztai found that "the damage originated not from the transgene and its expressed product
but from the damage caused by the insertion of the transgene, probably due to insertional mutagenesis." 64 If
confirmed, Pusztai's conclusions will reinforce concerns that gene insertion itself may create new toxins; it will also
implicate the toxin commonly used in other genetically engineered crops - the Bt toxin which, Pusztai says, is also
a lectin.65

The use of antibiotic resistance marker (arm) gene, inserted into a plant or microbe, that helps determine if the
foreign gene has successfully spliced into the host organism, is another cause of grave concern among scientists.
These arm genes might unexpectedly recombine with disease-causing bacteria or microbes in the environment or
in the guts of animals or humans who eat GM food, thus contributing to the growing public health danger of
antibiotic-resistance of infections that cannot be cured with traditional antibiotics (e.g., new strains of salmonella,
e-coli, campylobacter and enterococci). 66However, recent advances in genetic engineering indicate that use of such
selection markers is likely to diminish with the anticipated development of alternative types of marker genes. 67
Increased cancer risk is another critical issue in the consumption of GM foods. A growth hormone genetically
modified to stimulate milk production in cows was found to elevate levels of IGF-1 (insulin-like Growth Factor-1,
identical versions of which occurs in cows and humans) in cow's milk by 80%. IGF-1 is reported to be a key factor
in prostate cancer, breast cancer and lung cancer. 68 Dr. Samuel Epstein of the University of Illinois warned of the
danger of high levels of IGF-1 contained in milk cows injected with synthetic bovine growth hormone (rBGH), which
could be a potential risk factor for breast and gastrointestinal cancers. 69

Glyphosate, the active ingredient in Monsanto's Roundup herbicide, has been found to worsen modern diseases.
A report published in the journal Entropy argues that glyphosate residues, found in most commonly consumed
foods in the Western diet courtesy of genetically engineered sugar, corn, soy and wheat, "enhance the damaging
effects of other food-borne chemical residues and toxins in the environment to disrupt normal body functions and
induce disease." Another research demonstrated a connection between increased use of Roundup with rising
autism rates in the US.70

Adverse Effects of GMOs to the Environment

Genetically modified crops affect the environment in many ways such as contaminating non-GMO plants, creating
super weeds and super pests, harming non-target species, changing soil microbial and biochemical properties, and
threatening biodiversity.

There are two primary types of technology so far deployed: insect resistance (Bt) and herbicide tolerance (HT).
Both have drastic modes of action to kill the target species at high efficiency. Bt crops contain a toxin lethal to
certain insects, and Bt sprays have been used by organic farmers as a last option to deal with certain pests like the
corn borer. It is feared that genetically modified Bt crops will speed up resistance to Bt, thereby rendering the
organic spray ineffective.71 Lab and field tests also indicate that common plant pests such as cotton bollworms,
living under constant pressure from GE crops, will soon evolve into "superpests" completely immune to Bt sprays
and other environmentally sustainable biopesticides.72 In the case of HT, the technology involves the combined use
of a chemical herbicide and a GM plant. The herbicide is generally a broad spectrum herbicide (commonly
glyphosate or glufosinate) which kills weeds while leaving the crop plant alive as it is genetically engineered to be
resistant to the herbicide. The herbicide acts to inhibit an essential enzyme that is found in all plants and as a
result is able to eliminate all weeds whereas most conventional herbicides are selective in their action and target a
limited number of weeds. Concern has been raised regarding over-reliance on use of one or two herbicides in
increased amounts over time which leads to the emergence of herbicide resistant weeds. Also, the transfer of an
herbicide-resistance gene into a weed can convert it into a superweed. Pests and weeds will emerge that are
pesticide or herbicide resistant, which means that stronger, more toxic chemicals will be needed to get rid of the
pests.73

It is a well-accepted fact that genetically engineered plants can move beyond the field sites and cross with wild
relatives.74 It is by nature a design of plants to cross pollinate to spread genes further afield. Maize, oil seed rape,
sugar beet, barley, among others, are wind and insect pollinated, allowing pollen to travel large distances. In GM
crop fields, pollen drift and insect pollination create obvious problems for nearby non-GM or organic crops. 75 GM
maize could cross-pollinate neighboring non-GM or organic maize crops. Maize pollen can travel at least 500-700
meters and still be viable and distances of several kilometers have even been reported. 76 But many experiments
showed varying results and actual cross-pollinations were observed in Mexico up to 200 meters only, while in
Oklahoma it was 500 meters. In crop species that are outcrossers, many environmental factors influence the
maximum pollination distance such as the size of pollen grains, the humidity in the air, and the wind
speed.77Brinjal is usually self-pollinated, but the extent of cross-pollination has been reported as high as 48% and
hence it is classified as cross-pollinated crop. The cone-like formation of anthers favors self-pollination; but since
the stigma ultimately projects beyond the anthers, there is an ample opportunity for cross-pollination. The rates of
natural cross-pollination may vary depending on genotype, location, and insect activity. The extent of outcrossing
has been reported from 3 to 7% in China and from 0 to 8.2% (with a mean of 2.7%) at Asian Vegetable Research
Development Centre; however the Indian researchers have reported 2 to 48% outcrossing in brinjal varieties in
India. Outcrossing primarily takes place with the help of insects. 78

The StarLink incident is also a widely reported GM fiasco. In June 2000, Starlink, a genetically modified yellow corn
which contains the pesticide Bt in every cell, was found in white corn tortilla chips in Florida, USA. Starlink had
been approved for animal feed but not for human consumption due to concerns about dangerous allergic reactions.
The Starlink incident is often cited to illustrate how difficult it is to keep genetically modified crops from
spreading.79

This gene flow to wild species is particularly alarming to environmentalists. The wild species from which our
agricultural plants originate are an important genetic resource for further plant breeding if, for example, there is a
requirement for improved resistance to climate change or plant pests. Future plant breeding could be jeopardized if
transgenes spread into these resources. Similarly, agriculture in the centers of origin could be permanently
damaged if transgenes spread into regional landraces.80 Invasive species can replace a single species or a whole
range of species, and they can also change the conditions within ecological systems. Crossing can cause losses in
the genetic information of the original species, a reduction in genetic diversity and an ongoing incremental change
of genetic identity in the original plants. It is hard to predict which species will become invasive. 81 Indeed, GM
crops could threaten the centers of crop biodiversity or outgrow a local flora to the detriment of native species. 82

Bt gene in genetically modified crops might be toxic to non-target organisms that consume it. When Bt corn sheds
its pollen, these are cast into the wind, dusting nearby plants and trees. Concern has been expressed about the
potential toxicity of the Bt toxin in corn pollen to the monarch butterfly because initial laboratory studies showed
increased mortality in larvae. However, in another study it was believed that it is unlikely that a significant risk to
those butterflies exists.83

On the effect of transgene crops on soil, one study investigated CrylAcc and CpTI proteins and their effects on
microbial properties and enzyme activities. Results showed that there was persistence of said proteins in soil under
4-year consecutive cultivation of transgenic cottons. Soil microbial biomass carbon, microbial activities, and soil
enzyme activities (except urease and phosphodiesterase) significantly decreased in soil under transgenic cottons. 84

In another review, it was stated that the direct effects of the plant that has been modified is of the most concern
since the introduction of transgenic proteins for pest and disease resistance can involve the production of chemical
substances that are potentially toxic to non-target soil organisms, including mycorrhizal fungi and soil microfauna
that are involved in organic matter decomposition. Experimental studies have shown that the transgenic
proteins Bt crystal toxin and T4 lysozyme, though used to prevent insect damage to the above ground plant parts,
are not only present in root exudates but that they maintain biological activity after entering the soil. 85

As to the herbicide glyphosate, recent studies revealed its negative effects on the soil, which include compaction
and resultant runoff, the killing of beneficial microbes and bacteria, and the exhaustion of necessary minerals and
nutrients that plants require. It was found that glyphosate "locks up" manganese and other minerals in the soil so
that they can't be utilized by the plants that need them, and that it is toxic to rhizobia, the bacterium that fixes
nitrogen in the soil. There is likewise evidence showing that glyphosates can make their way to groundwater
supplies.86 In a study which tested the effects of the herbicide Roundup on six species of larval amphibians from
North America, it was demonstrated that when we "use realistic exposure times and the frequently occurring stress
of predators found in natural ecologic communities, one of our most widely applied herbicides (Roundup) has the
potential to kill many species of amphibians." At the same time, the study noted that Monsanto Corporation has
recently released "an additional formulation of glyphosate (Roundup Biactive), which contains a different (but
unspecified) surfactant that is reported to be less toxic." 87

Evidence of Damage or Threat of Damage to Human Health and the Environment

Both petitioners and respondents submitted documentary evidence consisting of reports of scientific studies and
articles in support of their respective positions on the benefits and risks of GM plants.

Further, the parties presented their respective expert witnesses who testified on the allegations raised in the
petition concerning damage or threat of damage to human health and the environment resulting from the conduct
of Bt talong field trials in the Philippines. The CA conducted "hot tubbing," the colloquial term for concurrent expert
evidence, a method used for giving evidence in civil cases in Australia. In a "hot tub" hearing, the judge can hear
all the experts discussing the same issue at the same time to explain each of their points in a discussion with a
professional colleague. The objective is to achieve greater efficiency and expedition, by reduced emphasis on cross-
examination and increased emphasis on professional dialogue, and swifter identification of the critical areas of
disagreement between the experts. 88

On November 20, 2012, the parties' expert witnesses testified in a hot tub hearing before the chairman and
members of the CA's Special Thirteenth Division. Dr. Chakraborty, Dr. Medina and Dr. Malayang were presented by
the petitioners while Dr. Davies, Dr. Halos, Dr. Ebora and Dr. Cario appeared for the respondents.

The following are summaries of the expert witnesses' judicial affidavits:


For Petitioners

DR. DAVIES, Professor of Plant Physiology at Cornell University, Jefferson Science Fellow serving as senior science
advisor on agricultural biotechnology in the US Department of State, and editor for plant physiology for McGraw-
Hill Encyclopedia of Science and Technology.

In his review of agricultural biotechnology around the world, he has not encountered any verifiable report of a field
trial of any GM crop that caused damage to the environment and to human health. This involves more than 25,000
field trials in 20 years with crops such as Bt eggplant, Bt cotton, Bt corn, and others. The same applies to the
commercial cultivation of Bt crops, which have been grown in ever increasing quantities worldwide for 16 years and
now comprise the majority of the world acreage of maize and cotton.
A recent European Union (EU) report which concludes that more than 130 EU research projects covering a period of
more than 25 years of research involving more than 500 independent research groups, show that consuming foods
containing ingredients derived from GM crops is no riskier than consuming the same foods containing ingredients
from conventional crops. The World Health Organization (WHO), American Medical Association, US National
Academy of Sciences, European Food Safety Authority (EFSA) all have come to the same conclusion.

GMOs have been proven safe as conventionally-bred crops in animal studies. A small number of poorly done
studies purportedly claiming negative effects, should be viewed with great caution and have been highly criticized
for their veracity by the overwhelming majority of highly respected scientists. Many hundreds of studies show no
harmful effects. To date, not a single rigorous study of GM foods in animals has revealed any adverse effect; not a
single case of allergy, illness, cancer, or death have been shown to be associated with foods derived from GM
crops, despite the fact that they have been consumed by Americans for 16 years.

Recent studies indicate that Bt crops enhance the ecological diversity in the areas surrounding those
where Bt crops are grown. Over a period of 13 years, cultivation of Bt cotton in China results in an increase in
insect diversity and abundance and a decrease in crop damaging insects not only in Bt crop fields but also in
surrounding non-Bt fields.

GM crops deliver significant yield increases, result in less exposure to pesticides, improve food security worldwide,
protect against devastating crop losses and famine, improve nutrition, and some GM crop techniques help combat
climate change.89

DR. HALOS, Ph.D. in Genetics, University of California Berkeley, B.S. Agriculture, Major in Agronomy (Plant
Breeding), UPLB, and served as Instructor, Associate Professor, Chief Science Research Specialist, Research
Director at UPLB, UP Diliman, De La Salle University, Forest Research Institute now Ecosystems Research and
Development Bureau of DENR and the Biotechnology Coalition of the Philippines.

From her research, she gathered that the protein product of the Bt gene CrylAcc in Bt cotton that is also
in Bt eggplant has been found safe by many food and environmental safety regulatory agencies such as those in
Australia, New Zealand, USA, Canada, Brazil, China, India, Mexico, Argentina, South Africa, Japan and EU.

Since 2002, BPI has granted 95 biosafety permits for field trials. Of these 70 field trial permits were for Bt corn,
cotton and eggplant. No adverse effect of any of these Bt crop field trials have been reported. No report of adverse
effects of Bt crop field trial exists. All claims of adverse health and environmental effects of Bt crops has not been
scientifically validated. The yearly expansion of GM crop areas in both the developing and industrialized countries is
an attestation of the preference of farmers and the economic benefits that accrue to them.

GM crops have positive environmental impact. Currently commercialized GM crops have reduced the adverse
impacts of agriculture on biodiversity. The use of Bt crops has significantly reduced the use of pesticides, and also
increased farmer incomes.90

DR. EBORA, Ph.D. in Entomology, Michigan State University; B.S. Agriculture and M.S. Entomology (Insect
Pathology/Microbial Control), UPLB; Post-graduate trainings in microbiology and biotechnology, Osaka University,
Japan, and Intellectual Property Management and Technology Transfer, ISAAA AmeriCenter, Cornell University,
USA. Director, and Research Associate Professor, National Institute of Molecular Biology and Biotechnology
(BIOTECH), UPLB; Philippine Coordinator of the Program for Biosafety Systems; former Executive Director,
Philippine Council for Industry, Energy and Emerging Technology Research and Development, DOST; former Chair,
Biosafety Committee, DOST; and was a Member of the Institutional Biosafety Committees of UPLB and
International Rice Research Institute (IRRI); and was extensively involved in the isolation, bioassay or efficacy
testing and development of Bt as microbial insecticides for the control of Asian corn borer and mosquito larvae at
BIOTECH.

The contained field trial experiments, among others, were designed to address concerns on cross-pollination or
horizontal gene transfer, pollination distances, harm to beneficial organisms, and development of insect resistance.
To prevent cross-pollination, an isolation distance of 200 meters from other areas where eggplants are grown or
wild relatives are present, was observed, and with five (5) rows of non-transgenic eggplants that serve as pollen
trap plants. As to the flight distance of honeybees reaching 4 kilometers, what was not mentioned is the viability of
pollen after it was shed and travelled at a certain distance. Numerous literatures have shown that isolation
distances much less than 200 meters is sufficient to prevent cross-pollination. Two studies are cited: Sekara and
Bieniasz (2008) noted that cross-pollination at a distance of 50 meters was nonexistent; and the Asian Vegetable
Research and Development Center (AVRDC) indicated that eggplants produce perfect flowers which may be cross-
pollinated but self-pollination is more common, the extent of natural crossing depends upon insect activity and this
can be avoided by isolating each variety by 20 meters or with another tall flowering plant. The isolation distance
imposed by DA-BPI is 1 Ox the recommended isolation distance; the 200 meters distance was found sufficient for
pure seed production in India (the same recommendation by Chen [2001] of AVRDC foundation for seed production
purity standards); field studies in 2 locations in India have shown that at a distance beyond 30 meters no more
outcrossing could be detected. Taking all these data into account, the 48% outcrossing being raised by petitioners
is most likely for adjacent plants and therefore not a valid argument for the on-going field trials.

The Bt talong will not directly affect beneficial organisms like pollinators, predators and parasites of insect pests
because it is toxic only to caterpillars or insects belonging to Order Lepidoptera (butterfly and moths). The selective
toxicity of Bt protein in Bt talong is partly due to the fact that the gut physiology of these insects is very different
from caterpillars, and not all caterpillars are affected by it. There is a significant number of literature
on Bt protein's selectivity and specificity.

As to the development of insect resistance, this is not possible during the multi-location field trials for Bt
talong because of low selection pressure and limited exposure of the insect pest to Bt talong. Insect resistance is
not unique to GM crops as it is a commonly observed biological reaction of insect pests to control measures like
insecticides. In the event Bt talong is approved for commercialization and will be widely used by fanners, this
concern could be addressed by insect resistance management (IRM); an IRM strategy should be required prior to
the commercial release of Bt talong.

There is no compelling reason to stop the field trials; on the contrary they should be allowed to proceed so that
scientists and researchers will be able to generate valuable data and information which will be helpful in making
informed decisions regarding the usefulness of the technology. 91

For Respondents

DR. MALAYANG III, Ph.D. in Wildland Resource Science, University of California at Berkeley; M.A. Philosophy, M.A.
International Affairs (Southeast Asia Studies major in Economics), Ohio University; AB Philosophy, UP Diliman;
former Undersecretary of Environment and Natural Resources; served as Environmental Science representative in
the National Biosafety Committee of the Philippines and participated in the drafting of the Philippines Biosafety
Framework; and student, lecturer and advocate of biodiversity, food security, biosafety and environmental policy.

He is concerned with how GMOs are being introduced for commercial-scale use (as against being used for academic
research) in the Philippines on the following grounds: (a) how they might contaminate the indigenous genetic
resources of the country; (b) how they may cause an imbalance of predator-prey relationships in ecosystems, so
that certain species might dominate ecological niches and erode their biodiversity and ecological stability; (c) how
they may erode the ability of farmers to control their genetic resources to sustain their cropping systems; and (d)
how much are present biosafety protocols able to safeguard the long-term ecological and economic interests of the
Philippines as a particularly biodiversity-rich country and which is, therefore, highly sensitive to genetic pollution;
to the extent that its biodiversity is its long-term equity to advances in biotechnology, the most robust measures
must be taken so that such resources will not be lost.

Being a highly biodiversity-rich country, biosafety measures in the Philippines must be adopted using a 3-stage
approach: Stage 1 - Develop criteria for biosafety measures; meaning, first, adopt a set of standards for
determining the level of robustness of biosafety measures and protocols that would be acceptable in the particular
case of the Philippines; include required scoping and internal and external validity requirements of impact and
safety assessments; Stage 2 - Using the criteria produced in Stage 1, develop biosafety measures and protocols to
be adopted in the Philippines; and Stage 3 - Apply the protocol with the highest rigor.

Biosafety must be a public affair involving a broad spectrum of the Filipino state rather than its considerations
being restricted only to specific professionals and sectors in the country; biosafety must be based on an enactment
of Congress and open to challenge and adjudication against international laws; provisions must be made to make it
a crime against humanity to recklessly erode and weaken genetic resources of our people. 92

DR. MEDINA, Ph.D. in Environmental Biology, University of Guelph, Canada; M.S. (Insect and Plant Ecology) and
B.S. Agriculture, UPLB; National Coordinator of MASIPAG; served as resource person in more than a hundred
trainings and seminars, both local and abroad; served as member in international agricultural assessment
sponsored by Food and Agriculture Organization (FAO), United Nations Environment Program (UNEP), WHO, and
the World Bank; worked on a project for development of resistance to corn borer in 1981 at the Institute of Plant
Breeding in UPLB, and served as researcher and later Associate Professor of Environmental Management of the UP
Open University.

Based on her studies and extensive experience, the Bt talong field testing poses the following risks or hazards: (a)
While natural Bt sprays used in organic farming have little effect on non-target organisms because the bacterial
'pro-toxin' is in an inactive state and only becomes toxic when processed and reduced in the gut of certain
(targeted) species of insect larvae, in contrast, Bt plants contain an artificial, truncated Bt gene and less processing
is required to generate the toxin because the toxin is already in its active form. It is therefore less selective, and
may harm non-target insects that do not have the enzymes to process the pro-toxin, as well as the pests for which
it is intended; (b) Bt proteins from natural Bt sprays degrade relatively quickly in the field as a result of ultraviolet
light and lose most toxic activity within several days to two weeks after application. In Bt crops, however,
the Bt toxin is produced by the internal system of the plants thus non-degradable by mere exposure to sunlight
and generated throughout the entire lifespan of the plant; (c) Bt talong can also affect the environment by harming
important or beneficial insects directly or indirectly. Genetically engineered Bt eggplant, like other Bt crops, could
be harmful to non-target organisms if they consume the toxin directly in pollen or plant debris. This could cause
harm to ecosystems by reducing the numbers of important species, or reducing the numbers of beneficial
organisms that would naturally help control the pest species; (c) The evolution of resistance to Bt crops is a real
risk and is treated as such in ecological science throughout the world. If enough individuals become resistant then
the pest control fails; the pest becomes abundant and affects crop yield. Granting the pest control practice is
successful, it may also simply swap one pest for another, a phenomenon known as secondary pest outbreak.
Several studies have shown that other pest insects are filling the void left by the absence of the one (or very few)
insect pests that Bt crops target, and this is now the problem with Bt maize.

Eggplant is 48% insect pollinated thereby any field release or field testing of genetically modified Bt talong will
eventually lead to contamination of non-genetically modified eggplant varieties. Insects, particularly honeybees,
can fly as far as 4 kilometers and therefore the 200 meters perimeter pollen trap area in the confined field testing
set by BPI is not sufficient. And once contamination occurs, genetic cleanup of eggplant or any other plant is
impossible. Moreover, intra-specific gene flow from Bt talong to other varieties and populations of eggplants should
be examined, as cultivated eggplant (Solanum melongena) can cross breed with feral populations of S. melongena,
and it is possible that cultivated varieties can revert to wild phenotypes. Additionally, there is likely to be natural
crossing between Bt talong and wild relatives. Hybridization with perhaps as many as 29 wild relative species needs
to be evaluated carefully and the consequences of any hybridization that occurs needs to be evaluated.

In 2010, the Minister of Environment and Forests of the Government of India, in his decision for moratorium of Bt
Brinjal, listed potential contamination of eggplant varieties as one of the reasons why the release of Bt Brinjal was
not allowed. Dr. Andow of the University of Minnesota also published an 84-pages report on the Environmental Risk
Assessment of Bt Brinjal, and among his conclusions is that several environmental risks were not considered and
nearly all the risk assessment done were inadequate. He concluded that until the risks were understood or
managed, there seems to be little reason to approve Bt Brinjal release.93

DR. CHAKRABORTY, Ph.D., M.S. Biochemistry, B.S. (Honors in Chemistry), Calcutta University; Molecular Biologist,
presently Principal Scientist and Head of the Gene Regulation Laboratory in the Council of Scientific and Industrial
Research - Indian Institute of Chemical Biology (CSIR-IICB); Member, Governing Body and Executive Committee of
the state council of Biotechnology, Government of West Bengal and Chairman of the Biotechnology group of the
state council of Science and Technology, Government of West Bengal; Visiting Professor of the National Institute of
Science, Technology and Development (CSIR-NISTAD); citizen of India and resident of Kolkata, India.

GMO is a classic example of "paradoxes of consequences", where human actions have unintended consequences,
which are in direct opposition to what was intended. The difference in controlled laboratory condition and
standards, and real life open field level micro and macro-environment pushes the advantage towards the target
and non-target living system, with time. The pest resistance to Bt toxin and development of herbicide tolerance
(HT) in weeds is just a matter of time. The decade long experience in Bt and Ht genes amply proves this point. If
we ignore this now - we are manufacturing a global environmental disaster - which will be a crime against
humanity. There is no way to recall these GMO from the environment.

Even the short term benefits of GM agriculture are not scale neutral, or location-independent. It will help the
monopoly agribusiness and the expenses of monopolistic competition or cooperative organic farming. Hot climate
and rich biodiversity is detrimental towards the effectiveness of Bt constructs, and helpful towards unintended gene
flow. Moreover, the genetic manipulation is no way fail safe or exact. Shotgun techniques are being adapted, aided
by focused laboratory based screen of traits - rather than the host or the full natural product. The GM labeling is
avoided to cover up this major fault.

The tendency to avoid the available risk assessment, and test is very clear in the GM agribusiness. Before going
ahead with spread of this technology, even in a batter form, the foremost task is to establish rigorous test and
assessment procedures. There are excellent available tools of preteomics, transcriptomics, and metabolomics for
detailed compositional analysis in our hand to do this. Please ask, why they are not being employed? In fact, there
is not a single centre to test GM products on behalf of the corporate GM Agribusiness house. Thus, low level, long
term toxicity of GM foods are yet to be tested. I believe the time has come to establish a standardization facility to
carry out such test facility in any country before giving permission to GM trial or
cultivation.94ChanRoblesVirtualawlibrary
The relevant portions of the "hot-tub" hearing held on November 20, 2012, are herein reproduced:
Dr. Cario:chanRoblesvirtualLawlibrary

x x x This is to clarify something with the BT Talong and the BT Talong has its substance. It is not supposed to be
consumed at the moment still under field trial, so it is not supposed to be eaten at the moment. It has not been
released for food nor for feed and so in the context of a confined field test, it has supposed to have it out in the
field in a very controlled manner and any produce that comes out from that area is supposed to be destroyed or
kept from further safety and analysis only.

Chairperson:chanRoblesvirtualLawlibrary

So, actually, there is no full scientific certainty that it does not cause any harm pertaining to health?

Dr. Cario:chanRoblesvirtualLawlibrary

BT Talong per se, has hot been fully evaluated yet that is why it is undergoing trials. If reporting of the BT toxin
in BT Talong is CrylAcc, there are numerous studies that had been actually published on relative safety
of CrylAcc protein and it is actually considered as an additional protein and the various reviews can be seen in the
OECD Digest of risk assessments on CrylAcc protein. Alternatively, if you are looking at the possibility of harm
coming from the introduced protein as yet, we have not done a full blown assessment of it as of the moment. But
we look at the protein sequence and with a comparison of its sequence with other sequences in the data basis to
see if it is similar to this amino acid sequence of other known toxins and, so far, I have actually ... in my affidavit, I
have actually seen personally that it is not closely related to any of the known toxins that are found into its
system.

Chairperson:chanRoblesvirtualLawlibrary

So, in effect, we can not really say that BT Talong is perfectly safe for human consumption?

Dr. Cario:chanRoblesvirtualLawlibrary

Right now it is not meant to be consumed by human at this point. Let me just clarify one point. When any GM
material is supposed to be introduced for food and for feed and before it is actually utilized for life skill production,
it goes through several steps. The first step is actually the "lab", laboratory work and it is actually tested in this
clean-houses, rolled-out confined limited field test and then it goes to butyl abyss of field tests where it is like
generating more and more informations. We are still early on in this pathway, so we are only in the confined field
test and, at the moment, the thing is that it is still being tested. The focus is on its efficacy after doing a
preliminary assessment of the possible pathological and ecological effect, and that is the pathway that has been
recommended by so many academics as well as scientific institutions as well. And, that has been a tract followed
by almost all the genetically modified crops that is being introduced in the market today, but at the moment BT
Talong is not yet a commodity. It is not yet being evaluated as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

So, no one in this country has yet eaten this BT Talong?

Dr. Cario:chanRoblesvirtualLawlibrary

No, it has not been eaten, as far as I know. Even in India it has not been consumed by human beings because it
has not been introduced as a commodity.

Chairperson:chanRoblesvirtualLawlibrary

But what is the ultimate purpose of growing BT Talong? It is not for human consumption, of course?

Dr. Cario:chanRoblesvirtualLawlibrary

If it passes the safety assessments. That there is always a peak condition that, if it would not to be evaluated in a
step of the way much like to evaluate any new product that is coming into the market evaluation, goes on a step-
by-step and at least day-to-day basis.

Dr. Davies:chanRoblesvirtualLawlibrary

Your Honor, may I interject, may I suggest with your permission? I would just like to make a little bit of
explanation.

Chairperson:chanRoblesvirtualLawlibrary

Proceed.

Dr. Davies:chanRoblesvirtualLawlibrary
I would like to address "BT" as a compound which is distinct from a plain in "Talong". First of all, I think of the
name BT toxin is very fortunate. It is really a protein. A protein is an essential constituent of life. It is an essential
constituent of our food. In the human body, and in the body of other animals, this protein is under the same as
any other protein in food. It has no effect on the human body. This has been shown for many, many years,
knowing BT Talong but BT has been a constituent of "maize" in commercial production for 16 years.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x So it has been in corn for 16 years after substantial trials. It has been consumed by Americans in corn
products and by any other people who in[g]est American maize corn products x x x. There is not a single case of
illness or toxicity or allergenicity that can be or that has been associated with this protein and, therefore, any food
containing this protein has been declared by authorities in all the countries that was mentioned by my colleagues,
including the European Union and the United States x x x to be as safe as any food derived from the same plant
species not containing this gene. I hope that explains a little bit about what it is.

Chairperson:chanRoblesvirtualLawlibrary

Are you aware of a study, Dr. Davies, released on September 20 of this year, saying that Monsanto's genetically
modified corn is linked to cancer?

Dr. Davies:chanRoblesvirtualLawlibrary

Yes. Are you referring, your Honor, to a publication by a French Scientist named Gilles-Eric Seralini? I think this is
one of the publications by Seralini's group. Dr. Seralini's work has been refuted by International committees of
scientists...

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

Your Honor, may I butt in? It is wrong that proteins can not be toxins. Think about the snake venoms. They are
poisons, so whether it is protein or not that is not the question. So proteins obviously venoms and proteins and
enzymes and they are poisons so protein can be a poison so that is now the point at all to be considered. The
second thing is, yeah, low level toxins long term in[g]estion of this BT toxin in human or in any other animal have
not been tested. So that is true so we do not know direct consumption of this, because notice have been turned
down, that is the objective fact. The third point is about the "American Corn", and if I can give you such anecdotes,
"American GM Corn" are not labelled, how do you know that? What is its effect? What is its toxicity? And,
obviously, there are more than a hundred of papers showing and published in very good journals. I can give many
references which have shown the detrimental effect of BT Toxin.

xxxx

Chairperson:chanRoblesvirtualLawlibrary

But before having this BT talong scheduled and allowed for field testing, is it not proper that it should be first
determined whether this food product is really safe for eating or not?

Dr. Cario:chanRoblesvirtualLawlibrary

There is an initial assessment that is generally done and according to the Codex Alimentarius of the WHO, the thing
that you do at this early stage of development is to compare the sequence of the protein that is being introduced
with published sequence of allergens, as well as toxicants and toxins. So that has been done. Then you have to
look for instability under heat conditions because there is seldom do we heat grow eggplants, so is it stable under
heating. Is it stable in the presence of digestive juices? And, if the answer is "yes", there is at least fair certainty, a
fair assurance that it is likely to be safe but then you start thinking of what other component not present in the
product, does this. For example, any product that we consume today has something that is bad for you, otherwise,
you will not see it right now. Otherwise all the different herbivores will be eating it up, right? It will be extinct if it
does not have anything to protect itself and, so, the thing is one, to quantify how much of that has changed when
you lead the genetic modification. So "Talong" has been known to have Solanine and glycoalkaloids whose level
well have to quantify. We have not done that yet. They have not submitted the data for that and this as secondary
metabolize whose relative concentration will change depending on the environment to which you actually place the
system.

Dr. Chakraborty:chanRoblesvirtualLawlibrary
x x x In india, we have a very bad experience x x x in location field trial with the BT Cotton. You known
that BT Cotton was introduced in India through the back door black market entry. During the field trial, some of
those seeds were taken out and given to the farmers for commercial cultivation to black market. Monsanto goes
well, Monsanto's BT Cotton, like Monsanto, did not sue now apparently sue the company and they compelled the
government that farmers wanted those things and there was high ... how they pressurized the government. Now,
in case of BT cotton is one thing, but BT Eggplant is completely a different thing. That is why [the] Supreme Court
in India has taken a very strong stand and, now, the parliamentary committee in India. The Supreme Court has
also taken steps stand with the field trial. The first thing in field trial we had to see that whether there is a definite
need of this kind of intervention, because the eggplant is a very common vegetable in this part of the world. There
are so many hundreds of varieties here, these are the origins of these varieties of this kind of vegetable. It is
cheap. It is available everyday. So why you go on changing if there is no crisis in cultivating the eggplants at
present. Therefore, when you give it to this patented seeds technology, its prices will increase, lot of restrictions
had to be deal. So, who will consume this high price eggplant. Many will be exported, that was why the proponents
are looking into it. But, basically, that is the thing that in case of BT Brinjal, neighbor partisan is being given. There
is a moratorium in India from the Supreme Court and from the government side on field trial of BT Brinjal. Now, if
x x x the BT Eggplant is being taken to the Philippines, we guess, to get in as a bypass, and who will guarantee
that it will not go to the farmers?

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary

And, I was wondering in the conduct of the tests, the field testing x x x what would be the effect of the planting ....
of the existence of the genetically modified organism, for example, on insects, on the soil, on the air? And then I
was thinking, does this have this particular protein that result[s] due to the genetic modification? Is it ... how is it
expelled, for example how does it go into the environment? Or, on the other hand, how does it go inside and out of
human system so that does it disintegrate or is it just there forever? I am very curious, sir. You have to educate
me.

Dr. Davies:chanRoblesvirtualLawlibrary

x x x Okay, the DNA is in every cell of the eggplant and, so, a very small amount to protein produced by each cell
will be this BT protein. It does not get into the environment in general. A very small amount might be in the pollen
or in the leaves that fall to the ground but it has been shown to be broken down in the soil by organisms so it will
not exist in the environment. The only way that it is going to get into animals or insects is if they eat the fruit and
this is what an insect that the "talong" fruit and shoot borer will be trying to. But, if it eats it, it reacts with its
intestine so that they become toxic to the caterpillar but this is very specific to the digestive system of the
caterpillar. It does not affect bees. It does not affect animals. It does not affect humans.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

At the scientific level, it gets changed by alkalinity of the insect gut and reacts with specific receptors of the cells of
the walls of the insect gut. But, this is very specific to the gut of these insects namely the "Lepidoptera" and some
"coleoptera" which are the butterflies and the beetles but it will only affect if they try to eat the plant. Now, you are
asking us if what is the effect on the environment. x x x I would like to cite x x x a recent paper published in the
journal "Nature" x x x the most prestigious scientific journal in the world, x x x published in "Nature" in June this
year and this is the result of a study of "insects" in BT Cotton fields in China in 17 locations for 14 years of a long
period study. And these scientists revolt that they show a marked increase in the abundance of three types of
generalist arthropod predators (ladywings, lacewings and spiders) and a decrease in abundance of aphid pests
associated with widespread adoption of Bt cotton. And they are referring to China and they conclude that such
crops, x x x BT crops, can promote beneficial control services in agricultural landscapes. And, it also showed that
these effects extend beyond the field. So, essentially x x x they found that there were more insects than in
conventionally grown cotton and the insect diversity was greater surrounded than being detrimental to an
agriculture ecosystem such BT cotton falls beneficial.

Dr. Chakraborty:chanRoblesvirtualLawlibrary

May I interject, your Honor. Now he is citing one paper they are. But in "Nature," there was another news article,
"Battlefield". One stream ecologist in United States itself, in a university, she has studied the effect of
growing BT Corn in the field and what is the effect on the stream ecology, the west water, what is happening to
other insects, insects in which it is getting that BT toxin will not go. Yes, she has found that stream ecology...

xxxx
Dr. Chakraborty:chanRoblesvirtualLawlibrary

Why was it published in "Nature" when that stream ecologist from Loyola University Chicago in Illinois published
that paper, published that article in PNAS or Proceedings of the National Academy of Sciences, a prestigious
journal? Now, they have to desert her. She was abused, so her file was taken out. So people started e-mailing,
threatening her. So "Nature" has to publish that. How dirty the field has become so they entitled it "Battelfield." If
anybody produces any evidence that BT Toxin or GM Technology is doing any harm to the environment then it will
be battered by the entire English lobby so there is worst the situation. But National Academy of Sciences in United
States has taken a strong decision and, in last year, there were six publications that published where strong
evidences are being produced about the environmental and ecological damage cause[d] by this technology. So,
that is the case.

Dr. Davies:chanRoblesvirtualLawlibrary

Can I respond to that, your Honors?

Dr. Malayang:chanRoblesvirtualLawlibrary

I think Filipinos should be able to talk also here.

Chairperson:chanRoblesvirtualLawlibrary

Can we give a chance to Dr. Malayang?

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x My concern is on the process and participants in vetting the safety of GM crops, not necessarily the intricacies
of the science involved in genetic modification per se which, I think our international friends, would like to focus on.
xxx

One, I am concerned with the fallibility of technology, x x x even if it is much founded on or produced from the
most robust sciences, a technology could fail to be as useful as it was intended or its use lead to an [unintended
harm to humans and the environment. This is so because science, by nature, as many scientists will agree, is very
probabilistic rather than absolutist. Many cases of common knowledge illustrate this point. May I just refer, for the
Court's notice for, First, the Nuclear Power Plants in Japan x x x. The best science and the best technology did not
necessarily translate to absolute safety.

Second example, the Union Carbide Plant in Bhopal, India. It was among the most advanced production ton at its
time, yet, we know what happened. x x x Union Carbide's [hurry] to set up a plant to take advantage of a large
pesticide market in India to help the country's farmers led to a massive and deadly safety failure.

The Third example is the green revolution, x x x involves, however, the wide [use] of synthetic chemicals for
fertilizer and pesticides that were [at] the time hailed as wonder technologies. Many scientists in the world at that
time argued for their wider use but they later turned out to harm people, soils and water. They prove good then
bad, so bad that scientists today are using their ill effects as justification for adopting alternative technologies to
get us out of the synthetic chemical regime in agriculture.

And finally, the most common example would be the unintended effects of medicine. x x x Medicines are
technologies intended to do good but, with even the best science and the vetting processes using rigid safety and
risk assessment methods, they still could cause side effects entirely undesired and many of which can cause
chronic or acute threats to human life. This includes the use of "DDT" that was used to control lice among soldiers
after the II World War which, after all, proved to be very bad.

x x x I am also concerned with the fragility, fragility of the Philippine environment as the place and context, the
particular place and context of the introduction of BT crops like BT talong. x x x the Philippines is among the
world's biologically rich countries. x x x So, many of our insects are not even fully known. We do not know how
they all behave to influence the transfer of genetic materials from plants to other plants. We do not fully know
what we do not know about the intricate interactions between plants and between insects and other living things
that define the universe of our healthful and balanced ecology. The universe of our healthful and balanced ecology
certainly go beyond specific crops. I am concerned that, absent a full as against partial understanding of the
intricate web of genetic flows and interactions among plants, animals and other living things in our wet and tropical
ecosystems, it will require extraordinary care to tamper with any one element of this swirl of interrelationships.
This is notwithstanding the seeming preponderance of evidence of safety in other countries and environment that
are certainly not the same as ours. x x x we must be extra careful because the effects might be irreversible.
Introducing a genetically modified plant x x x could cause a string of changes across many plants that, like the
green revolution or in the case of medicine and the two other cases cited above, could turn out and only to be
realized much later to be harmful to humans and the environment more than they were intended to be useful. x x
x let us ensure that we adopt in the country a biosafety vetting protocol that is: (1) sensitive to our high
biodiversity this is a particular condition in the Philippines; and (2) tested for error levels that are acceptable to or
which can be tolerated by our people. My affidavit states a three-stage approach to this. x x x the tests that we will
be doing is a test process acceptable to all as well rather than merely concocted or designed by just a few people x
x x must be a product of wider citizens' participation and reflect both scientific and traditional knowledge and
cultural sensitivity of our people. It is in the NBF after all, x x x introducing BT Talong in the Philippines must be
decided on the grounds of both science and public policy and public policy, in this case, must involve full public
disclosure and participation in accepting both the potential gains and possible pains of BT Talong. The stakes, both
positive and negative, are so high that I believe BT Talong would require more public scrutiny and wider
democratic decision making beyond the [realm] of science. x x x for the sake of our country and our rich
biodiversity x x x prudence requires that maximum efforts be exerted to ensure its safety beyond the parameters
of science and into the sphere of public policy. For to fail in doing so what might be highly anticipated to be
beneficial may in some twist of failure or precaution and prudence and failure for due diligence to establish the
safety of Bt Talong beyond reasonable doubt, the BT Talong may turn out to be harmful after all. This we certainly
do not want to do. I submit these views to the Court.

xxxx

Dr. Davies:chanRoblesvirtualLawlibrary

x x x another thing I would like to point out to the Court is, if you come into a market in the Philippines and you
see nice Talong, it has probably been treated with various insecticides. So, there has been insecticide spray on
your tips in your crops which are going to be harm on your farmers, your farmer's children, the insect populations
and also dangerous to the consumers as well. By contrast, Bt Talong, if it is adopted, the BT has been shown to be
beneficial to the insects and the environment and also has been shown not to be toxic in food. Therefore, we are
changing a highly toxic chemical application for a much more benign modern technique that is beneficial to the
environment and beneficial to the consumers. That is my comment with the views just made by my Filipino
colleagues, your Honors.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x You know, in ecology and, I am sure you are aware of this, an expansion of anyone population or a reduction
of that population it would still be both not beneficial to the healthful and balanced ecological health of the
ecosystem. So to say that because the population of insects are exploded and the diversity of insects exploded as a
result of this particular intervention is not necessarily good. That is my first point. The second one, you mentioned
x x x the "talong" is laden with pesticide. The same pesticide were advised by scientists from the USAID before for
us to use in this country because this is how to expand our production of food. This was part of the green
revolution, the systemic use of pesticides and fertilizer. Now, of course, they were misused, I can guarantee that
but, again, if that be the case, in the case of pesticide why can it not be in the case of BT that it can also be
misused? x x x we are talking here not of the science or of the technology but on the policy aspect of the adoption
of the technology. As I said, I am talking about the bakery not of a baked-bread.

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

Well, the use of pesticide in the eggplant, right now, is very much abused. x x x In terms of the use of Bt Talong,
then, that kind of misuse is not going to happen x x x. Now, in the Philippines, we have a very strict highly
monitored field testing and I think Dr. Malayang knows about that because he was one of those who prepared the
guidelines for the field testing. So that is not going to happen, it is a very strict regulatory system. We are known
for that, actually, and...

xxxx

Dr. Saturnina Halos:chanRoblesvirtualLawlibrary

No, no. It does not happen because we have a risk management plan x x x.

xxxx

Dr. Halos:chanRoblesvirtualLawlibrary

x x x As far as do we know what is happening after we have given approval, yes, we are monitoring. We are
monitoring as far as BT corn is concerned. We are monitoring, continuously monitoring, not only for the beneficial
insects but also the effects that is continuing, we are also continuing to monitor the weeds, weed population. In
weed we decide to spray...
Dr. Malayang:chanRoblesvirtualLawlibrary

And why is this, ma'am, why are we monitoring? Because they could be harmful?

Dr. Halos:chanRoblesvirtualLawlibrary

No we have to know what is happening.

Dr. Malayang:chanRoblesvirtualLawlibrary

Yes, why? Because if you are sure that they are safe, if you are sure that they are safe, why monitor?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, we are going to give you the data for that because you keep on asking, you know, you asked for a long term
and we are going to give you that complete data.

xxxx

Dr. Medina:chanRoblesvirtualLawlibrary

I would like to raise several issues because I feel they are misleading sometimes. Dr. Davies mentioned that
the BT protein is a protein, therefore, it is safe. Are you sure that all proteins are safe, Dr. Davies? Are you aware
of anti-nutrients and allergens and other kinds of protein x x x it is a misleading generalization. Secondly, I would
like to say also that, when you say that BT crops is beneficial to insect population but, how about humans? But, let
me tell and inform the Honorable Justices also that, in agriculture, there can be, the pests are there to reduce the
yield. There are also diseases so, that this Bt is only controlling one kind of pest and, in my monitoring of BT
corn as an example to this 2 years after the commercialization in 2003, at first planting in 2003, the corn is
attacked by about a dozen insect pests and six major diseases. The Bt corn was attacked a "stem rot", a fungal
disease. And, in this case in eggplant, there are many fungal diseases, "phomopsis" x x x So in that case it is not
field safe that you will not be using pesticide anymore with BT eggplant. When you use the BT eggplant, assuming
that there is no more insect pests x x x There are many other methods of control and, therefore, do not assume
that you do not use pesticide therefore, BT is the only solution. That is also a risky and wrong generalization or
statement, x x x Dr. Halos x x x says that field tests are safe. I intend to disagree with that. Safe to what?
Especially to contamination. If I may use this picture of the field testing of the Bt eggplant x x x it was encircled
with cyclone wire with a diameter of something like approximately 10 cm. by 7 cm. hole. While bees that can
pollinate that, the size is about 1 cm. in length and .5 cm. in diameter of the insect. The bees and, in that case,
they can easily get in and get out and when they settle into the flowers and snip nectars and the fall of the pollen
then they can bring out the pollen to contaminate outside that. In fact, even assuming that the fence is very small
in size of the mess, the holes, still the insects can fly above that fence because the fence is only about 5 feet in
height. So, in that case it is not safe. Some arguments say that "well the pollen will be dead" but, according to this
technical manual of the Training Workshop On Data Collection for Researchers And Collaborators of Multi-Location
Trials of Fruit and Shoot Borers Resistant Eggplant, that is the Bt Eggplant produced by the Institute of Plant
Breeding in UPLB who is one of the main researchers the datas, here say according to "Rasco", cited by Dr.
Narciso, is that the pollen can live 8 to 10 days pollen by ability at 20 to 22 degrees centigrade, with a relative
humidity of 50 to 55. x x x Meaning to say, that pollen can survive. This can fly as fast as something like 60
kilometers per hours so it just take may be 3 minutes and it can travel 4 kilometers and 4 kilometers is the
effective flying distance of a bee in their normal foraging.

xxxx

Dr. Medina:chanRoblesvirtualLawlibrary

x x x There is no data on the contamination so how come they argue, how can they conclude that it is safe when
they have not monitored any potential pollen flow by insect mitigated or insect mediated flow pollen? So, in that
case, the conclusion or the statement is really beyond what their data may be is if their data is about safety.

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

xxxx

x x x I hope that we will be able to look at the experimental design and you will see that all the things are properly
addressed, our risk assessment was done step by step, x x x I beg to disagree with my friend Dr. Medina because
it is becoming ... we are confusing 2 things. We are not referring to contained trial. We are referring to confined
field trial and in the design of this particular experiment, you have your BT eggplant, your non-BT eggplant so that
you can compare the performance with the 2 crops. And, on design, you have 5 rows of plant BT eggplants that
will serve as a pollen trap. When we say pollen trap is that it just open the pollen from the transgenic. It is going to
be trapped by those plants, 5 rows, and then, after that, you have a space of 200 meters surrounding the field
which is the isolation distance. That means no eggplant should be present in that particular distance because that
is the isolation distance that is found to be safe, x x x we know that Bt protein is very specific x x x effective only
against caterpillar x x x if they are eaten by other organism, they are not affected because it is very specific. The
gut of the larva is very alkaline while the gut of other insects is likely acidic and, in that case, it does not have any
harmful effect, x x x So another thing is we are saying that it seems to be ridiculous that you are saying that
honeybee is going to fly from the fence and the size were even indicated. I would like to indicate that, that is not
the purpose of the fence. It is not to contain the insects. It is to prevent vandalism which is quite, unfortunately,
being done by other groups who are against the technology. x x x We should be able to have our own space, our
own time, considering the given regulation. Follow them. But our experimentation not be destroyed because it is
only then that we will be able to get the valuable data that is needed for an informed decision. Without that we will
not be able to proceed and I hope we can discuss this based on the merits of the field trial, not from any other
concern because the writ of kalikasan is about the effect of field trial in the environment.

Dr. Medina:chanRoblesvirtualLawlibrary

Mr. Justice, can I give this immediate counteract to the one statement of Dr. [Ebora]? He said that the "CrylAcc" is
specific to caterpillars and, in fact, only some kinds of caterpillar, some species, if you can read by chemical and by
physical research communications this is Volume 271, pages 54-58, authored by Vasquez Pardonnet, published in
2000, publication under letter (b), "CrylAcc protoxin" binds to the mucosal surface of the mouse small intestine.
Small intestine ay mammal po iyan so, meaning, it is a proxy animal for safety [testing] to humans because we are
also mammals so, the mice are usually the mammals 12 years ago, the data has been already there that there is
binding site, therefore it is not only specific to insects but also to mammals. x x x he is saying that, by working on
the natural BT is the same as the transformed BT it is not true because the natural BT has 1155 "base pairs" of
nucleic acids. And the transformed GM Crop contains a fragment of that BT gene which is only half of that. And the
mechanism, by the way, x x x the natural toxin is broken into smaller pieces inside the intestine of the insects
because it is alkaline in terms of its system "ph" and for humans acidic. So it does not work. But, because the
transformed BT is already half, almost half of the normal or natural[ly] occurring BT protein, it is already
activated and, in that case, that is the reason why there is a test and immediate effect to non-insect, meaning, to
mammal, so that is the explanation of scientist doing studies on that aspect.

x x xx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

The scientists have 3 problems: One, the sparks, we have a tunnel vision; the second, fear vision; x x x I will give
some example. Yes, BT toxin, was it really good biological control agent? But it is a completely different gene when
you produce it into an edible plant inside genetically. So, these are 2 different things. What will happen? We are
scared that the efficacy, the use of BT toxin as a spray, as biological control agent, will be vanished because now
there will be resistance against those in BT toxin, x x x resistance is coming very quickly, just like antibiotic
resistance, x x x The second thing, I have asked many plant biologists this simple question, simple honest
question. Do you know any plant that can kill a bee or a moth? No! There is no way, why? Because those are the
"pollinators". Plant never kills a bee or a moth that goes against nature, x x x So, nature, for thousands of years,
farmers help select or adopt edible non-toxic plants. And, now, with the high science we are converting them, non-
toxic edible plant into a toxic plant. So not only toxic for the human, for the root microorganisms, x x x Those
eggplants are not only for humans to consume. So human effect, we do not know but what will be the effect? Who
will mind the effect? Is it the animal which goes through it? x x x in India, x x x farmers x x x while
growing BT cotton x x x the leaves and other they use to attract animals to eat. x x x they found suddenly one
thing that the BT cotton plants are not touched by those buffalos, those cows, those [boars], but they can
distinguish which is BT and non-BT. x x x and when their animals started dying in some cases, they always blame,
it is this animal which has eaten that BT? x x x these are [going] against nature. Only few edible seed plants are
there and we are converting one safest plant into a poisonous and toxic plant and what is the effect on the root
microorganisms on the degrading animals and other? We do not know. That hard thing is the tunnel vision, the
confined field trial, x x x why implement this confined field trial? Is this safe? Why do they have to do this x x x
these things do good for a normal hybrid that is something but for the gene concept we cannot follow the same
separation rules, same rules? So those are used, those separation distincts, those parameters are used not for the
gene. So, which is the safe field trial protocol for the gene plants? We do not know. So there goes against [the]
writ of kalikasan.

xxxx

Justice Antonio-Valenzuela:chanRoblesvirtualLawlibrary
How much is the increase in crop yield? x x x

Dr. Halos:chanRoblesvirtualLawlibrary

x x x The average increase yield is about 24% and that is for corn. And this data is actually taken by our own
Filipino scientists, Dr. Lluroge and Dr. Gonzales.

xxxx

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x my question is for Ma'am Nina. I have not been up to date lately on the production of corn so, you mean to
say that corn production in the country has gone up and, because of that, you are saying that 24% and the income
of farmers had gone up as well? Do you mean to say that the price of com had also gone up as a result of the
increase in the volume of com production in the Philippines?

Dr. Halos:chanRoblesvirtualLawlibrary

Well, the price is dictated by the market.

Dr.Malayang:chanRoblesvirtualLawlibrary

That is precisely the point.

Dr. Halos:chanRoblesvirtualLawlibrary

Yes.

Dr. Malayang:chanRoblesvirtualLawlibrary

x x x I am just bringing, hopefully to the attention of the Court, that, when you talk of a technology such as GM
Com or GM Talong affecting market there is also not only the regulatory but economic regime that is attendant to it
that makes adjustments. So it may not be harmful to humans because we will not come out when we eat it but it
might be harmful to the economy of a particular agricultural crop. x x x

xxxx

Dr. Ebora:chanRoblesvirtualLawlibrary

x x x there are a lot of local studies being conducted now by entomologists from [UPLB] and those are independent
studies. And, precisely, this is to determine the effect on natural enemies and the different insects x x x and some
of those are already available, x x x you will be able to protect the environment only if you know how to have a
proper information in making the decision. So, again, I am saying that, in field trial, you will be generating a lot of
information that you will be able to use in making a wise decision and informed decision.

x x x I would like to correct the impression lodged by the statement of Dr. Chakraborty regarding butterflies and
moths. Because they are not affected by BT because they are adult insects. The only one that is affected are
actually the larva, not even the pupa. So, we would like that to be clear because it might create confusion.

The other thing in resistance, x x x even conventionally bred plant [loses] resistance after sometime and that is the
reason why we have a continuous breeding program. So, it is a natural mechanism by an organism as mode of
ad[a]potation. x x x are you telling us that we are going to stop our breeding work because, anyway, they are
going to develop resistance. I think it is a wrong message x x x.

The other thing is in terms of the study cited by Dr. Medina regarding the "binding." In toxicology, you can have
the effect if you have, for example, the insects, you have a receptor. The toxin will bind into the receptor. Toxin
has to fall and then the toxin has re-insert into the membrane. If you eliminate one of those steps you do not have
any toxicity. So, that means binding by itself will not be toxicity. It is a wrong impression that, since you have
binding, there will be toxicity. It is simply wrong because, the actuality that it should bind, it should fall then, it
should insert, and it is a very common x x x. To say that binding is equivalent to toxicity is simply not true.

The other one is natural BT toxin and activated toxin. When you were saying protoxin, protoxin is basically the
entire crystal protein. If it is already inside the gut of the insect it has to be clipped by the purchase coming from
the gut and you have it activated and you have the toxin. So what you have in plant is already the toxin since the
anther and the toxin, and the toxin in microorganisms, the anther which are already clipped by a purchase are the
same. So, to say that they are different is actually wrong. You are comparing protoxin and toxin.

x x x regarding the protein, x x x do you know a lot of proteins of another characteristics and that is why you have
to characterize them and you have to separate the protein that are causing problem and protein that are not
causing problem. That is why you have allergen and, as explained by Dr. Cario, you have to check the sequence.
xxx

xxxx

Dr. Chakraborty:chanRoblesvirtualLawlibrary

x x x the field trial wanted to basically go to the protocol. This is the efficacy, the efficiency of the production not
that much into the safety. You have to look into it carefully that how much will get this efficacy, not the safety to
that extent x x x. Second point x x x there is this already mentioned that European Union there is no consensus, x
x x they have published and submitted the systemic list of genetically modified crop need for new approach in risk
assessment. So that is what is needed. There is another article, how does scientific risk assessment of GM crop fit
within wider risk analysis, x x x This is genetic engineering. The production process is very precise in selecting the
inserted gene but not in its enhancement, x x x they are never looking into it. The second thing, they do not look
into that from the laboratory condition to what is the real life situation. They do not take that into account x x x so
this assessment protocol has to be modified or changed, x x x in the IAASTD or International Assessment of
Agricultural Knowledge, Science and Technology for Development. There is a supreme body, so many nations, so
many experts, scientists x x x. Only sustainable agricultural practice and that is the only alternative. This GM
technology is not going to help them x x x In my country also, when the BT toxin evaluation was there, everybody
was telling that this is pro-poor, this is scale neutral so, everybody will be benefitted by that. So, we started
questioning, x x x "What are the actual economic analysis indeed? Just show me". Then, they come up with an
answer. Scale neutral means that even small farmers initially wanted BT cotton and big farmers also
wanted BT cotton. They are partisans. It is not the economic benefit because, economically, it is not going to be
beneficial so it is very much scale dependent its benefit. So, only the big farmers, large farmers and x x x the
vegetable field you never can give separation. Chances you never can give refuge. The 1/5 of the land given for
growing pests so that you cannot do. So it cannot help technology. They have developed this technology for
partisan large scale farming to completely automated for BT technology where no label will be there. But the failed
experiments, the contracts whose patent will be over within 2-3 years, they are testing them in our country. So
that is the bottom line.

xxxx

Chairperson:chanRoblesvirtualLawlibrary

Let us put, probably, a close to this hot tub proceeding now.

The issue that the Court is really interested to resolve is whether or not the conduct of the field trial
of BT Talong by the respondents has violated or has threatened to violate the right of the people to a balanced and
healthful ecology. Is there absolute certainty that it has not so violated such right. Because that is the requirement
for applying or not applying the precautionary principle, x x x

Dr. Cario:chanRoblesvirtualLawlibrary

Yes. The answer to that is we have not violated, you know, the right of the people...

Chairperson:chanRoblesvirtualLawlibrary

But there is no absolute certainty?

Dr. Cario:chanRoblesvirtualLawlibrary

Well, quite certain, your Honor, because we have placed all the necessary measures and they did not show us, you
know, there is no evidence of harm that has been shown to this Court. There is no evidence at all.

Chairperson:chanRoblesvirtualLawlibrary

That is your opinion.95ChanRoblesVirtualawlibrary


As shown by the foregoing, the hot tub hearing has not yielded any consensus on the points of contention between
the expert witnesses, i.e., the safety of Bt talong to humans and the environment. Evidently, their opinions are
based on contrasting findings in hundreds of scientific studies conducted from the time Bt technology was deployed
in crop farming. These divergent views of local scientists reflect the continuing international debate on GMOs and
the varying degrees of acceptance of GM technology by states especially the developed countries (USA, EU, Japan,
China, Australia, etc.).

Before proceeding to the current state of global GMO research, we briefly address the strong objection of
petitioners to the CA's reliance on the research conducted by Prof. Seralini, the French scientist whose study was
published in September 2012 in Food and Chemical Toxicology, which was criticized as a "controversial feeding
study." Seralini studied rats consuming Monsanto's Roundup Ready treated corn for two years (using the same
kind of rats prone to tumors used by Monsanto in obtaining original approval for its product and the same
methodologies, but did it for 2 years which is longer than the 90-day experiment period done by Monsanto). The
rats formed massive cancerous tumors. All three test groups of rats, with 10 rats in each group, died more
frequently, suffered from liver problems, and had a pronounced number of tumors specifically with grotesque
mammary and testicular tumors.96

Seralini's findings created an uproar and the study was expunged from the publication in November 2013 even
though the Editor-in-Chief found no evidence of fraud or intentional misrepresentation of the data. Seralini stood
by his work and further conducted similar laboratory experiments. Critics faulted the experimental method, saying
the number of rats studied was too small and their diet was skewed when compared with their natural food intake.
But over 300 scientists condemned the retraction, they said that the retraction lacked scientific integrity and
requested to reinstate the study. Last June 2014, Seralini's controversial study was republished and has passed a
third peer review arranged by the journal that is republishing the study, Environmental Sciences Europe. The
republished version contains extra material addressing criticisms of the original publication and the raw data
underlying the study's findings, and accompanied by a separate commentary by Prof. Seralini's team describing the
lobbying efforts of GMO crop supporters to force the editor of the Food and Chemical Toxicology to retract the
original publication.97

The aforesaid incident serves to underscore the crucial role of scientists in providing relevant information for
effective regulation of GMOs. There can be no argument that "[s]ince scientific advice plays a key role in GMO
regulations, scientists have a responsibility to address and communicate uncertainty to policy makers and the
public."98

GMOs: The Global Debate

The uncertainties generated by conflicting scientific findings or limited research is not diminished by extensive use
at present of GM technology in agriculture. The global area of GM crops has reached over 175 million hectares in
2013, more than a hundredfold increase from 1.7 million hectares in 1996. 99 However, the worldwide debate on
safety issues involving GM foods continues.

It has been pointed out that the crux of the controversy surrounding GMOs lies in the very nature of the technology
itself. The process of combining inter-species genes, which is called recombinant DNA technology, does not have
the checks and balances that are imposed by nature in traditional breeding. Because of this there is a risk of
genetic instability. This means that no one can make any accurate predictions about the long-term effects of GMOs
on human beings and the environment. Extensive testing in this regard is either very expensive or impractical, and
there is still a great deal about the process that scientists do not understand. 100

The basic concepts for the safety assessment of foods derived from GMOs have been developed in close
collaboration under the auspices of the Organization for Economic Co-operation and Development (OECD) and the
United Nations World Health Organization (WHO) and Food and Agricultural Organization (FAO). The OECD's group
of experts on biosafety recommended conducting the safety assessment of a GM food on case-by-case basis
through comparison to an existing food with a long history of safe use. Thus, the concept of substantial
equivalence was developed that is widely used by national and international agencies, including the US Food and
Drug Administration (FDA), the WHO, OECD and the FAO.101

"Substantial equivalence embodies the concept that if a new food or food component is found to be substantially
equivalent to an existing food or food component, it can be treated in the same manner with respect to safety (i.e.,
the food or food component can be concluded to be as safe as the conventional food or food component)." 102 The
safety assessment of a genetically modified food is directed by the results of a comparison between the genetically
modified food and its conventional counterpart. It follows a stepwise process aided by a series of structured
questions. Factors taken into account in the safety assessment include:
identity;

source;

composition;

effects of processing/cooking;
transformation process;

the recombinant DNA (e.g. stability of insertion, potential for gene transfer);

protein expression product of the novel DNA:


effects on function;

potential toxicity;

potential allergenicity;
possible secondary effects from gene expression or the disruption of the host DNA or metabolic pathways,
including composition of critical macro, micro-nutrients, anti-nutrients, endogenous toxicants, allergens, and
physiologically active substances; and,

potential intake and dietary impact of the introduction of the genetically modified
food.103ChanRoblesVirtualawlibrary
The above factors are particularly pertinent to the assessment of foods derived from genetically modified
plants.104 However, the concept of substantial equivalence as the starting point of risk assessment was criticized for
being "unscientific and arbitrary" and "intentionally vague and ill-defined to be as flexible, malleable, and open to
interpretation as possible." It is likewise argued that "comparisons are designed to conceal significant changes
resulting from genetic modifications," "the principle is weak and misleading even when it does not apply, effectively
giving producers carte blanche", and that there is insufficiency of background information for assessing substantial
equivalence. A paper presented at a WHO workshop pointed out that the main difficulty associated with the
biosafety assessment of transgenic crops is the unpredictable nature of transformation. This unpredictability raises
the concern that transgenic plants will behave in an inconsistent manner when grown commercially. 105

The method of testing GM foods was further described as inadequate, as currently the testing procedures consist
almost exclusively of specific chemical and biochemical analytical procedures designed to quantitate a specific
nutrient or a specific toxin or allergen. It was noted that in actual practice, the investigator compares only selected
characteristics of the genetically engineered food to those of its non-genetically engineered counterpart. These
testing schemes are viewed as completely incapable of detecting unsuspected or unanticipated health risks that are
generated by the process of genetic engineering itself. Hence, clinical tests are recommended because only such
tests have the broad specificity and relevance to human physiology needed to detect the wide range of allergens
and toxins that might result from unexpected side-effects of the genetic engineering process. 106

In another review article, it was pointed out that since a genetic modification is aimed at introducing new traits into
organisms, the result will always be a different composition of genes and proteins. The most reasonable
interpretation therefore is that a food derived from a GMO is considered substantially equivalent to its traditional
counterpart if the genetic modification has not resulted in intended or unintended alterations in the composition of
relevant nutrients and inherent toxicants of the organism, and that the new genes and proteins have no adverse
impact on the dietary value of the food and do not therefore pose any harm to the consumer or the environment.
It was thus concluded that establishing substantial equivalence is not a safety assessment in itself, but is a
pragmatic tool to analyze the safety of a new food, and hence in the testing of new foods, the latest scientific
methods have to be used. All conceivable efforts to protect consumers from health risks should thus be made, and
at the same time, consumers should be adequately informed about the real extent of risks and hazards. 107

The GMO global debate has so intensified that each side has accused the other camp of mounting "paid advocacy"
and criticizing studies adverse to their respective positions as flawed or unscientific. Both the agri-business
industry, and groups opposed to GMOs including the organic farming industry, had utilized enormous resources and
funds for lobbying and media campaigns locally and internationally.

What appears to be highlighted in the promotion of GM crop production is the marked reduction in the use of
harmful chemical pesticides.108 The resulting increase in crop yields grown on relatively small parcels of land is also
regarded as a solution to the problem of feeding a fast growing world population. Proponents of GM biotechnology
insist that GM foods are safe to humans and the environment based on scientific studies. On the other hand, anti-
GM activists disseminate adverse results of recent studies confirming the health and environmental hazards of
genetically engineered crop farming. Also, some countries have maintained a firm stance against genetically
engineered crops or GM foods, such as France and Austria. Over the years, however, accumulated evidence of the
dangers of GMOs, as well as unrealized socio-economic benefits, has been increasingly recognized by the scientific
community.

That GE farming increases crop yield has been debunked by new studies proving the contrary. In the article, "GM
Crops Do Not Increase Yield Potential," the Institute for Responsible Technology cited reports from actual field
studies in different countries revealing downward figures for Bt crops, as summarized below:
Bt corn took longer to reach maturity and produced up to 12% lower yields than non-GM counterparts.

Evidence for the "yield drag" of Roundup Ready soybeans has been known for over a decade - with the disruptive
effect of the GM transformation process accounting for approximately half the drop in yield.

Based on a comprehensive evaluation of yield since the introduction of commercial GM crops, the International
Assessment of Agricultural Knowledge, Science and Technology (IAASTD) noted that GM crop yields were "highly
variable" and in some cases, "yields declined".

The Union of Concerned Scientists' 2009 report Failure to Yield, based on published peer-reviewed studies
conducted by academic scientists using adequate controls, concluded that genetically engineered herbicide tolerant
soybeans and herbicide-tolerant corn has not increased yields while insect-resistant corn has only marginally
improved yields. Traditional breeding outperforms genetic engineering hands down.

In developing countries, crop failure can have severe consequences as illustrated in India, where a large number
of cotton farmers, unable to pay back high interest loans, have committed suicide. Several investigations have
implicated the unreliable performance of Bt cotton as a major contributor.

Bt cotton was overrun by pests in Indonesia and China. In South Africa, farmers faced pest problems and no
increase in yield. The 100,000 hectares planted in 1998 dropped 80% to 22,500 by 2002. As of 2004, 85% of the
original Bt cotton farmers had given up while those remaining had to be subsidized by the government. Similarly in
the US, Bt cotton yields are not necessarily consistent or more profitable. 109ChanRoblesVirtualawlibrary
GM technology is thus seen as a failure in terms of addressing food security; rather, it supports corporate control
and impedes common persons' access to adequate food. The root cause of hunger is not a lack of food, GM critics
say, but a lack of access to food. The poor lack money to buy food and lack of land on which to grow it. It is
essential to follow sustainable traditional farming practices that keeps food production in the hands of small-scale
farmers, thereby reducing corporate control.110

As regards the existing uncertainties of potential long-term effects of the release into the environment of GMOs,
the BEETLE (Biological and Ecological Evaluation towards Long-term Effects) study of 2009, 111 made for the
European Commission, analyzed more than 700 scientific publications from all over the world about GMOs and their
potential effects on environment including biodiversity, and received contributions to online surveys from 100 to
167 invited environmental experts. This study declared the following uncertainties:
increased fitness of GM plants;

outbreeding depression after hybridization with wild relatives;

outcrossing between related species and the fate of a transferred GM trait;

altered flower phenology;

altered fecundity, increasing seed (gene) flow;

increased frequency of horizontal gene flow;

resistance development of pests;

effects on non-target organisms;

effects on non-target organisms due to altered nutritional composition of the GM plant;

effects on non-target organisms due to accumulation of toxic compounds;

effects on rhizo sphere microbiota;

effects on symbiotic non-target organisms;

changes in soil functions caused by GM traits;

effects on biological control;

altered use of agrochemicals;

indirect changes in susceptibility of crops against pathogens;


adverse effects on agro-biodiversity;

indirect effects in fertilizer use;

potential changes in landscape structure;

increased production of greenhouse gases;

increased mineral nutrient erosion and fertilizer leaching;

altered chemical attributes of soil fraction;

emerging of stacked events;

the necessity of regional differentiation of risk assessments. 112ChanRoblesVirtualawlibrary


A critical observation was made on the argument that there is not enough evidence to reject the hypothesis that
GMO and GM food is safe. The fact emphasized was that experiments designed to clarify potential adverse effects
on health or the environment are nearly absent in peer-reviewed journals. Scientific uncertainty, omitted research
areas, and lack of basic knowledge crucial to risk assessments have become apparent. The present uncertainty
warrants further research and it has been demonstrated that there is a risk of bias relying on hypotheses that
dominate mainstream science. There is therefore a need for independent research that is without prejudice and
unbiased by economic and professional interests.113 In another article it was noted that the clinical trials carried out
to ensure that negative externalities do not affect humans and the environment are conducted by the same private
firms that created the products, raising conflict of interest concerns. 114

While existing literature on health effects of GM foods indicates that they are generally safe, and similar
conclusions have been drawn by government agencies and scientific organizations such as FAO/WHO and Society
of Toxicology, a growing number of independent scientists have spoken strongly against such generalizations from
limited research mostly sponsored by biotech companies.

In 1999, the Open Letter from World Scientists to All Governments signed by 815 scientists from 82 countries
expressed that they are extremely concerned about the hazards of GMOs to biodiversity, food safety, human and
animal health, and demanded a moratorium on environmental releases in accordance with the precautionary
principle. They are opposed to GM crops that will intensify corporate monopoly, exacerbate inequality and prevent
the essential shift to sustainable agriculture that can provide food security and health around the world, and called
a ban on patents of life forms and living processes which threaten food security, sanction biopiracy of indigenous
knowledge and genetic resources and violate basic human rights and dignity. 115

On May 10, 2003, dozens of prominent scientists from various disciplines banded together as an Independent
Science Panel on GM at a public conference in London. On June 15, 2003, they released a Final Report 116 as their
contribution to the National GM Debate in UK. In a summary 117 of the final report, these scientists declared the
following:
The Case for a GM-Free Sustainable World - A Summary
Why GM-Free?

1. GM crops failed to deliver promised benefits

o No increase in yields or significant reduction in herbicide and pesticide use

o United States lost an estimated $12 billion over GM crops amid worldwide rejection

o Massive crop failures of up to 100% reported in India

o High risk future for agbiotech: "Monsanto could be another disaster waiting to happen for investors"

2. GM crops posing escalating problems on the farm

o Transgenic lines unstable: "most cases of transgene inactivation never reach the literature"

o Triple herbicide-tolerant volunteers and weeds emerged in North America

o Glyphosate-tolerant weeds plague GM cotton and soya fields, atrazine back in use

o Bt biopesticide traits threatening to create superweeds and bt-resistant pests


3. Extensive transgenic contamination unavoidable

o Extensive transgenic contamination found in maize landraces in remote regions of Mexico

o 32 out of 33 commercial seed stocks found contaminated in Canada

o Pollen remains airborne for hours, and a 35 mile per hour wind speed is unexceptional

o There can be no co-existence of GM and non-GM crops

4. GM crops not safe

o GM crops have not been proven safe: regulation was fatally flawed from the start

o The principle of 'substantial equivalence', vague and ill defined, gave companies complete licence in claiming GM
products 'substantially equivalent' to non-GM, and hence 'safe'

5. GM food raises serious safety concerns

o Despite the paucity of credible studies, existing findings raise serious safety concerns

o 'Growth-factor-like' effects in the stomach and small intestine of young rats were attributed to the transgenic
process or the transgenic construct, and may hence be general to all GM food

6. Dangerous gene products are incorporated into food crops

o Bt proteins, incorporated into 25% of all GM crops worldwide, are harmful to many non-target insects, and some
are potent immunogens and allergens for humans and other mammals

o Food crops are increasingly used to produce pharmaceuticals and drugs, including cytokines known to suppress
the immune system, or linked to dementia, neurotoxicity and mood and cognitive side effects; vaccines and viral
sequences such as the 'spike' protein gene of the pig coronavirus, in the same family as the SARS virus linked to
the current epidemic; and glycoprotein gene gpl20 of the AIDS virus that could interfere with the immune system
and recombine with viruses and bacteria to generate new and unpredictable pathogens.

7. Terminator crops spread male sterility

o Crops engineered with 'suicide' genes for male sterility, promoted as a means of preventing the spread of
transgenes, actually spread both male sterility and herbicide tolerance traits via pollen.

8. Broad-spectrum herbicides highly toxic to humans and other species

o Glufosinate ammonium and glyphosate, used with herbicide tolerant GM crops that currently account for 75% of
all GM crops worldwide, are both systemic metabolic poisons

o Glufosinate ammonium is linked to neurological, respiratory, gastrointestinal and haematological toxicities, and
birth defects in humans and mammals; also toxic to butterflies and a number of beneficial insects, to larvae of
clams and oysters, Daphnia and some freshwater fish, especially the rainbow trout; it inhibits beneficial soil
bacteria and fungi, especially those that fix nitrogen.

o Glyphosate is the most frequent cause of complaints and poisoning in the UK, and disturbances to many body
functions have been reported after exposures at normal use levels; glyphosate exposure nearly doubled the risk of
late spontaneous abortion, and children born to users of glyphosate had elevated neurobehavioral defects;
glyphosate retards development of the foetal skeleton in laboratory rats, inhibits the synthesis of steroids, and is
genotoxic in mammals, fish and frogs; field dose exposure of earthworms caused at least 50 percent mortality and
significant intestinal damage among surviving worms; Roundup (Monsanto's formulation of glyphosate) caused cell
division dysfunction that may be linked to human cancers.

9. Genetic engineering creates super-viruses

o The most insidious dangers of genetic engineering are inherent to the process; it greatly enhances the scope and
probability of horizontal gene transfer and recombination, the main route to creating viruses and bacteria that
cause disease epidemics.

o Newer techniques, such as DNA shuffling, allow geneticists to create in a matter of minutes in the laboratory
millions of recombinant viruses that have never existed in billions of years of evolution
o Disease-causing viruses and bacteria and their genetic material are the predominant materials and tools of
genetic engineering, as much as for the intentional creation of bio-weapons.

10. Transgenic DNA in food taken up by bacteria in human gut

o Transgenic DNA from plants has been taken up by bacteria both in the soil and in the gut of human volunteers;
antibiotic resistance marker genes can spread from transgenic food to pathogenic bacteria, making infections very
difficult to treat.

11. Transgenic DNA and cancer

o Transgenic DNA known to survive digestion in the gut and to jump into the genome of mammalian cells, raising
the possibility for triggering cancer

o Feeding GM products such as maize to animals may carry risks, not just for the animals but also for human
beings consuming the animal products

12. CaMV 35S promoter increases horizontal gene transfer

o Evidence suggests that transgenic constructs with the CaMV 35S promoter could be especially unstable and prone
to horizontal gene transfer and recombination, with all the attendant hazards: gene mutations due to random
insertion, cancer, re-activation of dormant viruses and generation of new viruses.

13. A history of misrepresentation and suppression of scientific evidence

o There has been a history of misrepresentation and suppression of scientific evidence, especially on horizontal
gene transfer. Key experiments failed to be performed, or were performed badly and then misrepresented. Many
experiments were not followed up, including investigations on whether the CaMV 35S promoter is responsible for
the 'growth-factor-like' effects observed in young rats fed GM potatoes.
GM crops have failed to deliver the promised benefits and are posing escalating problems on the farm. Transgenic
contamination is now widely acknowledged to be unavoidable, and hence there can be no co-existence of GM and
non-GM agriculture. Most important of all, GM crops have not been proven safe. On the contrary, sufficient
evidence has emerged to raise serious safety concerns, that if ignored could result in irreversible damage to health
and the environment. GM crops should therefore be firmly rejected now.
The ISP further concluded that "[s]ustainable agricultural practices have proven beneficial in all aspects relevant to
health and the environment. In addition, they bring food security and social and cultural well being to local
communities everywhere. There is an urgent need for a comprehensive global shift to all forms of sustainable
agriculture.118

In 2008, a Global Report119 was released by the International Assessment of Agricultural Knowledge, Science and
Technology for Development (IAASTD), a three-year international collaborative effort (2005-2007) developed out
of a consultative process involving 900 participants and 110 countries from all over the world. This global initiative
assessed agricultural knowledge, science and technology (AKST) in relation to meeting development and
sustainability goals of (1) reducing hunger and poverty; (2) improving nutrition, health and rural livelihoods; and
(3) facilitating social and environmental sustainability. The report concluded that a radical transformation of the
world's food and farming systems - especially the policies and institutions that affect them - is necessary if we are
to overcome converging economic and environmental crises and feed the world sustainably. It also warned that
technologies such as high-yielding crop varieties, agrochemicals and mechanization have primarily benefited the
better-resourced groups in society and transnational corporations, rather than the most vulnerable ones. In
general, the IAASTD found little evidence to support a conclusion that modern biotechnologies are well suited to
meeting the needs of small-scale and subsistence farmers, particularly under the increasingly unpredictable
environmental and economic conditions tha they face.120

More recently, in 2013, the European Network of Scientists for Social and Environmental Responsibility (ENSSER),
an international group of more than 90 scientists, academics and physicians, released a statement that there is no
scientific consensus on the safety of GM foods and crops. 121 The statement122 is herein reproduced:
10/21/13
Statement: No scientific consensus on GMO safety

As scientists, physicians, academics, and experts from disciplines relevant to the scientific, legal, social and safety
assessment aspects of genetically modified organisms (GMOs), we strongly reject claims by GM seed developers
and some scientists, commentators, and journalists that there is a "scientific consensus" on GMO safety and that
the debate on this topic is "over".
We feel compelled to issue this statement because the claimed consensus on GMO safety does not exist. The claim
that it does exist is misleading and misrepresents the currently available scientific evidence and the broad diversity
of opinion among scientists on this issue. Moreover, the claim encourages a climate of complacency that could lead
to a lack of regulatory and scientific rigour and appropriate caution, potentially endangering the health of humans,
animals, and the environment.

Science and society do not proceed on the basis of a constructed consensus, as current knowledge is always open
to well-founded challenge and disagreement. We endorse the need for further independent scientific inquiry and
informed public discussion on GM product safety and urge GM proponents to do the same.

Some of our objections to the claim of scientific consensus are listed below.

1. There is no consensus on GM food safety

Regarding the safety of GM crops and foods for human and animal health, a comprehensive review of animal
feeding studies of GM crops found "An equilibrium in the number [of] research groups suggesting, on the basis of
their studies, that a number of varieties of GM products (mainly maize and soybeans) are as safe and nutritious as
the respective conventional non-GM plant, and those raising still serious concerns". The review also found that
most studies concluding that GM foods were as safe and nutritious as those obtained by conventional breeding
were "performed by biotechnology companies or associates, which are also responsible [for] commercializing these
GM plants".

A separate review of animal feeding studies that is often cited as showing that GM foods are safe included studies
that found significant differences in the GM-fed animals. While the review authors dismissed these findings as not
biologically significant, the interpretation of these differences is the subject of continuing scientific debate and no
consensus exists on the topic.

Rigorous studies investigating the safety of GM crops and foods would normally involve animal feeding studies in
which one group of animals is fed GM food and another group is fed an equivalent non-GM diet. Independent
studies of this type are rare, but when such studies have been performed, some have revealed toxic effects or
signs of toxicity in the GM-fed animals. The concerns raised by these studies have not been followed up by
targeted research that could confirm or refute the initial findings.

The lack of scientific consensus on the safety of GM foods and crops is underlined by the recent research calls of
the European Union and the French government to investigate the long-term health impacts of GM food
consumption in the light of uncertainties raised by animal feeding studies. These official calls imply recognition of
the inadequacy of the relevant existing scientific research protocols. They call into question the claim that existing
research can be deemed conclusive and the scientific debate on biosafety closed.

2. There are no epidemiological studies investigating potential effects of GM food consumption on human health

It is often claimed that "trillions of GM meals" have been eaten in the US with no ill effects. However, no
epidemiological studies in human populations have been carried out to establish whether there are any health
effects associated with GM food consumption. As GM foods are not labelled in North America, a major producer and
consumer of GM crops, it is scientifically impossible to trace, let alone study, patterns of consumption and their
impacts. Therefore, claims that GM foods are safe for human health based on the experience of North American
populations have no scientific basis.

3. Claims that scientific and governmental bodies endorse GMO safety are exaggerated or inaccurate

Claims that there is a consensus among scientific and governmental bodies that GM foods are safe, or that they are
no more risky than non-GM foods, are false.

For instance, an expert panel of the Royal Society of Canada issued a report that was highly critical of the
regulatory system for GM foods and crops in that country. The report declared that it is "scientifically unjustifiable"
to presume that GM foods are safe without rigorous scientific testing and that the "default prediction" for every GM
food should be that the introduction of a new gene will cause "unanticipated changes" in the expression of other
genes, the pattern of proteins produced, and/or metabolic activities. Possible outcomes of these changes identified
in the report included the presence of new or unexpected allergens.

A report by the British Medical Association concluded that with regard to the long-term effects of GM foods on
human health and the environment, "many unanswered questions remain" and that "safety concerns cannot, as
yet, be dismissed completely on the basis of information currently available". The report called for more research,
especially on potential impacts on human health and the environment.

Moreover, the positions taken by other organizations have frequently been highly qualified, acknowledging data
gaps and potential risks, as well as potential benefits, of GM technology. For example, a statement by the
American Medical Association's Council on Science and Public Health acknowledged "a small potential for adverse
events ... due mainly to horizontal gene transfer, allergenicity, and toxicity" and recommended that the current
voluntary notification procedure practised in the US prior to market release of GM crops be made mandatory. It
should be noted that even a "small potential for adverse events" may turn out to be significant, given the
widespread exposure of human and animal populations to GM crops.

A statement by the board of directors of the American Association for the Advancement of Science (AAAS)
affirming the safety of GM crops and opposing labelling cannot be assumed to represent the view of AAAS
members as a whole and was challenged in an open letter by a group of 21 scientists, including many long-
standing members of the AAAS. This episode underlined the lack of consensus among scientists about GMO safety.

4. EU research project does not provide reliable evidence of GM food safety

An EU research project has been cited internationally as providing evidence for GM crop and food safety. However,
the report based on this project, "A Decade of EU-Funded GMO Research", presents no data that could provide
such evidence, from long-term feeding studies in animals.

Indeed, the project was not designed to test the safety of any single GM food, but to focus on "the development of
safety assessment approaches". Only five published animal feeding studies are referenced in the SAFOTEST section
of the report, which is dedicated to GM food safety. None of these studies tested a commercialised GM food; none
tested the GM food for long-term effects beyond the subchronic period of 90 days; all found differences in the GM-
fed animals, which in some cases were statistically significant; and none concluded on the safety of the GM food
tested, let alone on the safety of GM foods in general. Therefore the EU research project provides no evidence for
sweeping claims about the safety of any single GM food or of GM crops in general.

5. List of several hundred studies does not show GM food safety

A frequently cited claim published on an Internet website that several hundred studies "document the general
safety and nutritional wholesomeness of GM foods and feeds" is misleading. Examination of the studies listed
reveals that many do not provide evidence of GM food safety and, in fact, some provide evidence of a lack of
safety. For example:chanRoblesvirtualLawlibrary

Many of the studies are not toxicological animal feeding studies of the type that can provide useful information
about health effects of GM food consumption. The list includes animal production studies that examine parameters
of interest to the food and agriculture industry, such as milk yield and weight gain; studies on environmental
effects of GM crops; and analytical studies of the composition or genetic makeup of the crop.

Among the animal feeding studies and reviews of such studies in the list, a substantial number found toxic effects
and signs of toxicity in GM-fed animals compared with controls. Concerns raised by these studies have not been
satisfactorily addressed and the claim that the body of research shows a consensus over the safety of GM crops
and foods is false and irresponsible.

Many of the studies were conducted over short periods compared with the animal's total lifespan and cannot
detect long-term health effects.

We conclude that these studies, taken as a whole, are misrepresented on the Internet website as they do not
"document the general safety and nutritional wholesomeness of GM foods and feeds". Rather, some of the studies
give serious cause for concern and should be followed up by more detailed investigations over an extended period
of time.

6. There is no consensus on the environmental risks of GM crops

Environmental risks posed by GM crops include the effects of Bt insecticidal crops on non-target organisms and
effects of the herbicides used in tandem with herbicide-tolerant GM crops.

As with GM food safety, no scientific consensus exists regarding the environmental risks of GM crops. A review of
environmental risk assessment approaches for GM crops identified shortcomings in the procedures used and found
"no consensus" globally on the methodologies that should be applied, let alone on standardized testing procedures.

Some reviews of the published data on Bt crops have found that they can have adverse effects on non-target and
beneficial organisms - effects that are widely neglected in regulatory assessments and by some scientific
commentators. Resistance to Bt toxins has emerged in target pests, and problems with secondary (non-target)
pests have been noted, for example, in Bt cotton in China.

Herbicide-tolerant GM crops have proved equally controversial. Some reviews and individual studies have
associated them with increased herbicide use, the rapid spread of herbicide-resistant weeds, and adverse health
effects in human and animal populations exposed to Roundup, the herbicide used on the majority of GM crops.

As with GM food safety, disagreement among scientists on the environmental risks of GM crops may be correlated
with funding sources. A peer-reviewed survey of the views of 62 life scientists on the environmental risks of GM
crops found that funding and disciplinary training had a significant effect on attitudes. Scientists with industry
funding and/or those trained in molecular biology were very likely to have a positive attitude to GM crops and to
hold that they do not represent any unique risks, while publicly-funded scientists working independently of GM crop
developer companies and/or those trained in ecology were more likely to hold a "moderately negative" attitude to
GM crop safety and to emphasize the uncertainty and ignorance involved. The review authors concluded, "The
strong effects of training and funding might justify certain institutional changes concerning how we organize
science and how we make public decisions when new technologies are to be evaluated."

7. International agreements show widespread recognition of risks posed by GM foods and crops

The Cartagena Protocol on Biosafety was negotiated over many years and implemented in 2003. The Cartagena
Protocol is an international agreement ratified by 166 governments worldwide that seeks to protect biological
diversity from the risks posed by GM technology. It embodies the Precautionary Principle in that it allows signatory
states to take precautionary measures to protect themselves against threats of damage from GM crops and foods,
even in case of a lack of scientific certainty.

Another international body, the UN's Codex Alimentarius, worked with scientific experts for seven years to develop
international guidelines for the assessment of GM foods and crops, because of concerns about the risks they pose.
These guidelines were adopted by the Codex Alimentarius Commission, of which over 160 nations are members,
including major GM crop producers such as the United States.

The Cartagena Protocol and Codex share a precautionary approach to GM crops and foods, in that they agree that
genetic engineering differs from conventional breeding and that safety assessments should be required before GM
organisms are used in food or released into the environment.

These agreements would never have been negotiated, and the implementation processes elaborating how such
safety assessments should be conducted would not currently be happening, without widespread international
recognition of the risks posed by GM crops and foods and the unresolved state of existing scientific understanding.

Concerns about risks are well-founded, as has been demonstrated by studies on some GM crops and foods that
have shown adverse effects on animal health and non-target organisms, indicated above. Many of these studies
have, in fact, fed into the negotiation and/or implementation processes of the Cartagena Protocol and Codex. We
support the application of the Precautionary Principle with regard to the release and transboundary movement of
GM crops and foods.

Conclusion

In the scope of this document, we can only highlight a few examples to illustrate that the totality of scientific
research outcomes in the field of GM crop safety is nuanced, complex, often contradictory or inconclusive,
confounded by researchers' choices, assumptions, and funding sources, and in general, has raised more questions
than it has currently answered.

Whether to continue and expand the introduction of GM crops and foods into the human food and animal feed
supply, and whether the identified risks are acceptable or not, are decisions that involve socioeconomic
considerations beyond the scope of a narrow scientific debate and the currently unresolved biosafety research
agendas. These decisions must therefore involve the broader society. They should, however, be supported by
strong scientific evidence on the long-term safety of GM crops and foods for human and animal health and the
environment, obtained in a manner that is honest, ethical, rigorous, independent, transparent, and sufficiently
diversified to compensate for bias.

Decisions on the future of our food and agriculture should not be based on misleading and misrepresentative claims
that a "scientific consensus" exists on GMO safety.123ChanRoblesVirtualawlibrary
One of the most serious concerns raised against GM crops is that expressed by one of our political analysts now
serving in Congress, viz:
x x x patented GMO seeds concentrate power in the hands of a few biotech corporations and marginalize small
farmers. As the statement x x x of the 81 members of the World Future Council put it, "While profitable to the few
companies producing them, GMO seeds reinforce a model of farming that undermines sustainability of cash-poor
farmers, who make up most of the world's hungry. GMO seeds continue farmers' dependency on purchased seed
and chemical inputs. The most dramatic impact of such dependency is in India, where 270,000 farmers, many
trapped in debt for buying seeds and chemicals, committed suicide between 1995 and
2012."124ChanRoblesVirtualawlibrary
In sum, current scientific research indicates that the biotech industry has not sufficiently addressed the
uncertainties over the safety of GM foods and crops.

Bt Brinjal Controversy in India

Brinjal (eggplant) is a major crop and a popular component of food diet in India, an important ingredient in
Ayurvedic medicine, and is of special value for the treatment of diabetes and liver problems. The attempted
commercial propagation of Bt brinjal spawned intense debate and suffered obstacles due to sustained opposition
from local scientists, academicians and non-government organizations in India.

As in the case of the Philippines, proponents of Bt brinjal in India, believed to be the origin of eggplant's diversity,
said that if the new technology is adopted, decrease in the use of insecticides, substantial increase in crop yields
and greater food availability, can be expected. But opponents argued, alongside food safety concerns, that there is
a potential for toxic effects on populations of non-target invertebrates, and potential replacement of traditional
landraces as farmers may move towards cultivation of a restricted number of GE forms. In addition to these issues,
there was the additional concern raised over the transfer of Bt transgenes to non-GE brinjal or its wild relatives,
and the consequences for plant biodiversity.125

Writ petitions were lodged before the Supreme Court of India to stop the release into the environment of Bt
brinjal (Aruna Rodrigues and Ors, etc. vs. Union of India). The Court formed a Technical Evaluation Committee
(TEC) composed of experts nominated by the parties to undertake a comprehensive evaluation of the feasibility of
allowing the open field trials of Bt brinjal and submit a final report, and in the event the TEC is unable to submit
said final report, it was directed instead to submit an interim report within the period set by the Court on the
following issue: Whether there should or should not be any ban, partial or otherwise, upon conducting of open field
tests of the GMOs? In the event open field trials are permitted, what protocol should be followed and conditions, if
any, that may be imposed by the Court for implementation of open field trials." The Court also directed that the
TEC would be free to review report or studies authored by national and international scientists if it was necessary.

In its Interim Report dated October 17, 2012, the TEC recommended that, in view of its findings, all field trials
should be stopped until certain conditions have been met. A Final Report 126 was eventually submitted to the Court
which noted weaknesses in the conditions imposed by the regulatory agencies for conduct of field trials, as follows:
1) post-release monitoring, an important aspect of environmental and health safety (if the GE crop is consumed as
food) is not given adequate attention; 2) the importance of need and socio-economic impact assessment of GM
products as one of the criteria that should be applied in the evaluation at an early stage; and 3) need for additional
tests not currently done such as long-term feeding studies for assessment of chronic and intergeneration toxicity in
small animals, genomewide expression analysis in the toxicity studies to screen for possible unintended effects on
host physiology. It was recommended that a moratorium on field trials of herbicide tolerant crops until the issue
had been examined by an independent committee, and also noted that said technology may not be suitable in the
Indian socio-economic context due to possible impact of extensive use of broad spectrum herbicides on the
environmental biodiversity and smaller average farm size. Examination of the safety dossier of Bt brinjal indicated
certain concerns on the data, which had not been addressed in the course of regulatory testing leading to approval
due to lack of full-time qualified personnel for the purpose. Overall, it was found that the quality of information in
several of the applications is far below what would be expected and required for rigorous evaluation by a regulatory
body and is unlikely to meet international regulatory guidelines.

On the mechanism of CrylAc proteins, the TEC cited studies showing that it is possible under certain conditions
for CrylAc protein to kill insects that lack the cadherin receptor. Also, while it is generally believed that Cry toxins
do not exert an effect on vertebrates as vertebrates lack the receptor for Cry toxins, two studies (one in mice and
the other in cows) have provided evidence that Cry proteins can bind to mammalian intestinal epithelial cells. The
report also discussed the emergence of resistance in insect pests, health and food safety of Bt transgenics, and
herbicide tolerant crops and their effect on biodiversity and the environment. Specific recommendations were made
to address the foregoing issues and the report concluded that:
The release of a GM crop into its area of origin or diversity has far greater ramifications and potential for negative
impact than for other species. To justify this, there needs to be extraordinarily compelling reasons and only when
other choices are not available. GM crops that offer incremental advantages or solutions to specific and limited
problems are not sufficient reasons to justify such release. The TEC did not find any such compelling reasons under
the present conditions. The fact is that unlike the situation in 1960s there is no desperate shortage of food and in
fact India is in a reasonably secure position. The TEC therefore recommends that release of GM crops for which
India is a centre of origin or diversity should not be allowed. 127ChanRoblesVirtualawlibrary
In 2010, responding to large-scale opposition to Bt brinjal's introduction in India, former environment minister
Jairam Ramesh placed an indefinite moratorium on its further field testing. This was done after discussions with
scientists, both pro and anti-GM crops, activists and farmers across the country.
GMO Field Trials in the Philippines

As earlier mentioned, the conduct of field trials for GE plants and crops in our country is governed primarily by DAO
08-2002 and implemented by the DA through the BPI. Petitioners EMB, BPI and FPA all maintain there was no
unlawful deviation from its provisions and that respondents so far failed to present evidence to prove their claim
that Bt talong field trials violated environmental laws and rules.

Within the DA-BPI, it is the Scientific and Technical Review Panel (STRP) which, as an advisory body, was tasked to
"evaluate the potential risks of the proposed activity to human health and the environment based on available
scientific and technical information." Under DA Special Order 241 and 384 (2002) the STRP membership was
expanded to include "an independent pool of experts...tapped by the [BPI] to evaluate the potential risks of the
proposed release of GMOs for field testing, propagation, food, feed to human health and the environment based on
available scientific and technical information."

DAO 08-2002 supplements the existing guidelines on the importation and release into the environment of products
of modern biotechnology by institutionalizing existing operational arrangements between DA-BPI and the NCBP.
Effective July 2003, applications for field test are received and processed by DA-BPI, but the approval process for
projects on contained use remains under the supervision of NCBP. A mandatory risk assessment of GM plant and
plant products is required prior to importation or release into the environment. Experiments must first be
conducted under contained conditions, then the products are tested in field trials the product is reviewed for
commercial release. Risk assessment is done according to the principles provided for by the Cartagena Protocol on
Biosafety. Risk assessment is science-based, carried out on a case by case manner, targets a specific crop and its
transformation event, adopts the concept of substantial equivalence in identifying risk, allows review, and provides
that the absence of scientific information or consensus should not be interpreted to indicate the absence or
presence and level of risk.128

Greenpeace, however, claims there is actually only a committee of three to five members which conducts the risk
assessment, and is aided by an informal group, the DA's Biotech Advisory Team (BAT), of representatives from
government biotech regulatory agencies: BPI, BAI, FPA, DENR, DOH and DOST. It also assails the government
regulatory agencies for their refusal to open to scrutiny the names and qualifications of those incharge of
regulation and risk assessment, and for allowing the entry and use of all GMO applications requested by
multinational companies.129

It must be stressed that DAO 08-2002 and related DA orders are not the only legal bases for regulating field trials
of GM plants and plant products. EO 514130 establishing the National Biosafety Framework (NBF) clearly provides
that the NBF shall apply to the development, adoption and implementation of all biosafety policies, measures and
guidelines and in making biosafety decisions concerning the research, development, handling and use,
transboundary movement, release into the environment and management of regulated articles.131 The objective of
the NBF is to "[e]nhance the decision-making system on the application of products of modern biotechnology to
make it more efficient, predictable, effective, balanced, culturally appropriate, ethical, transparent and
participatory".132 Thus, "the socio-economic, ethical, and cultural benefit and risks of modern biotechnology to the
Philippines and its citizens, and in particular on small farmers, indigenous peoples, women, small and medium
enterprises and the domestic scientific community, shall be taken into account in implementing the NBF." 133 The
NBF also mandates that decisions shall be arrived at in a transparent and participatory manner, recognizing that
biosafety issues are best handled with the participation of all relevant stakeholders and organizations who shall
have appropriate access to information and the opportunity to participate responsibly and in an accountable
manner in biosafety decision-making process.134

Most important, the NBF requires the use of precaution, as provided in Section 2.6 which reads:
2.6 Using Precaution. -In accordance with Principle 15 of the Rio Declaration of 1992 and the relevant provisions of
the Cartagena Protocol on Biosafety, in particular Articles 1, 10 (par. 6) and 11 (par. 8), the precautionary
approach shall guide biosafety decisions. The principles and elements of this approach are hereby implemented
through the decision-making system in the NBF;
The NBF contains general principles and minimum guidelines that the concerned agencies are expected to follow
and which their respective rules and regulations must conform with. In cases of conflict in applying the principles,
the principle of protecting public interest and welfare shall always prevail, and no provision of the NBF shall be
construed as to limit the legal authority and mandate of heads of departments and agencies to consider the
national interest and public welfare in making biosafety decisions. 135

As to the conduct of risk assessment to identify and evaluate the risks to human health and the environment, these
shall be guided by the following:
5.2.1 Principles of Risk Assessment. - The following principles shall be followed when performing a RA to determine
whether a regulated article poses significant risks to human health and the
environment:chanRoblesvirtualLawlibrary
5.2.1.1 The RA shall be carried out in a scientifically sound and transparent manner based on available scientific
and technical information. The expert advice of and guidelines developed by, relevant international
organizations, including intergovernmental bodies, and regulatory authorities of countries with significant
experience in the regulatory supervision of the regulated article shall be taken into account in the conduct
of risk assessment;

5.2.1.2 Lack of scientific knowledge or scientific consensus shall not be interpreted as indicating a particular level
of risk, an absence of risk, or an acceptable risk;

5.2.1.3 The identified characteristics of a regulated article and its use which have the potential to pose significant
risks to human health and the environment shall be compared to those presented by the non-modified
organism from which it is derived and its use under the same conditions;

5.2.1.4 The RA shall be carried out case-by-case and on the basis of transformation event. The required
information may vary in nature and level of detail from case to case depending on the regulated article
concerned, its intended use and the receiving environment; and,

5.2.1.5 If new information on the regulated article and its effects on human health and the environment becomes
available, and such information is relevant and significant, the RA shall be readdressed to determine
whether the risk has changed or whether there is a need to amend the risk management strategies
accordingly.

5.2.2 Risk Assessment Guidelines. - The conduct of RA by concerned departments and agencies shall be in
accordance with the policies and standards on RA issued by the NCBP. Annex III of the Cartagena Protocol shall
also guide RA. As appropriate, such department and agencies may issue their own respective administrative
issuances establishing the appropriate RA under their particular jurisdictions.

5.3 Role of Environmental Impact Assessment. - The application of the EIA System to biosafety decisions shall be
determined by concerned departments and agencies subject to the requirements of law and the standards set by
the NCBP. Where applicable and under the coordination of the NCBP, concerned departments and agencies shall
issue joint guidelines on the matter. (Emphasis supplied)
Considering the above minimum requirements under the most comprehensive national biosafety regulation to date,
compliance by the petitioners with DAO 08-2002 is not sufficient. Notably, Section 7 of the NBF mandates a more
transparent, meaningful and participatory public consultation on the conduct of field trials beyond the posting and
publication of notices and information sheets, consultations with some residents and government officials, and
submission of written comments, provided in DAO 08-2002.
SECTION 7. PUBLIC PARTICIPATION

The concerned government departments and agencies, in developing and adopting biosafety policies, guidelines
and measures and in making biosafety decisions, shall promote, facilitate, and conduct public awareness,
education, meaningful, responsible and accountable participation. They shall incorporate into their respective
administrative issuances and processes best practices and mechanisms on public participation in accordance with
the following guidelines:chanRoblesvirtualLawlibrary

7.1 Scope of Public Participation. - Public participation shall apply to all stages of the biosafety decision-making
process from the time the application is received. For applications on biotechnology activities related to research
and development, limited primarily for contained use, notice of the filing of such application with the NCBP shall be
sufficient, unless the NCBP deems that public interest and welfare requires otherwise.

7.2 Minimum Requirements of Public Participation. - In conducting public participation processes, the following
minimum requirements shall be followed:chanRoblesvirtualLawlibrary

7.2.1 Notice to all concerned stakeholders, in a language understood by them and through media to which they
have access. Such notice must be adequate, timely, and effective and posted prominently in public places in the
areas affected, and in the case of commercial releases, in the national print media; in all cases, such notices must
be posted electronically in the internet;

7.2.2 Adequate and reasonable time frames for public participation procedures. Such procedures should allow
relevant stakeholders to understand and analyze the benefits and risks, consult with independent experts, and
make timely interventions. Concerned departments and agencies shall include in their appropriate rules and
regulations specific time frames for their respective public participation processes, including setting a minimum
time frame as may be appropriate;

7.2.3 Public consultations, as a way to secure wide input into the decisions that are to be made. These could
include formal hearings in certain cases, or solicitation of public comments, particularly where there is public
controversy about the proposed activities. Public consultations shall encourage exchanges of information between
applicants and the public before the application is acted upon. Dialogue and consensus-building among all
stakeholders shall be encouraged. Concerned departments and agencies shall specify in their appropriate rules and
regulations the stages when public consultations are appropriate, the specific time frames for such consultations,
and the circumstances when formal hearings will be required, including guidelines to ensure orderly
proceedings. The networks of agricultural and fisheries councils, indigenous peoples and community-based
organizations in affected areas shall be utilized;

7.2.4 Written submissions. Procedures for public participation shall include mechanisms that allow public
participation in writing or through public hearings, as appropriate, and which allow the submission of any positions,
comments, information, analyses or opinions. Concerned departments and agencies shall include in their
appropriate rules and regulations the stages when and the process to be followed for submitting written comments;
and,

7.2.5 Consideration of public concerns in the decision-making phase following consultation and submission of
written comments. Public concerns as reflected through the procedures for public participation shall be considered
in making the decision. The public shall be informed of the final decision promptly, have access to the decision, and
shall be provided with the reasons and considerations resulting in the decision, upon request.
We find that petitioners simply adhered to the procedures laid down by DAO 08-2002 and no real effort was made
to operationalize the principles of the NBF in the conduct of field testing of Bt talong. The failure of DAO 08-2002 to
accommodate the NBF means that the Department of Agriculture lacks mechanisms to mandate applicants to
comply with international biosafety protocols. Greenpeace's claim that BPI had approved nearly all of the
applications for GMO field trials is confirmed by the data posted on their website. For these reasons, the DAO 08-
2002 should be declared invalid.

Significantly, while petitioners repeatedly argued that the subject field trials are not covered by the EIS law, EO
514 clearly mandates that concerned departments and agencies, most particularly petitioners DENR-EMB, BPI and
FPA, make a determination whether the EIS system should apply to the release of GMOs into the environment and
issue joint guidelines on the matter.

The Philippine EIS System (PEISS) is concerned primarily with assessing the direct and indirect impacts of a project
on the biophysical and human environment and ensuring that these impacts are addressed by appropriate
environmental protection and enhancement measures. It "aids proponents in incorporating environmental
considerations in planning their projects as well as in determining the environment's impact on their project."
There are six stages in the regular EIA process. The proponent initiates the first three stages while the EMB takes
the lead in the last three stages. Public participation is enlisted in most stages. 136

Even without the issuance of EO 514, GMO field testing should have at least been considered for EIA under existing
regulations of petitioner EMB on new and emerging technologies, to wit:
g) Group V (Unclassified Projects): These are the projects not listed in any of the groups, e.g. projects using new
processes/technologies with uncertain impacts. This is an interim category - unclassified projects will eventually be
classified into their appropriate groups after EMB evaluation. 137 (Emphasis supplied)
All government agencies as well as private corporations, firms and entities who intend to undertake activities or
projects which will affect the quality of the environment are required to prepare a detailed Environmental Impact
Statement (EIS) prior to undertaking such development activity. 138 An environmentally critical project (ECP) is
considered by the EMB as "likely to have significant adverse impact that may be sensitive, irreversible and diverse"
and which "include activities that have significant environmental consequences." 139 In this context, and given the
overwhelming scientific attention worldwide on the potential hazards of GMOs to human health and the
environment, their release into the environment through field testing would definitely fall under the category of
ECP.

During the hearing at the CA, Arty. Segui of the EMB was evasive in answering questions on whether his office
undertook the necessary evaluation on the possible environmental impact of Bt talong field trials subject of this
case and the release of GMOs into the environment in general. While he initially cited lack of budget and
competence as reasons for their inaction, he later said that an amendment of the law should be made since
projects involving GMOs are not covered by Proclamation No. 2146 140. Pertinent portions of his testimony before
the CA are herein quoted:
xxxx
ATTY. SORIANO:chanRoblesvirtualLawlibrary

Let us go back Mr. Witness to your answer in Question No. 5 regarding the list under the PEISS law. Granting Mr.
Witness that a certain project or undertaking is not classified as environmentally critical project, how would you
know that the BT talong field testing is not located in an environmentally critical area this time?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Objection Your Honor, argumentative.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Witness may answer.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As far as my recollection can serve me, in a reading of the Petition itself, somewhere along the Petition, petitioners
never alleged that the project, the subject matter rather of this instant petition, is within an environmentally critical
project.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Your Honor the Witness did not answer the question.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Please answer the question.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Personally I have conferred with our personnel from the Environmental Impact Assessment Division and they
intimated to me that the locations of the project, rather of this subject matter of the instant petition, not within any
declared environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

In other words, you are aware of the area where the BT Talong experiments are being conducted. Is that the
premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Judging from previous discussions we had . . . judging from the Petition, and showing it to the as I said personnel
from Environmental Impact Division at our office, as I said they intimated to me that it's not within declared
environmentally critical area.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

That being the case, you did not act further? [You] did not make any further evaluation, on whether the activity
has an environmental impact? Is that the correct premise?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors I may be the Chief of the Legal Division of the EMB, I handle more of the legal aspects of the
Bureau's affairs. But when it comes to highly technical matters, I have to rely on our technical people especially on
environmentally impact assessment matters.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

I will just ask him another question Your Honors. So did the Department of Agriculture Mr. Witness coordinate with
your Office with regard the field testing of BT Talong?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors I am not privy to that personally.

ATTY. SORIANO:chanRoblesvirtualLawlibrary
Mr. Witness, the question is did the Department of Agriculture coordinate with your Office with regard the field
testing of BT Talong as required under the law?

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Already answered your Honor, objection.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

The witness in effect said he does not know, he's not in a position to answer.

xxxx

ATTY. SORIANO:chanRoblesvirtualLawlibrary

Did the EMB Mr. Witness perform such evaluation in the case of BT Talong field testing?

ATTY. ACANTILADO:chanRoblesvirtualLawlibrary

Your Honor that is speculative, the witness has just answered a while ago that the EMB has not yet received any
project with respect to that Your Honor. So the witness would not be in a position to answer that Your Honors.

HON. J. DICDICAN:chanRoblesvirtualLawlibrary

Lay the basis first.

ATTY. SORIANO:chanRoblesvirtualLawlibrary

The earlier answer Your Honor of the witness is in general terms. My second question, my follow-up question is
specifically Your Honor the BT talong field testing.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well from where I sit Your Honors, it would appear that it could be categorized as unclassified...

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Unclassified?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

As the section will initially provide. But there must be prior ... may I continue to harp on that Your Honors. There
must be prior ... let's say conditions ... there must be prior evaluation and assessment just the same by the EMB.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Prior to what Mr. Witness?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

We will categorize it as unclassified but there must be ... (interrupted)

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So initially you call it unclassified and then you say prior to...

ATTY. SEGUI:chanRoblesvirtualLawlibrary

I'm sorry Your Honors, may I reform.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

Yes please.

ATTY. SEGUI:chanRoblesvirtualLawlibrary
Initially they will be considered/categorized as unclassified but there will be hopefully a subsequent evaluation or
assessment of the matter to see if we also have the resources and expertise if it can be finally unclassified. I
should say should fall within the fairview of the system, the EIA system. In other words, it's in a sort of how do you
say that it's in a state of limbo. So it's unclassified, that's the most we can do in the meantime.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

And Mr. Witness you also said that the agency the EMB is without the capability to evaluate the projects such as
this one in particular?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, Your Honors as of now.

HON. J. VALENZUELA:chanRoblesvirtualLawlibrary

So therefore, when you say initially it's unclassified and then you're saying afterwards the EMB needs evaluation
but then you're saying the EMB is without any capability to evaluate then what happens?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, I did not draft the regulation myself. As the Chief of the Legal of the EMB that's how we interpret
it. But the truth of the matter is with all pragmatism we don't have the resources as of now and expertise to do
just that.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So in other words you admit that the EMB is without any competence to make a categorical or initial examination
of this uncategorized activity, is that what you mean?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It would appear, yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

What do you think would prompt your office to make such initial examination?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well executive fee at the usual dictates ... the Secretary of the DENR probably even by request of the parties
concerned.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

So that means you are waiting for a request? Are you not? Proactive in this activity in performing your obligations
and duties?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Well Your Honors, the national budget if I may ... I attend budget hearings myself. The budget for the environment
is hardly ... the ratio is ... if we want to protect indeed the environment as we profess, with all due respect if
Congress speaks otherwise.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

May I interrupt, can we go into specifics. From what I have read so far, under No. 2 of your Judicial Affidavit, [you]
are saying that the EMB is tasked in advising the DENR on matters related to environmental management,
conservation and pollution control, right?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary
Thereafter you stated that you are tasked mainly with PD 1586 which refers to Environmental Critical Areas of
Projects and more specifically focused on Proclamation No. 2146. With respect to this BT Talong, you mentioned
that this is at first is uncategorized, it's not within?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

It's not within Proclamation 2146 Your Honor.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

But you did mention that under the rules and regulations, even in an uncategorized activity, pertaining to the
environment, your Office has the mandate and then you later say that your Office is without competence, do I
follow your line of standing?

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Yes, precisely it will be categorized as per section 7 as unclassified because it doesn't fall as of now within
Proclamation 2146.

HON. J. BARRIOS:chanRoblesvirtualLawlibrary

Yes, but under the implementing rules your Office has the mandate to act on other unclassified activities and you
answered that your Office has no competence.

ATTY. SEGUI:chanRoblesvirtualLawlibrary

Proclamation 2146 executed by then Pres. Marcos, the IRR pointed to was executed by I believe the Secretary of
DENR. We need an amendment of 2146.141 (Emphasis supplied)
The foregoing stance of the EMB's Chief of the Legal Division is an indication of the DENR-EMB's lack of serious
attention to their mandate under the law in the implementation of the NBF, as provided in the following sections of
EO 514:
4.9 Mandate of the Department of Environment and Natural Resources. - As the primary government agency
responsible for the conservation, management, development and proper use of the country's environment and
natural resources, the Department of Environment and Natural Resources (DENR) shall ensure that environmental
assessments are done and impacts identified in biosafety decisions. It shall also take the lead in evaluating and
monitoring regulated articles intended for bioremediation, the improvement of forest genetic resources, and wildlife
genetic resources.

xxxx

4.12 Focal Point and Competent National Authorities.

4.12.1 For purposes of Article 19 of the Cartagena Protocol on Biosafety, the national focal point responsible for
liaison with the Secretariat shall be the Department of Foreign Affairs. The competent national authorities,
responsible for performing the administrative functions required by the Protocol, shall be, depending on the
particular genetically modified organisms in question, the following:chanRoblesvirtualLawlibrary

xxxx

4.12.1.4 The Department of Environment and Natural Resources, for biosafety decisions covered by the Protocol
that concern regulated organisms intended for bioremediation, the improvement of forest genetic resources, and
wildlife genetic resources, and applications of modern biotechnology with potential impact on the conservation and
sustainable use of biodiversity. (Emphasis supplied)
On the supposed absence of budget mentioned by Atty. Segui, EO 514 itself directed the concerned agencies to
ensure that there will be funding for the implementation of the NBF as it was intended to be a multi-disciplinary
effort involving the different government departments and agencies.
SEC. 6. Funding. - The DOST, DENR, DA, and DOH shall allocate funds from their present budgets to implement
the NBF, including support to the operations of the NCBP and its Secretariat. Starting 2006 and thereafter, the
funding requirements shall be included in the General Appropriations Bill submitted by each of said departments to
Congress.

These concerned departments shall enter into agreement on the sharing of financial and technical resources to
support the NCBP and its Secretariat.
All told, petitioners government agencies clearly failed to fulfil their mandates in the implementation of the NBF.

Application of the Precautionary Principle

The precautionary principle originated in Germany in the 1960s, expressing the normative idea that governments
are obligated to "foresee and forestall" harm to the environment. In the following decades, the precautionary
principle has served as the normative guideline for policymaking by many national governments. 142 The Rio
Declaration on Environment and Development, the outcome of the 1992 United Nations Conference on
Environment and Development held in Rio de Janeiro, defines the rights of the people to be involved in the
development of their economies, and the responsibilities of human beings to safeguard the common environment.
It states that the long term economic progress is only ensured if it is linked with the protection of the
environment.143 For the first time, the precautionary approach was codified under Principle 15, which reads:
In order to protect the environment, the precautionary approach shall be widely applied by States according to
their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not
be used as a reason for postponing cost-effective measures to prevent environmental degradation.
Principle 15 codified for the first time at the global level the precautionary approach, which indicates that lack of
scientific certainty is no reason to postpone action to avoid potentially serious or irreversible harm to the
environment. It has been incorporated in various international legal instruments. 144 The Cartagena Protocol on
Biosafety to the Convention on Biological Diversity, finalized and adopted in Montreal on January 29, 2000,
establishes an international regime primarily aimed at regulating trade in GMOs intended for release into the
environment, in accordance with Principle 15 of the Rio Declaration on Environment and Development. The Protocol
thus provides:
Article

10

DECISION PROCEDURE

xxxx

6. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent
of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological
diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of the living modified organism in question as referred
to in paragraph 3 above, in order to avoid or minimize such potential adverse effects.

xxxx

Article

11

PROCEDURE FOR LIVING MODIFIED ORGANISMS

INTENDED FOR DIRECT USE AS FOOD OR FEED,

OR FOR PROCESSING

8. Lack of scientific certainty due to insufficient relevant scientific information and knowledge regarding the extent
of the potential adverse effects of a living modified organism on the conservation and sustainable use of biological
diversity in the Party of import, taking also into account risks to human health, shall not prevent that Party from
taking a decision, as appropriate, with regard to the import of that living modified organism intended for direct use
as food or feed, or for processing, in order to avoid or minimize such potential adverse effects.

xxxx

Annex III

RISK ASSESSMENT

General principles

xxxx

4. Lack of scientific knowledge or scientific consensus should not necessarily be interpreted as indicating a
particular level of risk, an absence of risk, or an acceptable risk.

The precautionary principle applies when the following conditions are met 145:

there exist considerable scientific uncertainties;

there exist scenarios (or models) of possible harm that are scientifically reasonable (that is based
on some scientifically plausible reasoning);

uncertainties cannot be reduced in the short term without at the same time increasing ignorance
of other relevant factors by higher levels of abstraction and idealization;

the potential harm is sufficiently serious or even irreversible for present or future generations or
otherwise morally unacceptable;

there is a need to act now, since effective counteraction later will be made significantly more
difficult or costly at any later time.

The Rules likewise incorporated the principle in Part V, Rule 20, which states:
PRECAUTIONARY PRINCIPLE

SEC. 1. Applicability. - When there is a lack of full scientific certainty in establishing a causal link between human
activity and environmental effect, the court shall apply the precautionary principle in resolving the case before it.

The constitutional right of the people to a balanced and healthful ecology shall be given the benefit of the doubt.

SEC. 2. Standards for application. - In applying the precautionary principle, the following factors, among others,
may be considered: (1) threats to human life or health; (2) inequity to present or future generations; or (3)
prejudice to the environment without legal consideration of the environmental rights of those affected.
Under this Rule, the precautionary principle finds direct application in the evaluation of evidence in cases before the
courts. The precautionary principle bridges the gap in cases where scientific certainty in factual findings cannot be
achieved. By applying the precautionary principle, the court may construe a set of facts as warranting either
judicial action or inaction, with the goal of preserving and protecting the environment. This may be further evinced
from the second paragraph where bias is created in favor of the constitutional right of the people to a balanced and
healthful ecology. In effect, the precautionary principle shifts the burden of evidence of harm away from those
likely to suffer harm and onto those desiring to change the status quo. An application of the precautionary principle
to the rules on evidence will enable courts to tackle future environmental problems before ironclad scientific
consensus emerges.146

For purposes of evidence, the precautionary principle should be treated as a principle of last resort, where
application of the regular Rules of Evidence would cause in an inequitable result for the environmental plaintiff

(a) settings in which the risks of harm are uncertain; (b) settings in which harm might be irreversible and what
is lost is irreplaceable; and (c) settings in which the harm that might result would be serious. When these features

uncertainty, the possibility of irreversible harm, and the possibility of serious harm coincide, the case for the
precautionary principle is strongest. When in doubt, cases must be resolved in favor of the constitutional right to a
balanced and healthful ecology. Parenthetically, judicial adjudication is one of the strongest fora in which the
precautionary principle may find applicability. 147

Assessing the evidence on record, as well as the current state of GMO research worldwide, the Court finds all the
three conditions present in this case - uncertainty, the possibility of irreversible harm and the possibility of serious
harm.

Eggplants (talong) are a staple vegetable in the country and grown by small-scale farmers, majority of whom are
poor and marginalized. While the goal of increasing crop yields to raise farm incomes is laudable, independent
scientific studies revealed uncertainties due to unfulfilled economic benefits from Bt crops and plants, adverse
effects on the environment associated with use of GE technology in agriculture, and serious health hazards from
consumption of GM foods. For a biodiversity-rich country like the Philippines, the natural and unforeseen
consequences of contamination and genetic pollution would be disastrous and irreversible.

Alongside the aforesaid uncertainties, the non-implementation of the NBF in the crucial stages of risk assessment
and public consultation, including the determination of the applicability of the EIS requirements to GMO field
testing, are compelling reasons for the application of the precautionary principle. There exists a preponderance of
evidence that the release of GMOs into the environment threatens to damage our ecosystems and not just the field
trial sites, and eventually the health of our people once the Bt eggplants are consumed as food. Adopting the
precautionary approach, the Court rules that the principles of the NBF need to be operationalized first by the
coordinated actions of the concerned departments and agencies before allowing the release into the environment of
genetically modified eggplant. The more prudent course is to immediately enjoin the Bt talong field trials and
approval for its propagation or commercialization until the said government offices shall have performed their
respective mandates to implement the NBF.

We have found the experience of India in the Bt brinjal field trials - for which an indefinite moratorium was
recommended by a Supreme Court-appointed committee till the government fixes regulatory and safety aspects -
as relevant because majority of Filipino farmers are also small-scale farmers. Further, the precautionary approach
entailed inputs from all stakeholders, including the marginalized farmers, not just the scientific community. This
proceeds from the realization that acceptance of uncertainty is not only a scientific issue, but is related to public
policy and involves an ethical dimension.148 For scientific research alone will not resolve all the problems, but
participation of different stakeholders from scientists to industry, NGOs, farmers and the public will provide a
needed variety of perspective foci, and knowledge.149

Finally, while the drafters of the NBF saw the need for a law to specifically address the concern for biosafety arising
from the use of modern biotechnology, which is deemed necessary to provide more permanent rules, institutions,
and funding to adequately deal with this challenge,150 the matter is within the exclusive prerogative of the
legislative branch.

WHEREFORE, the petitions are DENIED. The Decision dated May 17, 2013 of the Court of Appeals in CA-G.R. SP
No. 00013 is hereby MODIFIED, as follows:chanRoblesvirtualLawlibrary

1. The conduct of the assailed field testing for Bt talong is hereby PERMANENTLY ENJOINED;

2. Department of Agriculture Administrative Order No. 08, series of 2002 is declared NULL AND VOID; and

3. Consequently, any application for contained use, field testing, propagation and commercialization, and
importation of genetically modified organisms is TEMPORARILY ENJOINED until a new administrative order is
promulgated in accordance with law.

No pronouncement as to costs.

SO ORDERED.chan

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN
PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO
B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON
m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in
his capacity as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,


vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR.,
in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province of
Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET
AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail the constitutionality of the
Pork Barrel System. Due to the complexity of the subject matter, the Court shall heretofore discuss the systems conceptual
underpinnings before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be traced to the degrading ritual
of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast their famished bodies into the porcine
feast to assuage their hunger with morsels coming from the generosity of their well-fed master. 4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of their districts. 5 While the
advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to political bills that "bring home
the bacon" to a legislators district and constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring money to a representative's
district.7 Some scholars on the subject further use it to refer to legislative control of local appropriations. 8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage would evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of "Congressional Pork Barrel"
in the Philippines since the utilization of the funds appropriated therein were subjected to post-enactment
legislator approval. Particularly, in the area of fund release, Section 312 provides that the sums appropriated for
certain public works projects13"shall be distributed x x x subject to the approval of a joint committee elected by
the Senate and the House of Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and Communications."14 Also, in the
area of fund realignment, the same section provides that the said secretary, "with the approval of said joint
committee, or of the authorized members thereof, may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation broadened from the areas of fund
release and realignment to the area of project identification. During that year, the mechanics of the public works
act was modified to the extent that the discretion of choosing projects was transferred from the Secretary of
Commerce and Communications to legislators. "For the first time, the law carried a list of projects selected by
Members of Congress, they being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders."16 During this period, the pork barrel process commenced with
local government councils, civil groups, and individuals appealing to Congressmen or Senators for projects.
Petitions that were accommodated formed part of a legislators allocation, and the amount each legislator would
eventually get is determined in a caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications. Thereafter, the Senate
and the House of Representatives added their own provisions to the bill until it was signed into law by the
President the Public Works Act.17 In the 1960s, however, pork barrel legislation reportedly ceased in view of
the stalemate between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).

While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after Martial Law was
declared, an era when "one man controlled the legislature,"19 the reprieve was only temporary. By 1982, the
Batasang Pambansa had already introduced a new item in the General Appropriations Act (GAA) called the"
Support for Local Development Projects" (SLDP) under the article on "National Aid to Local Government Units".
Based on reports,20 it was under the SLDP that the practice of giving lump-sum allocations to individual
legislators began, with each assemblyman receiving P500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for approval. Then, the said
ministry would release the allocation papers to the Ministry of Local Governments, which would, in turn, issue
the checks to the city or municipal treasurers in the assemblymans locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only public works projects, or so-
called "hard projects", but also "soft projects",21 or non-public works projects such as those which would fall
under the categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy, "Congressional
Pork Barrel" was revived in the form of the "Mindanao Development Fund" and the "Visayas Development
Fund" which were created with lump-sum appropriations of P480 Million and P240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has been documented 23 that the
clamor raised by the Senators and the Luzon legislators for a similar funding, prompted the creation of the
"Countrywide Development Fund" (CDF) which was integrated into the 1990 GAA 24 with an initial funding
of P2.3 Billion to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to be
released directly to the implementing agencies but "subject to the submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992 were silent as to the amounts of allocations of the individual
legislators, as well as their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving P12.5 Million each in CDF funds, while Senators were receiving P18 Million
each, without any limitation or qualification, and that they could identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be made upon
the submission of the list of projects and activities identified by, among others, individual legislators. For the first
time, the 1993 CDF Article included an allocation for the Vice-President.29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification and fund
release as found in the 1993 CDF Article. In addition, however, the Department of Budget and Management
(DBM) was directed to submit reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the
implementing agency concerned, were directed to submit to the DBM the list of 50% of projects to be funded
from their respective CDF allocations which shall be duly endorsed by (a) the Senate President and the
Chairman of the Committee on Finance, in the case of the Senate, and (b) the Speaker of the House of
Representatives and the Chairman of the Committee on Appropriations, in the case of the House of
Representatives; while the list for the remaining 50% was to be submitted within six (6) months thereafter. The
same article also stated that the project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for projects not included in the list
herein required."
The following year, or in 1998,36 the foregoing provisions regarding the required lists and endorsements were
reproduced, except that the publication of the project list was no longer required as the list itself sufficed for the
release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other forms of
"Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA (called "Congressional
Insertions" or "CIs") in order to perpetuate the ad ministrations political agenda.37 It has been articulated that
since CIs "formed part and parcel of the budgets of executive departments, they were not easily identifiable and
were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the finance and budget
officials of the implementing agencies, as well as the DBM, purportedly knew about the insertions. 38Examples of
these CIs are the Department of Education (DepEd) School Building Fund, the Congressional Initiative
Allocations, the Public Works Fund, the El Nio Fund, and the Poverty Alleviation Fund. 39 The allocations for the
School Building Fund, particularly, shall be made upon prior consultation with the representative of the
legislative district concerned.40 Similarly, the legislators had the power to direct how, where and when these
appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the "Food
Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44and the "Rural/Urban Development
Infrastructure Program Fund,"45 all of which contained a special provision requiring "prior consultation" with the
Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in the GAA. The
requirement of "prior consultation with the respective Representative of the District" before PDAF funds were
directly released to the implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with the sole condition that no
amount shall be used to fund personal services and other personnel benefits. 47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision ordering
the release of the funds directly to the implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was present, with simply an expansion of
purpose and express authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress
on the aspects of implementation delegation and project list submission, respectively. In 2004, the 2003 GAA
was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and projects under
the ten point agenda of the national government and shall be released directly to the implementing agencies." It
also introduced the program menu concept,55 which is essentially a list of general programs and implementing
agencies from which a particular PDAF project may be subsequently chosen by the identifying authority. The
2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program
menu concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated for the
individual legislators, as well as their participation in the proposal and identification of PDAF projects to be
funded. In contrast to the PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior consultation with the concerned
Member of Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of non-governmental
organizations (NGO) in the implementation of government projects were introduced. In the Supplemental
Budget for 2006, with respect to the appropriation for school buildings, NGOs were, by law, encouraged to
participate. For such purpose, the law stated that "the amount of at least P250 Million of the P500 Million
allotted for the construction and completion of school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school buildings x x x." 62 The
same allocation was made available to NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it
was in 2007 that the Government Procurement Policy Board64(GPPB) issued Resolution No. 12-2007 dated
June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated procurement,67 the
procedure whereby the Procuring Entity68 (the implementing agency) may enter into a memorandum of
agreement with an NGO, provided that "an appropriation law or ordinance earmarks an amount to be
specifically contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article included an
express statement on lump-sum amounts allocated for individual legislators and the Vice-President:
Representatives were given P70 Million each, broken down into P40 Million for "hard projects" and P30 Million
for "soft projects"; while P200 Million was given to each Senator as well as the Vice-President, with a P100
Million allocation each for "hard" and "soft projects." Likewise, a provision on realignment of funds was included,
but with the qualification that it may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government, Environment and Natural
Resources, Energy, and Public Works and Highways to realign PDAF Funds, with the further conditions that: (a)
realignment is within the same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or designation of
beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency
(priority list requirement) x x x." However, as practiced, it would still be the individual legislator who would
choose and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and 2013 PDAF
Articles; but the allocation for the Vice-President, which was pegged at P200 Million in the 2011 GAA, had been
deleted. In addition, the 2013 PDAF Article now allowed LGUs to be identified as implementing agencies if they
have the technical capability to implement the projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended outside-district, endorsed by
the Speaker of the House.78 Finally, any realignment of PDAF funds, modification and revision of project
identification, as well as requests for release of funds, were all required to be favorably endorsed by the House
Committee on Appropriations and the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of Members of Congress,
the present cases and the recent controversies on the matter have, however, shown that the terms usage has expanded
to include certain funds of the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of Presidential Decree No. (PD)
910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos
recognized the need to set up a special fund to help intensify, strengthen, and consolidate government efforts relating to
the exploration, exploitation, and development of indigenous energy resources vital to economic growth. 82 Due to the
energy-related activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep
Water Gas-to-Power Project",83 the special fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the President provides direct assistance
to priority programs and projects not funded under the regular budget. It is sourced from the share of the government in
the aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small part to previous
Presidents who reportedly used the "Pork Barrel" in order to gain congressional support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo),
then an anonymous source, "blew the lid on the huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the kickbacks were SOP (standard operating procedure) among
legislators and ranged from a low 19 percent to a high 52 percent of the cost of each project, which could be anything
from dredging, rip rapping, sphalting, concreting, and construction of school buildings." 92 "Other sources of kickbacks that
Candazo identified were public funds intended for medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a
roasted pig."93 "The publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in the 2004 GAA for
being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support that illegal misuse of PDAF in the form
of kickbacks has become a common exercise of unscrupulous Members of Congress," the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into allegations that
"the government has been defrauded of some P10 Billion over the past 10 years by a syndicate using funds from the pork
barrel of lawmakers and various government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN" standing for Janet Lim Napoles
(Napoles) had swindled billions of pesos from the public coffers for "ghost projects" using no fewer than 20 dummy
NGOs for an entire decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles private accounts.97 Thus, after its investigation on the Napoles
controversy, criminal complaints were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder,
and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act.
Also recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff or representatives, the
heads and other officials of three (3) implementing agencies, and the several presidents of the NGOs set up by Napoles. 98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit investigation 99 covering the
use of legislators' PDAF from 2007 to 2009, or during the last three (3) years of the Arroyo administration. The purpose of
the audit was to determine the propriety of releases of funds under PDAF and the Various Infrastructures including Local
Projects (VILP)100 by the DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government-owned-and-controlled corporations (GOCCs).101 The total releases
covered by the audit amounted to P8.374 Billion in PDAF and P32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co As findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the
highlights of which are as follows:103

Amounts released for projects identified by a considerable number of legislators significantly exceeded their
respective allocations.

Amounts were released for projects outside of legislative districts of sponsoring members of the Lower
House.

Total VILP releases for the period exceeded the total amount appropriated under the 2007 to 2009 GAAs.

Infrastructure projects were constructed on private lots without these having been turned over to the
government.

Significant amounts were released to implementing agencies without the latters endorsement and without
considering their mandated functions, administrative and technical capabilities to implement projects.

Implementation of most livelihood projects was not undertaken by the implementing agencies themselves but
by NGOs endorsed by the proponent legislators to which the Funds were transferred.

The funds were transferred to the NGOs in spite of the absence of any appropriation law or ordinance.

Selection of the NGOs were not compliant with law and regulations.

Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects amount
to P6.156 Billion were either found questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.

Procurement by the NGOs, as well as some implementing agencies, of goods and services reportedly used in
the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from royalties in the operation of
the Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this
writing, in the process of preparing "one consolidated report" on the Malampaya Funds.105
V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy, several petitions were
lodged before the Court similarly seeking that the "Pork Barrel System" be declared unconstitutional. To recount, the
relevant procedural antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society, filed a Petition for
Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents Franklin M. Drilon and Feliciano S.
Belmonte, Jr., in their respective capacities as the incumbent Senate President and Speaker of the House of Representatives, from
further taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form and by whatever
name it may be called, and from approving further releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No.
208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San
Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule
65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the Executives lump-sum, discretionary funds, such as the Malampaya Funds
and the Presidential Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the Department of
Budget and Management (DBM), and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of
the funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all pertinent
data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the PAGCOR." 109 The
Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated August 23, 2012
(Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease and desist order be issued restraining
President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of Congress
and, instead, allow their release to fund priority projects identified and approved by the Local Development Councils in consultation
with the executive departments, such as the DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development Authority.111 The Nepomuceno Petition was docketed
as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b) requiring public respondents to
comment on the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the
Executive Secretary, or any of the persons acting under their authority from releasing (1) the remaining PDAF allocated to Members
of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource development and
exploitation programs and projects of the government under the same provision; and (d) setting the consolidated cases for Oral
Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment (Comment) of even date before
the Court, seeking the lifting, or in the alternative, the partial lifting with respect to educational and medical assistance purposes, of
the Courts September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of merit. 113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on September 30, 2013, Villegas
filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated
September 30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties for the Oral Arguments
scheduled on October 8, 2013. In view of the technicality of the issues material to the present cases, incumbent Solicitor General
Francis H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to, among others, the budgeting process
and its implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby requested to appear before the
Court during the Oral Arguments.
On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties to submit their
respective memoranda within a period of seven (7) days, or until October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the Courts resolution:

I. Procedural Issues.

Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy; (b) the issues raised
in the consolidated petitions are matters of policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the
Courts Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly
and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the "Pork
Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are unconstitutional considering
that they violate the principles of/constitutional provisions on (a) separation of powers; (b) non-delegability of legislative power; (c)
checks and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD
910,116 relating to the Malampaya Funds, and (b) "to finance the priority infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional
insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court shall also tackle certain ancillary
issues as prompted by the present cases.

The Courts Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, 117 namely: (a) there
must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the
standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites, case law states that
the first two are the most important119 and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy. 120 This is embodied in Section 1,
Article VIII of the 1987 Constitution which pertinently states that "judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable x x x." Jurisprudence provides that an actual
case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there must be a contrariety of
legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an
actual case or controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result
of the challenged action."123 "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they
are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.
The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the constitutionality of
the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for adjudication since the challenged funds and
the provisions allowing for their utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as
amended by PD 1993, for the Presidential Social Fund are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits.125 Differing from this description, the Court observes that respondents
proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since
said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the Presidents declaration that he had already "abolished the PDAF" render the issues on PDAF
moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress, through the passage of a repealing
law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral Arguments: 126

Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct? Solicitor General Jardeleza: Yes, Your
Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the President has a duty to
execute the laws but in the face of the outrage over PDAF, the President was saying, "I am not sure that I will continue the release
of the soft projects," and that started, Your Honor. Now, whether or not that (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to stop the releases in the
meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative Code 128 x x x. So at most the
President can suspend, now if the President believes that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF because of the CoA Report,
because of the reported irregularities and this Court can take judicial notice, even outside, outside of the COA Report, you have the
report of the whistle-blowers, the President was just exercising precisely the duty .

xxxx

Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop and investigate, and prosecute,
he has done that. But, does that mean that PDAF has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to repeal it, or this Court
declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic principle is not a magical
formula that can automatically dissuade the Court in resolving a case." The Court will decide cases, otherwise moot, if: first, there is
a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved;
third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners they essentially allege grave violations of
the Constitution with respect to, inter alia, the principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved
the constitutionality of the very system within which significant amounts of public funds have been and continue to be utilized and
expended undoubtedly presents a situation of exceptional character as well as a matter of paramount public interest. The present
petitions, in fact, have been lodged at a time when the systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the governments own recognition that reforms are
needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court finds petitioners claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the findings made by the CoA which is the constitutionally-mandated
audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoAs disallowance of
irregularly disbursed PDAF funds, it was emphasized that:

The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant or
unconscionable expenditures of government funds. It is tasked to be vigilant and conscientious in safeguarding the proper use of the
government's, and ultimately the people's, property. The exercise of its general audit power is among the constitutional mechanisms
that gives life to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-
created, such as the CoA, not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the
laws they are entrusted to enforce. Findings of administrative agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the
CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that
this Court entertains a petition questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these cases, the Court deems the
findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a definitive ruling on the systems
constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson estimates that thousands of notices of disallowances
will be issued by her office in connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the courts. 132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised herein in order to guide the bench, the bar, and the
public, not just for the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the government
may be guided on how public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and passage of the national budget
is, by constitutional imprimatur, an affair of annual occurrence.133 The relevance of the issues before the Court does not cease with
the passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout
the course of history, lends a semblance of truth to petitioners claim that "the same dog will just resurface wearing a different
collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous course of action yet the
Court used the "capable of repetition but evading review" exception in order "to prevent similar questions from re- emerging." 137The
situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are
spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies carries the assurance that "the courts will not
intrude into areas committed to the other branches of government."138 Essentially, the foregoing limitation is a restatement of the
political question doctrine which, under the classic formulation of Baker v. Carr, 139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of judicially discoverable
and manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination of a kind clearly for
non- judicial discretion." Cast against this light, respondents submit that the "the political branches are in the best position not only to
perform budget-related reforms but also to do them in response to the specific demands of their constituents" and, as such, "urge
the Court not to impose a solution at this stage."140

The Court must deny respondents submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions which are within its province to
resolve. A political question refers to "those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure."141 The intrinsic
constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the political branches of government but
rather a legal one which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are incapable of rendering precisely because it is an exercise
of judicial power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise judicial power but
essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law. It includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." In Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution
and its effect on the political question doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but
also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine
what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x (Emphases
supplied)

It must also be borne in mind that when the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; does not in reality nullify or invalidate an act of the legislature or the executive, but only
asserts the solemn and sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by constitutional force that the Court must faithfully perform
its duty. Ultimately, it is the Courts avowed intention that a resolution of these cases would not arrest or in any manner impede the
endeavors of the two other branches but, in fact, help ensure that the pillars of change are erected on firm constitutional grounds.
After all, it is in the best interest of the people that each great branch of government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the problems of society. For all these reasons, the Court cannot heed
respondents plea for judicial restraint.

C. Locus Standi.

"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. Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly, assert that they "dutifully
contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the
validity of the existing "Pork Barrel System" under which the taxes they pay have been and continue to be utilized. It is undeniable
that petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably,
taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being
deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional
law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they have raised may be
classified as matters "of transcendental importance, of overreaching significance to society, or of paramount public interest." 148 The
CoA Chairpersons statement during the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the issues involved
herein. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the
instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare decisis which means
"follow past precedents and do not disturb what has been settled") are general procedural law principles which both deal with the
effects of previous but factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the applicability
of these principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a previous case rendered by a
court of competent jurisdiction would bind a subsequent case if, between the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases at
bar call for a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is essentially a dismissal
based on a procedural technicality and, thus, hardly a judgment on the merits in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend
them according to their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP
cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under Article 8152 of the Civil
Code, evokes the general rule that, for the sake of certainty, a conclusion reached in one case should be doctrinally applied to those
that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of
justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same
questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the same issue. 153

Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994 CDF Article, was
resolved by the Court. To properly understand its context, petitioners posturing was that "the power given to the Members of
Congress to propose and identify projects and activities to be funded by the CDF is an encroachment by the legislature on executive
power, since said power in an appropriation act is in implementation of the law" and that "the proposal and identification of the
projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following main conclusions: one, under the
Constitution, the power of appropriation, or the "power of the purse," belongs to Congress; two, the power of appropriation carries
with it the power to specify the project or activity to be funded under the appropriation law and it can be detailed and as broad as
Congress wants it to be; and, three, the proposals and identifications made by Members of Congress are merely recommendatory.
At once, it is apparent that the Philconsa resolution was a limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of Congress. On the contrary, the present cases call for a
more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF
Article, including not only those related to the area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional inconsistencies which
similarly countervail against a full resort to stare decisis. As may be deduced from the main conclusions of the case, Philconsas
fundamental premise in allowing Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in Congress. From this premise, the
contradictions may be easily seen. If the authority to identify projects is an aspect of appropriation and the power of appropriation is
a form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such authority,
and not its individual Members; (b) such authority must be exercised within the prescribed procedure of law passage and, hence,
should not be exercised after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the force of
law and, hence, cannot be merely recommendatory. Justice Vitugs Concurring Opinion in the same case sums up the Philconsa
quandary in this wise: "Neither would it be objectionable for Congress, by law, to appropriate funds for such specific projects as it
may be minded; to give that authority, however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and current findings on the matter, among others,
the CoA Report, the Court must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was merely recommendatory. This postulate raises
serious constitutional inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List v. Purisima 155 (Abakada) has
effectively overturned Philconsas allowance of post-enactment legislator participation in view of the separation of powers principle.
These constitutional inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence, has not set any
controlling doctrine susceptible of current application to the substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive branches of government to
accumulate lump-sum public funds in their offices with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and broad discretion in determining how the funds will be
used or expended; (c) the guidelines on how to spend or use the funds in the appropriation are either vague, overbroad or
inexistent; and (d) projects funded are intended to benefit a definite constituency in a particular part of the country and to help the
political careers of the disbursing official by yielding rich patronage benefits. 157 They further state that the Pork Barrel System is
comprised of two (2) kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known as the
PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159
Considering petitioners submission and in reference to its local concept and legal history, the Court defines the Pork Barrel System
as the collective body of rules and practices that govern the manner by which lump-sum, discretionary funds, primarily intended for
local projects, are utilized through the respective participations of the Legislative and Executive branches of government, including
its members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund wherein legislators,
either individually or collectively organized into committees, are able to effectively control certain aspects of the funds utilization
through various post-enactment measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual legislators to wield a
collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund which allows the
President to determine the manner of its utilization. For reasons earlier stated,161 the Court shall delimit the use of such term to refer
only to the Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. In the
celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that 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." 163 To
the legislative branch of government, through Congress,164 belongs the power to make laws; to the executive branch of government,
through the President,165belongs the power to enforce laws; and to the judicial branch of government, through the Court, 166 belongs
the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, "each
department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no authority to make or construe
the law, and the judiciary has no power to make or execute the law."168 The principle of separation of powers and its concepts of
autonomy and independence stem from the notion that the powers of government must be divided to avoid concentration of these
powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or
the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally
capable of independent action in exercising their respective mandates. Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly encroaches on
the domain of another. US Supreme Court decisions instruct that the principle of separation of powers may be violated in two (2)
ways: firstly, "one branch may interfere impermissibly with the others performance of its constitutionally assigned function"; 171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another." 172 In
other words, there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of another
departments functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both constitutionally assigned
and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon. Carague 173 (Guingona, Jr.), the Court
explained that the phase of budget execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds" as well as all "other related
activities" that comprise the budget execution cycle.174 This is rooted in the principle that the allocation of power in the three principal
branches of government is a grant of all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross over the field of
implementing the national budget since, as earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr.,
the Court stated that "Congress enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act precisely following the process
established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law." Upon approval and passage of the GAA, Congress law -making role necessarily comes to an end and
from there the Executives role of implementing the national budget begins. So as not to blur the constitutional boundaries between
them, Congress must "not concern it self with details for implementation by the Executive." 176
The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus unconstitutional." 177 It must be clarified, however,
that since the restriction only pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that
Congress role must be confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond oversight
is bereft of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178

Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1wphi1 In particular, congressional
oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it,
its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to
their departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in
aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013 PDAF Article "wrecks the
assignment of responsibilities between the political branches" as it is designed to allow individual legislators to interfere "way past
the time it should have ceased" or, particularly, "after the GAA is passed."179 They state that the findings and recommendations in
the CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers."180 Further, they point out that the Court in the Philconsa
case only allowed the CDF to exist on the condition that individual legislators limited their role to recommending projects and not if
they actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated since the President maintains
"ultimate authority to control the execution of the GAA and that he "retains the final discretion to reject" the legislators
proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members of Congress to
propose and identify projects so long as such proposal and identification are recommendatory." 183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project implementation.

At its core, legislators may it be through project lists,185 prior consultations186 or program menus187 have been consistently
accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel
allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed from
the import of Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1
embodies the program menu feature which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said menu. Relatedly, Special Provision 2
provides that the implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority
list, standard or design prepared and submitted by implementing agencies from which the legislator may make his choice. The same
provision further authorizes legislators to identify PDAF projects outside his district for as long as the representative of the district
concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be identified by
legislators"188 and thereunder provides the allocation limit for the total amount of projects identified by each legislator. Finally,
paragraph 2 of Special Provision 4 requires that any modification and revision of the project identification "shall be submitted to the
House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be seriously doubted that legislators
have been accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-enactment authority in the areas of fund
release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to participate in the area of fund release
through congressional committees is contained in Special Provision 5 which explicitly states that "all request for release of funds
shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House Committee on
Appropriations and the Senate Committee on Finance, as the case may be"; while their statutory authority to participate in the area
of fund realignment is contained in: first , paragraph 2, Special Provision 4 189 which explicitly state s, among others, that "any
realignment of funds shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be ; and, second , paragraph 1, also of Special
Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve realignment
from one project/scope to another within the allotment received from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."

Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not
related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong
to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to
participate in as Guingona, Jr. puts it "the various operational aspects of budgeting," including "the evaluation of work and
financial plans for individual activities" and the "regulation and release of funds" in violation of the separation of powers principle.
The fundamental rule, as categorically articulated in Abakada, cannot be overstated from the moment the law becomes effective,
any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional.191 That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identification on the guise that the same is merely recommendatory and, as such, respondents
reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the identification authority
of legislators is only of recommendatory import. Quite the contrary, respondents through the statements of the Solicitor General
during the Oral Arguments have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget execution
process:192

Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented without the identification by the
individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I would doubt very much,
Your Honor, because to implement, there is a need for a SARO and the NCA. And the SARO and the NCA are triggered by an
identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How can a legislator make
sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if
he does not identify, he cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)
Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary thereto,
informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed
as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional
treatment. That such informal practices do exist and have, in fact, been constantly observed throughout the years has not been
substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral
Arguments of these cases:193
Chief Justice Sereno:

Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we enforces the initial thought
that I have, after I had seen the extent of this research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process. In fact, the words you have been using, as
the three lawyers of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are
now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the past practice that had
been done since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions. x x x
(Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written into the law or
informal practices institutionalized in government agencies, else the Executive department be deprived of what the Constitution has
vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by the body to which the
Constitution has conferred the same. In particular, Section 1, Article VI of the 1987 Constitution states that such power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.195 Based on this provision, it is clear that only Congress, acting
as a bicameral body, and the people, through the process of initiative and referendum, may constitutionally wield legislative power
and no other. This premise embodies the principle of non-delegability of legislative power, and the only recognized exceptions
thereto would be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed to legislate on
purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy in times of war or other national emergency, 197 or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development program of the Government. 198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority to implementing
agencies for the limited purpose of either filling up the details of the law for its enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual operation (contingent rule-making).199 The conceptual treatment and limitations of
delegated rule-making were explained in the case of People v. Maceren200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation" calculated to promote the
public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating the mode or proceeding
to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment identification authority to
individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise
the power of appropriation, which as settled in Philconsa is lodged in Congress.201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall
be paid out of the Treasury except in pursuance of an appropriation made by law." To understand what constitutes an act of
appropriation, the Court, in Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013
PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such
fund would go to (b) a specific project or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes individual
legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution
does not, however, allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby declares the
2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative identification feature
as herein discussed, as unconstitutional.

3. Checks and Balances.

a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct does not mean that they are
absolutely unrestrained and independent of each other. The Constitution has also provided for an elaborate system of checks and
balances to secure coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the Presidents power to veto an item written into an appropriation,
revenue or tariff bill submitted to him by Congress for approval through a process known as "bill presentment." The Presidents item-
veto power is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto
shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of item-veto, forms part
of the "single, finely wrought and exhaustively considered, procedures" for law-passage as specified under the Constitution. 204 As
stated in Abakada, the final step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication."205

Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the Court, in Bengzon, explained
that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an integral part of the law-making
power. His disapproval of a bill, commonly known as a veto, is essentially a legislative act. The questions presented to the mind of
the Chief Executive are precisely the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but in this respect it is a grant of
power to the executive department. The Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It follows that the Chief Executive must find
his authority in the Constitution. But in exercising that authority he may not be confined to rules of strict construction or hampered by
the unwise interference of the judiciary. The courts will indulge every intendment in favor of the constitutionality of a veto in the same
manner as they will presume the constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

The justification for the Presidents item-veto power rests on a variety of policy goals such as to prevent log-rolling
legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive branchs role in the budgetary
process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme Court characterized the Presidents item-power as
"a salutary check upon the legislative body, calculated to guard the community against the effects of factions, precipitancy, or of any
impulse unfriendly to the public good, which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design." 209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item" which may be the object of
the veto. An item, as defined in the field of appropriations, pertains to "the particulars, the details, the distinct and severable parts of
the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme Court
characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not some general
provision of law which happens to be put into an appropriation bill. (Emphases supplied)
On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to exercise his power of
item veto, must contain "specific appropriations of money" and not only "general provisions" which provide for parameters of
appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by singular correspondence
meaning an allocation of a specified singular amount for a specified singular purpose, otherwise known as a "line-item." 211 This
treatment not only allows the item to be consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent Fund and the
Intelligence Fund, being appropriations which state a specified amount for a specific purpose, would then be considered as "line-
item" appropriations which are rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed
out, a valid appropriation may even have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related purposes shall be deemed sufficiently
specific for the exercise of the Presidents item veto power. Finally, special purpose funds and discretionary funds would equally
square with the constitutional mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987 Constitution requires that the
"special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as
certified by the National Treasurer, or t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular lump-sum amount to be
tapped as a source of funding for multiple purposes. Since such appropriation type necessitates the further determination of both the
actual amount to be expended and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific appropriation of money and hence,
without a proper line-item which the President may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its purposes wasteful or undesirable, or approving the
entire appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement
also raises non-delegability issues considering that the implementing authority would still have to determine, again, both the actual
amount to be expended and the actual purpose of the appropriation. Since the foregoing determinations constitute the integral
aspects of the power to appropriate, the implementing authority would, in effect, be exercising legislative prerogatives in violation of
the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum appropriation, the legislators
identification of the projects after the passage of the GAA denies the President the chance to veto that item later on." 212 Accordingly,
they submit that the "item veto power of the President mandates that appropriations bills adopt line-item budgeting" and that
"Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the President
useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which is intended to meet the
demands of a modernizing economy and, as such, lump-sum appropriations are essential to financially address situations which are
barely foreseen when a GAA is enacted. They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the said amount would
be further divided among individual legislators who would then receive personal lump-sum allocations and could, after the GAA is
passed, effectively appropriate PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated without veto consideration. This
kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a budget within a budget" which
subverts the prescribed procedure of presentment and consequently impairs the Presidents power of item veto. As petitioners aptly
point out, the above-described system forces the President to decide between (a) accepting the entire P24.79 Billion PDAF
allocation without knowing the specific projects of the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects. 215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally
flawed since it would then operate as a prohibited form of lump-sum appropriation above-characterized. In particular, the lump-sum
amount of P24.79 Billion would be treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and,
therefore, does not readily indicate a discernible item which may be subject to the Presidents power of item veto.
In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays, "limited state auditors
from obtaining relevant data and information that would aid in more stringently auditing the utilization of said Funds." 216 Accordingly,
she recommends the adoption of a "line by line budget or amount per proposed program, activity or project, and per implementing
agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional Pork Barrel Laws of
similar operation, to be unconstitutional. That such budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.218

c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking itself or its Members. In particular, they point out that the Congressional
Pork Barrel "gives each legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them
"from fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on re- election as "the PDAF
excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as such "funds
are indeed quite useful, to well, accelerate the decisions of senators."220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public trust," is an
overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may be checked is the power of
congressional oversight. As mentioned in Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork Barrel, among others the
2013 PDAF Article, has an effect on congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested "observers" when scrutinizing, investigating or
monitoring the implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves
participate. Also, it must be pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article
VI of the 1987 Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to
act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation a matter before another office of
government renders them susceptible to taking undue advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislators control of his
PDAF per se would allow him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a legislators use
thereof may be linked to this area of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed
based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive
department, through the formers post-enactment participation, may affect the process of impeachment, this matter largely borders
on the domain of politics and does not strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is an improper
subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI of the 1987
Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of Congressional Pork Barrel of similar
nature are deemed as unconstitutional.
4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of political dynasties to accumulate
funds to perpetuate themselves in power, in contravention of Section 26, Article II of the 1987 Constitution 225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)

At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the qualifying phrase "as may
be defined by law." In this respect, said provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action.226Therefore, since there appears to be no standing law which
crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to propagate political dynasties.

5. Local Autonomy.

The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of 1991" (LGC), wherein the
policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate
local government units, nongovernmental and peoples organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local government units
(LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national economy. As explained by the
Court in Philippine Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy which is intended to
provide the needed impetus and encouragement to the development of our local political subdivisions as "self - reliant communities."
In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." The
vitalization of local governments will enable their inhabitants to fully exploit their resources and more important, imbue them with a
deepened sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue
interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such
political units. The decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional principles on local
autonomy since it allows district representatives, who are national officers, to substitute their judgments in utilizing public funds for
local development.230 The Court agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a recognition that individual
members of Congress, far more than the President and their congressional colleagues, are likely to be knowledgeable about the
needs of their respective constituents and the priority to be given each project." 231Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented under the Congressional Pork
Barrel complement and link the national development goals to the countryside and grassroots as well as to depressed areas which
are overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies the avowed
intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and CDF allocation/division is
based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result, a district representative of a highly-urbanized metropolis gets
the same amount of funding as a district representative of a far-flung rural province which would be relatively "underdeveloped"
compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives and in some
years, even the Vice-President who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrels original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given unto them on the sole account
of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already legally mandated to "assist the corresponding sanggunian in setting
the direction of economic and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are national
officers that have no law-making authority except only when acting as a body. The undermining effect on local autonomy caused by
the post-enactment authority conferred to the latter was succinctly put by petitioners in the following wise: 236

With PDAF, a Congressman can simply bypass the local development council and initiate projects on his own, and even take sole
credit for its execution. Indeed, this type of personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure planning and coordination efforts of the
government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby subvert genuine local
autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive issues involving the
Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993), which respectively
provide for the Malampaya Funds and the Presidential Social Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of public funds from the National Treasury. Petitioners submit that Section
8 of PD 910 is not an appropriation law since the "primary and specific purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental thereto.237 In similar regard, petitioners argue that
Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the Presidential Social Fund is merely incidental to
the "primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of PAGCOR. 238 In view of the
foregoing, petitioners suppose that such funds are being used without any valid law allowing for their proper appropriation in
violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239

The Court disagrees.


"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists when a provision
of law (a) sets apart a determinate or determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate that the legislative
intent to appropriate exists. As the Constitution "does not provide or prescribe any particular form of words or religious recitals in
which an authorization or appropriation by Congress shall be made, except that it be made by law," an appropriation law may
according to Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.:241

There is no provision in our Constitution that provides or prescribes any particular form of words or religious recitals in which an
authorization or appropriation by Congress shall be made, except that it be "made by law," such as precisely the authorization or
appropriation under the questioned presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be made in general as well as in specific terms. The Congressional authorization
may be embodied in annual laws, such as a general appropriations act or in special provisions of laws of general or special
application which appropriate public funds for specific public purposes, such as the questioned decrees. An appropriation measure
is sufficient if the legislative intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32
P. 272), whether in the past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in the sense of the constitution means the
setting apart a portion of the public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the "primary and specific"
purpose of the law in order for a valid appropriation law to exist. To reiterate, if a legal provision designates a determinate or
determinable amount of money and allocates the same for a particular public purpose, then the legislative intent to appropriate
becomes apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law" under contemplation
of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service contracts and agreements
such as application and processing fees, signature bonus, discovery bonus, production bonus; all money collected from
concessionaires, representing unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service contracts and similar payments on the exploration,
development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed
by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the
Government in the aggregate gross earnings of the Corporation from this Franchise, or 60% if the aggregate gross earnings be less
than P150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a) Section 8 of PD 910, which
creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy Development Board from any and all sources"
(a determinable amount) "to be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings
be less than P150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development projects and x x x
the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it contains post-enactment measures which effectively create a system
of intermediate appropriations. These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-
enactment determinations made by the individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the
2013 PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.

On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power since the
phrase "and for such other purposes as may be hereafter directed by the President" gives the President "unbridled discretion to
determine for what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to apply the principle of
ejusdem generis to the same section and thus, construe the phrase "and for such other purposes as may be hereafter directed by
the President" to refer only to other purposes related "to energy resource development and exploitation programs and projects of the
government."244

The Court agrees with petitioners submissions.

While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a legal appropriation to
exist, the appropriation law must contain adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or
(b) ascertaining facts to bring the law into actual operation, referred to as contingent rule-making.246 There are two (2) fundamental
tests to ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first test is called the
"completeness test." Case law states that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a
law lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running riot.247To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy, and identify the conditions under which it is to be implemented. 248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as may be hereafter directed
by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any
other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law. That the
subject phrase may be confined only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include or be restricted to
things akin to, resembling, or of the same kind or class as those specifically mentioned, 249 is belied by three (3) reasons: first, the
phrase "energy resource development and exploitation programs and projects of the government" states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from which the general phrase "for such other
purposes" may be limited; second, the said phrase also exhausts the class it represents, namely energy development programs of
the government;250 and, third, the Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents own position that it is limited only to "energy resource development
and exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910 may have passed the completeness
test since the policy of energy development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken down as unconstitutional as it
lies independently unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be underscored that the
rest of Section 8, insofar as it allows for the use of the Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and subsisting. Truth be told, the declared unconstitutionality of
the aforementioned phrase is but an assurance that the Malampaya Funds would be used as it should be used only in
accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869 has already been amended
by PD 1993 which thus moots the parties submissions on the same.252 Nevertheless, since the amendatory provision may be
readily examined under the current parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used "to first, finance
the priority infrastructure development projects and second, to finance the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of the President of the Philippines." The Court finds that while the
second indicated purpose adequately curtails the authority of the President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities, the first indicated purpose, however, gives him carte blanche authority to use the same fund
for any infrastructure project he may so determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a classification since the said term could pertain to any kind of facility. This may be
deduced from its lexicographic definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as well as economic and residential
development."253In fine, the phrase "to finance the priority infrastructure development projects" must be stricken down as
unconstitutional since similar to the above-assailed provision under Section 8 of PD 910 it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as amended by PD
1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners Prayer to be Furnished Lists and Detailed Reports.

Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did so in the context of its
pronouncements made in this Decision petitioners equally pray that the Executive Secretary and/or the DBM be ordered to release
to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or individuals, and all pertinent data
thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executives lump-sum, discretionary funds, including the proceeds
from the x x x Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto" 255 (Presidential Pork Use Report). Petitioners prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The Court denies petitioners submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for mandamus. As explained in the
case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the
part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional
duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of
the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee. (Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to information does not include
the right to compel the preparation of "lists, abstracts, summaries and the like." In the same case, it was stressed that it is essential
that the "applicant has a well -defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a particular request for
information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like
in their desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested.
(Emphases supplied)
In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the Court finds that petitioners
have failed to establish a "a well-defined, clear and certain legal right" to be furnished by the Executive Secretary and/or the DBM of
their requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or administrative
issuance which would form the bases of the latters duty to furnish them with the documents requested. While petitioners pray that
said information be equally released to the CoA, it must be pointed out that the CoA has not been impleaded as a party to these
cases nor has it filed any petition before the Court to be allowed access to or to compel the release of any official document relevant
to the conduct of its audit investigations. While the Court recognizes that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of disclosure are properly foisted and so as not to unduly hamper the
equally important interests of the government, it is constrained to deny petitioners prayer on this score, without prejudice to a proper
mandamus case which they, or even the CoA, may choose to pursue through a separate petition.

It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished with such schedule/list and
report and not in any way deny them, or the general public, access to official documents which are already existing and of public
record. Subject to reasonable regulation and absent any valid statutory prohibition, access to these documents should not be
proscribed. Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of the list requested by
petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject, however, to the custodians
reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations
that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other
persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v.
Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady
Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress of all presently, off-budget,
lump sum, discretionary funds including but not limited to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR
and the PCSO or the Executives Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to the prerogative of the
political branches of government. Hence, lest the Court itself overreach, it must equally deny their prayer on this score.

3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of released funds. In response to
the Courts September 10, 2013 TRO that enjoined the release of the remaining PDAF allocated for the year 2013, the DBM issued
Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order (SARO) has been
issued by the DBM and such SARO has been obligated by the implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement of PDAF funds as long as
they are: first, covered by a SARO; and, second, that said SARO had been obligated by the implementing agency concerned prior to
the issuance of the Courts September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet involve the release of funds
under the PDAF, as release is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]." 261 As such, PDAF
disbursements, even if covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated allotments." They explain that
once a SARO has been issued and obligated by the implementing agency concerned, the PDAF funds covered by the same are
already "beyond the reach of the TRO because they cannot be considered as remaining PDAF." They conclude that this is a
reasonable interpretation of the TRO by the DBM.262
The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013 TRO should be lifted is a matter
rendered moot by the present Decision. The unconstitutionality of the 2013 PDAF Article as declared herein has the consequential
effect of converting the temporary injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.

The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved as it has a practical impact on
the execution of the current Decision. In particular, the Court must resolve the issue of whether or not PDAF funds covered by
obligated SAROs, at the time this Decision is promulgated, may still be disbursed following the DBMs interpretation in DBM Circular
2013-8.

On this score, the Court agrees with petitioners posturing for the fundamental reason that funds covered by an obligated SARO are
yet to be "released" under legal contemplation. A SARO, as defined by the DBM itself in its website, is "aspecific authority issued to
identified agencies to incur obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or is subject to separate approval
or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and not the directive to pay.
Practically speaking, the SARO does not have the direct and immediate effect of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be withdrawn under certain circumstances which will prevent the actual release of
funds. On the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is subsequent to the
issuance of a SARO. As may be determined from the statements of the DBM representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to enter into commitments. The
NCA, Your Honor, is already the go signal to the treasury for us to be able to pay or to liquidate the amounts obligated in the SARO;
so it comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF funds which are only covered by obligated SAROs, and without any corresponding NCAs
issued, must, at the time of this Decisions promulgation, be enjoined and consequently reverted to the unappropriated surplus of
the general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto
cannot be disbursed even though already obligated, else the Court sanctions the dealing of funds coming from an unconstitutional
source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been obligated but not released
meaning, those merely covered by a SARO under the phrase "and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were altogether
declared by the Court as unconstitutional. However, these funds should not be reverted to the general fund as afore-stated but
instead, respectively remain under the Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding
special purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of (a) the 2013 PDAF Article and its
Special Provisions, (b) all other Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in effect in view
of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate case, declares the invalidity of
a certain legislative or executive act, such act is presumed constitutional and thus, entitled to obedience and respect and should be
properly enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v. San Roque Power
Corporation,266 the doctrine merely "reflects awareness that precisely because the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the
power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice
then, if there be no recognition of what had transpired prior to such adjudication." 267 "In the language of an American Supreme Court
decision: The actual existence of a statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored."268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final analysis, the Court
must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of
budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the
power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items ; insofar as it has diluted the effectiveness of
congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has authorized legislators, who
are national officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions, it has likewise
subverted genuine local autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds intended
by law for energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad
classification of "priority infrastructure development projects," it has once more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and mechanisms the Court has
herein pointed out should never again be adopted in any system of governance, by any name or form, by any semblance or
similarity, by any influence or effect. Disconcerting as it is to think that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in government to look forward with the optimism of change and the
awareness of the past. At a time of great civic unrest and vociferous public debate, the Court fervently hopes that its Decision today,
while it may not purge all the wrongs of society nor bring back what has been lost, guides this nation to the path forged by the
Constitution so that no one may heretofore detract from its cause nor stray from its course. After all, this is the Courts bounden duty
and no others.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
authorize/d legislators whether individually or collectively organized into committees to intervene, assume or participate in any of
the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification
and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all
legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific
projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases (1) "and for such other purposes
as may be hereafter directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No.
1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.

Accordingly, the Courts temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT. Thus, the
disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs)
but only by Special Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the
general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for
their respective special purposes not otherwise declared as unconstitutional.
On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES petitioners prayer seeking
that the Executive Secretary and/or the Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners access to official documents already available and of public record which are related to these funds must,
however, not be prohibited but merely subjected to the custodians reasonable regulations or any valid statutory prohibition on the
same. This denial is without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue
through a separate petition.

The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of
Congress as the same is a matter left to the prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable dispatch,
investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the
irregular, improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 208566 November 19, 2013

GRECO ANTONIOUS BEDA B. BELGICA JOSE M. VILLEGAS JR. JOSE L. GONZALEZ REUBEN M. ABANTE and QUINTIN
PAREDES SAN DIEGO, Petitioners,
vs.
HONORABLE EXECUTIVE SECRETARY PAQUITO N. OCHOA JR. SECRETARY OF BUDGET AND MANAGEMENT FLORENCIO
B. ABAD, NATIONAL TREASURER ROSALIA V. DE LEON SENATE OF THE PHILIPPINES represented by FRANKLIN M. DRILON
m his capacity as SENATE PRESIDENT and HOUSE OF REPRESENTATIVES represented by FELICIANO S. BELMONTE, JR. in
his capacity as SPEAKER OF THE HOUSE, Respondents.

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

G.R. No. 208493

SOCIAL JUSTICE SOCIETY (SJS) PRESIDENT SAMSON S. ALCANTARA, Petitioner,


vs.
HONORABLE FRANKLIN M. DRILON in his capacity as SENATE PRESIDENT and HONORABLE FELICIANO S. BELMONTE, JR.,
in his capacity as SPEAKER OF THE HOUSE OF REPRESENTATIVES, Respondents.

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

G.R. No. 209251

PEDRITO M. NEPOMUCENO, Former Mayor-Boac, Marinduque Former Provincial Board Member -Province of
Marinduque, Petitioner,
vs.
PRESIDENT BENIGNO SIMEON C. AQUINO III* and SECRETARY FLORENCIO BUTCH ABAD, DEPARTMENT OF BUDGET
AND MANAGEMENT, Respondents.

DECISION

PERLAS-BERNABE, J.:

"Experience is the oracle of truth."1

-James Madison

Before the Court are consolidated petitions2 taken under Rule 65 of the Rules of Court, all of which assail the constitutionality of the
Pork Barrel System. Due to the complexity of the subject matter, the Court shall heretofore discuss the systems conceptual
underpinnings before detailing the particulars of the constitutional challenge.

The Facts

I. Pork Barrel: General Concept.

"Pork Barrel" is political parlance of American -English origin. 3 Historically, its usage may be traced to the degrading ritual
of rolling out a barrel stuffed with pork to a multitude of black slaves who would cast their famished bodies into the porcine
feast to assuage their hunger with morsels coming from the generosity of their well-fed master. 4 This practice was later
compared to the actions of American legislators in trying to direct federal budgets in favor of their districts. 5 While the
advent of refrigeration has made the actual pork barrel obsolete, it persists in reference to political bills that "bring home
the bacon" to a legislators district and constituents.6 In a more technical sense, "Pork Barrel" refers to an appropriation of
government spending meant for localized projects and secured solely or primarily to bring money to a representative's
district.7 Some scholars on the subject further use it to refer to legislative control of local appropriations. 8

In the Philippines, "Pork Barrel" has been commonly referred to as lump-sum, discretionary funds of Members of the
Legislature,9 although, as will be later discussed, its usage would evolve in reference to certain funds of the Executive.

II. History of Congressional Pork Barrel in the Philippines.

A. Pre-Martial Law Era (1922-1972).

Act 3044,10 or the Public Works Act of 1922, is considered11 as the earliest form of "Congressional Pork Barrel"
in the Philippines since the utilization of the funds appropriated therein were subjected to post-enactment
legislator approval. Particularly, in the area of fund release, Section 312 provides that the sums appropriated for
certain public works projects13"shall be distributed x x x subject to the approval of a joint committee elected by
the Senate and the House of Representatives. "The committee from each House may also authorize one of its
members to approve the distribution made by the Secretary of Commerce and Communications."14 Also, in the
area of fund realignment, the same section provides that the said secretary, "with the approval of said joint
committee, or of the authorized members thereof, may, for the purposes of said distribution, transfer
unexpended portions of any item of appropriation under this Act to any other item hereunder."

In 1950, it has been documented15 that post-enactment legislator participation broadened from the areas of fund
release and realignment to the area of project identification. During that year, the mechanics of the public works
act was modified to the extent that the discretion of choosing projects was transferred from the Secretary of
Commerce and Communications to legislators. "For the first time, the law carried a list of projects selected by
Members of Congress, they being the representatives of the people, either on their own account or by
consultation with local officials or civil leaders."16 During this period, the pork barrel process commenced with
local government councils, civil groups, and individuals appealing to Congressmen or Senators for projects.
Petitions that were accommodated formed part of a legislators allocation, and the amount each legislator would
eventually get is determined in a caucus convened by the majority. The amount was then integrated into the
administration bill prepared by the Department of Public Works and Communications. Thereafter, the Senate
and the House of Representatives added their own provisions to the bill until it was signed into law by the
President the Public Works Act.17 In the 1960s, however, pork barrel legislation reportedly ceased in view of
the stalemate between the House of Representatives and the Senate.18

B. Martial Law Era (1972-1986).


While the previous" Congressional Pork Barrel" was apparently discontinued in 1972 after Martial Law was
declared, an era when "one man controlled the legislature,"19 the reprieve was only temporary. By 1982, the
Batasang Pambansa had already introduced a new item in the General Appropriations Act (GAA) called the"
Support for Local Development Projects" (SLDP) under the article on "National Aid to Local Government Units".
Based on reports,20 it was under the SLDP that the practice of giving lump-sum allocations to individual
legislators began, with each assemblyman receiving P500,000.00. Thereafter, assemblymen would
communicate their project preferences to the Ministry of Budget and Management for approval. Then, the said
ministry would release the allocation papers to the Ministry of Local Governments, which would, in turn, issue
the checks to the city or municipal treasurers in the assemblymans locality. It has been further reported that
"Congressional Pork Barrel" projects under the SLDP also began to cover not only public works projects, or so-
called "hard projects", but also "soft projects",21 or non-public works projects such as those which would fall
under the categories of, among others, education, health and livelihood.22

C. Post-Martial Law Era:

Corazon Cojuangco Aquino Administration (1986-1992).

After the EDSA People Power Revolution in 1986 and the restoration of Philippine democracy, "Congressional
Pork Barrel" was revived in the form of the "Mindanao Development Fund" and the "Visayas Development
Fund" which were created with lump-sum appropriations of P480 Million and P240 Million, respectively, for the
funding of development projects in the Mindanao and Visayas areas in 1989. It has been documented 23 that the
clamor raised by the Senators and the Luzon legislators for a similar funding, prompted the creation of the
"Countrywide Development Fund" (CDF) which was integrated into the 1990 GAA 24 with an initial funding
of P2.3 Billion to cover "small local infrastructure and other priority community projects."

Under the GAAs for the years 1991 and 1992,25 CDF funds were, with the approval of the President, to be
released directly to the implementing agencies but "subject to the submission of the required list of projects and
activities."Although the GAAs from 1990 to 1992 were silent as to the amounts of allocations of the individual
legislators, as well as their participation in the identification of projects, it has been reported 26 that by 1992,
Representatives were receiving P12.5 Million each in CDF funds, while Senators were receiving P18 Million
each, without any limitation or qualification, and that they could identify any kind of project, from hard or
infrastructure projects such as roads, bridges, and buildings to "soft projects" such as textbooks, medicines, and
scholarships.27

D. Fidel Valdez Ramos (Ramos) Administration (1992-1998).

The following year, or in 1993,28 the GAA explicitly stated that the release of CDF funds was to be made upon
the submission of the list of projects and activities identified by, among others, individual legislators. For the first
time, the 1993 CDF Article included an allocation for the Vice-President.29 As such, Representatives were
allocated P12.5 Million each in CDF funds, Senators, P18 Million each, and the Vice-President, P20 Million.

In 1994,30 1995,31 and 1996,32 the GAAs contained the same provisions on project identification and fund
release as found in the 1993 CDF Article. In addition, however, the Department of Budget and Management
(DBM) was directed to submit reports to the Senate Committee on Finance and the House Committee on
Appropriations on the releases made from the funds.33

Under the 199734 CDF Article, Members of Congress and the Vice-President, in consultation with the
implementing agency concerned, were directed to submit to the DBM the list of 50% of projects to be funded
from their respective CDF allocations which shall be duly endorsed by (a) the Senate President and the
Chairman of the Committee on Finance, in the case of the Senate, and (b) the Speaker of the House of
Representatives and the Chairman of the Committee on Appropriations, in the case of the House of
Representatives; while the list for the remaining 50% was to be submitted within six (6) months thereafter. The
same article also stated that the project list, which would be published by the DBM,35 "shall be the basis for the
release of funds" and that "no funds appropriated herein shall be disbursed for projects not included in the list
herein required."

The following year, or in 1998,36 the foregoing provisions regarding the required lists and endorsements were
reproduced, except that the publication of the project list was no longer required as the list itself sufficed for the
release of CDF Funds.

The CDF was not, however, the lone form of "Congressional Pork Barrel" at that time. Other forms of
"Congressional Pork Barrel" were reportedly fashioned and inserted into the GAA (called "Congressional
Insertions" or "CIs") in order to perpetuate the ad ministrations political agenda.37 It has been articulated that
since CIs "formed part and parcel of the budgets of executive departments, they were not easily identifiable and
were thus harder to monitor." Nonetheless, the lawmakers themselves as well as the finance and budget
officials of the implementing agencies, as well as the DBM, purportedly knew about the insertions. 38Examples of
these CIs are the Department of Education (DepEd) School Building Fund, the Congressional Initiative
Allocations, the Public Works Fund, the El Nio Fund, and the Poverty Alleviation Fund. 39 The allocations for the
School Building Fund, particularly, shall be made upon prior consultation with the representative of the
legislative district concerned.40 Similarly, the legislators had the power to direct how, where and when these
appropriations were to be spent.41

E. Joseph Ejercito Estrada (Estrada) Administration (1998-2001).

In 1999,42 the CDF was removed in the GAA and replaced by three (3) separate forms of CIs, namely, the "Food
Security Program Fund,"43 the "Lingap Para Sa Mahihirap Program Fund,"44and the "Rural/Urban Development
Infrastructure Program Fund,"45 all of which contained a special provision requiring "prior consultation" with the
Member s of Congress for the release of the funds.

It was in the year 200046 that the "Priority Development Assistance Fund" (PDAF) appeared in the GAA. The
requirement of "prior consultation with the respective Representative of the District" before PDAF funds were
directly released to the implementing agency concerned was explicitly stated in the 2000 PDAF Article.
Moreover, realignment of funds to any expense category was expressly allowed, with the sole condition that no
amount shall be used to fund personal services and other personnel benefits. 47 The succeeding PDAF
provisions remained the same in view of the re-enactment48 of the 2000 GAA for the year 2001.

F. Gloria Macapagal-Arroyo (Arroyo) Administration (2001-2010).

The 200249 PDAF Article was brief and straightforward as it merely contained a single special provision ordering
the release of the funds directly to the implementing agency or local government unit concerned, without further
qualifications. The following year, 2003,50 the same single provision was present, with simply an expansion of
purpose and express authority to realign. Nevertheless, the provisions in the 2003 budgets of the Department of
Public Works and Highways51 (DPWH) and the DepEd52 required prior consultation with Members of Congress
on the aspects of implementation delegation and project list submission, respectively. In 2004, the 2003 GAA
was re-enacted.53

In 2005,54 the PDAF Article provided that the PDAF shall be used "to fund priority programs and projects under
the ten point agenda of the national government and shall be released directly to the implementing agencies." It
also introduced the program menu concept,55 which is essentially a list of general programs and implementing
agencies from which a particular PDAF project may be subsequently chosen by the identifying authority. The
2005 GAA was re-enacted56 in 2006 and hence, operated on the same bases. In similar regard, the program
menu concept was consistently integrated into the 2007,57 2008,58 2009,59 and 201060 GAAs.

Textually, the PDAF Articles from 2002 to 2010 were silent with respect to the specific amounts allocated for the
individual legislators, as well as their participation in the proposal and identification of PDAF projects to be
funded. In contrast to the PDAF Articles, however, the provisions under the DepEd School Building Program
and the DPWH budget, similar to its predecessors, explicitly required prior consultation with the concerned
Member of Congress61anent certain aspects of project implementation.

Significantly, it was during this era that provisions which allowed formal participation of non-governmental
organizations (NGO) in the implementation of government projects were introduced. In the Supplemental
Budget for 2006, with respect to the appropriation for school buildings, NGOs were, by law, encouraged to
participate. For such purpose, the law stated that "the amount of at least P250 Million of the P500 Million
allotted for the construction and completion of school buildings shall be made available to NGOs including the
Federation of Filipino-Chinese Chambers of Commerce and Industry, Inc. for its "Operation Barrio School"
program, with capability and proven track records in the construction of public school buildings x x x." 62 The
same allocation was made available to NGOs in the 2007 and 2009 GAAs under the DepEd Budget.63 Also, it
was in 2007 that the Government Procurement Policy Board64(GPPB) issued Resolution No. 12-2007 dated
June 29, 2007 (GPPB Resolution 12-2007), amending the implementing rules and regulations65 of RA
9184,66 the Government Procurement Reform Act, to include, as a form of negotiated procurement,67 the
procedure whereby the Procuring Entity68 (the implementing agency) may enter into a memorandum of
agreement with an NGO, provided that "an appropriation law or ordinance earmarks an amount to be
specifically contracted out to NGOs."69

G. Present Administration (2010-Present).

Differing from previous PDAF Articles but similar to the CDF Articles, the 201170 PDAF Article included an
express statement on lump-sum amounts allocated for individual legislators and the Vice-President:
Representatives were given P70 Million each, broken down into P40 Million for "hard projects" and P30 Million
for "soft projects"; while P200 Million was given to each Senator as well as the Vice-President, with a P100
Million allocation each for "hard" and "soft projects." Likewise, a provision on realignment of funds was included,
but with the qualification that it may be allowed only once. The same provision also allowed the Secretaries of
Education, Health, Social Welfare and Development, Interior and Local Government, Environment and Natural
Resources, Energy, and Public Works and Highways to realign PDAF Funds, with the further conditions that: (a)
realignment is within the same implementing unit and same project category as the original project, for
infrastructure projects; (b) allotment released has not yet been obligated for the original scope of work, and (c)
the request for realignment is with the concurrence of the legislator concerned.71

In the 201272 and 201373 PDAF Articles, it is stated that the "identification of projects and/or designation of
beneficiaries shall conform to the priority list, standard or design prepared by each implementing agency
(priority list requirement) x x x." However, as practiced, it would still be the individual legislator who would
choose and identify the project from the said priority list.74

Provisions on legislator allocations75 as well as fund realignment76 were included in the 2012 and 2013 PDAF
Articles; but the allocation for the Vice-President, which was pegged at P200 Million in the 2011 GAA, had been
deleted. In addition, the 2013 PDAF Article now allowed LGUs to be identified as implementing agencies if they
have the technical capability to implement the projects.77 Legislators were also allowed to identify
programs/projects, except for assistance to indigent patients and scholarships, outside of his legislative district
provided that he secures the written concurrence of the legislator of the intended outside-district, endorsed by
the Speaker of the House.78 Finally, any realignment of PDAF funds, modification and revision of project
identification, as well as requests for release of funds, were all required to be favorably endorsed by the House
Committee on Appropriations and the Senate Committee on Finance, as the case may be.79

III. History of Presidential Pork Barrel in the Philippines.

While the term "Pork Barrel" has been typically associated with lump-sum, discretionary funds of Members of Congress,
the present cases and the recent controversies on the matter have, however, shown that the terms usage has expanded
to include certain funds of the President such as the Malampaya Funds and the Presidential Social Fund.

On the one hand, the Malampaya Funds was created as a special fund under Section 880 of Presidential Decree No. (PD)
910,81 issued by then President Ferdinand E. Marcos (Marcos) on March 22, 1976. In enacting the said law, Marcos
recognized the need to set up a special fund to help intensify, strengthen, and consolidate government efforts relating to
the exploration, exploitation, and development of indigenous energy resources vital to economic growth. 82 Due to the
energy-related activities of the government in the Malampaya natural gas field in Palawan, or the "Malampaya Deep
Water Gas-to-Power Project",83 the special fund created under PD 910 has been currently labeled as Malampaya Funds.

On the other hand the Presidential Social Fund was created under Section 12, Title IV 84 of PD 1869,85 or the Charter of the
Philippine Amusement and Gaming Corporation (PAGCOR). PD 1869 was similarly issued by Marcos on July 11, 1983.
More than two (2) years after, he amended PD 1869 and accordingly issued PD 1993 on October 31, 1985,86 amending
Section 1287 of the former law. As it stands, the Presidential Social Fund has been described as a special funding facility
managed and administered by the Presidential Management Staff through which the President provides direct assistance
to priority programs and projects not funded under the regular budget. It is sourced from the share of the government in
the aggregate gross earnings of PAGCOR.88

IV. Controversies in the Philippines.

Over the decades, "pork" funds in the Philippines have increased tremendously,89 owing in no small part to previous
Presidents who reportedly used the "Pork Barrel" in order to gain congressional support.90 It was in 1996 when the first
controversy surrounding the "Pork Barrel" erupted. Former Marikina City Representative Romeo Candazo (Candazo),
then an anonymous source, "blew the lid on the huge sums of government money that regularly went into the pockets of
legislators in the form of kickbacks."91 He said that "the kickbacks were SOP (standard operating procedure) among
legislators and ranged from a low 19 percent to a high 52 percent of the cost of each project, which could be anything
from dredging, rip rapping, sphalting, concreting, and construction of school buildings." 92 "Other sources of kickbacks that
Candazo identified were public funds intended for medicines and textbooks. A few days later, the tale of the money trail
became the banner story of the Philippine Daily Inquirer issue of August 13, 1996, accompanied by an illustration of a
roasted pig."93 "The publication of the stories, including those about congressional initiative allocations of certain
lawmakers, including P3.6 Billion for a Congressman, sparked public outrage."94

Thereafter, or in 2004, several concerned citizens sought the nullification of the PDAF as enacted in the 2004 GAA for
being unconstitutional. Unfortunately, for lack of "any pertinent evidentiary support that illegal misuse of PDAF in the form
of kickbacks has become a common exercise of unscrupulous Members of Congress," the petition was dismissed.95

Recently, or in July of the present year, the National Bureau of Investigation (NBI) began its probe into allegations that
"the government has been defrauded of some P10 Billion over the past 10 years by a syndicate using funds from the pork
barrel of lawmakers and various government agencies for scores of ghost projects."96 The investigation was spawned by
sworn affidavits of six (6) whistle-blowers who declared that JLN Corporation "JLN" standing for Janet Lim Napoles
(Napoles) had swindled billions of pesos from the public coffers for "ghost projects" using no fewer than 20 dummy
NGOs for an entire decade. While the NGOs were supposedly the ultimate recipients of PDAF funds, the whistle-blowers
declared that the money was diverted into Napoles private accounts.97 Thus, after its investigation on the Napoles
controversy, criminal complaints were filed before the Office of the Ombudsman, charging five (5) lawmakers for Plunder,
and three (3) other lawmakers for Malversation, Direct Bribery, and Violation of the Anti-Graft and Corrupt Practices Act.
Also recommended to be charged in the complaints are some of the lawmakers chiefs -of-staff or representatives, the
heads and other officials of three (3) implementing agencies, and the several presidents of the NGOs set up by Napoles. 98

On August 16, 2013, the Commission on Audit (CoA) released the results of a three-year audit investigation 99 covering the
use of legislators' PDAF from 2007 to 2009, or during the last three (3) years of the Arroyo administration. The purpose of
the audit was to determine the propriety of releases of funds under PDAF and the Various Infrastructures including Local
Projects (VILP)100 by the DBM, the application of these funds and the implementation of projects by the appropriate
implementing agencies and several government-owned-and-controlled corporations (GOCCs).101 The total releases
covered by the audit amounted to P8.374 Billion in PDAF and P32.664 Billion in VILP, representing 58% and 32%,
respectively, of the total PDAF and VILP releases that were found to have been made nationwide during the audit
period.102 Accordingly, the Co As findings contained in its Report No. 2012-03 (CoA Report), entitled "Priority
Development Assistance Fund (PDAF) and Various Infrastructures including Local Projects (VILP)," were made public, the
highlights of which are as follows:103

Amounts released for projects identified by a considerable number of legislators significantly exceeded their
respective allocations.

Amounts were released for projects outside of legislative districts of sponsoring members of the Lower
House.

Total VILP releases for the period exceeded the total amount appropriated under the 2007 to 2009 GAAs.

Infrastructure projects were constructed on private lots without these having been turned over to the
government.

Significant amounts were released to implementing agencies without the latters endorsement and without
considering their mandated functions, administrative and technical capabilities to implement projects.

Implementation of most livelihood projects was not undertaken by the implementing agencies themselves but
by NGOs endorsed by the proponent legislators to which the Funds were transferred.

The funds were transferred to the NGOs in spite of the absence of any appropriation law or ordinance.

Selection of the NGOs were not compliant with law and regulations.

Eighty-Two (82) NGOs entrusted with implementation of seven hundred seventy two (772) projects amount
to P6.156 Billion were either found questionable, or submitted questionable/spurious documents, or failed to
liquidate in whole or in part their utilization of the Funds.

Procurement by the NGOs, as well as some implementing agencies, of goods and services reportedly used in
the projects were not compliant with law.

As for the "Presidential Pork Barrel", whistle-blowers alleged that" at least P900 Million from royalties in the operation of
the Malampaya gas project off Palawan province intended for agrarian reform beneficiaries has gone into a dummy
NGO."104 According to incumbent CoA Chairperson Maria Gracia Pulido Tan (CoA Chairperson), the CoA is, as of this
writing, in the process of preparing "one consolidated report" on the Malampaya Funds.105

V. The Procedural Antecedents.

Spurred in large part by the findings contained in the CoA Report and the Napoles controversy, several petitions were
lodged before the Court similarly seeking that the "Pork Barrel System" be declared unconstitutional. To recount, the
relevant procedural antecedents in these cases are as follows:

On August 28, 2013, petitioner Samson S. Alcantara (Alcantara), President of the Social Justice Society, filed a Petition for
Prohibition of even date under Rule 65 of the Rules of Court (Alcantara Petition), seeking that the "Pork Barrel System" be declared
unconstitutional, and a writ of prohibition be issued permanently restraining respondents Franklin M. Drilon and Feliciano S.
Belmonte, Jr., in their respective capacities as the incumbent Senate President and Speaker of the House of Representatives, from
further taking any steps to enact legislation appropriating funds for the "Pork Barrel System," in whatever form and by whatever
name it may be called, and from approving further releases pursuant thereto.106 The Alcantara Petition was docketed as G.R. No.
208493.

On September 3, 2013, petitioners Greco Antonious Beda B. Belgica, Jose L. Gonzalez, Reuben M. Abante, Quintin Paredes San
Diego (Belgica, et al.), and Jose M. Villegas, Jr. (Villegas) filed an Urgent Petition For Certiorari and Prohibition With Prayer For The
Immediate Issuance of Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction dated August 27, 2013 under Rule
65 of the Rules of Court (Belgica Petition), seeking that the annual "Pork Barrel System," presently embodied in the provisions of the
GAA of 2013 which provided for the 2013 PDAF, and the Executives lump-sum, discretionary funds, such as the Malampaya Funds
and the Presidential Social Fund,107 be declared unconstitutional and null and void for being acts constituting grave abuse of
discretion. Also, they pray that the Court issue a TRO against respondents Paquito N. Ochoa, Jr., Florencio B. Abad (Secretary
Abad) and Rosalia V. De Leon, in their respective capacities as the incumbent Executive Secretary, Secretary of the Department of
Budget and Management (DBM), and National Treasurer, or their agents, for them to immediately cease any expenditure under the
aforesaid funds. Further, they pray that the Court order the foregoing respondents to release to the CoA and to the public: (a) "the
complete schedule/list of legislators who have availed of their PDAF and VILP from the years 2003 to 2013, specifying the use of
the funds, the project or activity and the recipient entities or individuals, and all pertinent data thereto"; and (b) "the use of the
Executives lump-sum, discretionary funds, including the proceeds from the x x x Malampaya Funds and remittances from the
PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity and the recipient entities or individuals, and all pertinent
data thereto."108 Also, they pray for the "inclusion in budgetary deliberations with the Congress of all presently off-budget, lump-sum,
discretionary funds including, but not limited to, proceeds from the Malampaya Funds and remittances from the PAGCOR." 109 The
Belgica Petition was docketed as G.R. No. 208566.110

Lastly, on September 5, 2013, petitioner Pedrito M. Nepomuceno (Nepomuceno), filed a Petition dated August 23, 2012
(Nepomuceno Petition), seeking that the PDAF be declared unconstitutional, and a cease and desist order be issued restraining
President Benigno Simeon S. Aquino III (President Aquino) and Secretary Abad from releasing such funds to Members of Congress
and, instead, allow their release to fund priority projects identified and approved by the Local Development Councils in consultation
with the executive departments, such as the DPWH, the Department of Tourism, the Department of Health, the Department of
Transportation, and Communication and the National Economic Development Authority.111 The Nepomuceno Petition was docketed
as UDK-14951.112

On September 10, 2013, the Court issued a Resolution of even date (a) consolidating all cases; (b) requiring public respondents to
comment on the consolidated petitions; (c) issuing a TRO (September 10, 2013 TRO) enjoining the DBM, National Treasurer, the
Executive Secretary, or any of the persons acting under their authority from releasing (1) the remaining PDAF allocated to Members
of Congress under the GAA of 2013, and (2) Malampaya Funds under the phrase "for such other purposes as may be hereafter
directed by the President" pursuant to Section 8 of PD 910 but not for the purpose of "financing energy resource development and
exploitation programs and projects of the government under the same provision; and (d) setting the consolidated cases for Oral
Arguments on October 8, 2013.

On September 23, 2013, the Office of the Solicitor General (OSG) filed a Consolidated Comment (Comment) of even date before
the Court, seeking the lifting, or in the alternative, the partial lifting with respect to educational and medical assistance purposes, of
the Courts September 10, 2013 TRO, and that the consolidated petitions be dismissed for lack of merit. 113

On September 24, 2013, the Court issued a Resolution of even date directing petitioners to reply to the Comment.

Petitioners, with the exception of Nepomuceno, filed their respective replies to the Comment: (a) on September 30, 2013, Villegas
filed a separate Reply dated September 27, 2013 (Villegas Reply); (b) on October 1, 2013, Belgica, et al. filed a Reply dated
September 30, 2013 (Belgica Reply); and (c) on October 2, 2013, Alcantara filed a Reply dated October 1, 2013.

On October 1, 2013, the Court issued an Advisory providing for the guidelines to be observed by the parties for the Oral Arguments
scheduled on October 8, 2013. In view of the technicality of the issues material to the present cases, incumbent Solicitor General
Francis H. Jardeleza (Solicitor General) was directed to bring with him during the Oral Arguments representative/s from the DBM
and Congress who would be able to competently and completely answer questions related to, among others, the budgeting process
and its implementation. Further, the CoA Chairperson was appointed as amicus curiae and thereby requested to appear before the
Court during the Oral Arguments.

On October 8 and 10, 2013, the Oral Arguments were conducted. Thereafter, the Court directed the parties to submit their
respective memoranda within a period of seven (7) days, or until October 17, 2013, which the parties subsequently did.

The Issues Before the Court

Based on the pleadings, and as refined during the Oral Arguments, the following are the main issues for the Courts resolution:

I. Procedural Issues.
Whether or not (a) the issues raised in the consolidated petitions involve an actual and justiciable controversy; (b) the issues raised
in the consolidated petitions are matters of policy not subject to judicial review; (c) petitioners have legal standing to sue; and (d) the
Courts Decision dated August 19, 1994 in G.R. Nos. 113105, 113174, 113766, and 113888, entitled "Philippine Constitution
Association v. Enriquez"114 (Philconsa) and Decision dated April 24, 2012 in G.R. No. 164987, entitled "Lawyers Against Monopoly
and Poverty v. Secretary of Budget and Management"115 (LAMP) bar the re-litigatio n of the issue of constitutionality of the "Pork
Barrel System" under the principles of res judicata and stare decisis.

II. Substantive Issues on the "Congressional Pork Barrel."

Whether or not the 2013 PDAF Article and all other Congressional Pork Barrel Laws similar thereto are unconstitutional considering
that they violate the principles of/constitutional provisions on (a) separation of powers; (b) non-delegability of legislative power; (c)
checks and balances; (d) accountability; (e) political dynasties; and (f) local autonomy.

III. Substantive Issues on the "Presidential Pork Barrel."

Whether or not the phrases (a) "and for such other purposes as may be hereafter directed by the President" under Section 8 of PD
910,116 relating to the Malampaya Funds, and (b) "to finance the priority infrastructure development projects and to finance the
restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President of
the Philippines" under Section 12 of PD 1869, as amended by PD 1993, relating to the Presidential Social Fund, are unconstitutional
insofar as they constitute undue delegations of legislative power.

These main issues shall be resolved in the order that they have been stated. In addition, the Court shall also tackle certain ancillary
issues as prompted by the present cases.

The Courts Ruling

The petitions are partly granted.

I. Procedural Issues.

The prevailing rule in constitutional litigation is that no question involving the constitutionality or validity of a law or governmental act
may be heard and decided by the Court unless there is compliance with the legal requisites for judicial inquiry, 117 namely: (a) there
must be an actual case or controversy calling for the exercise of judicial power; (b) the person challenging the act must have the
standing to question the validity of the subject act or issuance; (c) the question of constitutionality must be raised at the earliest
opportunity ; and (d) the issue of constitutionality must be the very lis mota of the case.118 Of these requisites, case law states that
the first two are the most important119 and, therefore, shall be discussed forthwith.

A. Existence of an Actual Case or Controversy.

By constitutional fiat, judicial power operates only when there is an actual case or controversy. 120 This is embodied in Section 1,
Article VIII of the 1987 Constitution which pertinently states that "judicial power includes the duty of the courts of justice to settle
actual controversies involving rights which are legally demandable and enforceable x x x." Jurisprudence provides that an actual
case or controversy is one which "involves a conflict of legal rights, an assertion of opposite legal claims, susceptible of judicial
resolution as distinguished from a hypothetical or abstract difference or dispute.121 In other words, "there must be a contrariety of
legal rights that can be interpreted and enforced on the basis of existing law and jurisprudence."122 Related to the requirement of an
actual case or controversy is the requirement of "ripeness," meaning that the questions raised for constitutional scrutiny are already
ripe for adjudication. "A question is ripe for adjudication when the act being challenged has had a direct adverse effect on the
individual challenging it. It is a prerequisite that something had then been accomplished or performed by either branch before a
court may come into the picture, and the petitioner must allege the existence of an immediate or threatened injury to itself as a result
of the challenged action."123 "Withal, courts will decline to pass upon constitutional issues through advisory opinions, bereft as they
are of authority to resolve hypothetical or moot questions."124

Based on these principles, the Court finds that there exists an actual and justiciable controversy in these cases.

The requirement of contrariety of legal rights is clearly satisfied by the antagonistic positions of the parties on the constitutionality of
the "Pork Barrel System." Also, the questions in these consolidated cases are ripe for adjudication since the challenged funds and
the provisions allowing for their utilization such as the 2013 GAA for the PDAF, PD 910 for the Malampaya Funds and PD 1869, as
amended by PD 1993, for the Presidential Social Fund are currently existing and operational; hence, there exists an immediate or
threatened injury to petitioners as a result of the unconstitutional use of these public funds.

As for the PDAF, the Court must dispel the notion that the issues related thereto had been rendered moot and academic by the
reforms undertaken by respondents. A case becomes moot when there is no more actual controversy between the parties or no
useful purpose can be served in passing upon the merits.125 Differing from this description, the Court observes that respondents
proposed line-item budgeting scheme would not terminate the controversy nor diminish the useful purpose for its resolution since
said reform is geared towards the 2014 budget, and not the 2013 PDAF Article which, being a distinct subject matter, remains legally
effective and existing. Neither will the Presidents declaration that he had already "abolished the PDAF" render the issues on PDAF
moot precisely because the Executive branch of government has no constitutional authority to nullify or annul its legal existence. By
constitutional design, the annulment or nullification of a law may be done either by Congress, through the passage of a repealing
law, or by the Court, through a declaration of unconstitutionality. Instructive on this point is the following exchange between
Associate Justice Antonio T. Carpio (Justice Carpio) and the Solicitor General during the Oral Arguments: 126

Justice Carpio: The President has taken an oath to faithfully execute the law, 127 correct? Solicitor General Jardeleza: Yes, Your
Honor.

Justice Carpio: And so the President cannot refuse to implement the General Appropriations Act, correct?

Solicitor General Jardeleza: Well, that is our answer, Your Honor. In the case, for example of the PDAF, the President has a duty to
execute the laws but in the face of the outrage over PDAF, the President was saying, "I am not sure that I will continue the release
of the soft projects," and that started, Your Honor. Now, whether or not that (interrupted)

Justice Carpio: Yeah. I will grant the President if there are anomalies in the project, he has the power to stop the releases in the
meantime, to investigate, and that is Section 38 of Chapter 5 of Book 6 of the Revised Administrative Code 128 x x x. So at most the
President can suspend, now if the President believes that the PDAF is unconstitutional, can he just refuse to implement it?

Solicitor General Jardeleza: No, Your Honor, as we were trying to say in the specific case of the PDAF because of the CoA Report,
because of the reported irregularities and this Court can take judicial notice, even outside, outside of the COA Report, you have the
report of the whistle-blowers, the President was just exercising precisely the duty .

xxxx

Justice Carpio: Yes, and that is correct. Youve seen the CoA Report, there are anomalies, you stop and investigate, and prosecute,
he has done that. But, does that mean that PDAF has been repealed?

Solicitor General Jardeleza: No, Your Honor x x x.

xxxx

Justice Carpio: So that PDAF can be legally abolished only in two (2) cases. Congress passes a law to repeal it, or this Court
declares it unconstitutional, correct?

Solictor General Jardeleza: Yes, Your Honor.

Justice Carpio: The President has no power to legally abolish PDAF. (Emphases supplied)

Even on the assumption of mootness, jurisprudence, nevertheless, dictates that "the moot and academic principle is not a magical
formula that can automatically dissuade the Court in resolving a case." The Court will decide cases, otherwise moot, if: first, there is
a grave violation of the Constitution; second, the exceptional character of the situation and the paramount public interest is involved;
third, when the constitutional issue raised requires formulation of controlling principles to guide the bench, the bar, and the public;
and fourth, the case is capable of repetition yet evading review.129

The applicability of the first exception is clear from the fundamental posture of petitioners they essentially allege grave violations of
the Constitution with respect to, inter alia, the principles of separation of powers, non-delegability of legislative power, checks and
balances, accountability and local autonomy.

The applicability of the second exception is also apparent from the nature of the interests involved

the constitutionality of the very system within which significant amounts of public funds have been and continue to be utilized and
expended undoubtedly presents a situation of exceptional character as well as a matter of paramount public interest. The present
petitions, in fact, have been lodged at a time when the systems flaws have never before been magnified. To the Courts mind, the
coalescence of the CoA Report, the accounts of numerous whistle-blowers, and the governments own recognition that reforms are
needed "to address the reported abuses of the PDAF"130 demonstrates a prima facie pattern of abuse which only underscores the
importance of the matter. It is also by this finding that the Court finds petitioners claims as not merely theorized, speculative or
hypothetical. Of note is the weight accorded by the Court to the findings made by the CoA which is the constitutionally-mandated
audit arm of the government. In Delos Santos v. CoA,131 a recent case wherein the Court upheld the CoAs disallowance of
irregularly disbursed PDAF funds, it was emphasized that:
The COA is endowed with enough latitude to determine, prevent, and disallow irregular, unnecessary, excessive, extravagant or
unconscionable expenditures of government funds. It is tasked to be vigilant and conscientious in safeguarding the proper use of the
government's, and ultimately the people's, property. The exercise of its general audit power is among the constitutional mechanisms
that gives life to the check and balance system inherent in our form of government.

It is the general policy of the Court to sustain the decisions of administrative authorities, especially one which is constitutionally-
created, such as the CoA, not only on the basis of the doctrine of separation of powers but also for their presumed expertise in the
laws they are entrusted to enforce. Findings of administrative agencies are accorded not only respect but also finality when the
decision and order are not tainted with unfairness or arbitrariness that would amount to grave abuse of discretion. It is only when the
CoA has acted without or in excess of jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, that
this Court entertains a petition questioning its rulings. x x x. (Emphases supplied)

Thus, if only for the purpose of validating the existence of an actual and justiciable controversy in these cases, the Court deems the
findings under the CoA Report to be sufficient.

The Court also finds the third exception to be applicable largely due to the practical need for a definitive ruling on the systems
constitutionality. As disclosed during the Oral Arguments, the CoA Chairperson estimates that thousands of notices of disallowances
will be issued by her office in connection with the findings made in the CoA Report. In this relation, Associate Justice Marvic Mario
Victor F. Leonen (Justice Leonen) pointed out that all of these would eventually find their way to the courts. 132 Accordingly, there is a
compelling need to formulate controlling principles relative to the issues raised herein in order to guide the bench, the bar, and the
public, not just for the expeditious resolution of the anticipated disallowance cases, but more importantly, so that the government
may be guided on how public funds should be utilized in accordance with constitutional principles.

Finally, the application of the fourth exception is called for by the recognition that the preparation and passage of the national budget
is, by constitutional imprimatur, an affair of annual occurrence.133 The relevance of the issues before the Court does not cease with
the passage of a "PDAF -free budget for 2014."134 The evolution of the "Pork Barrel System," by its multifarious iterations throughout
the course of history, lends a semblance of truth to petitioners claim that "the same dog will just resurface wearing a different
collar."135 In Sanlakas v. Executive Secretary,136 the government had already backtracked on a previous course of action yet the
Court used the "capable of repetition but evading review" exception in order "to prevent similar questions from re- emerging." 137The
situation similarly holds true to these cases. Indeed, the myriad of issues underlying the manner in which certain public funds are
spent, if not resolved at this most opportune time, are capable of repetition and hence, must not evade judicial review.

B. Matters of Policy: the Political Question Doctrine.

The "limitation on the power of judicial review to actual cases and controversies carries the assurance that "the courts will not
intrude into areas committed to the other branches of government."138 Essentially, the foregoing limitation is a restatement of the
political question doctrine which, under the classic formulation of Baker v. Carr, 139applies when there is found, among others, "a
textually demonstrable constitutional commitment of the issue to a coordinate political department," "a lack of judicially discoverable
and manageable standards for resolving it" or "the impossibility of deciding without an initial policy determination of a kind clearly for
non- judicial discretion." Cast against this light, respondents submit that the "the political branches are in the best position not only to
perform budget-related reforms but also to do them in response to the specific demands of their constituents" and, as such, "urge
the Court not to impose a solution at this stage."140

The Court must deny respondents submission.

Suffice it to state that the issues raised before the Court do not present political but legal questions which are within its province to
resolve. A political question refers to "those questions which, under the Constitution, are to be decided by the people in their
sovereign capacity, or in regard to which full discretionary authority has been delegated to the Legislature or executive branch of the
Government. It is concerned with issues dependent upon the wisdom, not legality, of a particular measure."141 The intrinsic
constitutionality of the "Pork Barrel System" is not an issue dependent upon the wisdom of the political branches of government but
rather a legal one which the Constitution itself has commanded the Court to act upon. Scrutinizing the contours of the system along
constitutional lines is a task that the political branches of government are incapable of rendering precisely because it is an exercise
of judicial power. More importantly, the present Constitution has not only vested the Judiciary the right to exercise judicial power but
essentially makes it a duty to proceed therewith. Section 1, Article VIII of the 1987 Constitution cannot be any clearer: "The judicial
power shall be vested in one Supreme Court and in such lower courts as may be established by law. It includes the duty of the
courts of justice to settle actual controversies involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the Government." In Estrada v. Desierto,142 the expanded concept of judicial power under the 1987 Constitution
and its effect on the political question doctrine was explained as follows:143

To a great degree, the 1987 Constitution has narrowed the reach of the political question doctrine when it expanded the power of
judicial review of this court not only to settle actual controversies involving rights which are legally demandable and enforceable but
also to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part
of any branch or instrumentality of government. Heretofore, the judiciary has focused on the "thou shalt not's" of the Constitution
directed against the exercise of its jurisdiction. With the new provision, however, courts are given a greater prerogative to determine
what it can do to prevent grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of government. Clearly, the new provision did not just grant the Court power of doing nothing. x x x (Emphases
supplied)

It must also be borne in mind that when the judiciary mediates to allocate constitutional boundaries, it does not assert any
superiority over the other departments; does not in reality nullify or invalidate an act of the legislature or the executive, but only
asserts the solemn and sacred obligation assigned to it by the Constitution."144 To a great extent, the Court is laudably cognizant of
the reforms undertaken by its co-equal branches of government. But it is by constitutional force that the Court must faithfully perform
its duty. Ultimately, it is the Courts avowed intention that a resolution of these cases would not arrest or in any manner impede the
endeavors of the two other branches but, in fact, help ensure that the pillars of change are erected on firm constitutional grounds.
After all, it is in the best interest of the people that each great branch of government, within its own sphere, contributes its share
towards achieving a holistic and genuine solution to the problems of society. For all these reasons, the Court cannot heed
respondents plea for judicial restraint.

C. Locus Standi.

"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. Unless a person is injuriously affected in any of his constitutional rights by the operation of statute or
ordinance, he has no standing."145

Petitioners have come before the Court in their respective capacities as citizen-taxpayers and accordingly, assert that they "dutifully
contribute to the coffers of the National Treasury."146 Clearly, as taxpayers, they possess the requisite standing to question the
validity of the existing "Pork Barrel System" under which the taxes they pay have been and continue to be utilized. It is undeniable
that petitioners, as taxpayers, are bound to suffer from the unconstitutional usage of public funds, if the Court so rules. Invariably,
taxpayers have been allowed to sue where there is a claim that public funds are illegally disbursed or that public money is being
deflected to any improper purpose, or that public funds are wasted through the enforcement of an invalid or unconstitutional
law,147 as in these cases.

Moreover, as citizens, petitioners have equally fulfilled the standing requirement given that the issues they have raised may be
classified as matters "of transcendental importance, of overreaching significance to society, or of paramount public interest." 148 The
CoA Chairpersons statement during the Oral Arguments that the present controversy involves "not merely a systems failure" but a
"complete breakdown of controls"149 amplifies, in addition to the matters above-discussed, the seriousness of the issues involved
herein. Indeed, of greater import than the damage caused by the illegal expenditure of public funds is the mortal wound inflicted
upon the fundamental law by the enforcement of an invalid statute.150 All told, petitioners have sufficient locus standi to file the
instant cases.

D. Res Judicata and Stare Decisis.

Res judicata (which means a "matter adjudged") and stare decisis non quieta et movere (or simply, stare decisis which means
"follow past precedents and do not disturb what has been settled") are general procedural law principles which both deal with the
effects of previous but factually similar dispositions to subsequent cases. For the cases at bar, the Court examines the applicability
of these principles in relation to its prior rulings in Philconsa and LAMP.

The focal point of res judicata is the judgment. The principle states that a judgment on the merits in a previous case rendered by a
court of competent jurisdiction would bind a subsequent case if, between the first and second actions, there exists an identity of
parties, of subject matter, and of causes of action.151 This required identity is not, however, attendant hereto since Philconsa and
LAMP, respectively involved constitutional challenges against the 1994 CDF Article and 2004 PDAF Article, whereas the cases at
bar call for a broader constitutional scrutiny of the entire "Pork Barrel System." Also, the ruling in LAMP is essentially a dismissal
based on a procedural technicality and, thus, hardly a judgment on the merits in that petitioners therein failed to present any
"convincing proof x x x showing that, indeed, there were direct releases of funds to the Members of Congress, who actually spend
them according to their sole discretion" or "pertinent evidentiary support to demonstrate the illegal misuse of PDAF in the form of
kickbacks and has become a common exercise of unscrupulous Members of Congress." As such, the Court up held, in view of the
presumption of constitutionality accorded to every law, the 2004 PDAF Article, and saw "no need to review or reverse the standing
pronouncements in the said case." Hence, for the foregoing reasons, the res judicata principle, insofar as the Philconsa and LAMP
cases are concerned, cannot apply.

On the other hand, the focal point of stare decisis is the doctrine created. The principle, entrenched under Article 8152 of the Civil
Code, evokes the general rule that, for the sake of certainty, a conclusion reached in one case should be doctrinally applied to those
that follow if the facts are substantially the same, even though the parties may be different. It proceeds from the first principle of
justice that, absent any powerful countervailing considerations, like cases ought to be decided alike. Thus, where the same
questions relating to the same event have been put forward by the parties similarly situated as in a previous case litigated and
decided by a competent court, the rule of stare decisis is a bar to any attempt to re-litigate the same issue. 153
Philconsa was the first case where a constitutional challenge against a Pork Barrel provision, i.e., the 1994 CDF Article, was
resolved by the Court. To properly understand its context, petitioners posturing was that "the power given to the Members of
Congress to propose and identify projects and activities to be funded by the CDF is an encroachment by the legislature on executive
power, since said power in an appropriation act is in implementation of the law" and that "the proposal and identification of the
projects do not involve the making of laws or the repeal and amendment thereof, the only function given to the Congress by the
Constitution."154 In deference to the foregoing submissions, the Court reached the following main conclusions: one, under the
Constitution, the power of appropriation, or the "power of the purse," belongs to Congress; two, the power of appropriation carries
with it the power to specify the project or activity to be funded under the appropriation law and it can be detailed and as broad as
Congress wants it to be; and, three, the proposals and identifications made by Members of Congress are merely recommendatory.
At once, it is apparent that the Philconsa resolution was a limited response to a separation of powers problem, specifically on the
propriety of conferring post-enactment identification authority to Members of Congress. On the contrary, the present cases call for a
more holistic examination of (a) the inter-relation between the CDF and PDAF Articles with each other, formative as they are of the
entire "Pork Barrel System" as well as (b) the intra-relation of post-enactment measures contained within a particular CDF or PDAF
Article, including not only those related to the area of project identification but also to the areas of fund release and realignment. The
complexity of the issues and the broader legal analyses herein warranted may be, therefore, considered as a powerful
countervailing reason against a wholesale application of the stare decisis principle.

In addition, the Court observes that the Philconsa ruling was actually riddled with inherent constitutional inconsistencies which
similarly countervail against a full resort to stare decisis. As may be deduced from the main conclusions of the case, Philconsas
fundamental premise in allowing Members of Congress to propose and identify of projects would be that the said identification
authority is but an aspect of the power of appropriation which has been constitutionally lodged in Congress. From this premise, the
contradictions may be easily seen. If the authority to identify projects is an aspect of appropriation and the power of appropriation is
a form of legislative power thereby lodged in Congress, then it follows that: (a) it is Congress which should exercise such authority,
and not its individual Members; (b) such authority must be exercised within the prescribed procedure of law passage and, hence,
should not be exercised after the GAA has already been passed; and (c) such authority, as embodied in the GAA, has the force of
law and, hence, cannot be merely recommendatory. Justice Vitugs Concurring Opinion in the same case sums up the Philconsa
quandary in this wise: "Neither would it be objectionable for Congress, by law, to appropriate funds for such specific projects as it
may be minded; to give that authority, however, to the individual members of Congress in whatever guise, I am afraid, would be
constitutionally impermissible." As the Court now largely benefits from hindsight and current findings on the matter, among others,
the CoA Report, the Court must partially abandon its previous ruling in Philconsa insofar as it validated the post-enactment
identification authority of Members of Congress on the guise that the same was merely recommendatory. This postulate raises
serious constitutional inconsistencies which cannot be simply excused on the ground that such mechanism is "imaginative as it is
innovative." Moreover, it must be pointed out that the recent case of Abakada Guro Party List v. Purisima 155 (Abakada) has
effectively overturned Philconsas allowance of post-enactment legislator participation in view of the separation of powers principle.
These constitutional inconsistencies and the Abakada rule will be discussed in greater detail in the ensuing section of this Decision.

As for LAMP, suffice it to restate that the said case was dismissed on a procedural technicality and, hence, has not set any
controlling doctrine susceptible of current application to the substantive issues in these cases. In fine, stare decisis would not apply.

II. Substantive Issues.

A. Definition of Terms.

Before the Court proceeds to resolve the substantive issues of these cases, it must first define the terms "Pork Barrel System,"
"Congressional Pork Barrel," and "Presidential Pork Barrel" as they are essential to the ensuing discourse.

Petitioners define the term "Pork Barrel System" as the "collusion between the Legislative and Executive branches of government to
accumulate lump-sum public funds in their offices with unchecked discretionary powers to determine its distribution as political
largesse."156 They assert that the following elements make up the Pork Barrel System: (a) lump-sum funds are allocated through the
appropriations process to an individual officer; (b) the officer is given sole and broad discretion in determining how the funds will be
used or expended; (c) the guidelines on how to spend or use the funds in the appropriation are either vague, overbroad or
inexistent; and (d) projects funded are intended to benefit a definite constituency in a particular part of the country and to help the
political careers of the disbursing official by yielding rich patronage benefits. 157 They further state that the Pork Barrel System is
comprised of two (2) kinds of discretionary public funds: first, the Congressional (or Legislative) Pork Barrel, currently known as the
PDAF;158 and, second, the Presidential (or Executive) Pork Barrel, specifically, the Malampaya Funds under PD 910 and the
Presidential Social Fund under PD 1869, as amended by PD 1993.159

Considering petitioners submission and in reference to its local concept and legal history, the Court defines the Pork Barrel System
as the collective body of rules and practices that govern the manner by which lump-sum, discretionary funds, primarily intended for
local projects, are utilized through the respective participations of the Legislative and Executive branches of government, including
its members. The Pork Barrel System involves two (2) kinds of lump-sum discretionary funds:

First, there is the Congressional Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund wherein legislators,
either individually or collectively organized into committees, are able to effectively control certain aspects of the funds utilization
through various post-enactment measures and/or practices. In particular, petitioners consider the PDAF, as it appears under the
2013 GAA, as Congressional Pork Barrel since it is, inter alia, a post-enactment measure that allows individual legislators to wield a
collective power;160 and

Second, there is the Presidential Pork Barrel which is herein defined as a kind of lump-sum, discretionary fund which allows the
President to determine the manner of its utilization. For reasons earlier stated,161 the Court shall delimit the use of such term to refer
only to the Malampaya Funds and the Presidential Social Fund.

With these definitions in mind, the Court shall now proceed to discuss the substantive issues of these cases.

B. Substantive Issues on the Congressional Pork Barrel.

1. Separation of Powers.

a. Statement of Principle.

The principle of separation of powers refers to the constitutional demarcation of the three fundamental powers of government. In the
celebrated words of Justice Laurel in Angara v. Electoral Commission,162 it means that 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." 163 To
the legislative branch of government, through Congress,164 belongs the power to make laws; to the executive branch of government,
through the President,165belongs the power to enforce laws; and to the judicial branch of government, through the Court, 166 belongs
the power to interpret laws. Because the three great powers have been, by constitutional design, ordained in this respect, "each
department of the government has exclusive cognizance of matters within its jurisdiction, and is supreme within its own
sphere."167 Thus, "the legislature has no authority to execute or construe the law, the executive has no authority to make or construe
the law, and the judiciary has no power to make or execute the law."168 The principle of separation of powers and its concepts of
autonomy and independence stem from the notion that the powers of government must be divided to avoid concentration of these
powers in any one branch; the division, it is hoped, would avoid any single branch from lording its power over the other branches or
the citizenry.169 To achieve this purpose, the divided power must be wielded by co-equal branches of government that are equally
capable of independent action in exercising their respective mandates. Lack of independence would result in the inability of one
branch of government to check the arbitrary or self-interest assertions of another or others.170

Broadly speaking, there is a violation of the separation of powers principle when one branch of government unduly encroaches on
the domain of another. US Supreme Court decisions instruct that the principle of separation of powers may be violated in two (2)
ways: firstly, "one branch may interfere impermissibly with the others performance of its constitutionally assigned function"; 171 and
"alternatively, the doctrine may be violated when one branch assumes a function that more properly is entrusted to another." 172 In
other words, there is a violation of the principle when there is impermissible (a) interference with and/or (b) assumption of another
departments functions.

The enforcement of the national budget, as primarily contained in the GAA, is indisputably a function both constitutionally assigned
and properly entrusted to the Executive branch of government. In Guingona, Jr. v. Hon. Carague 173 (Guingona, Jr.), the Court
explained that the phase of budget execution "covers the various operational aspects of budgeting" and accordingly includes "the
evaluation of work and financial plans for individual activities," the "regulation and release of funds" as well as all "other related
activities" that comprise the budget execution cycle.174 This is rooted in the principle that the allocation of power in the three principal
branches of government is a grant of all powers inherent in them.175 Thus, unless the Constitution provides otherwise, the Executive
department should exclusively exercise all roles and prerogatives which go into the implementation of the national budget as
provided under the GAA as well as any other appropriation law.

In view of the foregoing, the Legislative branch of government, much more any of its members, should not cross over the field of
implementing the national budget since, as earlier stated, the same is properly the domain of the Executive. Again, in Guingona, Jr.,
the Court stated that "Congress enters the picture when it deliberates or acts on the budget proposals of the President. Thereafter,
Congress, "in the exercise of its own judgment and wisdom, formulates an appropriation act precisely following the process
established by the Constitution, which specifies that no money may be paid from the Treasury except in accordance with an
appropriation made by law." Upon approval and passage of the GAA, Congress law -making role necessarily comes to an end and
from there the Executives role of implementing the national budget begins. So as not to blur the constitutional boundaries between
them, Congress must "not concern it self with details for implementation by the Executive." 176

The foregoing cardinal postulates were definitively enunciated in Abakada where the Court held that "from the moment the law
becomes effective, any provision of law that empowers Congress or any of its members to play any role in the implementation or
enforcement of the law violates the principle of separation of powers and is thus unconstitutional." 177 It must be clarified, however,
that since the restriction only pertains to "any role in the implementation or enforcement of the law," Congress may still exercise its
oversight function which is a mechanism of checks and balances that the Constitution itself allows. But it must be made clear that
Congress role must be confined to mere oversight. Any post-enactment-measure allowing legislator participation beyond oversight
is bereft of any constitutional basis and hence, tantamount to impermissible interference and/or assumption of executive functions.
As the Court ruled in Abakada:178
Any post-enactment congressional measure x x x should be limited to scrutiny and investigation.1wphi1 In particular, congressional
oversight must be confined to the following:

(1) scrutiny based primarily on Congress power of appropriation and the budget hearings conducted in connection with it,
its power to ask heads of departments to appear before and be heard by either of its Houses on any matter pertaining to
their departments and its power of confirmation; and

(2) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct inquiries in
aid of legislation.

Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution. (Emphases supplied)

b. Application.

In these cases, petitioners submit that the Congressional Pork Barrel among others, the 2013 PDAF Article "wrecks the
assignment of responsibilities between the political branches" as it is designed to allow individual legislators to interfere "way past
the time it should have ceased" or, particularly, "after the GAA is passed."179 They state that the findings and recommendations in
the CoA Report provide "an illustration of how absolute and definitive the power of legislators wield over project implementation in
complete violation of the constitutional principle of separation of powers."180 Further, they point out that the Court in the Philconsa
case only allowed the CDF to exist on the condition that individual legislators limited their role to recommending projects and not if
they actually dictate their implementation.181

For their part, respondents counter that the separations of powers principle has not been violated since the President maintains
"ultimate authority to control the execution of the GAA and that he "retains the final discretion to reject" the legislators
proposals.182 They maintain that the Court, in Philconsa, "upheld the constitutionality of the power of members of Congress to
propose and identify projects so long as such proposal and identification are recommendatory." 183 As such, they claim that
"everything in the Special Provisions [of the 2013 PDAF Article follows the Philconsa framework, and hence, remains
constitutional."184

The Court rules in favor of petitioners.

As may be observed from its legal history, the defining feature of all forms of Congressional Pork Barrel would be the authority of
legislators to participate in the post-enactment phases of project implementation.

At its core, legislators may it be through project lists,185 prior consultations186 or program menus187 have been consistently
accorded post-enactment authority to identify the projects they desire to be funded through various Congressional Pork Barrel
allocations. Under the 2013 PDAF Article, the statutory authority of legislators to identify projects post-GAA may be construed from
the import of Special Provisions 1 to 3 as well as the second paragraph of Special Provision 4. To elucidate, Special Provision 1
embodies the program menu feature which, as evinced from past PDAF Articles, allows individual legislators to identify PDAF
projects for as long as the identified project falls under a general program listed in the said menu. Relatedly, Special Provision 2
provides that the implementing agencies shall, within 90 days from the GAA is passed, submit to Congress a more detailed priority
list, standard or design prepared and submitted by implementing agencies from which the legislator may make his choice. The same
provision further authorizes legislators to identify PDAF projects outside his district for as long as the representative of the district
concerned concurs in writing. Meanwhile, Special Provision 3 clarifies that PDAF projects refer to "projects to be identified by
legislators"188 and thereunder provides the allocation limit for the total amount of projects identified by each legislator. Finally,
paragraph 2 of Special Provision 4 requires that any modification and revision of the project identification "shall be submitted to the
House Committee on Appropriations and the Senate Committee on Finance for favorable endorsement to the DBM or the
implementing agency, as the case may be." From the foregoing special provisions, it cannot be seriously doubted that legislators
have been accorded post-enactment authority to identify PDAF projects.

Aside from the area of project identification, legislators have also been accorded post-enactment authority in the areas of fund
release and realignment. Under the 2013 PDAF Article, the statutory authority of legislators to participate in the area of fund release
through congressional committees is contained in Special Provision 5 which explicitly states that "all request for release of funds
shall be supported by the documents prescribed under Special Provision No. 1 and favorably endorsed by House Committee on
Appropriations and the Senate Committee on Finance, as the case may be"; while their statutory authority to participate in the area
of fund realignment is contained in: first , paragraph 2, Special Provision 4 189 which explicitly state s, among others, that "any
realignment of funds shall be submitted to the House Committee on Appropriations and the Senate Committee on Finance for
favorable endorsement to the DBM or the implementing agency, as the case may be ; and, second , paragraph 1, also of Special
Provision 4 which authorizes the "Secretaries of Agriculture, Education, Energy, Interior and Local Government, Labor and
Employment, Public Works and Highways, Social Welfare and Development and Trade and Industry190 x x x to approve realignment
from one project/scope to another within the allotment received from this Fund, subject to among others (iii) the request is with the
concurrence of the legislator concerned."
Clearly, these post-enactment measures which govern the areas of project identification, fund release and fund realignment are not
related to functions of congressional oversight and, hence, allow legislators to intervene and/or assume duties that properly belong
to the sphere of budget execution. Indeed, by virtue of the foregoing, legislators have been, in one form or another, authorized to
participate in as Guingona, Jr. puts it "the various operational aspects of budgeting," including "the evaluation of work and
financial plans for individual activities" and the "regulation and release of funds" in violation of the separation of powers principle.
The fundamental rule, as categorically articulated in Abakada, cannot be overstated from the moment the law becomes effective,
any provision of law that empowers Congress or any of its members to play any role in the implementation or enforcement of the law
violates the principle of separation of powers and is thus unconstitutional.191 That the said authority is treated as merely
recommendatory in nature does not alter its unconstitutional tenor since the prohibition, to repeat, covers any role in the
implementation or enforcement of the law. Towards this end, the Court must therefore abandon its ruling in Philconsa which
sanctioned the conduct of legislator identification on the guise that the same is merely recommendatory and, as such, respondents
reliance on the same falters altogether.

Besides, it must be pointed out that respondents have nonetheless failed to substantiate their position that the identification authority
of legislators is only of recommendatory import. Quite the contrary, respondents through the statements of the Solicitor General
during the Oral Arguments have admitted that the identification of the legislator constitutes a mandatory requirement before his
PDAF can be tapped as a funding source, thereby highlighting the indispensability of the said act to the entire budget execution
process:192

Justice Bernabe: Now, without the individual legislators identification of the project, can the PDAF of the legislator be utilized?

Solicitor General Jardeleza: No, Your Honor.

Justice Bernabe: It cannot?

Solicitor General Jardeleza: It cannot (interrupted)

Justice Bernabe: So meaning you should have the identification of the project by the individual legislator?

Solicitor General Jardeleza: Yes, Your Honor.

xxxx

Justice Bernabe: In short, the act of identification is mandatory?

Solictor General Jardeleza: Yes, Your Honor. In the sense that if it is not done and then there is no identification.

xxxx

Justice Bernabe: Now, would you know of specific instances when a project was implemented without the identification by the
individual legislator?

Solicitor General Jardeleza: I do not know, Your Honor; I do not think so but I have no specific examples. I would doubt very much,
Your Honor, because to implement, there is a need for a SARO and the NCA. And the SARO and the NCA are triggered by an
identification from the legislator.

xxxx

Solictor General Jardeleza: What we mean by mandatory, Your Honor, is we were replying to a question, "How can a legislator make
sure that he is able to get PDAF Funds?" It is mandatory in the sense that he must identify, in that sense, Your Honor. Otherwise, if
he does not identify, he cannot avail of the PDAF Funds and his district would not be able to have PDAF Funds, only in that sense,
Your Honor. (Emphases supplied)

Thus, for all the foregoing reasons, the Court hereby declares the 2013 PDAF Article as well as all other provisions of law which
similarly allow legislators to wield any form of post-enactment authority in the implementation or enforcement of the budget,
unrelated to congressional oversight, as violative of the separation of powers principle and thus unconstitutional. Corollary thereto,
informal practices, through which legislators have effectively intruded into the proper phases of budget execution, must be deemed
as acts of grave abuse of discretion amounting to lack or excess of jurisdiction and, hence, accorded the same unconstitutional
treatment. That such informal practices do exist and have, in fact, been constantly observed throughout the years has not been
substantially disputed here. As pointed out by Chief Justice Maria Lourdes P.A. Sereno (Chief Justice Sereno) during the Oral
Arguments of these cases:193
Chief Justice Sereno:
Now, from the responses of the representative of both, the DBM and two (2) Houses of Congress, if we enforces the initial thought
that I have, after I had seen the extent of this research made by my staff, that neither the Executive nor Congress frontally faced the
question of constitutional compatibility of how they were engineering the budget process. In fact, the words you have been using, as
the three lawyers of the DBM, and both Houses of Congress has also been using is surprise; surprised that all of these things are
now surfacing. In fact, I thought that what the 2013 PDAF provisions did was to codify in one section all the past practice that had
been done since 1991. In a certain sense, we should be thankful that they are all now in the PDAF Special Provisions. x x x
(Emphasis and underscoring supplied)

Ultimately, legislators cannot exercise powers which they do not have, whether through formal measures written into the law or
informal practices institutionalized in government agencies, else the Executive department be deprived of what the Constitution has
vested as its own.

2. Non-delegability of Legislative Power.

a. Statement of Principle.

As an adjunct to the separation of powers principle,194 legislative power shall be exclusively exercised by the body to which the
Constitution has conferred the same. In particular, Section 1, Article VI of the 1987 Constitution states that such power shall be
vested in the Congress of the Philippines which shall consist of a Senate and a House of Representatives, except to the extent
reserved to the people by the provision on initiative and referendum.195 Based on this provision, it is clear that only Congress, acting
as a bicameral body, and the people, through the process of initiative and referendum, may constitutionally wield legislative power
and no other. This premise embodies the principle of non-delegability of legislative power, and the only recognized exceptions
thereto would be: (a) delegated legislative power to local governments which, by immemorial practice, are allowed to legislate on
purely local matters;196 and (b) constitutionally-grafted exceptions such as the authority of the President to, by law, exercise powers
necessary and proper to carry out a declared national policy in times of war or other national emergency, 197 or fix within specified
limits, and subject to such limitations and restrictions as Congress may impose, tariff rates, import and export quotas, tonnage and
wharfage dues, and other duties or imposts within the framework of the national development program of the Government. 198

Notably, the principle of non-delegability should not be confused as a restriction to delegate rule-making authority to implementing
agencies for the limited purpose of either filling up the details of the law for its enforcement (supplementary rule-making) or
ascertaining facts to bring the law into actual operation (contingent rule-making).199 The conceptual treatment and limitations of
delegated rule-making were explained in the case of People v. Maceren200 as follows:

The grant of the rule-making power to administrative agencies is a relaxation of the principle of separation of powers and is an
exception to the nondelegation of legislative powers. Administrative regulations or "subordinate legislation" calculated to promote the
public interest are necessary because of "the growing complexity of modern life, the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering the law."

xxxx

Nevertheless, it must be emphasized that the rule-making power must be confined to details for regulating the mode or proceeding
to carry into effect the law as it has been enacted. The power cannot be extended to amending or expanding the statutory
requirements or to embrace matters not covered by the statute. Rules that subvert the statute cannot be sanctioned. (Emphases
supplied)

b. Application.

In the cases at bar, the Court observes that the 2013 PDAF Article, insofar as it confers post-enactment identification authority to
individual legislators, violates the principle of non-delegability since said legislators are effectively allowed to individually exercise
the power of appropriation, which as settled in Philconsa is lodged in Congress.201 That the power to appropriate must be
exercised only through legislation is clear from Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall
be paid out of the Treasury except in pursuance of an appropriation made by law." To understand what constitutes an act of
appropriation, the Court, in Bengzon v. Secretary of Justice and Insular Auditor202 (Bengzon), held that the power of appropriation
involves (a) the setting apart by law of a certain sum from the public revenue for (b) a specified purpose. Essentially, under the 2013
PDAF Article, individual legislators are given a personal lump-sum fund from which they are able to dictate (a) how much from such
fund would go to (b) a specific project or beneficiary that they themselves also determine. As these two (2) acts comprise the
exercise of the power of appropriation as described in Bengzon, and given that the 2013 PDAF Article authorizes individual
legislators to perform the same, undoubtedly, said legislators have been conferred the power to legislate which the Constitution
does not, however, allow. Thus, keeping with the principle of non-delegability of legislative power, the Court hereby declares the
2013 PDAF Article, as well as all other forms of Congressional Pork Barrel which contain the similar legislative identification feature
as herein discussed, as unconstitutional.

3. Checks and Balances.


a. Statement of Principle; Item-Veto Power.

The fact that the three great powers of government are intended to be kept separate and distinct does not mean that they are
absolutely unrestrained and independent of each other. The Constitution has also provided for an elaborate system of checks and
balances to secure coordination in the workings of the various departments of the government.203

A prime example of a constitutional check and balance would be the Presidents power to veto an item written into an appropriation,
revenue or tariff bill submitted to him by Congress for approval through a process known as "bill presentment." The Presidents item-
veto power is found in Section 27(2), Article VI of the 1987 Constitution which reads as follows:

Sec. 27. x x x.

xxxx

(2) The President shall have the power to veto any particular item or items in an appropriation, revenue, or tariff bill, but the veto
shall not affect the item or items to which he does not object.

The presentment of appropriation, revenue or tariff bills to the President, wherein he may exercise his power of item-veto, forms part
of the "single, finely wrought and exhaustively considered, procedures" for law-passage as specified under the Constitution. 204 As
stated in Abakada, the final step in the law-making process is the "submission of the bill to the President for approval. Once
approved, it takes effect as law after the required publication."205

Elaborating on the Presidents item-veto power and its relevance as a check on the legislature, the Court, in Bengzon, explained
that:206

The former Organic Act and the present Constitution of the Philippines make the Chief Executive an integral part of the law-making
power. His disapproval of a bill, commonly known as a veto, is essentially a legislative act. The questions presented to the mind of
the Chief Executive are precisely the same as those the legislature must determine in passing a bill, except that his will be a broader
point of view.

The Constitution is a limitation upon the power of the legislative department of the government, but in this respect it is a grant of
power to the executive department. The Legislature has the affirmative power to enact laws; the Chief Executive has the negative
power by the constitutional exercise of which he may defeat the will of the Legislature. It follows that the Chief Executive must find
his authority in the Constitution. But in exercising that authority he may not be confined to rules of strict construction or hampered by
the unwise interference of the judiciary. The courts will indulge every intendment in favor of the constitutionality of a veto in the same
manner as they will presume the constitutionality of an act as originally passed by the Legislature. (Emphases supplied)

The justification for the Presidents item-veto power rests on a variety of policy goals such as to prevent log-rolling
legislation,207 impose fiscal restrictions on the legislature, as well as to fortify the executive branchs role in the budgetary
process.208 In Immigration and Naturalization Service v. Chadha, the US Supreme Court characterized the Presidents item-power as
"a salutary check upon the legislative body, calculated to guard the community against the effects of factions, precipitancy, or of any
impulse unfriendly to the public good, which may happen to influence a majority of that body"; phrased differently, it is meant to
"increase the chances in favor of the community against the passing of bad laws, through haste, inadvertence, or design." 209

For the President to exercise his item-veto power, it necessarily follows that there exists a proper "item" which may be the object of
the veto. An item, as defined in the field of appropriations, pertains to "the particulars, the details, the distinct and severable parts of
the appropriation or of the bill." In the case of Bengzon v. Secretary of Justice of the Philippine Islands, 210 the US Supreme Court
characterized an item of appropriation as follows:

An item of an appropriation bill obviously means an item which, in itself, is a specific appropriation of money, not some general
provision of law which happens to be put into an appropriation bill. (Emphases supplied)

On this premise, it may be concluded that an appropriation bill, to ensure that the President may be able to exercise his power of
item veto, must contain "specific appropriations of money" and not only "general provisions" which provide for parameters of
appropriation.

Further, it is significant to point out that an item of appropriation must be an item characterized by singular correspondence
meaning an allocation of a specified singular amount for a specified singular purpose, otherwise known as a "line-item." 211 This
treatment not only allows the item to be consistent with its definition as a "specific appropriation of money" but also ensures that the
President may discernibly veto the same. Based on the foregoing formulation, the existing Calamity Fund, Contingent Fund and the
Intelligence Fund, being appropriations which state a specified amount for a specific purpose, would then be considered as "line-
item" appropriations which are rightfully subject to item veto. Likewise, it must be observed that an appropriation may be validly
apportioned into component percentages or values; however, it is crucial that each percentage or value must be allocated for its own
corresponding purpose for such component to be considered as a proper line-item. Moreover, as Justice Carpio correctly pointed
out, a valid appropriation may even have several related purposes that are by accounting and budgeting practice considered as one
purpose, e.g., MOOE (maintenance and other operating expenses), in which case the related purposes shall be deemed sufficiently
specific for the exercise of the Presidents item veto power. Finally, special purpose funds and discretionary funds would equally
square with the constitutional mechanism of item-veto for as long as they follow the rule on singular correspondence as herein
discussed. Anent special purpose funds, it must be added that Section 25(4), Article VI of the 1987 Constitution requires that the
"special appropriations bill shall specify the purpose for which it is intended, and shall be supported by funds actually available as
certified by the National Treasurer, or t o be raised by a corresponding revenue proposal therein." Meanwhile, with respect to
discretionary funds, Section 2 5(6), Article VI of the 1987 Constitution requires that said funds "shall be disbursed only for public
purposes to be supported by appropriate vouchers and subject to such guidelines as may be prescribed by law."

In contrast, what beckons constitutional infirmity are appropriations which merely provide for a singular lump-sum amount to be
tapped as a source of funding for multiple purposes. Since such appropriation type necessitates the further determination of both the
actual amount to be expended and the actual purpose of the appropriation which must still be chosen from the multiple purposes
stated in the law, it cannot be said that the appropriation law already indicates a "specific appropriation of money and hence,
without a proper line-item which the President may veto. As a practical result, the President would then be faced with the
predicament of either vetoing the entire appropriation if he finds some of its purposes wasteful or undesirable, or approving the
entire appropriation so as not to hinder some of its legitimate purposes. Finally, it may not be amiss to state that such arrangement
also raises non-delegability issues considering that the implementing authority would still have to determine, again, both the actual
amount to be expended and the actual purpose of the appropriation. Since the foregoing determinations constitute the integral
aspects of the power to appropriate, the implementing authority would, in effect, be exercising legislative prerogatives in violation of
the principle of non-delegability.

b. Application.

In these cases, petitioners claim that "in the current x x x system where the PDAF is a lump-sum appropriation, the legislators
identification of the projects after the passage of the GAA denies the President the chance to veto that item later on." 212 Accordingly,
they submit that the "item veto power of the President mandates that appropriations bills adopt line-item budgeting" and that
"Congress cannot choose a mode of budgeting which effectively renders the constitutionally-given power of the President
useless."213

On the other hand, respondents maintain that the text of the Constitution envisions a process which is intended to meet the
demands of a modernizing economy and, as such, lump-sum appropriations are essential to financially address situations which are
barely foreseen when a GAA is enacted. They argue that the decision of the Congress to create some lump-sum appropriations is
constitutionally allowed and textually-grounded.214

The Court agrees with petitioners.

Under the 2013 PDAF Article, the amount of P24.79 Billion only appears as a collective allocation limit since the said amount would
be further divided among individual legislators who would then receive personal lump-sum allocations and could, after the GAA is
passed, effectively appropriate PDAF funds based on their own discretion. As these intermediate appropriations are made by
legislators only after the GAA is passed and hence, outside of the law, it necessarily means that the actual items of PDAF
appropriation would not have been written into the General Appropriations Bill and thus effectuated without veto consideration. This
kind of lump-sum/post-enactment legislative identification budgeting system fosters the creation of a budget within a budget" which
subverts the prescribed procedure of presentment and consequently impairs the Presidents power of item veto. As petitioners aptly
point out, the above-described system forces the President to decide between (a) accepting the entire P24.79 Billion PDAF
allocation without knowing the specific projects of the legislators, which may or may not be consistent with his national agenda and
(b) rejecting the whole PDAF to the detriment of all other legislators with legitimate projects. 215

Moreover, even without its post-enactment legislative identification feature, the 2013 PDAF Article would remain constitutionally
flawed since it would then operate as a prohibited form of lump-sum appropriation above-characterized. In particular, the lump-sum
amount of P24.79 Billion would be treated as a mere funding source allotted for multiple purposes of spending, i.e., scholarships,
medical missions, assistance to indigents, preservation of historical materials, construction of roads, flood control, etc. This setup
connotes that the appropriation law leaves the actual amounts and purposes of the appropriation for further determination and,
therefore, does not readily indicate a discernible item which may be subject to the Presidents power of item veto.

In fact, on the accountability side, the same lump-sum budgeting scheme has, as the CoA Chairperson relays, "limited state auditors
from obtaining relevant data and information that would aid in more stringently auditing the utilization of said Funds." 216 Accordingly,
she recommends the adoption of a "line by line budget or amount per proposed program, activity or project, and per implementing
agency."217

Hence, in view of the reasons above-stated, the Court finds the 2013 PDAF Article, as well as all Congressional Pork Barrel Laws of
similar operation, to be unconstitutional. That such budgeting system provides for a greater degree of flexibility to account for future
contingencies cannot be an excuse to defeat what the Constitution requires. Clearly, the first and essential truth of the matter is that
unconstitutional means do not justify even commendable ends.218
c. Accountability.

Petitioners further relate that the system under which various forms of Congressional Pork Barrel operate defies public
accountability as it renders Congress incapable of checking itself or its Members. In particular, they point out that the Congressional
Pork Barrel "gives each legislator a direct, financial interest in the smooth, speedy passing of the yearly budget" which turns them
"from fiscalizers" into "financially-interested partners."219 They also claim that the system has an effect on re- election as "the PDAF
excels in self-perpetuation of elective officials." Finally, they add that the "PDAF impairs the power of impeachment" as such "funds
are indeed quite useful, to well, accelerate the decisions of senators."220

The Court agrees in part.

The aphorism forged under Section 1, Article XI of the 1987 Constitution, which states that "public office is a public trust," is an
overarching reminder that every instrumentality of government should exercise their official functions only in accordance with the
principles of the Constitution which embodies the parameters of the peoples trust. The notion of a public trust connotes
accountability,221 hence, the various mechanisms in the Constitution which are designed to exact accountability from public officers.

Among others, an accountability mechanism with which the proper expenditure of public funds may be checked is the power of
congressional oversight. As mentioned in Abakada,222 congressional oversight may be performed either through: (a) scrutiny based
primarily on Congress power of appropriation and the budget hearings conducted in connection with it, its power to ask heads of
departments to appear before and be heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation;223 or (b) investigation and monitoring of the implementation of laws pursuant to the power of Congress to conduct
inquiries in aid of legislation.224

The Court agrees with petitioners that certain features embedded in some forms of Congressional Pork Barrel, among others the
2013 PDAF Article, has an effect on congressional oversight. The fact that individual legislators are given post-enactment roles in
the implementation of the budget makes it difficult for them to become disinterested "observers" when scrutinizing, investigating or
monitoring the implementation of the appropriation law. To a certain extent, the conduct of oversight would be tainted as said
legislators, who are vested with post-enactment authority, would, in effect, be checking on activities in which they themselves
participate. Also, it must be pointed out that this very same concept of post-enactment authorization runs afoul of Section 14, Article
VI of the 1987 Constitution which provides that:

Sec. 14. No Senator or Member of the House of Representatives may personally appear as counsel before any court of justice or
before the Electoral Tribunals, or quasi-judicial and other administrative bodies. Neither shall he, directly or indirectly, be interested
financially in any contract with, or in any franchise or special privilege granted by the Government, or any subdivision, agency, or
instrumentality thereof, including any government-owned or controlled corporation, or its subsidiary, during his term of office. He
shall not intervene in any matter before any office of the Government for his pecuniary benefit or where he may be called upon to
act on account of his office. (Emphasis supplied)

Clearly, allowing legislators to intervene in the various phases of project implementation a matter before another office of
government renders them susceptible to taking undue advantage of their own office.

The Court, however, cannot completely agree that the same post-enactment authority and/or the individual legislators control of his
PDAF per se would allow him to perpetuate himself in office. Indeed, while the Congressional Pork Barrel and a legislators use
thereof may be linked to this area of interest, the use of his PDAF for re-election purposes is a matter which must be analyzed
based on particular facts and on a case-to-case basis.

Finally, while the Court accounts for the possibility that the close operational proximity between legislators and the Executive
department, through the formers post-enactment participation, may affect the process of impeachment, this matter largely borders
on the domain of politics and does not strictly concern the Pork Barrel Systems intrinsic constitutionality. As such, it is an improper
subject of judicial assessment.

In sum, insofar as its post-enactment features dilute congressional oversight and violate Section 14, Article VI of the 1987
Constitution, thus impairing public accountability, the 2013 PDAF Article and other forms of Congressional Pork Barrel of similar
nature are deemed as unconstitutional.

4. Political Dynasties.

One of the petitioners submits that the Pork Barrel System enables politicians who are members of political dynasties to accumulate
funds to perpetuate themselves in power, in contravention of Section 26, Article II of the 1987 Constitution 225 which states that:

Sec. 26. The State shall guarantee equal access to opportunities for public service, and prohibit political dynasties as may be
defined by law. (Emphasis and underscoring supplied)
At the outset, suffice it to state that the foregoing provision is considered as not self-executing due to the qualifying phrase "as may
be defined by law." In this respect, said provision does not, by and of itself, provide a judicially enforceable constitutional right but
merely specifies guideline for legislative or executive action.226Therefore, since there appears to be no standing law which
crystallizes the policy on political dynasties for enforcement, the Court must defer from ruling on this issue.

In any event, the Court finds the above-stated argument on this score to be largely speculative since it has not been properly
demonstrated how the Pork Barrel System would be able to propagate political dynasties.

5. Local Autonomy.

The States policy on local autonomy is principally stated in Section 25, Article II and Sections 2 and 3, Article X of the 1987
Constitution which read as follows:

ARTICLE II

Sec. 25. The State shall ensure the autonomy of local governments.

ARTICLE X

Sec. 2. The territorial and political subdivisions shall enjoy local autonomy.

Sec. 3. The Congress shall enact a local government code which shall provide for a more responsive and accountable local
government structure instituted through a system of decentralization with effective mechanisms of recall, initiative, and referendum,
allocate among the different local government units their powers, responsibilities, and resources, and provide for the qualifications,
election, appointment and removal, term, salaries, powers and functions and duties of local officials, and all other matters relating to
the organization and operation of the local units.

Pursuant thereto, Congress enacted RA 7160,227 otherwise known as the "Local Government Code of 1991" (LGC), wherein the
policy on local autonomy had been more specifically explicated as follows:

Sec. 2. Declaration of Policy. (a) It is hereby declared the policy of the State that the territorial and political subdivisions of the
State shall enjoy genuine and meaningful local autonomy to enable them to attain their fullest development as self-reliant
communities and make them more effective partners in the attainment of national goals. Toward this end, the State shall provide for
a more responsive and accountable local government structure instituted through a system of decentralization whereby local
government units shall be given more powers, authority, responsibilities, and resources. The process of decentralization shall
proceed from the National Government to the local government units.

xxxx

(c) It is likewise the policy of the State to require all national agencies and offices to conduct periodic consultations with appropriate
local government units, nongovernmental and peoples organizations, and other concerned sectors of the community before any
project or program is implemented in their respective jurisdictions. (Emphases and underscoring supplied)

The above-quoted provisions of the Constitution and the LGC reveal the policy of the State to empower local government units
(LGUs) to develop and ultimately, become self-sustaining and effective contributors to the national economy. As explained by the
Court in Philippine Gamefowl Commission v. Intermediate Appellate Court:228

This is as good an occasion as any to stress the commitment of the Constitution to the policy of local autonomy which is intended to
provide the needed impetus and encouragement to the development of our local political subdivisions as "self - reliant communities."
In the words of Jefferson, "Municipal corporations are the small republics from which the great one derives its strength." The
vitalization of local governments will enable their inhabitants to fully exploit their resources and more important, imbue them with a
deepened sense of involvement in public affairs as members of the body politic. This objective could be blunted by undue
interference by the national government in purely local affairs which are best resolved by the officials and inhabitants of such
political units. The decision we reach today conforms not only to the letter of the pertinent laws but also to the spirit of the
Constitution.229 (Emphases and underscoring supplied)

In the cases at bar, petitioners contend that the Congressional Pork Barrel goes against the constitutional principles on local
autonomy since it allows district representatives, who are national officers, to substitute their judgments in utilizing public funds for
local development.230 The Court agrees with petitioners.

Philconsa described the 1994 CDF as an attempt "to make equal the unequal" and that "it is also a recognition that individual
members of Congress, far more than the President and their congressional colleagues, are likely to be knowledgeable about the
needs of their respective constituents and the priority to be given each project." 231Drawing strength from this pronouncement,
previous legislators justified its existence by stating that "the relatively small projects implemented under the Congressional Pork
Barrel complement and link the national development goals to the countryside and grassroots as well as to depressed areas which
are overlooked by central agencies which are preoccupied with mega-projects.232 Similarly, in his August 23, 2013 speech on the
"abolition" of PDAF and budgetary reforms, President Aquino mentioned that the Congressional Pork Barrel was originally
established for a worthy goal, which is to enable the representatives to identify projects for communities that the LGU concerned
cannot afford.233

Notwithstanding these declarations, the Court, however, finds an inherent defect in the system which actually belies the avowed
intention of "making equal the unequal." In particular, the Court observes that the gauge of PDAF and CDF allocation/division is
based solely on the fact of office, without taking into account the specific interests and peculiarities of the district the legislator
represents. In this regard, the allocation/division limits are clearly not based on genuine parameters of equality, wherein economic or
geographic indicators have been taken into consideration. As a result, a district representative of a highly-urbanized metropolis gets
the same amount of funding as a district representative of a far-flung rural province which would be relatively "underdeveloped"
compared to the former. To add, what rouses graver scrutiny is that even Senators and Party-List Representatives and in some
years, even the Vice-President who do not represent any locality, receive funding from the Congressional Pork Barrel as well.
These certainly are anathema to the Congressional Pork Barrels original intent which is "to make equal the unequal." Ultimately, the
PDAF and CDF had become personal funds under the effective control of each legislator and given unto them on the sole account
of their office.

The Court also observes that this concept of legislator control underlying the CDF and PDAF conflicts with the functions of the
various Local Development Councils (LDCs) which are already legally mandated to "assist the corresponding sanggunian in setting
the direction of economic and social development, and coordinating development efforts within its territorial
jurisdiction."234 Considering that LDCs are instrumentalities whose functions are essentially geared towards managing local
affairs,235 their programs, policies and resolutions should not be overridden nor duplicated by individual legislators, who are national
officers that have no law-making authority except only when acting as a body. The undermining effect on local autonomy caused by
the post-enactment authority conferred to the latter was succinctly put by petitioners in the following wise: 236

With PDAF, a Congressman can simply bypass the local development council and initiate projects on his own, and even take sole
credit for its execution. Indeed, this type of personality-driven project identification has not only contributed little to the overall
development of the district, but has even contributed to "further weakening infrastructure planning and coordination efforts of the
government."

Thus, insofar as individual legislators are authorized to intervene in purely local matters and thereby subvert genuine local
autonomy, the 2013 PDAF Article as well as all other similar forms of Congressional Pork Barrel is deemed unconstitutional.

With this final issue on the Congressional Pork Barrel resolved, the Court now turns to the substantive issues involving the
Presidential Pork Barrel.

C. Substantive Issues on the Presidential Pork Barrel.

1. Validity of Appropriation.

Petitioners preliminarily assail Section 8 of PD 910 and Section 12 of PD1869 (now, amended by PD 1993), which respectively
provide for the Malampaya Funds and the Presidential Social Fund, as invalid appropriations laws since they do not have the
"primary and specific" purpose of authorizing the release of public funds from the National Treasury. Petitioners submit that Section
8 of PD 910 is not an appropriation law since the "primary and specific purpose of PD 910 is the creation of an Energy
Development Board and Section 8 thereof only created a Special Fund incidental thereto.237 In similar regard, petitioners argue that
Section 12 of PD 1869 is neither a valid appropriations law since the allocation of the Presidential Social Fund is merely incidental to
the "primary and specific" purpose of PD 1869 which is the amendment of the Franchise and Powers of PAGCOR. 238 In view of the
foregoing, petitioners suppose that such funds are being used without any valid law allowing for their proper appropriation in
violation of Section 29(1), Article VI of the 1987 Constitution which states that: "No money shall be paid out of the Treasury except in
pursuance of an appropriation made by law."239

The Court disagrees.

"An appropriation made by law under the contemplation of Section 29(1), Article VI of the 1987 Constitution exists when a provision
of law (a) sets apart a determinate or determinable240 amount of money and (b) allocates the same for a particular public purpose.
These two minimum designations of amount and purpose stem from the very definition of the word "appropriation," which means "to
allot, assign, set apart or apply to a particular use or purpose," and hence, if written into the law, demonstrate that the legislative
intent to appropriate exists. As the Constitution "does not provide or prescribe any particular form of words or religious recitals in
which an authorization or appropriation by Congress shall be made, except that it be made by law," an appropriation law may
according to Philconsa be "detailed and as broad as Congress wants it to be" for as long as the intent to appropriate may be
gleaned from the same. As held in the case of Guingona, Jr.:241
There is no provision in our Constitution that provides or prescribes any particular form of words or religious recitals in which an
authorization or appropriation by Congress shall be made, except that it be "made by law," such as precisely the authorization or
appropriation under the questioned presidential decrees. In other words, in terms of time horizons, an appropriation may be made
impliedly (as by past but subsisting legislations) as well as expressly for the current fiscal year (as by enactment of laws by the
present Congress), just as said appropriation may be made in general as well as in specific terms. The Congressional authorization
may be embodied in annual laws, such as a general appropriations act or in special provisions of laws of general or special
application which appropriate public funds for specific public purposes, such as the questioned decrees. An appropriation measure
is sufficient if the legislative intention clearly and certainly appears from the language employed (In re Continuing Appropriations, 32
P. 272), whether in the past or in the present. (Emphases and underscoring supplied)

Likewise, as ruled by the US Supreme Court in State of Nevada v. La Grave:242

To constitute an appropriation there must be money placed in a fund applicable to the designated purpose. The word appropriate
means to allot, assign, set apart or apply to a particular use or purpose. An appropriation in the sense of the constitution means the
setting apart a portion of the public funds for a public purpose. No particular form of words is necessary for the purpose, if the
intention to appropriate is plainly manifested. (Emphases supplied)

Thus, based on the foregoing, the Court cannot sustain the argument that the appropriation must be the "primary and specific"
purpose of the law in order for a valid appropriation law to exist. To reiterate, if a legal provision designates a determinate or
determinable amount of money and allocates the same for a particular public purpose, then the legislative intent to appropriate
becomes apparent and, hence, already sufficient to satisfy the requirement of an "appropriation made by law" under contemplation
of the Constitution.

Section 8 of PD 910 pertinently provides:

Section 8. Appropriations. x x x

All fees, revenues and receipts of the Board from any and all sources including receipts from service contracts and agreements
such as application and processing fees, signature bonus, discovery bonus, production bonus; all money collected from
concessionaires, representing unspent work obligations, fines and penalties under the Petroleum Act of 1949; as well as the
government share representing royalties, rentals, production share on service contracts and similar payments on the exploration,
development and exploitation of energy resources, shall form part of a Special Fund to be used to finance energy resource
development and exploitation programs and projects of the government and for such other purposes as may be hereafter directed
by the President. (Emphases supplied)

Whereas Section 12 of PD 1869, as amended by PD 1993, reads:

Sec. 12. Special Condition of Franchise. After deducting five (5%) percent as Franchise Tax, the Fifty (50%) percent share of the
Government in the aggregate gross earnings of the Corporation from this Franchise, or 60% if the aggregate gross earnings be less
than P150,000,000.00 shall be set aside and shall accrue to the General Fund to finance the priority infrastructure development
projects and to finance the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by
the Office of the President of the Philippines. (Emphases supplied)

Analyzing the legal text vis--vis the above-mentioned principles, it may then be concluded that (a) Section 8 of PD 910, which
creates a Special Fund comprised of "all fees, revenues, and receipts of the Energy Development Board from any and all sources"
(a determinable amount) "to be used to finance energy resource development and exploitation programs and projects of the
government and for such other purposes as may be hereafter directed by the President" (a specified public purpose), and (b)
Section 12 of PD 1869, as amended by PD 1993, which similarly sets aside, "after deducting five (5%) percent as Franchise Tax, the
Fifty (50%) percent share of the Government in the aggregate gross earnings of PAGCOR, or 60%, if the aggregate gross earnings
be less than P150,000,000.00" (also a determinable amount) "to finance the priority infrastructure development projects and x x x
the restoration of damaged or destroyed facilities due to calamities, as may be directed and authorized by the Office of the President
of the Philippines" (also a specified public purpose), are legal appropriations under Section 29(1), Article VI of the 1987 Constitution.

In this relation, it is apropos to note that the 2013 PDAF Article cannot be properly deemed as a legal appropriation under the said
constitutional provision precisely because, as earlier stated, it contains post-enactment measures which effectively create a system
of intermediate appropriations. These intermediate appropriations are the actual appropriations meant for enforcement and since
they are made by individual legislators after the GAA is passed, they occur outside the law. As such, the Court observes that the real
appropriation made under the 2013 PDAF Article is not the P24.79 Billion allocated for the entire PDAF, but rather the post-
enactment determinations made by the individual legislators which are, to repeat, occurrences outside of the law. Irrefragably, the
2013 PDAF Article does not constitute an "appropriation made by law" since it, in its truest sense, only authorizes individual
legislators to appropriate in violation of the non-delegability principle as afore-discussed.

2. Undue Delegation.
On a related matter, petitioners contend that Section 8 of PD 910 constitutes an undue delegation of legislative power since the
phrase "and for such other purposes as may be hereafter directed by the President" gives the President "unbridled discretion to
determine for what purpose the funds will be used."243 Respondents, on the other hand, urged the Court to apply the principle of
ejusdem generis to the same section and thus, construe the phrase "and for such other purposes as may be hereafter directed by
the President" to refer only to other purposes related "to energy resource development and exploitation programs and projects of the
government."244

The Court agrees with petitioners submissions.

While the designation of a determinate or determinable amount for a particular public purpose is sufficient for a legal appropriation to
exist, the appropriation law must contain adequate legislative guidelines if the same law delegates rule-making authority to the
Executive245 either for the purpose of (a) filling up the details of the law for its enforcement, known as supplementary rule-making, or
(b) ascertaining facts to bring the law into actual operation, referred to as contingent rule-making.246 There are two (2) fundamental
tests to ensure that the legislative guidelines for delegated rule-making are indeed adequate. The first test is called the
"completeness test." Case law states that a law is complete when it sets forth therein the policy to be executed, carried out, or
implemented by the delegate. On the other hand, the second test is called the "sufficient standard test." Jurisprudence holds that a
law lays down a sufficient standard when it provides adequate guidelines or limitations in the law to map out the boundaries of the
delegates authority and prevent the delegation from running riot.247To be sufficient, the standard must specify the limits of the
delegates authority, announce the legislative policy, and identify the conditions under which it is to be implemented. 248

In view of the foregoing, the Court agrees with petitioners that the phrase "and for such other purposes as may be hereafter directed
by the President" under Section 8 of PD 910 constitutes an undue delegation of legislative power insofar as it does not lay down a
sufficient standard to adequately determine the limits of the Presidents authority with respect to the purpose for which the
Malampaya Funds may be used. As it reads, the said phrase gives the President wide latitude to use the Malampaya Funds for any
other purpose he may direct and, in effect, allows him to unilaterally appropriate public funds beyond the purview of the law. That the
subject phrase may be confined only to "energy resource development and exploitation programs and projects of the government"
under the principle of ejusdem generis, meaning that the general word or phrase is to be construed to include or be restricted to
things akin to, resembling, or of the same kind or class as those specifically mentioned, 249 is belied by three (3) reasons: first, the
phrase "energy resource development and exploitation programs and projects of the government" states a singular and general
class and hence, cannot be treated as a statutory reference of specific things from which the general phrase "for such other
purposes" may be limited; second, the said phrase also exhausts the class it represents, namely energy development programs of
the government;250 and, third, the Executive department has, in fact, used the Malampaya Funds for non-energy related purposes
under the subject phrase, thereby contradicting respondents own position that it is limited only to "energy resource development
and exploitation programs and projects of the government."251 Thus, while Section 8 of PD 910 may have passed the completeness
test since the policy of energy development is clearly deducible from its text, the phrase "and for such other purposes as may be
hereafter directed by the President" under the same provision of law should nonetheless be stricken down as unconstitutional as it
lies independently unfettered by any sufficient standard of the delegating law. This notwithstanding, it must be underscored that the
rest of Section 8, insofar as it allows for the use of the Malampaya Funds "to finance energy resource development and exploitation
programs and projects of the government," remains legally effective and subsisting. Truth be told, the declared unconstitutionality of
the aforementioned phrase is but an assurance that the Malampaya Funds would be used as it should be used only in
accordance with the avowed purpose and intention of PD 910.

As for the Presidential Social Fund, the Court takes judicial notice of the fact that Section 12 of PD 1869 has already been amended
by PD 1993 which thus moots the parties submissions on the same.252 Nevertheless, since the amendatory provision may be
readily examined under the current parameters of discussion, the Court proceeds to resolve its constitutionality.

Primarily, Section 12 of PD 1869, as amended by PD 1993, indicates that the Presidential Social Fund may be used "to first, finance
the priority infrastructure development projects and second, to finance the restoration of damaged or destroyed facilities due to
calamities, as may be directed and authorized by the Office of the President of the Philippines." The Court finds that while the
second indicated purpose adequately curtails the authority of the President to spend the Presidential Social Fund only for restoration
purposes which arise from calamities, the first indicated purpose, however, gives him carte blanche authority to use the same fund
for any infrastructure project he may so determine as a "priority". Verily, the law does not supply a definition of "priority in frastructure
development projects" and hence, leaves the President without any guideline to construe the same. To note, the delimitation of a
project as one of "infrastructure" is too broad of a classification since the said term could pertain to any kind of facility. This may be
deduced from its lexicographic definition as follows: "the underlying framework of a system, especially public services and facilities
(such as highways, schools, bridges, sewers, and water-systems) needed to support commerce as well as economic and residential
development."253In fine, the phrase "to finance the priority infrastructure development projects" must be stricken down as
unconstitutional since similar to the above-assailed provision under Section 8 of PD 910 it lies independently unfettered by any
sufficient standard of the delegating law. As they are severable, all other provisions of Section 12 of PD 1869, as amended by PD
1993, remains legally effective and subsisting.

D. Ancillary Prayers. 1.

Petitioners Prayer to be Furnished Lists and Detailed Reports.


Aside from seeking the Court to declare the Pork Barrel System unconstitutional as the Court did so in the context of its
pronouncements made in this Decision petitioners equally pray that the Executive Secretary and/or the DBM be ordered to release
to the CoA and to the public: (a) "the complete schedule/list of legislators who have availed of their PDAF and VILP from the years
2003 to 2013, specifying the use of the funds, the project or activity and the recipient entities or individuals, and all pertinent data
thereto" (PDAF Use Schedule/List);254 and (b) "the use of the Executives lump-sum, discretionary funds, including the proceeds
from the x x x Malampaya Funds and remittances from the PAGCOR x x x from 2003 to 2013, specifying the x x x project or activity
and the recipient entities or individuals, and all pertinent data thereto" 255 (Presidential Pork Use Report). Petitioners prayer is
grounded on Section 28, Article II and Section 7, Article III of the 1987 Constitution which read as follows:

ARTICLE II

Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and implements a policy of full public disclosure of all
its transactions involving public interest.

ARTICLE III Sec. 7.

The right of the people to information on matters of public concern shall be recognized. Access to official records, and to documents
and papers pertaining to official acts, transactions, or decisions, as well as to government research data used as basis for policy
development, shall be afforded the citizen, subject to such limitations as may be provided by law.

The Court denies petitioners submission.

Case law instructs that the proper remedy to invoke the right to information is to file a petition for mandamus. As explained in the
case of Legaspi v. Civil Service Commission:256

While the manner of examining public records may be subject to reasonable regulation by the government agency in custody
thereof, the duty to disclose the information of public concern, and to afford access to public records cannot be discretionary on the
part of said agencies. Certainly, its performance cannot be made contingent upon the discretion of such agencies. Otherwise, the
enjoyment of the constitutional right may be rendered nugatory by any whimsical exercise of agency discretion. The constitutional
duty, not being discretionary, its performance may be compelled by a writ of mandamus in a proper case.

But what is a proper case for Mandamus to issue? In the case before Us, the public right to be enforced and the concomitant duty of
the State are unequivocably set forth in the Constitution.

The decisive question on the propriety of the issuance of the writ of mandamus in this case is, whether the information sought by the
petitioner is within the ambit of the constitutional guarantee. (Emphases supplied)

Corollarily, in the case of Valmonte v. Belmonte Jr.257 (Valmonte), it has been clarified that the right to information does not include
the right to compel the preparation of "lists, abstracts, summaries and the like." In the same case, it was stressed that it is essential
that the "applicant has a well -defined, clear and certain legal right to the thing demanded and that it is the imperative duty of
defendant to perform the act required." Hence, without the foregoing substantiations, the Court cannot grant a particular request for
information. The pertinent portions of Valmonte are hereunder quoted:258

Although citizens are afforded the right to information and, pursuant thereto, are entitled to "access to official records," the
Constitution does not accord them a right to compel custodians of official records to prepare lists, abstracts, summaries and the like
in their desire to acquire information on matters of public concern.

It must be stressed that it is essential for a writ of mandamus to issue that the applicant has a well-defined, clear and certain legal
right to the thing demanded and that it is the imperative duty of defendant to perform the act required. The corresponding duty of the
respondent to perform the required act must be clear and specific Lemi v. Valencia, G.R. No. L-20768, November 29,1968,126
SCRA 203; Ocampo v. Subido, G.R. No. L-28344, August 27, 1976, 72 SCRA 443.

The request of the petitioners fails to meet this standard, there being no duty on the part of respondent to prepare the list requested.
(Emphases supplied)

In these cases, aside from the fact that none of the petitions are in the nature of mandamus actions, the Court finds that petitioners
have failed to establish a "a well-defined, clear and certain legal right" to be furnished by the Executive Secretary and/or the DBM of
their requested PDAF Use Schedule/List and Presidential Pork Use Report. Neither did petitioners assert any law or administrative
issuance which would form the bases of the latters duty to furnish them with the documents requested. While petitioners pray that
said information be equally released to the CoA, it must be pointed out that the CoA has not been impleaded as a party to these
cases nor has it filed any petition before the Court to be allowed access to or to compel the release of any official document relevant
to the conduct of its audit investigations. While the Court recognizes that the information requested is a matter of significant public
concern, however, if only to ensure that the parameters of disclosure are properly foisted and so as not to unduly hamper the
equally important interests of the government, it is constrained to deny petitioners prayer on this score, without prejudice to a proper
mandamus case which they, or even the CoA, may choose to pursue through a separate petition.

It bears clarification that the Courts denial herein should only cover petitioners plea to be furnished with such schedule/list and
report and not in any way deny them, or the general public, access to official documents which are already existing and of public
record. Subject to reasonable regulation and absent any valid statutory prohibition, access to these documents should not be
proscribed. Thus, in Valmonte, while the Court denied the application for mandamus towards the preparation of the list requested by
petitioners therein, it nonetheless allowed access to the documents sought for by the latter, subject, however, to the custodians
reasonable regulations,viz.:259

In fine, petitioners are entitled to access to the documents evidencing loans granted by the GSIS, subject to reasonable regulations
that the latter may promulgate relating to the manner and hours of examination, to the end that damage to or loss of the records
may be avoided, that undue interference with the duties of the custodian of the records may be prevented and that the right of other
persons entitled to inspect the records may be insured Legaspi v. Civil Service Commission, supra at p. 538, quoting Subido v.
Ozaeta, 80 Phil. 383, 387. The petition, as to the second and third alternative acts sought to be done by petitioners, is meritorious.

However, the same cannot be said with regard to the first act sought by petitioners, i.e.,

"to furnish petitioners the list of the names of the Batasang Pambansa members belonging to the UNIDO and PDP-Laban who were
able to secure clean loans immediately before the February 7 election thru the intercession/marginal note of the then First Lady
Imelda Marcos."

The Court, therefore, applies the same treatment here.

2. Petitioners Prayer to Include Matters in Congressional Deliberations.

Petitioners further seek that the Court "order the inclusion in budgetary deliberations with the Congress of all presently, off-budget,
lump sum, discretionary funds including but not limited to, proceeds from the x x x Malampaya Fund, remittances from the PAGCOR
and the PCSO or the Executives Social Funds."260

Suffice it to state that the above-stated relief sought by petitioners covers a matter which is generally left to the prerogative of the
political branches of government. Hence, lest the Court itself overreach, it must equally deny their prayer on this score.

3. Respondents Prayer to Lift TRO; Consequential Effects of Decision.

The final issue to be resolved stems from the interpretation accorded by the DBM to the concept of released funds. In response to
the Courts September 10, 2013 TRO that enjoined the release of the remaining PDAF allocated for the year 2013, the DBM issued
Circular Letter No. 2013-8 dated September 27, 2013 (DBM Circular 2013-8) which pertinently reads as follows:

3.0 Nonetheless, PDAF projects funded under the FY 2013 GAA, where a Special Allotment Release Order (SARO) has been
issued by the DBM and such SARO has been obligated by the implementing agencies prior to the issuance of the TRO, may
continually be implemented and disbursements thereto effected by the agencies concerned.

Based on the text of the foregoing, the DBM authorized the continued implementation and disbursement of PDAF funds as long as
they are: first, covered by a SARO; and, second, that said SARO had been obligated by the implementing agency concerned prior to
the issuance of the Courts September 10, 2013 TRO.

Petitioners take issue with the foregoing circular, arguing that "the issuance of the SARO does not yet involve the release of funds
under the PDAF, as release is only triggered by the issuance of a Notice of Cash Allocation [(NCA)]." 261 As such, PDAF
disbursements, even if covered by an obligated SARO, should remain enjoined.

For their part, respondents espouse that the subject TRO only covers "unreleased and unobligated allotments." They explain that
once a SARO has been issued and obligated by the implementing agency concerned, the PDAF funds covered by the same are
already "beyond the reach of the TRO because they cannot be considered as remaining PDAF." They conclude that this is a
reasonable interpretation of the TRO by the DBM.262

The Court agrees with petitioners in part.

At the outset, it must be observed that the issue of whether or not the Courts September 10, 2013 TRO should be lifted is a matter
rendered moot by the present Decision. The unconstitutionality of the 2013 PDAF Article as declared herein has the consequential
effect of converting the temporary injunction into a permanent one. Hence, from the promulgation of this Decision, the release of the
remaining PDAF funds for 2013, among others, is now permanently enjoined.
The propriety of the DBMs interpretation of the concept of "release" must, nevertheless, be resolved as it has a practical impact on
the execution of the current Decision. In particular, the Court must resolve the issue of whether or not PDAF funds covered by
obligated SAROs, at the time this Decision is promulgated, may still be disbursed following the DBMs interpretation in DBM Circular
2013-8.

On this score, the Court agrees with petitioners posturing for the fundamental reason that funds covered by an obligated SARO are
yet to be "released" under legal contemplation. A SARO, as defined by the DBM itself in its website, is "aspecific authority issued to
identified agencies to incur obligations not exceeding a given amount during a specified period for the purpose indicated. It shall
cover expenditures the release of which is subject to compliance with specific laws or regulations, or is subject to separate approval
or clearance by competent authority."263

Based on this definition, it may be gleaned that a SARO only evinces the existence of an obligation and not the directive to pay.
Practically speaking, the SARO does not have the direct and immediate effect of placing public funds beyond the control of the
disbursing authority. In fact, a SARO may even be withdrawn under certain circumstances which will prevent the actual release of
funds. On the other hand, the actual release of funds is brought about by the issuance of the NCA,264 which is subsequent to the
issuance of a SARO. As may be determined from the statements of the DBM representative during the Oral Arguments:265

Justice Bernabe: Is the notice of allocation issued simultaneously with the SARO?

xxxx

Atty. Ruiz: It comes after. The SARO, Your Honor, is only the go signal for the agencies to obligate or to enter into commitments. The
NCA, Your Honor, is already the go signal to the treasury for us to be able to pay or to liquidate the amounts obligated in the SARO;
so it comes after. x x x The NCA, Your Honor, is the go signal for the MDS for the authorized government-disbursing banks to,
therefore, pay the payees depending on the projects or projects covered by the SARO and the NCA.

Justice Bernabe: Are there instances that SAROs are cancelled or revoked?

Atty. Ruiz: Your Honor, I would like to instead submit that there are instances that the SAROs issued are withdrawn by the DBM.

Justice Bernabe: They are withdrawn?

Atty. Ruiz: Yes, Your Honor x x x. (Emphases and underscoring supplied)

Thus, unless an NCA has been issued, public funds should not be treated as funds which have been "released." In this respect,
therefore, the disbursement of 2013 PDAF funds which are only covered by obligated SAROs, and without any corresponding NCAs
issued, must, at the time of this Decisions promulgation, be enjoined and consequently reverted to the unappropriated surplus of
the general fund. Verily, in view of the declared unconstitutionality of the 2013 PDAF Article, the funds appropriated pursuant thereto
cannot be disbursed even though already obligated, else the Court sanctions the dealing of funds coming from an unconstitutional
source.

This same pronouncement must be equally applied to (a) the Malampaya Funds which have been obligated but not released
meaning, those merely covered by a SARO under the phrase "and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of PD 910; and (b) funds sourced from the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to Section 12 of PD 1869, as amended by PD 1993, which were altogether
declared by the Court as unconstitutional. However, these funds should not be reverted to the general fund as afore-stated but
instead, respectively remain under the Malampaya Funds and the Presidential Social Fund to be utilized for their corresponding
special purposes not otherwise declared as unconstitutional.

E. Consequential Effects of Decision.

As a final point, it must be stressed that the Courts pronouncement anent the unconstitutionality of (a) the 2013 PDAF Article and its
Special Provisions, (b) all other Congressional Pork Barrel provisions similar thereto, and (c) the phrases (1) "and for such other
purposes as may be hereafter directed by the President" under Section 8 of PD 910, and (2) "to finance the priority infrastructure
development projects" under Section 12 of PD 1869, as amended by PD 1993, must only be treated as prospective in effect in view
of the operative fact doctrine.

To explain, the operative fact doctrine exhorts the recognition that until the judiciary, in an appropriate case, declares the invalidity of
a certain legislative or executive act, such act is presumed constitutional and thus, entitled to obedience and respect and should be
properly enforced and complied with. As explained in the recent case of Commissioner of Internal Revenue v. San Roque Power
Corporation,266 the doctrine merely "reflects awareness that precisely because the judiciary is the governmental organ which has the
final say on whether or not a legislative or executive measure is valid, a period of time may have elapsed before it can exercise the
power of judicial review that may lead to a declaration of nullity. It would be to deprive the law of its quality of fairness and justice
then, if there be no recognition of what had transpired prior to such adjudication." 267 "In the language of an American Supreme Court
decision: The actual existence of a statute, prior to such a determination of unconstitutionality, is an operative fact and may have
consequences which cannot justly be ignored."268

For these reasons, this Decision should be heretofore applied prospectively.

Conclusion

The Court renders this Decision to rectify an error which has persisted in the chronicles of our history. In the final analysis, the Court
must strike down the Pork Barrel System as unconstitutional in view of the inherent defects in the rules within which it operates. To
recount, insofar as it has allowed legislators to wield, in varying gradations, non-oversight, post-enactment authority in vital areas of
budget execution, the system has violated the principle of separation of powers; insofar as it has conferred unto legislators the
power of appropriation by giving them personal, discretionary funds from which they are able to fund specific projects which they
themselves determine, it has similarly violated the principle of non-delegability of legislative power ; insofar as it has created a
system of budgeting wherein items are not textualized into the appropriations bill, it has flouted the prescribed procedure of
presentment and, in the process, denied the President the power to veto items ; insofar as it has diluted the effectiveness of
congressional oversight by giving legislators a stake in the affairs of budget execution, an aspect of governance which they may be
called to monitor and scrutinize, the system has equally impaired public accountability ; insofar as it has authorized legislators, who
are national officers, to intervene in affairs of purely local nature, despite the existence of capable local institutions, it has likewise
subverted genuine local autonomy ; and again, insofar as it has conferred to the President the power to appropriate funds intended
by law for energy-related purposes only to other purposes he may deem fit as well as other public funds under the broad
classification of "priority infrastructure development projects," it has once more transgressed the principle of non-delegability.

For as long as this nation adheres to the rule of law, any of the multifarious unconstitutional methods and mechanisms the Court has
herein pointed out should never again be adopted in any system of governance, by any name or form, by any semblance or
similarity, by any influence or effect. Disconcerting as it is to think that a system so constitutionally unsound has monumentally
endured, the Court urges the people and its co-stewards in government to look forward with the optimism of change and the
awareness of the past. At a time of great civic unrest and vociferous public debate, the Court fervently hopes that its Decision today,
while it may not purge all the wrongs of society nor bring back what has been lost, guides this nation to the path forged by the
Constitution so that no one may heretofore detract from its cause nor stray from its course. After all, this is the Courts bounden duty
and no others.

WHEREFORE, the petitions are PARTLY GRANTED. In view of the constitutional violations discussed in this Decision, the Court
hereby declares as UNCONSTITUTIONAL: (a) the entire 2013 PDAF Article; (b) all legal provisions of past and present
Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various Congressional Insertions, which
authorize/d legislators whether individually or collectively organized into committees to intervene, assume or participate in any of
the various post-enactment stages of the budget execution, such as but not limited to the areas of project identification, modification
and revision of project identification, fund release and/or fund realignment, unrelated to the power of congressional oversight; (c) all
legal provisions of past and present Congressional Pork Barrel Laws, such as the previous PDAF and CDF Articles and the various
Congressional Insertions, which confer/red personal, lump-sum allocations to legislators from which they are able to fund specific
projects which they themselves determine; (d) all informal practices of similar import and effect, which the Court similarly deems to
be acts of grave abuse of discretion amounting to lack or excess of jurisdiction; and (e) the phrases (1) "and for such other purposes
as may be hereafter directed by the President" under Section 8 of Presidential Decree No. 910 and (2) "to finance the priority
infrastructure development projects" under Section 12 of Presidential Decree No. 1869, as amended by Presidential Decree No.
1993, for both failing the sufficient standard test in violation of the principle of non-delegability of legislative power.

Accordingly, the Courts temporary injunction dated September 10, 2013 is hereby declared to be PERMANENT. Thus, the
disbursement/release of the remaining PDAF funds allocated for the year 2013, as well as for all previous years, and the funds
sourced from (1) the Malampaya Funds under the phrase "and for such other purposes as may be hereafter directed by the
President" pursuant to Section 8 of Presidential Decree No. 910, and (2) the Presidential Social Fund under the phrase "to finance
the priority infrastructure development projects" pursuant to Section 12 of Presidential Decree No. 1869, as amended by
Presidential Decree No. 1993, which are, at the time this Decision is promulgated, not covered by Notice of Cash Allocations (NCAs)
but only by Special Allotment Release Orders (SAROs), whether obligated or not, are hereby ENJOINED. The remaining PDAF
funds covered by this permanent injunction shall not be disbursed/released but instead reverted to the unappropriated surplus of the
general fund, while the funds under the Malampaya Funds and the Presidential Social Fund shall remain therein to be utilized for
their respective special purposes not otherwise declared as unconstitutional.

On the other hand, due to improper recourse and lack of proper substantiation, the Court hereby DENIES petitioners prayer seeking
that the Executive Secretary and/or the Department of Budget and Management be ordered to provide the public and the
Commission on Audit complete lists/schedules or detailed reports related to the availments and utilization of the funds subject of
these cases. Petitioners access to official documents already available and of public record which are related to these funds must,
however, not be prohibited but merely subjected to the custodians reasonable regulations or any valid statutory prohibition on the
same. This denial is without prejudice to a proper mandamus case which they or the Commission on Audit may choose to pursue
through a separate petition.
The Court also DENIES petitioners prayer to order the inclusion of the funds subject of these cases in the budgetary deliberations of
Congress as the same is a matter left to the prerogative of the political branches of government.

Finally, the Court hereby DIRECTS all prosecutorial organs of the government to, within the bounds of reasonable dispatch,
investigate and accordingly prosecute all government officials and/or private individuals for possible criminal offenses related to the
irregular, improper and/or unlawful disbursement/utilization of all funds under the Pork Barrel System.

This Decision is immediately executory but prospective in effect.

SO ORDERED.

ESTELA M. PERLAS-BERNABE
Associate Justice

EN BANC

BAI SANDRA S. A. SEMA, G.R. No. 177597


Petitioner,

- versus -

COMMISSION ON ELECTIONS
and DIDAGEN P. DILANGALEN,

Respondents.

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

PERFECTO F. MARQUEZ, G.R. No. 178628

Petitioner,

Present:

PUNO, C.J.,
QUISUMBING,
YNARES-SANTIAGO,

CARPIO,

AUSTRIA-MARTINEZ,
CORONA,
CARPIO MORALES,
- versus - AZCUNA,
TINGA,
CHICO-NAZARIO,
VELASCO, JR.,
NACHURA,
REYES,
LEONARDO-DE CASTRO, and
BRION, JJ.
COMMISSION ON ELECTIONS, Promulgated:
Respondent. July 16, 2008

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

DECISION

CARPIO, J.:

The Case

These consolidated petitions [1] seek to annul Resolution No. 7902, dated 10 May 2007, of the Commission on Elections (COMELEC) treating

Cotabato City as part of the legislative district of the Province of Shariff Kabunsuan.[2]

The Facts

The Ordinance appended to the 1987 Constitution apportioned two legislative districts for the Province of Maguindanao. The first legislative

district consists of Cotabato City and eight municipalities.[3] Maguindanao forms part of the Autonomous Region in Muslim Mindanao (ARMM),

created under its Organic Act, Republic Act No. 6734 (RA 6734), as amended by Republic Act No. 9054(RA 9054). [4] Although under the

Ordinance, Cotabato City forms part of Maguindanaos first legislative district, it is not part of the ARMM but of Region XII, having voted

against its inclusion in the ARMM in the plebiscite held in November 1989.

On 28 August 2006, the ARMMs legislature, the ARMM Regional Assembly, exercising its power to create provinces under Section 19, Article

VI of RA 9054,[5] enacted Muslim Mindanao Autonomy Act No. 201 (MMA Act 201) creating the Province of Shariff Kabunsuan composed of

the eight municipalities in the first district of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan Kudarat, Sultan
Mastura, and Upi are hereby separated from the Province of Maguindanao and constituted into a distinct and independent
province, which is hereby created, to be known as the Province of Shariff Kabunsuan.

xxxx

Sec. 5. The corporate existence of this province shall commence upon the appointment by the Regional
Governor or election of the governor and majority of the regular members of the Sangguniang Panlalawigan.

The incumbent elective provincial officials of the Province of Maguindanao shall continue to serve their unexpired terms in
the province that they will choose or where they are residents: Provided, that where an elective position in both provinces
becomes vacant as a consequence of the creation of the Province of Shariff Kabunsuan, all incumbent elective provincial
officials shall have preference for appointment to a higher elective vacant position and for the time being be appointed by
the Regional Governor, and shall hold office until their successors shall have been elected and qualified in the next local
elections; Provided, further, that they shall continue to receive the salaries they are receiving at the time of the approval of
this Act until the new readjustment of salaries in accordance with law. Provided, furthermore, that there shall be no
diminution in the number of the members of the Sangguniang Panlalawigan of the mother province.

Except as may be provided by national law, the existing legislative district, which includes Cotabato as a part thereof, shall
remain.
Later, three new municipalities[6] were carved out of the original nine municipalities constituting Shariff Kabunsuan, bringing its total number of

municipalities to 11. Thus, what was left of Maguindanao were the municipalities constituting its second legislative district. Cotabato City,

although part of Maguindanaos first legislative district, is not part of the Province of Maguindanao.

The voters of Maguindanao ratified Shariff Kabunsuans creation in a plebiscite held on 29 October 2006.

On 6 February 2007, the Sangguniang Panlungsod of Cotabato City passed Resolution No. 3999 requesting the COMELEC to clarify

the status of Cotabato City in view of the conversion of the First District of Maguindanao into a regular province under MMA Act 201.

In answer to Cotabato Citys query, the COMELEC issued Resolution No. 07-0407 on 6 March 2007 "maintaining the status quo

with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. Resolution No. 07-0407, which adopted the

recommendation of the COMELECs Law Department under a Memorandum dated 27 February 2007,[7] provides in pertinent parts:

Considering the foregoing, the Commission RESOLVED, as it hereby resolves, to adopt the recommendation of the Law
Department that pending the enactment of the appropriate law by Congress, to maintain the status quo
with Cotabato City as part of Shariff Kabunsuan in the First Legislative District of Maguindanao. (Emphasis supplied)

However, in preparation for the 14 May 2007 elections, the COMELEC promulgated on 29 March 2007 Resolution No. 7845 stating

that Maguindanaos first legislative district is composed only of Cotabato City because of the enactment of MMA Act 201.[8]

On 10 May 2007, the COMELEC issued Resolution No. 7902, subject of these petitions, amending Resolution No. 07-0407 by renaming the

legislative district in question as Shariff Kabunsuan Province with Cotabato City (formerly First District of Maguindanao with Cotabato City).[9]

In G.R. No. 177597, Sema, who was a candidate in the 14 May 2007 elections for Representative of Shariff Kabunsuan with CotabatoCity,

prayed for the nullification of COMELEC Resolution No. 7902 and the exclusion from canvassing of the votes cast in CotabatoCity for that

office. Sema contended that Shariff Kabunsuan is entitled to one representative in Congress under Section 5 (3), Article VI of the

Constitution[10] and Section 3 of the Ordinance appended to the Constitution. [11] Thus, Sema asserted that the COMELEC acted without or in

excess of its jurisdiction in issuing Resolution No. 7902 which maintained the status quo in Maguindanaos first legislative district despite the

COMELECs earlier directive in Resolution No. 7845 designating Cotabato City as the lone component of Maguindanaos reapportioned first

legislative district.[12] Sema further claimed that in issuing Resolution No. 7902, the COMELEC usurped Congress power to create or reapportion

legislative districts.

In its Comment, the COMELEC, through the Office of the Solicitor General (OSG), chose not to reach the merits of the case and merely

contended that (1) Sema wrongly availed of the writ of certiorari to nullify COMELEC Resolution No. 7902 because the COMELEC issued the

same in the exercise of its administrative, not quasi-judicial, power and (2) Semas prayer for the writ of prohibition in G.R. No. 177597 became

moot with the proclamation of respondent Didagen P. Dilangalen (respondent Dilangalen) on 1 June 2007 as representative of the legislative

district of Shariff Kabunsuan Province with Cotabato City.


In his Comment, respondent Dilangalen countered that Sema is estopped from questioning COMELEC Resolution No. 7902 because in her

certificate of candidacy filed on 29 March 2007, Sema indicated that she was seeking election as representative of Shariff Kabunsuan

including Cotabato City. Respondent Dilangalen added that COMELEC Resolution No. 7902 is constitutional because it did not apportion a

legislative district for Shariff Kabunsuan or reapportion the legislative districts in Maguindanao but merely renamed Maguindanaos first

legislative district. Respondent Dilangalen further claimed that the COMELEC could not reapportion Maguindanaos first legislative district to

make Cotabato City its sole component unit as the power to reapportion legislative districts lies exclusively with Congress, not to mention that

Cotabato City does not meet the minimum population requirement under Section 5 (3), Article VI of the Constitution for the creation of a

legislative district within a city.[13]

Sema filed a Consolidated Reply controverting the matters raised in respondents Comments and reiterating her claim that the COMELEC

acted ultra vires in issuing Resolution No. 7902.

In the Resolution of 4 September 2007, the Court required the parties in G.R. No. 177597 to comment on the issue of whether a

province created by the ARMM Regional Assembly under Section 19, Article VI of RA 9054 is entitled to one representative in the House of

Representatives without need of a national law creating a legislative district for such new province. The parties submitted their compliance as

follows:

(1) Sema answered the issue in the affirmative on the following grounds: (a) the Court in Felwa v. Salas[14] stated that when a province

is created by statute, the corresponding representative district comes into existence neither by authority of that statute which cannot provide

otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment; (b) Section 462 of Republic Act No. 7160 (RA

7160) affirms the apportionment of a legislative district incident to the creation of a province; and (c)Section 5 (3), Article VI of the Constitution

and Section 3 of the Ordinance appended to the Constitution mandate the apportionment of a legislative district in newly created provinces.

(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance on the propriety of issuing Resolution

Nos. 07-0407 and 7902 and joined causes with Sema, contending that Section 5 (3), Article VI of the Constitution is self-executing. Thus, every

new province created by the ARMM Regional Assembly is ipso facto entitled to one representative in the House of Representatives even in the

absence of a national law; and

(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a) the province contemplated in Section 5

(3), Article VI of the Constitution is one that is created by an act of Congress taking into account the provisions in RA 7160 on the creation of

provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional Assembly the power to enact measures relating to national

elections, which encompasses the apportionment of legislative districts for members of the House of Representatives; (c) recognizing a legislative

district in every province the ARMM Regional Assembly creates will lead to the disproportionate representation of the ARMM in the House of

Representatives as the Regional Assembly can create provinces without regard to the requirements in Section 461 of RA 7160; and (d) Cotabato

City, which has a population of less than 250,000, is not entitled to a representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the following issues: (1) whether Section

19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, is constitutional; and (2) if in the

affirmative, whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House of Representatives

without need of a national law creating a legislative district for such new province.[15]

In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed their respective Memoranda on the

issues raised in the oral arguments. [16] On the question of the constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No.

177597 adopted the following positions:

(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid delegation by Congress to the ARMM of the

power to create provinces under Section 20 (9), Article X of the Constitution granting to the autonomous regions, through their organic acts,

legislative powers over other matters as may be authorized by law for the promotion of the general welfare of the people of the region and (b) as

an amendment to Section 6 of RA 7160. [17] However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of RA 9054 to the

ARMM Regional Assembly of the power to prescribe standards lower than those mandated in RA 7160 in the creation of provinces contravenes

Section 10, Article X of the Constitution. [18] Thus, Sema proposed that Section 19 should be construed as prohibiting the Regional Assembly from

prescribing standards x x x that do not comply with the minimum criteria under RA 7160.[19]

(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is unconstitutional on the following grounds: (a) the

power to create provinces was not among those granted to the autonomous regions under Section 20, Article X of the Constitution and (b) the

grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the power to prescribe standards lower than those mandated

in Section 461 of RA 7160 on the creation of provinces contravenes Section 10, Article X of the Constitution and the Equal Protection Clause;

and

(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus effectively abandoning the position the

COMELEC adopted in its Compliance with the Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054 is

unconstitutional because (a) it contravenes Section 10 and Section 6, [20] Article X of the Constitution and (b) the power to create provinces was

withheld from the autonomous regions under Section 20, Article X of the Constitution.

On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to one representative in the House

of Representatives without need of a national law creating a legislative district for such new province, Sema and respondent Dilangalen reiterated

in their Memoranda the positions they adopted in their Compliance with the Resolution of 4 September 2007. The COMELEC deemed it

unnecessary to submit its position on this issue considering its stance that Section 19, Article VI of RA 9054 is unconstitutional.

The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27 November 2007. Thus, in the

Resolution of 19 February 2008, the Court ordered G.R. No. 178628 consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed

Sema's contention that the COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City of a representative
in the House of Representatives. In its Comment to the petition in G.R. No. 178628, the COMELEC, through the OSG, maintained the validity of

COMELEC Resolution No. 7902 as a temporary measure pending the enactment by Congress of the appropriate law.

The Issues

The petitions raise the following issues:

I. In G.R. No. 177597:

(A) Preliminarily

(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the constitutionality of COMELEC Resolution No.

7902; and

(2) whether the proclamation of respondent Dilangalen as representative of Shariff Kabunsuan Province with Cotabato Citymooted the

petition in G.R. No. 177597.

(B) On the merits

(1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional Assembly the power to create provinces, cities,

municipalities and barangays, is constitutional; and

(2) if in the affirmative, whether a province created by the ARMM Regional Assembly under MMA Act 201 pursuant to Section 19,

Article VI of RA 9054 is entitled to one representative in the House of Representatives without need of a national law creating a legislative

district for such province.

II. In G.R No. 177597 and G.R No. 178628, whether COMELEC Resolution No. 7902 is valid for maintaining the status quo in the

first legislative district of Maguindanao (as Shariff Kabunsuan Province with Cotabato City [formerly First District of Maguindanao with

Cotabato City]), despite the creation of the Province of Shariff Kabunsuan out of such district (excluding Cotabato City).

The Ruling of the Court

The petitions have no merit. We rule that (1) Section 19, Article VI of RA 9054 is unconstitutional insofar as it grants to the ARMM Regional

Assembly the power to create provinces and cities; (2) MMA Act 201 creating the Province of Shariff Kabunsuan is void; and (3) COMELEC

Resolution No. 7902 is valid.


On the Preliminary Matters

The Writ of Prohibition is Appropriate

to Test the Constitutionality of

Election Laws, Rules and Regulations

The purpose of the writ of Certiorari is to correct grave abuse of discretion by any tribunal, board, or officer exercising judicial or

quasi-judicial functions.[21] On the other hand, the writ of Mandamus will issue to compel a tribunal, corporation, board, officer, or person to

perform an act which the law specifically enjoins as a duty. [22] True, the COMELEC did not issue Resolution No. 7902 in the exercise of its

judicial or quasi-judicial functions.[23] Nor is there a law which specifically enjoins the COMELEC to exclude from canvassing the votes cast

in Cotabato City for representative of Shariff Kabunsuan Province with Cotabato City. These, however, do not justify the outright dismissal of the

petition in G.R. No. 177597 because Sema also prayed for the issuance of the writ of Prohibition and we have long recognized this writ as proper

for testing the constitutionality of election laws, rules, and regulations.[24]

Respondent Dilangalens Proclamation

Does Not Moot the Petition

There is also no merit in the claim that respondent Dilangalens proclamation as winner in the 14 May 2007 elections for representative

of Shariff Kabunsuan Province with Cotabato City mooted this petition. This case does not concern respondent Dilangalens election. Rather, it

involves an inquiry into the validity of COMELEC Resolution No. 7902, as well as the constitutionality of MMA Act 201 and Section 19, Article

VI of RA 9054. Admittedly, the outcome of this petition, one way or another, determines whether the votes cast in Cotabato City for

representative of the district of Shariff Kabunsuan Province with Cotabato City will be included in the canvassing of ballots. However, this

incidental consequence is no reason for us not to proceed with the resolution of the novel issues raised here.The Courts ruling in these petitions
affects not only the recently concluded elections but also all the other succeeding elections for the office in question, as well as the power of the

ARMM Regional Assembly to create in the future additional provinces.

On the Main Issues

Whether the ARMM Regional Assembly

Can Create the Province of Shariff Kabunsuan

The creation of local government units is governed by Section 10, Article X of the Constitution, which provides:

Sec. 10. No province, city, municipality, or barangay may be created, divided, merged, abolished or its
boundary substantially altered except in accordance with the criteria established in the local government code and
subject to approval by a majority of the votes cast in a plebiscite in the political units directly affected.

Thus, the creation of any of the four local government units province, city, municipality or barangay must comply with three conditions. First,

the creation of a local government unit must follow the criteria fixed in the Local Government Code. Second, such creation must not conflict

with any provision of the Constitution. Third, there must be a plebiscite in the political units affected.

There is neither an express prohibition nor an express grant of authority in the Constitution for Congress to delegate to regional or local

legislative bodies the power to create local government units. However, under its plenary legislative powers, Congress can delegate to local

legislative bodies the power to create local government units, subject to reasonable standards and provided no conflict arises with any provision

of the Constitution. In fact, Congress has delegated to provincial boards, and city and municipal councils, the power to create barangays within

their jurisdiction,[25] subject to compliance with the criteria established in the Local Government Code, and the plebiscite requirement in Section

10, Article X of the Constitution. However, under the Local Government Code, only x x x an Act of Congress can create provinces, cities or

municipalities.[26]

Under Section 19, Article VI of RA 9054, Congress delegated to the ARMM Regional Assembly the power to create provinces, cities,

municipalities and barangays within the ARMM. Congress made the delegation under its plenary legislative powers because the power to create

local government units is not one of the express legislative powers granted by the Constitution to regional legislative bodies. [27] In the present
case, the question arises whether the delegation to the ARMM Regional Assembly of the power to create provinces, cities, municipalities and

barangays conflicts with any provision of the Constitution.

There is no provision in the Constitution that conflicts with the delegation to regional legislative bodies of the power to create municipalities

and barangays, provided Section 10, Article X of the Constitution is followed. However, the creation of provinces and cities is another

matter. Section 5 (3), Article VI of the Constitution provides, Each city with a population of at least two hundred fifty thousand, or each province,

shall have at least one representative in the House of Representatives. Similarly, Section 3 of the Ordinance appended to the Constitution

provides, Any province that may hereafter be created, or any city whose population may hereafter increase to more than two hundred fifty

thousand shall be entitled in the immediately following election to at least one Member x x x.

Clearly, a province cannot be created without a legislative district because it will violate Section 5 (3), Article VI of the Constitution as

well as Section 3 of the Ordinance appended to the Constitution. For the same reason, a city with a population of 250,000 or more cannot also

be created without a legislative district. Thus, the power to create a province, or a city with a population of 250,000 or more, requires also the

power to create a legislative district. Even the creation of a city with a population of less than 250,000 involves the power to create a legislative

district because once the citys population reaches 250,000, the city automatically becomes entitled to one representative under Section 5 (3),

Article VI of the Constitution and Section 3 of the Ordinance appended to the Constitution. Thus, the power to create a province or city

inherently involves the power to create a legislative district.

For Congress to delegate validly the power to create a province or city, it must also validly delegate at the same time the power to

create a legislative district. The threshold issue then is, can Congress validly delegate to the ARMM Regional Assembly the power to create

legislative districts for the House of Representatives? The answer is in the negative.

Legislative Districts are Created or Reapportioned

Only by an Act of Congress

Under the present Constitution, as well as in past [28] Constitutions, the power to increase the allowable membership in the House of

Representatives, and to reapportion legislative districts, is vested exclusively in Congress. Section 5, Article VI of the Constitution provides:

SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred and fifty

members, unless otherwise fixed by law, who shall be elected from legislative districts apportioned among the provinces,
cities, and the Metropolitan Manila area in accordance with the number of their respective inhabitants, and on the basis of a

uniform and progressive ratio, and those who, as provided by law, shall be elected through a party-list system of registered

national, regional, and sectoral parties or organizations.

xxxx

(3) Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory.

Each city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(4) Within three years following the return of every census, the Congress shall make a reapportionment of

legislative districts based on the standards provided in this section. (Emphasis supplied)

Section 5 (1), Article VI of the Constitution vests in Congress the power to increase, through a law, the allowable membership in the

House of Representatives. Section 5 (4) empowers Congress to reapportion legislative districts. The power to reapportion legislative districts

necessarily includes the power to create legislative districts out of existing ones. Congress exercises these powers through a law that Congress

itself enacts, and not through a law that regional or local legislative bodies enact. The allowable membership of the House of Representatives can

be increased, and new legislative districts of Congress can be created, only through a national law passed by Congress. In Montejo v. COMELEC,

[29]
we held that the power of redistricting x x x is traditionally regarded as part of the power (of Congress) to make laws, and thus is vested

exclusively in Congress.

This textual commitment to Congress of the exclusive power to create or reapportion legislative districts is logical. Congress is a

national legislature and any increase in its allowable membership or in its incumbent membership through the creation of legislative districts must

be embodied in a national law. Only Congress can enact such a law. It would be anomalous for regional or local legislative bodies to create or

reapportion legislative districts for a national legislature like Congress. An inferior legislative body, created by a superior legislative body, cannot

change the membership of the superior legislative body.


The creation of the ARMM, and the grant of legislative powers to its Regional Assembly under its organic act, did not divest Congress

of its exclusive authority to create legislative districts. This is clear from the Constitution and the ARMM Organic Act, as amended. Thus, Section

20, Article X of the Constitution provides:

SECTION 20. Within its territorial jurisdiction and subject to the provisions of this Constitution and national

laws, the organic act of autonomous regions shall provide for legislative powers over:

(1) Administrative organization;

(2) Creation of sources of revenues;

(3) Ancestral domain and natural resources;

(4) Personal, family, and property relations;

(5) Regional urban and rural planning development;

(6) Economic, social, and tourism development;

(7) Educational policies;

(8) Preservation and development of the cultural heritage; and

(9) Such other matters as may be authorized by law for the promotion of the general welfare of the people of the

region.

Nothing in Section 20, Article X of the Constitution authorizes autonomous regions, expressly or impliedly, to create or reapportion legislative

districts for Congress.

On the other hand, Section 3, Article IV of RA 9054 amending the ARMM Organic Act, provides, The Regional Assembly may

exercise legislative power x x x except on the following matters: x x x (k) National elections. x x x. Since the ARMM Regional Assembly has no

legislative power to enact laws relating to national elections, it cannot create a legislative district whose representative is elected in national

elections. Whenever Congress enacts a law creating a legislative district, the first representative is always elected in the next national elections

from the effectivity of the law.[30]

Indeed, the office of a legislative district representative to Congress is a national office, and its occupant, a Member of the House of

Representatives, is a national official.[31] It would be incongruous for a regional legislative body like the ARMM Regional Assembly to create a

national office when its legislative powers extend only to its regional territory. The office of a district representative is maintained by national

funds and the salary of its occupant is paid out of national funds. It is a self-evident inherent limitation on the legislative powers of every local or

regional legislative body that it can only create local or regional offices, respectively, and it can never create a national office.
To allow the ARMM Regional Assembly to create a national office is to allow its legislative powers to operate outside the ARMMs

territorial jurisdiction. This violates Section 20, Article X of the Constitution which expressly limits the coverage of the Regional Assemblys

legislative powers [w]ithin its territorial jurisdiction x x x.

The ARMM Regional Assembly itself, in creating Shariff Kabunsuan, recognized the exclusive nature of Congress power to create or

reapportion legislative districts by abstaining from creating a legislative district for Shariff Kabunsuan. Section 5 of MMA Act 201 provides that:

Except as may be provided by national law, the existing legislative district, which includes Cotabato City as a

part thereof, shall remain. (Emphasis supplied)

However, a province cannot legally be created without a legislative district because the Constitution mandates that each province shall have at

least one representative. Thus, the creation of the Province of Shariff Kabunsuan without a legislative district is unconstitutional.

Sema, petitioner in G.R. No. 177597, contends that Section 5 (3), Article VI of the Constitution, which provides:

Each legislative district shall comprise, as far as practicable, contiguous, compact, and adjacent territory. Each

city with a population of at least two hundred fifty thousand, or each province, shall have at least one representative.

(Emphasis supplied)

and Section 3 of the Ordinance appended to the Constitution, which states:

Any province that may hereafter be created, or any city whose population may hereafter increase to more than

two hundred fifty thousand shall be entitled in the immediately following election to at least one Member or such number

of Members as it may be entitled to on the basis of the number of its inhabitants and according to the standards set forth in

paragraph (3), Section 5 of Article VI of the Constitution. The number of Members apportioned to the province out of

which such new province was created or where the city, whose population has so increased, is geographically located shall

be correspondingly adjusted by the Commission on Elections but such adjustment shall not be made within one hundred

and twenty days before the election. (Emphasis supplied)


serve as bases for the conclusion that the Province of Shariff Kabunsuan, created on 29 October 2006, is automatically entitled to one member in

the House of Representatives in the 14 May 2007 elections. As further support for her stance, petitioner invokes the statement in Felwa that when

a province is created by statute, the corresponding representative district comes into existence neither by authority of that statute which cannot

provide otherwise nor by apportionment, but by operation of the Constitution, without a reapportionment.

The contention has no merit.

First. The issue in Felwa, among others, was whether Republic Act No. 4695 (RA 4695), creating the provinces of Benguet, Mountain Province,

Ifugao, and Kalinga-Apayao and providing for congressional representation in the old and new provinces, was unconstitutional for creati[ng]

congressional districts without the apportionment provided in the Constitution. The Court answered in the negative, thus:

The Constitution ordains:

The House of Representatives shall be composed of not more than one hundred and twenty Members
who shall be apportioned among the several provinces as nearly as may be according to the number
of their respective inhabitants, but each province shall have at least one Member. The Congress shall
by law make an apportionment within three years after the return of every enumeration, and not
otherwise. Until such apportionment shall have been made, the House of Representatives shall have
the same number of Members as that fixed by law for the National Assembly, who shall be elected
by the qualified electors from the present Assembly districts. Each representative district shall
comprise as far as practicable, contiguous and compact territory.
Pursuant to this Section, a representative district may come into existence: (a) indirectly, through the creation of a province
for each province shall have at least one member in the House of Representatives; or (b) by direct creation of several
representative districts within a province. The requirements concerning the apportionment of representative districts and
the territory thereof refer only to the second method of creation of representative districts, and do not apply to those
incidental to the creation of provinces, under the first method. This is deducible, not only from the general tenor of the
provision above quoted, but, also, from the fact that the apportionment therein alluded to refers to that which is made by an
Act of Congress. Indeed, when a province is created by statute, the corresponding representative district, comes into
existence neither by authority of that statute which cannot provide otherwise nor by apportionment, but by operation of the
Constitution, without a reapportionment.

There is no constitutional limitation as to the time when, territory of, or other conditions under which a province may be

created, except, perhaps, if the consequence thereof were to exceed the maximum of 120 representative districts prescribed

in the Constitution, which is not the effect of the legislation under consideration. As a matter of fact, provinces have been

created or subdivided into other provinces, with the consequent creation of additional representative districts, without

complying with the aforementioned requirements.[32] (Emphasis supplied)

Thus, the Court sustained the constitutionality of RA 4695 because (1) it validly created legislative districts indirectly through a special law

enacted by Congress creating a province and (2) the creation of the legislative districts will not result in breaching the maximum number of

legislative districts provided under the 1935 Constitution. Felwa does not apply to the present case because in Felwa the new provinces were
created by a national law enacted by Congress itself. Here, the new province was created merely by a regional law enacted by the ARMM

Regional Assembly.

What Felwa teaches is that the creation of a legislative district by Congress does not emanate alone from Congress power to

reapportion legislative districts, but also from Congress power to create provinces which cannot be created without a legislative district.Thus,

when a province is created, a legislative district is created by operation of the Constitution because the Constitution provides that each province

shall have at least one representative in the House of Representatives. This does not detract from the constitutional principle that the power to

create legislative districts belongs exclusively to Congress. It merely prevents any other legislative body, except Congress, from creating

provinces because for a legislative body to create a province such legislative body must have the power to create legislative districts. In short,

only an act of Congress can trigger the creation of a legislative district by operation of the Constitution. Thus, only Congress has the power to

create, or trigger the creation of, a legislative district.

Moreover, if as Sema claims MMA Act 201 apportioned a legislative district to Shariff Kabunsuan upon its creation, this will leave

Cotabato City as the lone component of the first legislative district of Maguindanao. However, Cotabato City cannot constitute a legislative

district by itself because as of the census taken in 2000, it had a population of only 163,849. To constitute Cotabato City alone as the surviving

first legislative district of Maguindanao will violate Section 5 (3), Article VI of the Constitution which requires that [E]ach city with a population

of at least two hundred fifty thousand x x x, shall have at least one representative.

Second. Semas theory also undermines the composition and independence of the House of Representatives. Under Section 19,

[33]
Article VI of RA 9054, the ARMM Regional Assembly can create provinces and cities within the ARMM with or without regard to the criteria

fixed in Section 461 of RA 7160, namely: minimum annual income of P20,000,000, and minimum contiguous territory of 2,000 square

kilometers or minimum population of 250,000.[34] The following scenarios thus become distinct possibilities:

(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more provinces and thus
increase the membership of a superior legislative body, the House of Representatives, beyond the maximum limit of 250
fixed in the Constitution (unless a national law provides otherwise);

(2) The proportional representation in the House of Representatives based on one representative for at least
every 250,000 residents will be negated because the ARMM Regional Assembly need not comply with the requirement in
Section 461(a)(ii) of RA 7160 that every province created must have a population of at least 250,000; and

(3) Representatives from the ARMM provinces can become the majority in the House of Representatives
through the ARMM Regional Assemblys continuous creation of provinces or cities within the ARMM.
The following exchange during the oral arguments of the petition in G.R. No. 177597 highlights the absurdity of Semas position that

the ARMM Regional Assembly can create provinces:

Justice Carpio:

So, you mean to say [a] Local Government can create legislative district[s] and pack Congress with their own

representatives [?]

Atty. Vistan II:[35]

Yes, Your Honor, because the Constitution allows that.

Justice Carpio:

So, [the] Regional Assembly of [the] ARMM can create and create x x x provinces x x x and, therefore, they can

have thirty-five (35) new representatives in the House of Representatives without Congress agreeing to it, is that

what you are saying? That can be done, under your theory[?]

Atty. Vistan II:

Yes, Your Honor, under the correct factual circumstances.

Justice Carpio:

Under your theory, the ARMM legislature can create thirty-five (35) new provinces, there may be x x x [only]

one hundred thousand (100,000) [population], x x x, and they will each have one representative x x x to

Congress without any national law, is that what you are saying?

Atty. Vistan II:

Without law passed by Congress, yes, Your Honor, that is what we are saying.

xxxx

Justice Carpio:
So, they can also create one thousand (1000) new provinces, sen[d] one thousand (1000) representatives to the

House of Representatives without a national law[,] that is legally possible, correct?

Atty. Vistan II:

Yes, Your Honor.[36] (Emphasis supplied)

Neither the framers of the 1987 Constitution in adopting the provisions in Article X on regional autonomy, [37] nor Congress in enacting

RA 9054, envisioned or intended these disastrous consequences that certainly would wreck the tri-branch system of government under our

Constitution. Clearly, the power to create or reapportion legislative districts cannot be delegated by Congress but must be exercised by Congress

itself. Even the ARMM Regional Assembly recognizes this.

The Constitution empowered Congress to create or reapportion legislative districts, not the regional assemblies. Section 3 of the Ordinance to the

Constitution which states, [A]ny province that may hereafter be created x x x shall be entitled in the immediately following election to at least

one Member, refers to a province created by Congress itself through a national law. The reason is that the creation of a province increases the

actual membership of the House of Representatives, an increase that only Congress can decide.Incidentally, in the present 14 th Congress, there are

219[38] district representatives out of the maximum 250 seats in the House of Representatives. Since party-list members shall constitute 20 percent

of total membership of the House, there should at least be 50 party-list seats available in every election in case 50 party-list candidates are

proclaimed winners. This leaves only 200 seats for district representatives, much less than the 219 incumbent district representatives. Thus, there

is a need now for Congress to increase by law the allowable membership of the House, even before Congress can create new provinces.

It is axiomatic that organic acts of autonomous regions cannot prevail over the Constitution. Section 20, Article X of the Constitution expressly

provides that the legislative powers of regional assemblies are limited [w]ithin its territorial jurisdiction and subject to the provisions of the

Constitution and national laws, x x x. The Preamble of the ARMM Organic Act (RA 9054) itself states that the ARMM Government is established

within the framework of the Constitution. This follows Section 15, Article X of the Constitution which mandates that the ARMM shall be

created x x x within the framework of this Constitution and the national sovereignty as well as territorial integrity of the Republic of the

Philippines.
The present case involves the creation of a local government unit that necessarily involves also the creation of a legislative

district. The Court will not pass upon the constitutionality of the creation of municipalities and barangays that does not comply with the criteria

established in Section 461 of RA 7160, as mandated in Section 10, Article X of the Constitution, because the creation of such municipalities and

barangays does not involve the creation of legislative districts. We leave the resolution of this issue to an appropriate case.

In summary, we rule that Section 19, Article VI of RA 9054, insofar as it grants to the ARMM Regional Assembly the power to create provinces

and cities, is void for being contrary to Section 5 of Article VI and Section 20 of Article X of the Constitution, as well as Section 3 of the

Ordinance appended to the Constitution. Only Congress can create provinces and cities because the creation of provinces and cities necessarily

includes the creation of legislative districts, a power only Congress can exercise under Section 5, Article VI of the Constitution and Section 3 of

the Ordinance appended to the Constitution. The ARMM Regional Assembly cannot create a province without a legislative district because the

Constitution mandates that every province shall have a legislative district.Moreover, the ARMM Regional Assembly cannot enact a law creating a

national office like the office of a district representative of Congress because the legislative powers of the ARMM Regional Assembly operate

only within its territorial jurisdiction as provided in Section 20, Article X of the Constitution. Thus, we rule that MMA Act 201, enacted by the

ARMM Regional Assembly and creating the Province of Shariff Kabunsuan, is void.

Resolution No. 7902 Complies with the Constitution

Consequently, we hold that COMELEC Resolution No. 7902, preserving the geographic and legislative district of the First District of

Maguindanao with Cotabato City, is valid as it merely complies with Section 5 of Article VI and Section 20 of Article X of the Constitution, as

well as Section 1 of the Ordinance appended to the Constitution.

WHEREFORE, we declare Section 19, Article VI of Republic Act No. 9054 UNCONSTITUTIONAL insofar as it grants to the Regional

Assembly of the Autonomous Region in Muslim Mindanao the power to create provinces and cities. Thus, we declare VOIDMuslim Mindanao

Autonomy Act No. 201 creating the Province of Shariff Kabunsuan. Consequently, we rule that COMELEC Resolution No. 7902 is VALID.

Let a copy of this ruling be served on the President of the Senate and the Speaker of the House of Representatives.
SO ORDERED.

ANTONIO T. CARPIO

Associate Justice

FIRST DIVISION

NPC DRIVERS AND MECHANICS ASSOCIATION, (NPC G.R. No. 156208


DAMA), represented by Its President ROGER S. SAN JUAN, SR.,
NPC EMPLOYEES & WORKERS UNION (NEWU) NORTHERN
LUZON REGIONAL CENTER, represented by its Regional
President JIMMY D. SALMAN, in their own individual capacities
and in behalf of the members of the associations and all affected Present:
officers and employees of National Power Corporation (NPC), ZOL
D. MEDINA, NARCISO M. MAGANTE, VICENTE B. CIRIO,
JR., NECITAS B. CAMAMA, in their individual capacities as PANGANIBAN, CJ
employees of National Power Corporation, Chairperson,
Petitioners, YNARES-SANTIAGO,

AUSTRIA-MARTINEZ,
- versus -
CALLEJO, SR., and

CHICO-NAZARIO, JJ.

THE NATIONAL POWER CORPORATION (NPC), NATIONAL POWER


BOARD OF DIRECTORS (NPB), JOSE ISIDRO N. CAMACHO as
Chairman of the National Power Board of Directors (NPB),
ROLANDO S. QUILALA, as President Officer-in-charge/CEO of
National Power Corporation and Member of National Power Board,
and VINCENT S. PEREZ, JR., EMILIA T. BONCODIN, MARIUS P.
CORPUS, RUBEN S. REINOSO, JR., GREGORY L. DOMINGO and
NIEVES L. OSORIO,

Respondents.
Promulgated:

September 26, 2006

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

DECISION

CHICO-NAZARIO, J.:

Before Us is a special civil action for Injunction to enjoin public respondents from implementing the National Power Board (NPB)
Resolutions No. 2002-124 and No. 2002-125, both dated 18 November 2002, directing, among other things, the termination of all employees of
the National Power Corporation (NPC) on 31 January 2003 in line with the restructuring of the NPC.

On 8 June 2001, Republic Act No. 9136, otherwise known as the Electric Power Industry Reform Act of 2001 (EPIRA Law), was
approved and signed into law by President Gloria Macapagal-Arroyo, and took effect on 26 June 2001. Section 2(i) and Section 3 of the EPIRA
Law states:

Section 2. Declaration of Policy. It is hereby declared the policy of the State:

xxxx
(i) To provide for an orderly and transparent privatization of the assets and liabilities of the National Power Corporation
(NPC);

xxxx

Section 3. Scope. This Act shall provide a framework for the restructuring of the electric power industry, including the
privatization of the assets of NPC, the transition to the desired competitive structure, and the definition of the
responsibilities of the various government agencies and private entities.[1]

Under the EPIRA Law,[2] a new National Power Board of Directors was constituted composed of the Secretary of Finance as
Chairman, with the Secretary of Energy, the Secretary of Budget and Management, the Secretary of Agriculture, the Director-General of the
National Economic and Development Authority, the Secretary of Environment and Natural Resources, the Secretary of Interior and Local
Government, the Secretary of the Department of Trade and Industry, and the President of the National Power Corporation as members.

On 27 February 2002, the Secretary of the Department of Energy (DOE) promulgated the Implementing Rules and Regulations (IRR)
of the EPIRA Law, pursuant to Section 77 [3] thereof. Said IRR were approved by the Joint Congressional Power Commission on even
date. Meanwhile, also in pursuant to the provisions of the EPIRA Law, the DOE created the Energy Restructuring Steering Committee
(Restructuring Committee) to manage the privatization and restructuring of the NPC, the National Transmission Corporation (TRANSCO), and the
Power Sector Assets and Liabilities Corporation (PSALM).

To serve as the overall organizational framework for the realigned functions of the NPC mandated under the EPIRA Law, the
Restructuring Committee proposed a new NPC Table of Organization which was approved by the NPB through NPB Resolution No. 2002-53
dated 11 April 2002. Likewise, the Restructuring Committee reviewed the proposed 2002 NPC Restructuring Plan and assisted in the
implementation of Phase I (Realignment) of said Plan, and thereafter recommended to the NPB for approval the adoption of measures
pertaining to the separation and hiring of NPC personnel. The NPB, taking into consideration the recommendation of the Restructuring
Committee, thus amended the Restructuring Plan approved under NPB Resolution No. 2002-53.

On 18 November 2002, pursuant to Section 63 [4] of the EPIRA Law and Rule 33 [5] of the IRR, the NPB passed NPB Resolution No. 2002-
124 which provided for the Guidelines on the Separation Program of the NPC and the Selection and Placement of Personnel in the NPC Table of
Organization. Under said Resolution, all NPC personnel shall be legally terminated on 31 January 2003, and shall be entitled to separation
benefits. On the same day, the NPB approved NPB Resolution No. 2002-125, whereby a Transition Team was constituted to manage and
implement the NPCs Separation Program.

In a Memorandum dated 21 November 2002, the NPC OIC-President and CEO Rolando S. Quilala circulated the assailed Resolutions
and directed the concerned NPC officials to disseminate and comply with said Resolutions and implement the same within the period provided
for in the timetable set in NPB Resolution No. 2002-125. As a result thereof, Mr. Paquito F. Garcia, Manager HRSD and Resources and
Administration Coordinator of NPC, circulated a Memorandum dated 22 November 2002 to all NPC officials and employees providing for a
checklist of the documents required for securing clearances for the processing of separation benefits of all employees who shall be terminated
under the Restructuring Plan.

Contending that the assailed NPB Resolutions are void and without force and effect, herein petitioners, in their individual and
representative capacities, filed the present Petition for Injunction to restrain respondents from implementing NPB Resolutions No. 2002-124 and
No. 2002-125. In support thereof, petitioners invoke Section 78 of the EPIRA Law, to wit:

Section 78. Injunction and Restraining Order. The implementation of the provisions of this Act shall not be
restrained or enjoined except by an order issued by the Supreme Court of the Philippines.

In assailing the validity of NPB Resolutions No. 2002-124 and No. 2002-125, petitioners maintain that said Resolutions were not
passed and issued by a majority of the members of the duly constituted Board of Directors since only three of its members, as provided under
Section 48[6] of the EPIRA Law, were present, namely: DOE Secretary Vincent S. Perez, Jr.; Department of Budget and Management
Secretary Emilia T. Boncodin; and NPC OIC-President Rolando S. Quilala. According to petitioners, the other four members who were present at
the meeting and signed the Resolutions were not the secretaries of their respective departments but were merely representatives or designated
alternates of the officials who were named under the EPIRA Law to sit as members of the NPB.Petitioners claim that the acts of these
representatives are violative of the well-settled principle that delegated power cannot be further delegated. Thus, petitioners conclude that the
questioned Resolutions have been illegally issued as it were not issued by a duly constituted board since no quorum existed because only three
of the nine members, as provided under Section 48 of the EPIRA Law, were present and qualified to sit and vote.

It is petitioners submission that even assuming arguendo that there was no undue delegation of power to the four representatives
who signed the assailed Resolutions, said Resolutions cannot still be given legal effect because the same did not comply with the mandatory
requirement of endorsement by the Joint Congressional Power Commission and approval of the President of the Philippines, as provided under
Section 47 of the EPIRA Law which states that:

Section 47. NPC Privatization. Except for the assets of SPUG, the generation assets, real estate, and other
disposable assets as well as IPP contracts of NPC shall be privatized in accordance with this Act. Within six (6) months
from effectivity of this Act, the PSALM Corp. shall submit a plan for the endorsement by the Joint Congressional Power
Commission and the approval of the President of the Philippines, on the total privatization of the generation assets, real
estate, other disposable assets as well as existing IPP contracts of NPC and thereafter, implement the same, in accordance
with the following guidelines, except as provided for in paragraph (f) herein: x x x.

Petitioners insist that if ever there exists a valid wholesale abolition of their positions and their concomitant separation form the
service, such a process is an integral part of privatization and restructuring as defined under the EPIRA Law and, therefore, must comply with
the above-quoted provision requiring the endorsement of the Joint Congressional Power Commission and the approval of the President of the
Philippines. Furthermore, petitioner highlight the fact that said Resolutions will have an adverse effect on about 5,648 employees of the NPC
and will result in the displacement of some 2,370 employees, which, petitioners argue, is contrary to the mandate of the Constitution to
promote full employment and security of tenure.
Respondents, on the other hand, uphold the validity of the assailed Resolutions by arguing that while it is true that four members of
the National Power Board of Directors, particularly the respective Secretaries of the Department of Interior and Local Government, the
Department of Trade and Industry, and the Department of Finance, as well as the Director-General of the National Economic and Development
Authority, were not the actual signatories in NPB Resolutions No. 2002-124 and No. 2002-125, they were, however, ably represented by their
respective alternates. Respondents claim that the validity of such administrative practice whereby an authority is exercised by persons or
subordinates appointed by the responsible official has long been settled. Respondents further contend that Section 48 of the EPIRA Law does
not in any way prohibit any member of the NPB from authorizing his representative to sign resolutions adopted by the Board.

From the arguments put forward by herein parties, it is evident that the pivotal issue to be resolved in this Petition for Injunction is
whether or not NPB Resolutions No. 2002-124 and No. 2002-125 were properly enacted. It is petitioners contention that the failure of the four
specifically identified department heads [7] under Section 48 of the EPIRA Law to personally approve and sign the assailed Resolutions invalidates
the adoption of said Resolutions. Petitioners maintain that there was undue delegation of delegated power when only the representatives of
certain members of the NPB attended the board meetings and passed and signed the questioned Resolutions.

We agree with petitioners. In enumerating under Section 48 those who shall compose the National Power Board of Directors, the
legislature has vested upon these persons the power to exercise their judgment and discretion in running the affairs of the NPC. Discretion may
be defined as the act or the liberty to decide according to the principles of justice and ones ideas of what is right and proper under the
circumstances, without willfulness or favor. [8] Discretion, when applied to public functionaries, means a power or right conferred upon them by
law of acting officially in certain circumstances, according to the dictates of their own judgment and conscience, uncontrolled by the judgment
or conscience of others.[9] It is to be presumed that in naming the respective department heads as members of the board of directors, the
legislature chose these secretaries of the various executive departments on the basis of their personal qualifications and acumen which made
them eligible to occupy their present positions as department heads. Thus, the department secretaries cannot delegate their duties as members
of the NPB, much less their power to vote and approve board resolutions, because it is their personal judgment that must be exercised in the
fulfillment of such responsibility.

There is no question that the enactment of the assailed Resolutions involves the exercise of discretion and not merely a ministerial
act that could be validly performed by a delegate, thus, the rule enunciated in the case of Binamira v. Garrucho[10] is relevant in the present
controversy, to wit:

An officer to whom a discretion is entrusted cannot delegate it to another, the presumption being that he was
chosen because he was deemed fit and competent to exercise that judgment and discretion, and unless the power to
substitute another in his place has been given to him, he cannot delegate his duties to another.

In those cases in which the proper execution of the office requires, on the part of the officer, the exercise of
judgment or discretion, the presumption is that he was chosen because he was deemed fit and competent to exercise
that judgment and discretion, and, unless power to substitute another in his place has been given to him, he cannot
delegate his duties to another.
Respondents assertion to the contrary is not tenable. The ruling in the case cited by respondents to support their contention is not
applicable in the case at bar. While it is true that the Court has determined in the case of American Tobacco Company v. Director of
Patents[11] that a delegate may exercise his authority through persons he appoints to assist him in his functions, it must be stressed that the
Court explicitly stated in the same case that said practice is permissible only when the judgment and discretion finally exercised are those of the
officer authorized by law. According to the Court, the rule that requires an administrative officer to exercise his own judgment and discretion
does not preclude him from utilizing, as a matter of practical administrative procedure, the aid of subordinates, so long as it is the legally
authorized official who makes the final decision through the use of his own personal judgment.

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

Having determined that the assailed Resolutions are void as they lack the necessary number of votes for their adoption, We no
longer deem it necessary to pass upon the other issues raised in the instant petition

WHEREFORE, premises considered, National Power Board Resolutions No. 2002-124 and No. 2002-125 are hereby
declared VOID and WITHOUT LEGAL EFFECT. The Petition for Injunction is hereby GRANTED and respondents are hereby ENJOINED from
implementing said NPB Resolutions No. 2002-124 and No. 2002-125.

SO ORDERED.

MINITA V. CHICO-NAZARIO

Associate Justice

----------------------------------------------------------------------------------------------------------------------------------------------------------------------------

CITIZENSHIP

EN BANC

[G.R. No. 135083. May 26, 1999]


ERNESTO S. MERCADO, petitioner, vs. EDUARDO BARRIOS MANZANO and the COMMISSION ON ELECTIONS, respondents.

DECISION

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 COMELECs 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, on September 14, 1955, and is considered an 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 both 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] Petitioners 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.[5] The 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 of jus 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 respondents 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 has personality to bring
this suit considering that he was not an original party in the case for disqualification filed by Ernesto Mamaril nor was petitioners 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:

Section 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.

....

Section 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 intervenors 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 even 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 petitioners 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 petitioners 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 Reforms Law of 1987, which provides:

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 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 petitioners 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 petitioners motion for intervention but also with the substantive issues respecting private respondents
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 fathers country such children are citizens of
that country;

(3) Those who marry aliens if by the laws of the latters 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 individuals 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 that the Filipino-Chinese community is
represented in the Legislative Yuan of the Republic of China in Taiwan. And until recently, the sponsor might recall, in Mainland China in the
Peoples 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.

Dual 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 Peoples 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 or not 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 Gentlemans 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 renounces 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 complied 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
respondents 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

....

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 citizenshiplong before May 8, 1995. At best, Frivaldo was stateless in the interimwhen 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 petitioners contention that the oath of allegiance contained in private respondents certificate of candidacy is
insufficient to constitute renunciation of his American citizenship. Equally without merit is petitioners contention 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 mutandis 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 stating 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 respondents 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.

SO ORDERED.

Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Quisumbing, Buena, Gonzaga-Reyes, and Ynares-Santiago, JJ., concur.
Panganiban, and Purisima, JJ., on leave.
Pardo, J., no part.
FIRST DIVISION

THE REPUBLIC OF THE PHILIPPINES,

Petitioner, G.R. No. 187567

Present:

- versus -

CORONA, C.J.,

Chairperson,

LEONARDO-DE CASTRO,
NORA FE SAGUN,
BERSAMIN,

Respondent. DEL CASTILLO, and

VILLARAMA, JR., JJ.

Promulgated:

February 15, 2012

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

DECISION

VILLARAMA, JR., J.:

Before us is a petition for review on certiorari filed by the Solicitor General on behalf of the Republic of the Philippines, seeking the reversal of

the April 3, 2009 Decision [1] of the Regional Trial Court (RTC), Branch 3, of Baguio City in Spcl. Pro. Case No. 17-R. The RTC granted the

petition[2] filed by respondent Nora Fe Sagun entitled In re: Judicial Declaration of Election of Filipino Citizenship, Nora Fe Sagun v. The Local Civil

Registrar of Baguio City.

The facts follow:


Respondent is the legitimate child of Albert S. Chan, a Chinese national, and Marta Borromeo, a Filipino citizen. She was born on August 8, 1959

in Baguio City[3] and did not elect Philippine citizenship upon reaching the age of majority. In 1992, at the age of 33 and after getting married to

Alex Sagun, she executed an Oath of Allegiance [4] to the Republic of the Philippines. Said document was notarized by Atty. Cristeta Leung on

December 17, 1992, but was not recorded and registered with the Local Civil Registrar of Baguio City.

Sometime in September 2005, respondent applied for a Philippine passport. Her application was denied due to the citizenship of her

father and there being no annotation on her birth certificate that she has elected Philippine citizenship. Consequently, she sought a judicial

declaration of her election of Philippine citizenship and prayed that the Local Civil Registrar of Baguio City be ordered to annotate the same on

her birth certificate.

In her petition, respondent averred that she was raised as a Filipino, speaks Ilocano and Tagalog fluently and attended local schools in

Baguio City, including Holy Family Academy and the Saint Louis University. Respondent claimed that despite her part-Chinese ancestry, she

always thought of herself as a Filipino. She is a registered voter of Precinct No. 0419A of Barangay Manuel A. Roxas in Baguio City and had voted

in local and national elections as shown in the Voter Certification [5] issued by Atty. Maribelle Uminga of the Commission on Elections of Baguio

City.

She asserted that by virtue of her positive acts, she has effectively elected Philippine citizenship and such fact should be annotated

on her record of birth so as to entitle her to the issuance of a Philippine passport.

On August 7, 2007, the Office of the Solicitor General (OSG) entered its appearance as counsel for the Republic of the Philippines and authorized

the City Prosecutor of Baguio City to appear in the above mentioned case. [6] However, no comment was filed by the City Prosecutor.

After conducting a hearing, the trial court rendered the assailed Decision on April 3, 2009 granting the petition and declaring respondent a

Filipino citizen. The fallo of the decision reads:

WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby DECLARED [a]
FILIPINO CITIZEN, having chosen or elected Filipino citizenship.

Upon payment of the required fees, the Local Civil Registrar of Baguio City is hereby directed to annotate [on]
her birth certificate, this judicial declaration of Filipino citizenship of said petitioner.

IT IS SO ORDERED.[7]

Contending that the lower court erred in so ruling, petitioner, through the OSG, directly filed the instant recourse via a petition for review

on certiorari before us. Petitioner raises the following issues:

Whether or not an action or proceeding for judicial declaration of Philippine citizenship is procedurally and jurisdictionally
permissible; and,
II

Whether or not an election of Philippine citizenship, made twelve (12) years after reaching the age of majority, is
considered to have been made within a reasonable time as interpreted by jurisprudence.[8]

Petitioner argues that respondents petition before the RTC was improper on two counts: for one, law and jurisprudence clearly

contemplate no judicial action or proceeding for the declaration of Philippine citizenship; and for another, the pleaded registration of the oath of

allegiance with the local civil registry and its annotation on respondents birth certificate are the ministerial duties of the registrar; hence, they

require no court order. Petitioner asserts that respondents petition before the trial court seeking a judicial declaration of her election of

Philippine citizenship undeniably entails a determination and consequent declaration of her status as a Filipino citizen which is not allowed

under our legal system. Petitioner also argues that if respondents intention in filing the petition is ultimately to have her oath of allegiance

registered with the local civil registry and annotated on her birth certificate, then she does not have to resort to court proceedings.

Petitioner further argues that even assuming that respondents action is sanctioned, the trial court erred in finding respondent as

having duly elected Philippine citizenship since her purported election was not in accordance with the procedure prescribed by law and was not

made within a reasonable time. Petitioner points out that while respondent executed an oath of allegiance before a notary public, there was no

affidavit of her election of Philippine citizenship. Additionally, her oath of allegiance which was not registered with the nearest local civil registry

was executed when she was already 33 years old or 12 years after she reached the age of majority.Accordingly, it was made beyond the period

allowed by law.

In her Comment,[9] respondent avers that notwithstanding her failure to formally elect Filipino citizenship upon reaching the age of

majority, she has in fact effectively elected Filipino citizenship by her performance of positive acts, among which is the exercise of the right of

suffrage. She claims that she had voted and participated in all local and national elections from the time she was of legal age. She also insists

that she is a Filipino citizen despite the fact that her election of Philippine citizenship was delayed and unregistered.

In reply,[10] petitioner argues that the special circumstances invoked by respondent, like her continuous and uninterrupted stay in the

Philippines, her having been educated in schools in the country, her choice of staying here despite the naturalization of her parents as American

citizens, and her being a registered voter, cannot confer on her Philippine citizenship as the law specifically provides the requirements for

acquisition of Philippine citizenship by election.

Essentially, the issues for our resolution are: (1) whether respondents petition for declaration of election of Philippine citizenship is

sanctioned by the Rules of Court and jurisprudence; (2) whether respondent has effectively elected Philippine citizenship in accordance with the

procedure prescribed by law.

The petition is meritorious.


At the outset, it is necessary to stress that a direct recourse to this Court from the decisions, final resolutions and orders of the RTC

may be taken where only questions of law are raised or involved. There is a question of law when the doubt or difference arises as to what the

law is on a certain state of facts, which does not call for an examination of the probative value of the evidence presented by the parties-litigants.

On the other hand, there is a question of fact when the doubt or controversy arises as to the truth or falsity of the alleged facts. Simply put,

when there is no dispute as to fact, the question of whether the conclusion drawn therefrom is correct or not, is a question of law. [11]

In the present case, petitioner assails the propriety of the decision of the trial court declaring respondent a Filipino citizen after finding

that respondent was able to substantiate her election of Filipino citizenship. Petitioner contends that respondents petition for judicial declaration

of election of Philippine citizenship is procedurally and jurisdictionally impermissible. Verily, petitioner has raised questions of law as the

resolution of these issues rest solely on what the law provides given the attendant circumstances.

In granting the petition, the trial court stated:

This Court believes that petitioner was able to fully substantiate her petition regarding her election of Filipino
citizenship, and the Local Civil Registrar of Baguio City should be ordered to annotate in her birth certificate her election
of Filipino citizenship. This Court adds that the petitioners election of Filipino citizenship should be welcomed by this
country and people because the petitioner has the choice to elect citizenship of powerful countries like the United States
of America and China, however, petitioner has chosen Filipino citizenship because she grew up in this country, and has
learned to love the Philippines. Her choice of electing Filipino citizenship is, in fact, a testimony that many of our people
still wish to live in the Philippines, and are very proud of our country.

WHEREFORE, the instant petition is hereby GRANTED. Petitioner Nora Fe Sagun y Chan is hereby DECLARED as
FILIPINO CITIZEN, having chosen or elected Filipino citizenship.[12]

For sure, this Court has consistently ruled that there is no proceeding established by law, or the Rules for the judicial declaration of the

citizenship of an individual. [13] There is no specific legislation authorizing the institution of a judicial proceeding to declare that a given person is

part of our citizenry.[14] This was our ruling in Yung Uan Chu v. Republic [15] citing the early case of Tan v. Republic of the Philippines,[16] where we

clearly stated:

Under our laws, there can be no action or proceeding for the judicial declaration of the citizenship of an individual. Courts

of justice exist for settlement of justiciable controversies, which imply a given right, legally demandable and enforceable,

an act or omission violative of said right, and a remedy, granted or sanctioned by law, for said breach of right. As an

incident only of the adjudication of the rights of the parties to a controversy, the court may pass upon, and make a

pronouncement relative to their status. Otherwise, such a pronouncement is beyond judicial power. x x x
Clearly, it was erroneous for the trial court to make a specific declaration of respondents Filipino citizenship as such pronouncement

was not within the courts competence.

As to the propriety of respondents petition seeking a judicial declaration of election of Philippine citizenship, it is imperative that we

determine whether respondent is required under the law to make an election and if so, whether she has complied with the procedural

requirements in the election of Philippine citizenship.

When respondent was born on August 8, 1959, the governing charter was the 1935 Constitution, which declares as citizens of the Philippines

those whose mothers are citizens of the Philippines and elect Philippine citizenship upon reaching the age of majority. Sec. 1, Art. IV of the 1935

Constitution reads:

Section 1. The following are citizens of the Philippines:

xxxx

(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority, elect Philippine
citizenship.

Under Article IV, Section 1(4) 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. The 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. [17]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. [18] 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. 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. [19]

Being a legitimate child, respondents citizenship followed that of her father who is Chinese, unless upon reaching the age of majority, she elects

Philippine citizenship. It is a settled rule that only legitimate children follow the citizenship of the father and that illegitimate children are under

the parental authority of the mother and follow her nationality. [20] An illegitimate child of Filipina need not perform any act to confer upon him

all the rights and privileges attached to citizens of the Philippines; he automatically becomes a citizen himself. [21] But in the case of respondent,

for her to be considered a Filipino citizen, she must have validly elected Philippine citizenship upon reaching the age of majority.

Commonwealth Act (C.A.) No. 625,[22] enacted pursuant to Section 1(4), Article IV of the 1935 Constitution, prescribes the procedure

that should be followed in order to make a valid election of Philippine citizenship, to wit:

Section 1. The option to elect Philippine citizenship in accordance with subsection (4), [S]ection 1, Article IV, of
the Constitution shall be expressed 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.

Based on the foregoing, the statutory formalities of electing Philippine citizenship are: (1) a statement of election under oath; (2) an

oath of allegiance to the Constitution and Government of the Philippines; and (3) registration of the statement of election and of the oath with

the nearest civil registry.[23]

Furthermore, no election of Philippine citizenship shall be accepted for registration under C.A. No. 625 unless the party exercising the right of

election has complied with the requirements of the Alien Registration Act of 1950. In other words, he should first be required to register as an

alien.[24] Pertinently, the person electing Philippine citizenship is required to file a petition with the Commission of Immigration and Deportation

(now Bureau of Immigration) for the cancellation of his alien certificate of registration based on his aforesaid election of Philippine citizenship

and said Office will initially decide, based on the evidence presented the validity or invalidity of said election. [25] Afterwards, the same is elevated

to the Ministry (now Department) of Justice for final determination and review. [26]

It should be stressed that there is no specific statutory or procedural rule which authorizes the direct filing of a petition for

declaration of election of Philippine citizenship before the courts. The special proceeding provided under Section 2, Rule 108 of the Rules of

Court on Cancellation or Correction of Entries in the Civil Registry, merely allows any interested party to file an action for cancellation or

correction of entry in the civil registry, i.e., election, loss and recovery of citizenship, which is not the relief prayed for by the respondent.

Be that as it may, even if we set aside this procedural infirmity, still the trial courts conclusion that respondent duly elected Philippine

citizenship is erroneous since the records undisputably show that respondent failed to comply with the legal requirements for a valid

election. Specifically, respondent had not executed a sworn statement of her election of Philippine citizenship. The only documentary evidence

submitted by respondent in support of her claim of alleged election was her oath of allegiance, executed 12 years after she reached the age of

majority, which was unregistered. As aptly pointed out by the petitioner, even assuming arguendothat respondents oath of allegiance suffices,

its execution was not within a reasonable time after respondent attained the age of majority and was not registered with the nearest civil

registry as required under Section 1 of C.A. No. 625. The phrase reasonable time has been interpreted to mean that the election should be

made generally within three (3) years from reaching the age of majority. [27] Moreover, there was no satisfactory explanation proffered by

respondent for the delay and the failure to register with the nearest local civil registry.

Based on the foregoing circumstances, respondent clearly failed to comply with the procedural requirements for a valid and effective

election of Philippine citizenship. Respondent cannot assert that the exercise of suffrage and the participation in election exercises constitutes a

positive act of election of Philippine citizenship since the law specifically lays down the requirements for acquisition of citizenship by election.

The mere exercise of suffrage, continuous and uninterrupted stay in the Philippines, and other similar acts showing exercise of Philippine

citizenship cannot take the place of election of Philippine citizenship. Hence, respondent cannot now be allowed to seek the intervention of the

court to confer upon her Philippine citizenship when clearly she has failed to validly elect Philippine citizenship. As we held in Ching,[28] 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. Having failed to comply with

the foregoing requirements, respondents petition before the trial court must be denied.

WHEREFORE, the petition is GRANTED. The Decision dated April 3, 2009 of the Regional Trial Court, Branch 3 of Baguio City

in Spcl. Pro. Case No. 17-R is REVERSED and SET ASIDE. The petition for judicial declaration of election of Philippine citizenship filed by

respondent Nora Fe Sagun is hereby DISMISSED for lack of merit.

No costs.

SO ORDERED.

Republic of the Philippines


SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 170603 January 29, 2007

EDISON SO, Petitioner,


vs.
REPUBLIC OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Assailed in this Petition for Review on Certiorari is the Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 80437 which
reversed the Decision2 of the Regional Trial Court (RTC) of Manila, Branch 8, in Naturalization Case No. 02-102984. Likewise
assailed is the appellate courts Resolution denying the Motion for Reconsideration of its Decision.

Antecedents

On February 28, 2002, petitioner Edison So filed before the RTC a Petition for Naturalization 3 under Commonwealth Act (C.A.) No.
473, otherwise known as the Revised Naturalization Law, as amended. He alleged the following in his petition:

He was born on February 17, 1982, in Manila; he is a Chinese citizen who has lived in No. 528 Lavezares St., Binondo, Manila,
since birth; as an employee, he derives an average annual income of around P100,000.00 with free board and lodging and other
benefits; he is single, able to speak and write English, Chinese and Tagalog; he is exempt from the filing of Declaration of Intention
to become a citizen of the Philippines pursuant to Section 6 of Commonwealth Act (C.A.) No. 473, as amended, because he was
born in the Philippines, and studied in a school recognized by the Government where Philippine history, government and culture are
taught; he is a person of good moral character; he believes in the principles underlying the Philippine constitution; he has conducted
himself in a proper and irreproachable manner during the entire period of his residence in the Philippines in his relation with the
constituted government as well as with the community in which he is living; he has mingled socially with the Filipinos and has
evinced a sincere desire to learn and embrace the customs, traditions and ideals of the Filipino people; he has all the qualifications
provided under Section 2 and none of the disqualifications under Section 4 of C.A. No. 473, as amended; he is not opposed to
organized government or affiliated with any association or group of persons who uphold and teach doctrines opposing all organized
governments; he is not defending or teaching the necessity or propriety of violence, personal assault or assassination for the
success or predominance of mens ideas; he is not a polygamist or a believer in the practice of polygamy; he has not been
convicted of any crime involving moral turpitude; he is not suffering from any incurable contagious diseases or from mental
alienation; the nation of which he is a citizen is not at war with the Philippines; it is his intention in good faith to become a citizen of
the Philippines and to renounce absolutely and forever all allegiance and fidelity to any foreign prince, potentate, state or
sovereignty, and particularly to China; and he will reside continuously in the Philippines from the time of the filing of the petition up to
the time of his admission as citizen of the Philippines. The petition was docketed as Naturalization Case No. 02-102984.

Attached to the petition were the Joint Affidavit4 of Atty. Artemio Adasa, Jr. and Mark B. Salcedo; and petitioners Certificate of Live
Birth,5 Alien Certificate of Registration,6 and Immigrant Certificate of Residence.7

On March 22, 2002, the RTC issued an Order8 setting the petition for hearing at 8:30 a.m. of December 12 and 17, 2002 during
which all persons concerned were enjoined to show cause, if any, why the petition should not be granted. The entire petition and its
annexes, including the order, were ordered published once a week for three consecutive weeks in the Official Gazette and also in a
newspaper of general circulation in the City of Manila. The RTC likewise ordered that copies of the petition and notice be posted in
public and conspicuous places in the Manila City Hall Building. 9

Petitioner thus caused the publication of the above order, as well as the entire petition and its annexes, in the Official Gazette on
May 20, 200210 and May 27, 2002,11 and in Today, a newspaper of general circulation in the City of Manila, on May 25, 2002 and
June 1, 2002.

No one opposed the petition. During the hearing, petitioner presented Atty. Adasa, Jr. who testified that he came to know petitioner
in 1991 as the legal consultant and adviser of the So familys business. He would usually attend parties and other social functions
hosted by petitioners family. He knew petitioner to be obedient, hardworking, and possessed of good moral character, including all
the qualifications mandated by law. Atty. Adasa, Jr. further testified that petitioner was gainfully employed and presently resides at
No. 528 Lavezares Street, Binondo, Manila; petitioner had been practicing Philippine tradition and those embodied in the
Constitution; petitioner had been socially active, mingled with some of his neighbors and had conducted himself in a proper and
irreproachable manner during his entire stay in the Philippines; and petitioner and his family observed Christmas and New Year and
some occasions such as fiestas. According to the witness, petitioner was not disqualified under C.A. No. 473 to become a Filipino
citizen: he is not opposed to organized government or believes in the use of force; he is not a polygamist and has not been
convicted of a crime involving moral turpitude; neither is he suffering from any mental alienation or any incurable disease. 12

Another witness for petitioner, Mark Salcedo, testified that he has known petitioner for ten (10) years; they first met at a birthday
party in 1991. He and petitioner were classmates at the University of Santo Tomas (UST) where they took up Pharmacy. Petitioner
was a member of some school organizations and mingled well with friends.13Salcedo further testified that he saw petitioner twice a
week, and during fiestas and special occasions when he would go to petitioners house. He has known petitioner to have resided in
Manila since birth. Petitioner is intelligent, a person of good moral character, and believes in the principles of the Philippine
Constitution. Petitioner has a gainful occupation, has conducted himself in a proper and irreproachable manner and has all the
qualifications to become a Filipino citizen.

Petitioner also testified and attempted to prove that he has all the qualifications and none of the disqualifications to become a citizen
of the Philippines.

At the conclusion of his testimonial evidence, petitioner offered in evidence the following documents: (1) Certificate of Live
Birth;14 (2) Alien Certificate of Registration;15 (3) Immigrant Certificate of Residence;16 (4) Elementary Pupils17 and High School
Students18 Permanent Record issued by Chang Kai Shek College; (5) Transcript of Record issued by the University of Santo
Tomas;19 (6) Certification of Part-Time Employment dated November 20, 2002;20 (7) Income Tax Returns and Certificate of
Withholding Tax for the year 2001;21 (8) Certification from Metrobank that petitioner is a depositor; 22 (9) Clearances that he has not
been charged or convicted of any crime involving moral turpitude;23 and (10) Medical Certificates and Psychiatric Evaluation issued
by the Philippine General Hospital.24 The RTC admitted all these in evidence.

The RTC granted the petition on June 4, 2003.25 The fallo of the decision reads:

WHEREFORE, judgment is hereby rendered GRANTING the petition and declaring that petitioner EDISON SO has all the
qualifications and none of the disqualifications to become a Filipino citizen and he is hereby admitted as citizen of the Philippines,
after taking the necessary oath of allegiance, as soon as this decision becomes final, subject to payment of cost of P30,000.00.

SO ORDERED.26

The trial court ruled that the witnesses for petitioner had known him for the period required by law, and they had affirmed that
petitioner had all the qualifications and none of the disqualifications to become a Filipino citizen. Thus, the court concluded that
petitioner had satisfactorily supported his petition with evidence.

Respondent Republic of the Philippines, through the Office of the Solicitor General (OSG), appealed the decision to the CA on the
following grounds:
I.

THE LOWER COURT ERRED IN GRANTING THE PETITION FOR NATURALIZATION DESPITE THE FACT THAT THE TWO (2)
CHARACTER WITNESSES, NAMELY: ARTEMIO ADASA, JR. AND MARK SALCEDO WERE NOT QUALIFIED CHARACTER
WITNESSES.

II.

PETITIONER IS NOT QUALIFIED TO BE ADMITTED AS CITIZEN OF THE PHILIPPINES. 27

Respondent contended that based on the evidence on record, appellee failed to prove that he possesses all the qualifications under
Section 2 and none of the disqualifications under Section 4 of C.A. No. 473. It insisted that his two (2) character witnesses did not
know him well enough to vouch for his fitness to become a Filipino citizen; they merely made general statements without giving
specific details about his character and moral conduct.28The witnesses did not even reside in the same place as
petitioner.29 Respondent likewise argued that petitioner himself failed to prove that he is qualified to become a Filipino citizen
because he did not give any explanation or specific answers to the questions propounded by his lawyer. He merely answered "yes"
or "no" or gave general statements in answer to his counsels questions. Thus, petitioner was unable to prove that he had all the
qualifications and none of the disqualifications required by law to be a naturalized Filipino citizen. 30

On the other hand, petitioner averred that he graduated cum laude from the UST with the degree of Bachelor of Science in
Pharmacy. He is now on his second year as a medical student at the UST Medicine and Surgery. He avers that the requirements for
naturalization under C.A. No. 473, as amended by LOI 270, in relation to Presidential Decree Nos. 836 and 1379, had been relaxed
after the Philippine government entered into diplomatic relations with the Peoples Republic of China; the requirements were further
relaxed when Republic Act (R.A.) No. 9139 was signed into law.31 Petitioner pointed out that the petition, with all its annexes, was
published in the official gazette and a newspaper of general circulation; notices were likewise sent to the National Bureau of
Investigation, Department of Justice, Department of Foreign Affairs, and the OSG. But none from these offices came forward to
oppose the petition before the lower court.32 Petitioner insisted that he has all the qualifications and none of the disqualifications to
become Filipino. This was clearly established by his witnesses.

In its Reply Brief, respondent alleged that R.A. No. 9139 applies to administrative naturalization filed with the Special Committee on
Naturalization. It insisted that even in the absence of any opposition, a petition for naturalization may be dismissed.

In its Decision33 dated August 4, 2005, the CA set aside the ruling of the RTC and dismissed the petition for naturalization without
prejudice.34 According to the CA, petitioners two (2) witnesses were not credible because they failed to mention specific details of
petitioners life or character to show how well they knew him; they merely "parroted" the provisions of the Naturalization Act without
clearly explaining their applicability to petitioners case. 35 The appellate court likewise ruled that petitioner failed to comply with the
requirement of the law that the applicant must not be less than 21 years of age on the day of the hearing of the petition; during the
first hearing on December 12, 2002, petitioner was only twenty (20) years, nine (9) months, and twenty five (25) days old, falling
short of the requirement.36 The CA stated, however, that it was not its intention to forever close the door to any future application for
naturalization which petitioner would file, and that it believes that he would make a good Filipino citizen in due time, a decided asset
to this country.37

Petitioners motion for reconsideration38 was denied in a Resolution39 dated November 24, 2005; hence, the present petition
grounded on the sole issue:

WHETHER OR NOT THE HONORABLE COURT OF APPEALS COMMITTED REVERSIBLE ERROR WHEN IT REVERSED THE
DECISION OF THE REGIONAL TRIAL COURT OF MANILA.40

In support of his petition, petitioner reiterates the arguments he set forth in the Brief filed before the CA.

In its Comment41 on the petition, respondent countered that R.A. No. 9139 (which took effect on August 8, 2001 and where the
applicants age requirement was lowered to eighteen (18) years old), refers only to administrative naturalization filed with the Special
Committee on Naturalization; it does not apply to judicial naturalization before the court, as in the present case. 42 Respondent,
through the OSG, avers that its failure to oppose the petition before the court a quo does not preclude it from appealing the decision
of the RTC to the CA; it is even authorized to question an already final decision by filing a petition for cancellation of
citizenship.43 Lastly, respondent reiterates its argument that petitioners character witnesses are not qualified to prove the formers
qualifications.

In determining whether or not an applicant for naturalization is entitled to become a Filipino citizen, it is necessary to resolve the
following issues: (1) whether or not R.A. No. 9139 applies to petitions for naturalization by judicial act; and (2) whether or not the
witnesses presented by petitioner are "credible" in accordance with the jurisprudence and the definition and guidelines set forth in
C.A. No. 473.
The petition is denied for lack of merit.

Naturalization signifies the act of formally adopting a foreigner into the political body of a nation by clothing him or her with the
privileges of a citizen.44 Under current and existing laws, there are three ways by which an alien may become a citizen by
naturalization: (a) administrative naturalization pursuant to R.A. No. 9139; (b) judicial naturalization pursuant to C.A. No. 473, as
amended; and (c) legislative naturalization in the form of a law enacted by Congress bestowing Philippine citizenship to an alien. 45

Petitioners contention that the qualifications an applicant for naturalization should possess are those provided for in R.A. No. 9139
and not those set forth in C.A. No. 473 is barren of merit. The qualifications and disqualifications of an applicant for naturalization
by judicial act are set forth in Sections 246 and 447 of C.A. No. 473. On the other hand, Sections 348 and 449 of R.A. No. 9139 provide
for the qualifications and disqualifications of an applicant for naturalization by administrative act.

Indeed, R.A. No. 9139 was enacted as a remedial measure intended to make the process of acquiring Philippine citizenship less
tedious, less technical and more encouraging.50 It likewise addresses the concerns of degree holders who, by reason of lack of
citizenship requirement, cannot practice their profession, thus promoting "brain gain" for the Philippines. 51 These however, do not
justify petitioners contention that the qualifications set forth in said law apply even to applications for naturalization by judicial act.

First. C.A. No. 473 and R.A. No. 9139 are separate and distinct laws the former covers all aliens regardless of class while the
latter covers native-born aliens who lived here in the Philippines all their lives, who never saw any other country and all along
thought that they were Filipinos; who have demonstrated love and loyalty to the Philippines and affinity to the customs and
traditions.52 To reiterate, the intention of the legislature in enacting R.A. No. 9139 was to make the process of acquiring Philippine
citizenship less tedious, less technical and more encouraging which is administrative rather than judicial in nature. Thus, although
the legislature believes that there is a need to liberalize the naturalization law of the Philippines, there is nothing from which it can be
inferred that C.A. No. 473 was intended to be amended or repealed by R.A. No. 9139. What the legislature had in mind was merely
to prescribe another mode of acquiring Philippine citizenship which may be availed of by native born aliens. The only implication is
that, a native born alien has the choice to apply for judicial or administrative naturalization, subject to the prescribed qualifications
and disqualifications.

In the instant case, petitioner applied for naturalization by judicial act, though at the time of the filing of his petition, administrative
naturalization under R.A. No. 9139 was already available. Consequently, his application should be governed by C.A. No. 473.

Second. If the qualifications prescribed in R.A. No. 9139 would be made applicable even to judicial naturalization, the coverage of
the law would be broadened since it would then apply even to aliens who are not native born. It must be stressed that R.A. No. 9139
applies only to aliens who were born in the Philippines and have been residing here.

Third. Applying the provisions of R.A. No. 9139 to judicial naturalization is contrary to the intention of the legislature to liberalize the
naturalization procedure in the country. One of the qualifications set forth in R.A. No. 9139 is that the applicant was born in the
Philippines and should have been residing herein since birth. Thus, one who was born here but left the country, though resided for
more than ten (10) years from the filing of the application is also disqualified. On the other hand, if we maintain the distinct
qualifications under each of the two laws, an alien who is not qualified under R.A. No. 9139 may still be naturalized under C.A. No.
473.

Thus, absent a specific provision expressly amending C.A. No. 473, the law stands and the qualifications and disqualifications set
forth therein are maintained.

In any event, petitioner failed to prove that the witnesses he presented were competent to vouch for his good moral character, and
are themselves possessed of good moral character. It must be stressed that character witnesses in naturalization proceedings stand
as insurers of the applicants conduct and character. Thus, they ought to testify on specific facts and events justifying the inference
that the applicant possesses all the qualifications and none of the disqualifications provided by law. 53

Petitioners witnesses, Atty. Adasa and Salcedo, did not testify on his specific acts; they did not elaborate on his traits. Their
testimonies do not convince the Court that they personally know petitioner well and are therefore in a position to vouch for his
qualifications. As correctly found by the CA, the witnesses testimonies consisted mainly of general statements in answer to the
leading questions propounded by his counsel. What they conveniently did was to enumerate the qualifications as set forth in the law
without giving specific details. The pertinent portion of Atty. Adasas testimony follows:

q Do you know the petitioner Edison So?

a Yes, Sir.

q Will you please tell us how did you come to know him?
a Well I came to know him[,] the petitioner[,] when I was the legal consultant and adviser of their family business and I used to ah
(sic) me[e]t him during my visit to their place way back in 1991 to 1992.

q From that day of 1991 up to the present, is your relationship with the petitioner more or less contin[u]ous?

a Yes, sir, because aside from the usual professional visit that I did to their family some social function was sponsored normally and
I am (sic) invited and I used to attend.

q During the birthday party of the petitioner, did you usually attend petitioners birthday?

a On several occasions I attend the birthday.

q Will you please tell us where the petitioner resides at present?

a At present the petitioner resides at No. 528 Lavezares Street, Binondo, Manila.

q Do you know for how long the petitioner resides in the Philippines?

a As far as I personally known (sic) Your Honor is that since birth.

q During all the times that you have know[n] the petitioner, what is your impression of his conduct?

a Well ah (sic) I have personally known him to be obedient and hard working individual and ah (sic) he has a good moral character
and he has been ah (sic) no adverse report concerning the character of the petitioner.

q In your opinion does the petitioner has the qualifications necessary to become [a] citizen of the Philippines?

a Yes.

q Can you tell us why do you say so?

a I would say Your Honor that petitioner has posses (sic) all the qualifications mandated by law and presently he is more than 21
years old and he has resided in the Philippines particularly in the City of Manila contin[u]ously for more than ten (10) years and that
since his birth; and that he has good moral character and I have observed that ah (sic) he has been practicing Philippine traditions
and ah (sic) those embodied in the Philippine constitution and he has been socially active and meddle (sic) some of his neighbors
and ah (sic) I am sure he has desire to embrace and learn the customs and ideas and traditions in the Philippine[s] and as I earlier
mentioned that he conducted himself in proper and approachable (sic) manner during his entire residence in our country and he has
a gainful occupation.

q Will you please tell us what are these customs which the petitioner embraced?

a Well I have observed that ah (sic) together with his family they used to ah observed (sic) the usual Filipino celebration during
Christmas and new year and some occasions such as fiestas.

q And do you know whether petitioner is not disqualified under Commonwealth Act to become Filipino citizen of the Philippines (sic)?

a Ah there has been no incident or occasion which I learned that would disqualify of coming (sic) the citizen of the Republic of the
Philippines. I have noticed that ah (sic) he is qualified under Commonwealth Act 473 as amended because he is not opposed to ah
(sic) organized government. His family and himself does not believed (sic) in the use of force in the success of his ideas and ah (sic)
he is not a poligamist (sic) or believer in the practice of illegal and he has not been convicted in any crime involving him in any crime
(sic). and he is not suffering from any mental alienation or any incurable contidious (sic) disease. as provided for.

q Will you please tell us why you know all these stage?

a Because of ah (sic) the personal attachment with his family we have continuously having ah (sic) the usual contact with his
family.54
It can thus be inferred that Atty. Adasa is close to petitioners family, but not specifically to petitioner. Atty. Adasas statements refer to
his observations on the familys practices and not to petitioner in particular. Nothing in his testimony suggests that he was close to
petitioner and knew him well enough to vouch for his qualifications.

Salcedo, on the other hand, testified thus:

q Now do you know the petitioner in this case Edison So?

a Yes, Sir.

q Are you personally acquainted with him?

a Yes, Sir.

q How long have you known the petitioner?

a I have known him for about ten (10) years, Sir.

q Will you please inform the Honorable court under what circumstances did you come to know the petitioner?

a I met him in a birthday party in 1991, Sir.

q And from 1991 up to the present is your relationship with the petitioner more or less contin[u]ous?

a Yes, Sir.

q How often did you see the petitioner?

a I see him twice a week, Sir.

q And during this time that you met the petitioner, what did you usually do?

a We play some games, Sir. We play Patentero (sic).

q Do you go to church together?

a Yes, Sir.

q During fiestas in your place, did the petitioner go?

a Yes, Sir.

q How about during fiestas in the place where the petitioner reside[s], did you also go during fiestas?

a Yes, Sir.

q During occasion in the house of the petitioner, are you invited?

a Yes, Sir.

q How many time[s] did you go to his (sic) residence of the petitioner?

a Twice a week, sir.

q Will you please tell us where the petitioner resides?


a The petitioner resides at 528 Lavezares Street, Tondo, Manila, Sir.

q For how long does the petitioner reside in that address?

a Since birth, Sir.

q During all the times that you have known the petitioner, will you please tell us your impression of his conduct?

a He is a person of good moral, sir, and he believed in the principles of the Philippines (sic) Constitution.

q Will you please cite one or two of these principles underlined the principles (sic) of the Philippines (sic) Constitution?

a Ah the Philippines is a Republican of the (sic) state, sovereignty preside (sic) over the people and the government authority
emanate from within; and the other one is the civilian government is not supreme over the military.

q Now in your opinion does the petitioner have all the qualifications necessary to become a citizen of the Philippines?

a Yes, Sir.

q What are these qualifications?

a He is at least 21 years old, he is a person of good moral and has been residing in the Philippines since birth.

q What else?

a He must be a Filipino and ah must practice the traditions and customs, Sir.

q Do you know whether the petitioner conducted himself in a proper and appraochable (sic) manner during the period of his
residence in the Philippines?

a Yes, Sir.

q Do you know if the petitioner has a gainful occupation?

a Yes, Sir.

q What is the occupation of the petitioner?

a Ah (sic) he is the secretary in a wood factory in Commonwealth, Sir.

q And aside from being the secretary, what else did the petitioner do?

a He help (sic) in the factory cargo, Sir.

q Is the petitioner still a student?

a Yes, Sir.

q Where is he studying?

a In UST, Sir.

q Is he your classmate?

a Yes, Sir.
q What was his course?

a Pharmacy, Sir.

q So when you said he was the secretary he only works as part time secretary?

a Yes, Sir.

q You said the petitioner meddle (sic) socially with the Filipinos?

a Yes, Sir.

q Will you please name at least one of those Filipinos the petitioner meddle (sic) with?

a Samuel Falmera, Sir, Marlon Kahocom, Sir.

q Who else?

a Elmer Ramos, Sir.

q Who else?

a Sharmaine Santos, Sir.

q You said the petitioner is of good moral character?

a Yes, Sir.

q Why do you know that?

a As a classmate I can see him I go with him and ah (sic) I can see that he has ah better approached (sic) with other people and I
can see that he mixed very well with friends.

q So during school days you see him everyday?

a Yes, Sir.

q When there are no classes during the vacation you see the petitioner twice a week?

a Yes, Sir.

q Does the petitioner (sic), do you think the petitioner is not disqualified to become the citizen of the Republic of the Philippines?

a Yes, Sir, he is not disqualified, Sir.

q Why do you say that he is not disqualified?

a Because he abide [by] any law in the government, sir, ah (sic) he is not polygamus and he is not convicted of any crime, Sir.

q Do you know ever the petitioner oppose to any organized government?

a No, Sir.

q Do you know whether he believe[s] in the use of force in any such ideas?

a No, Sir.
q Do you know if the petitioner is a believer in the practice of polygamy?

a No, Sir.

q Do you know whether the petitioner suffer[s] from mental alienation or incurable disease illnesses?

a No, Sir.

q Why do you know?

a I know him personally, sir, I have been with him as my classmate, sir and ah (sic) he is a very intelligent person, Sir.

q Is the petitioner a member also of any organization or association in your school?

a Yes, Sir.

q What organization?

a He is a member of Wishten and a member of starget, Sir.

q What does starget means?

a Starget is an organization of Chinese community in UST, Sir.

q How about the other one which you mentioned?

a Ah (sic) these are twisting, sir he represents the ah the (sic) school intercollegiate, Sir.55

Again, Salcedo did not give specific details on petitioners qualifications.

In sum, petitioners witnesses clearly did not personally know him well enough; their testimonies do not satisfactorily establish that
petitioner has all the qualifications and none of the disqualifications prescribed by law.

In naturalization proceedings, it is the burden of the applicant to prove not only his own good moral character but also the good
moral character of his/her witnesses, who must be credible persons.56 Within the purview of the naturalization law, a "credible
person" is not only an individual who has not been previously convicted of a crime; who is not a police character and has no police
record; who has not perjured in the past; or whose affidavit or testimony is not incredible. What must be credible is not the
declaration made but the person making it. This implies that such person must have a good standing in the community; that he is
known to be honest and upright; that he is reputed to be trustworthy and reliable; and that his word may be taken on its face value,
as a good warranty of the applicants worthiness.57

The records likewise do not show that the character witnesses of petitioner are persons of good standing in the community; that they
are honest and upright, or reputed to be trustworthy and reliable. The most that was established was the educational attainment of
the witnesses; however, this cannot be equated with their credibility. In fine, petitioner focused on presenting evidence tending to
build his own good moral character and neglected to establish the credibility and good moral character of his witnesses. 58

We do not agree with petitioners argument that respondent is precluded from questioning the RTC decision because of its failure to
oppose the petition. A naturalization proceeding is not a judicial adversary proceeding, and the decision rendered therein does not
constitute res judicata. A certificate of naturalization may be cancelled if it is subsequently discovered that the applicant obtained it
by misleading the court upon any material fact. Law and jurisprudence even authorize the cancellation of a certificate of
naturalization upon grounds or conditions arising subsequent to the granting of the certificate.59 If the government can challenge a
final grant of citizenship, with more reason can it appeal the decision of the RTC within the reglementary period despite its failure to
oppose the petition before the lower court.

Thus, petitioner failed to show full and complete compliance with the requirements of naturalization law. For this reason, we affirm
the decision of the CA denying the petition for naturalization without prejudice.

It must be stressed that admission to citizenship is one of the highest privileges that the Republic of the Philippines can confer upon
an alien. It is a privilege that should not be conferred except upon persons fully qualified for it, and upon strict compliance with the
law.60
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit.

SO ORDERED.

ROMEO J. CALLEJO, SR.


Associate Justice

WE CONCUR:

G.R. No. 199113, March 18, 2015 - RENATO M. DAVID, Petitioner, v. EDITHA A. AGBAY AND PEOPLE OF THE
PHILIPPINES, Respondents.

THIRD DIVISION

G.R. No. 199113, March 18, 2015

RENATO M. DAVID, Petitioner, v. EDITHA A. AGBAY AND PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

VILLARAMA, JR., J.:

This is a petition for review under Rule 45 seeking to reverse the Order1 dated October 8, 2011 of the Regional
Trial Court (RTC) of Pinamalayan, Oriental Mindoro, which denied the petition for certiorari filed by Renato M. David
(petitioner). Petitioner assailed the Order2 dated March 22, 2011 of the Municipal Trial Court (MTC) of Socorro,
Oriental Mindoro denying his motion for redetermination of probable cause.

The factual antecedents:chanRoblesvirtualLawlibrary

In 1974, petitioner migrated to Canada where he became a Canadian citizen by naturalization. Upon their
retirement, petitioner and his wife returned to the Philippines. Sometime in 2000, they purchased a 600-square
meter lot along the beach in Tambong, Gloria, Oriental Mindoro where they constructed a residential house.
However, in the year 2004, they came to know that the portion where they built their house is public land and part
of the salvage zone.

On April 12, 2007, petitioner filed a Miscellaneous Lease Application 3 (MLA) over the subject land with the
Department of Environment and Natural Resources (DENR) at the Community Environment and Natural Resources
Office (CENRO) in Socorro. In the said application, petitioner indicated that he is a Filipino citizen.

Private respondent Editha A. Agbay opposed the application on the ground that petitioner, a Canadian citizen, is
disqualified to own land. She also filed a criminal complaint for falsification of public documents under Article 172 of
the Revised Penal Code (RPC) (I.S. No. 08-6463) against the petitioner.

Meanwhile, petitioner re-acquired his Filipino citizenship under the provisions of Republic Act No. 9225, 4 (R.A.
9225) as evidenced by Identification Certificate No. 266-10-07 5 issued by the Consulate General of the Philippines
(Toronto) on October 11, 2007.

In his defense, petitioner averred that at the time he filed his application, he had intended to re-acquire Philippine
citizenship and that he had been assured by a CENRO officer that he could declare himself as a Filipino. He further
alleged that he bought the property from the Agbays who misrepresented to him that the subject property was
titled land and they have the right and authority to convey the same. The dispute had in fact led to the institution
of civil and criminal suits between him and private respondents family.

On January 8, 2008,6 the Office of the Provincial Prosecutor issued its Resolution 7 finding probable cause to indict
petitioner for violation of Article 172 of the RPC and recommending the filing of the corresponding information in
court. Petitioner challenged the said resolution in a petition for review he filed before the Department of Justice
(DOJ).

On June 3, 2008, the CENRO issued an order rejecting petitioners MLA. It ruled that petitioners subsequent re-
acquisition of Philippine citizenship did not cure the defect in his MLA which was void ab
initio.8chanroblesvirtuallawlibrary

In the meantime, on July 26, 2010, the petition for review filed by petitioner was denied by the DOJ which held
that the presence of the elements of the crime of falsification of public document suffices to warrant indictment of
the petitioner notwithstanding the absence of any proof that he gained or intended to injure a third person in
committing the act of falsification.9 Consequently, an information for Falsification of Public Document was filed
before the MTC (Criminal Case No. 2012) and a warrant of arrest was issued against the petitioner.

On February 11, 2011, after the filing of the Information and before his arrest, petitioner filed an Urgent Motion for
Re-Determination of Probable Cause10 in the MTC. Interpreting the provisions of the law relied upon by petitioner,
the said court denied the motion, holding that R.A. 9225 makes a distinction between those who became foreign
citizens during its effectivity, and those who lost their Philippine citizenship before its enactment when the
governing law was Commonwealth Act No. 6311(CA 63). Since the crime for which petitioner was charged was
alleged and admitted to have been committed on April 12, 2007 before he had re-acquired his Philippine
citizenship, the MTC concluded that petitioner was at that time still a Canadian citizen. Thus, the MTC
ordered:chanRoblesvirtualLawlibrary
WHEREFORE, for lack of jurisdiction over the person of the accused, and for lack of merit, the motion is DENIED.

SO ORDERED.12
In his motion for reconsideration,13 petitioner questioned the foregoing order denying him relief on the ground of
lack of jurisdiction and insisted that the issue raised is purely legal. He argued that since his application had yet to
receive final evaluation and action by the DENR Region IV-B office in Manila, it is academic to ask the citizenship of
the applicant (petitioner) who had re-acquired Philippine citizenship six months after he applied for lease of public
land. The MTC denied the motion for reconsideration. 14chanroblesvirtuallawlibrary

Dissatisfied, petitioner elevated the case to the RTC via a petition 15 for certiorari under Rule 65, alleging grave
abuse of discretion on the part of the MTC. He asserted that first, jurisdiction over the person of an accused cannot
be a pre-condition for the re-determination of probable cause by the court that issues a warrant of arrest;
and second, the March 22, 2011 Order disregarded the legal fiction that once a natural-born Filipino citizen who
had been naturalized in another country re-acquires his citizenship under R.A. 9225, his Filipino citizenship is thus
deemed not to have been lost on account of said naturalization.

In his Comment and Opposition,16 the prosecutor emphasized that the act of falsification was already consummated
as petitioner has not yet re-acquired his Philippine citizenship, and his subsequent oath to re-acquire Philippine
citizenship will only affect his citizenship status and not his criminal act which was long consummated prior to said
oath of allegiance.

On October 8, 2011, the RTC issued the assailed Order denying the petition for certiorari after finding no grave
abuse of discretion committed by the lower court, thus:chanRoblesvirtualLawlibrary
ACCORDINGLY, the petition is hereby DENIED. At any rate petitioner is not left without any remedy or recourse
because he can proceed to trial where he can make use of his claim to be a Filipino citizen as his defense to be
adjudicated in a full blown trial, and in case of conviction, to appeal such conviction.

SO ORDERED.17
Petitioner is now before us arguing that

A. By supporting the prosecution of the petitioner for falsification, the lower court has disregarded
the undisputed fact that petitioner is a natural-born Filipino citizen, and that by re-acquiring the
same status under R.A. No. 9225 he was by legal fiction deemed not to have lost it at the time
of his naturalization in Canada and through the time when he was said to have falsely claimed
Philippine citizenship.
B. By compelling petitioner to first return from his legal residence in Canada and to surrender or
allow himself to be arrested under a warrant for his alleged false claim to Philippine citizenship,
the lower court has pre-empted the right of petitioner through his wife and counsel to question
the validity of the said warrant of arrest against him before the same is implemented, which is
tantamount to a denial of due process.18

In his Comment, the Solicitor General contends that petitioners argument regarding the retroactivity of R.A. 9225
is without merit. It is contended that this Courts rulings in Frivaldo v. Commission on Elections19 and Altarejos v.
Commission on Elections20 on the retroactivity of ones re-acquisition of Philippine citizenship to the date of filing
his application therefor cannot be applied to the case of herein petitioner. Even assuming for the sake of argument
that such doctrine applies in the present situation, it will still not work for petitioners cause for the simple reason
that he had not alleged, much less proved, that he had already applied for reacquisition of Philippine citizenship
before he made the declaration in the Public Land Application that he is a Filipino. Moreover, it is stressed that in
falsification of public document, it is not necessary that the idea of gain or intent to injure a third person be
present. As to petitioners defense of good faith, such remains to be a defense which may be properly raised and
proved in a full-blown trial.

On the issue of jurisdiction over the person of accused (petitioner), the Solicitor General opines that in seeking an
affirmative relief from the MTC when he filed his Urgent Motion for Re-determination of Probable Cause, petitioner
is deemed to have submitted his person to the said courts jurisdiction by his voluntary appearance. Nonetheless,
the RTC correctly ruled that the lower court committed no grave abuse of discretion in denying the petitioners
motion after a judicious, thorough and personal evaluation of the parties arguments contained in their respective
pleadings, and the evidence submitted before the court.

In sum, the Court is asked to resolve whether (1) petitioner may be indicted for falsification for representing
himself as a Filipino in his Public Land Application despite his subsequent re-acquisition of Philippine citizenship
under the provisions of R.A. 9225; and (2) the MTC properly denied petitioners motion for re-determination of
probable cause on the ground of lack of jurisdiction over the person of the accused (petitioner).

R.A. 9225, otherwise known as the Citizenship Retention and Re-acquisition Act of 2003, was signed into law by
President Gloria Macapagal-Arroyo on August 29, 2003. Sections 2 and 3 of said law
read:chanRoblesvirtualLawlibrary
SEC. 2. Declaration of Policy.It is hereby declared the policy of the State that all Philippine citizens who become
citizens of another country shall be deemed not to have lost their Philippine citizenship under the
conditions of this Act.

SEC. 3. Retention of Philippine Citizenship.Any provision of law to the contrary notwithstanding, natural-born
citizens of the Philippines who have lost their Philippine citizenship by reason of their naturalization as citizens of a
foreign country are hereby deemed to have reacquired Philippine citizenship upon taking the following oath
of allegiance to the Republic:chanRoblesvirtualLawlibrary
I ______________________, solemnly swear (or affirm) that I will support and defend the Constitution of the
Republic of the Philippines and obey the laws and legal orders promulgated by the duly constituted authorities of
the Philippines; and I hereby declare that I recognize and accept the supreme authority of the Philippines and will
maintain true faith and allegiance thereto; and that I impose this obligation upon myself voluntarily without mental
reservation or purpose of evasion.
Natural-born citizens of the Philippines who, after the effectivity of this Act, become citizens of a foreign
country shall retain their Philippine citizenship upon taking the aforesaid oath. (Emphasis supplied)
While Section 2 declares the general policy that Filipinos who have become citizens of another country shall be
deemed not to have lost their Philippine citizenship, such is qualified by the phrase under the conditions of this
Act. Section 3 lays down such conditions for two categories of natural-born Filipinos referred to in the first and
second paragraphs. Under the first paragraph are those natural-born Filipinos who have lost their citizenship by
naturalization in a foreign country who shall re-acquire their Philippine citizenship upon taking the oath of
allegiance to the Republic of the Philippines. The second paragraph covers those natural-born Filipinos who became
foreign citizens after R.A. 9225 took effect, who shall retain their Philippine citizenship upon taking the same oath.
The taking of oath of allegiance is required for both categories of natural-born Filipino citizens who became citizens
of a foreign country, but the terminology used is different, re-acquired for the first group, and retain for the
second group.

The law thus makes a distinction between those natural-born Filipinos who became foreign citizens before and after
the effectivity of R.A. 9225. Although the heading of Section 3 is Retention of Philippine Citizenship, the authors
of the law intentionally employed the terms re-acquire and retain to describe the legal effect of taking the oath
of allegiance to the Republic of the Philippines. This is also evident from the title of the law using both re-
acquisition and retention.

In fine, for those who were naturalized in a foreign country, they shall be deemed to have re-acquired their
Philippine citizenship which was lost pursuant to CA 63, under which naturalization in a foreign country is one of
the ways by which Philippine citizenship may be lost. As its title declares, R.A. 9225 amends CA 63 by doing away
with the provision in the old law which takes away Philippine citizenship from natural-born Filipinos who become
naturalized citizens of other countries and allowing dual citizenship, 21 and also provides for the procedure for re-
acquiring and retaining Philippine citizenship. In the case of those who became foreign citizens after R.A. 9225 took
effect, they shall retain Philippine citizenship despite having acquired foreign citizenship provided they took the
oath of allegiance under the new law.

Petitioner insists we should not distinguish between re-acquisition and retention in R.A. 9225. He asserts that in
criminal cases, that interpretation of the law which favors the accused is preferred because it is consistent with the
constitutional presumption of innocence, and in this case it becomes more relevant when a seemingly difficult
question of law is expected to have been understood by the accused, who is a non-lawyer, at the time of the
commission of the alleged offense. He further cites the letter-reply dated January 31, 2011 22 of the Bureau of
Immigration (BI) to his query, stating that his status as a natural-born Filipino will be governed by Section 2 of
R.A. 9225.

These contentions have no merit.

That the law distinguishes between re-acquisition and retention of Philippine citizenship was made clear in the
discussion of the Bicameral Conference Committee on the Disagreeing Provisions of House Bill No. 4720 and
Senate Bill No. 2130 held on August 18, 2003, where Senator Franklin Drilon was responding to the query of
Representative Exequiel Javier:chanRoblesvirtualLawlibrary
REP. JAVIER. I have some questions in Section 3. Here, under Section 3 of the Senate version, Any provision of
law on the contrary notwithstanding, natural-born citizens of the Philippines who, after the effectivity of this Act,
shall and so forth, ano, shall retain their Philippine citizenship.

Now in the second paragraph, natural-born citizens who have lost their citizenship by reason of their naturalization
after the effectivity of this Act are deemed to have reacquired

THE CHAIRMAN (SEN. DRILON). Prior to the effectivity.

REP. JAVIER. Well, you have two kinds of natural-born citizens here. Natural-born citizens who acquired foreign
citizenship after the effectivity of this act are considered to have retained their citizenship. But natural-born citizens
who lost their Filipino citizenship before the effectivity of this act are considered to have reacquired. May I know
the distinction? Do you mean to say that natural-born citizens who became, lets say, American citizens after the
effectivity of this act are considered natural-born?

Now in the second paragraph are the natural-born citizens who lost their citizenship before the effectivity of this act
are no longer natural born citizens because they have just reacquired their citizenship. I just want to know this
distinction, Mr. Chairman.

THE CHAIRMAN (SEN. DRILON). The title of the Senate version is precisely retention and reacquisition. The
reacquisition will apply to those who lost their Philippine citizenship by virtue of Commonwealth Act
63. Upon the effectivity -- assuming that we can agree on this, upon the effectivity of this new measure amending
Commonwealth Act 63, the Filipinos who lost their citizenship is deemed to have reacquired their Philippine
citizenship upon the effectivity of the act.

The second aspect is the retention of Philippine citizenship applying to future instances. So thats the
distinction.

REP. JAVIER. Well, Im just asking this question because we are here making distinctions between natural-born
citizens. Because this is very important for certain government positions, no, because natural-born citizens are
only qualified for a specific

THE CHAIRMAN (SEN. DRILON). That is correct.

REP. JAVIER. ...positions under the Constitution and under the law.

THE CHAIRMAN (SEN. DRILON). Yes. We can get to that later on. Its one of the provisions, yes. But just for
purposes of the explanation, Congressman Javier, that is our conceptualization. Reacquired for those who
previously lost [Filipino citizenship] by virtue of Commonwealth Act 63, and retention for those in the
future. (Emphasis supplied)
Considering that petitioner was naturalized as a Canadian citizen prior to the effectivity of R.A. 9225, he belongs to
the first category of natural-born Filipinos under the first paragraph of Section 3 who lost Philippine citizenship by
naturalization in a foreign country. As the new law allows dual citizenship, he was able to re-acquire his Philippine
citizenship by taking the required oath of allegiance.

For the purpose of determining the citizenship of petitioner at the time of filing his MLA, it is not necessary to
discuss the rulings in Frivaldo and Altarejos on the retroactivity of such reacquisition because R.A. 9225 itself treats
those of his category as having already lost Philippine citizenship, in contradistinction to those natural-born
Filipinos who became foreign citizens after R.A. 9225 came into force. In other words, Section 2 declaring the
policy that considers Filipinos who became foreign citizens as not to have lost their Philippine citizenship, should be
read together with Section 3, the second paragraph of which clarifies that such policy governs all cases after the
new laws effectivity.

As to the letter-reply of BI, it simply quoted Section 2 of R.A. 9225 without any reference to Section 3 on the
particular application of reacquisition and retention to Filipinos who became foreign citizens before and after the
effectivity of R.A. 9225.

Petitioners plea to adopt the interpretation most favorable to the accused is likewise misplaced. Courts adopt an
interpretation more favorable to the accused following the time-honored principle that penal statutes are construed
strictly against the State and liberally in favor of the accused. 23R.A. 9225, however, is not a penal law.

Falsification of documents under paragraph 1, Article 172 24 in relation to Article 17125 of the RPC refers to
falsification by a private individual, or a public officer or employee who did not take advantage of his official
position, of public, private, or commercial documents. The elements of falsification of documents under paragraph
1, Article 172 of the RPC are:chanRoblesvirtualLawlibrary
(1) that the offender is a private individual or a public officer or employee who did not take advantage of his
official position;

(2) that he committed any of the acts of falsification enumerated in Article 171 of the RPC; and

(3) that the falsification was committed in a public, official or commercial document. 26
Petitioner made the untruthful statement in the MLA, a public document, that he is a Filipino citizen at the time of
the filing of said application, when in fact he was then still a Canadian citizen. Under CA 63, the governing law at
the time he was naturalized as Canadian citizen, naturalization in a foreign country was among those ways by
which a natural-born citizen loses his Philippine citizenship. While he re-acquired Philippine citizenship under R.A.
9225 six months later, the falsification was already a consummated act, the said law having no retroactive effect
insofar as his dual citizenship status is concerned. The MTC therefore did not err in finding probable cause for
falsification of public document under Article 172, paragraph 1.

The MTC further cited lack of jurisdiction over the person of petitioner accused as ground for denying petitioners
motion for re-determination of probable cause, as the motion was filed prior to his arrest. However, custody of the
law is not required for the adjudication of reliefs other than an application for bail. 27 In Miranda v. Tuliao,28 which
involved a motion to quash warrant of arrest, this Court discussed the distinction between custody of the law and
jurisdiction over the person, and held that jurisdiction over the person of the accused is deemed waived when he
files any pleading seeking an affirmative relief, except in cases when he invokes the special jurisdiction of the court
by impugning such jurisdiction over his person. Thus:chanRoblesvirtualLawlibrary
In arguing, on the other hand, that jurisdiction over their person was already acquired by their filing of the above
Urgent Motion, petitioners invoke our pronouncement, through Justice Florenz D. Regalado, in Santiago v.
Vasquez:chanRoblesvirtualLawlibrary
The voluntary appearance of the accused, whereby the court acquires jurisdiction over his person, is accomplished
either by his pleading to the merits (such as by filing a motion to quash or other pleadings requiring the exercise of
the courts jurisdiction thereover, appearing for arraignment, entering trial) or by filing bail. On the matter of bail,
since the same is intended to obtain the provisional liberty of the accused, as a rule the same cannot be posted
before custody of the accused has been acquired by the judicial authorities either by his arrest or voluntary
surrender.cralawred
Our pronouncement in Santiago shows a distinction between custody of the law and jurisdiction over the person.
Custody of the law is required before the court can act upon the application for bail, but is not required for the
adjudication of other reliefs sought by the defendant where the mere application therefor constitutes a waiver of
the defense of lack of jurisdiction over the person of the accused. Custody of the law is accomplished either by
arrest or voluntary surrender, while jurisdiction over the person of the accused is acquired upon his arrest or
voluntary appearance. One can be under the custody of the law but not yet subject to the jurisdiction of the court
over his person, such as when a person arrested by virtue of a warrant files a motion before arraignment to quash
the warrant. On the other hand, one can be subject to the jurisdiction of the court over his person, and yet not be
in the custody of the law, such as when an accused escapes custody after his trial has commenced. Being in the
custody of the law signifies restraint on the person, who is thereby deprived of his own will and liberty, binding him
to become obedient to the will of the law. Custody of the law is literally custody over the body of the accused. It
includes, but is not limited to, detention.
xxxx

While we stand by our above pronouncement in Pico insofar as it concerns bail, we clarify that, as a general rule,
one who seeks an affirmative relief is deemed to have submitted to the jurisdiction of the court. As we
held in the aforecited case of Santiago, seeking an affirmative relief in court, whether in civil or
criminal proceedings, constitutes voluntary appearance.

xxxx

To recapitulate what we have discussed so far, in criminal cases, jurisdiction over the person of the accused
is deemed waived by the accused when he files any pleading seeking an affirmative relief, except in
cases when he invokes the special jurisdiction of the court by impugning such jurisdiction over his
person. Therefore, in narrow cases involving special appearances, an accused can invoke the processes of the
court even though there is neither jurisdiction over the person nor custody of the law. However, if a person
invoking the special jurisdiction of the court applies for bail, he must first submit himself to the custody of the
law.29 (Emphasis supplied)
Considering that petitioner sought affirmative relief in filing his motion for re-determination of probable cause, the
MTC clearly erred in stating that it lacked jurisdiction over his person. Notwithstanding such erroneous ground
stated in the MTCs order, the RTC correctly ruled that no grave abuse of discretion was committed by the MTC in
denying the said motion for lack of merit.

WHEREFORE, the petition is DENIED. The Order dated October 8, 2011 of the Regional Trial Court of
Pinamalayan, Oriental Mindoro in Civil Case No. SCA-07-11 (Criminal Case No. 2012) is hereby AFFIRMED and
UPHELD.
With costs against the petitioner.

Republic of the Philippines


SUPREME COURT
Manila

EN BANC

G.R. No. 195649 July 2, 2013

CASAN MACODE MACQUILING, PETITIONER,


vs.
COMMISSION ON ELECTIONS, ROMMEL ARNADO Y CAGOCO, AND LINOG G. BALUA. RESPONDENTS.

RESOLUTION

SERENO, J.:

This Resolution resolves the Motion for Reconsideration filed by respondent on May 10, 2013 and the Supplemental Motion for
Reconsideration filed on May 20, 2013.

We are not unaware that the term of office of the local officials elected in the May 2010 elections has already ended on June 30,
2010. Arnado, therefore, has successfully finished his term of office. While the relief sought can no longer be granted, ruling on the
motion for reconsideration is important as it will either affirm the validity of Arnados election or affirm that Arnado never qualified to
run for public office.

Respondent failed to advance any argument to support his plea for the reversal of this Courts Decision dated April 16, 2013.
Instead, he presented his accomplishments as the Mayor of Kauswagan, Lanao del Norte and reiterated that he has taken the Oath
of Allegiance not only twice but six times. It must be stressed, however, that the relevant question is the efficacy of his renunciation
of his foreign citizenship and not the taking of the Oath of Allegiance to the Republic of the Philippines. Neither do his
accomplishments as mayor affect the question before this Court.

Respondent cites Section 349 of the Immigration and Naturalization Act of the United States as having the effect of expatriation
when he executed his Affidavit of Renunciation of American Citizenship on April 3, 2009 and thus claims that he was divested of his
American citizenship. If indeed, respondent was divested of all the rights of an American citizen, the fact that he was still able to use
his US passport after executing his Affidavit of Renunciation repudiates this claim.
The Court cannot take judicial notice of foreign laws,1 which must be presented as public documents2 of a foreign country and must
be "evidenced by an official publication thereof."3 Mere reference to a foreign law in a pleading does not suffice for it to be
considered in deciding a case.

Respondent likewise contends that this Court failed to cite any law of the United States "providing that a person who is divested of
American citizenship thru an Affidavit of Renunciation will re-acquire such American citizenship by using a US Passport issued prior
to expatriation."4

American law does not govern in this jurisdiction. Instead, Section 40(d) of the Local Government Code calls for application in the
case before us, given the fact that at the time Arnado filed his certificate of candidacy, he was not only a Filipino citizen but, by his
own declaration, also an American citizen. It is the application of this law and not of any foreign law that serves as the basis for
Arnados disqualification to run for any local elective position.

With all due respect to the dissent, the declared policy of Republic Act No. (RA) 9225 is that "all Philippine citizens who become
citizens of another country shall be deemed not to have lost their Philippine citizenship under the conditions of this Act." 5 This policy
pertains to the reacquisition of Philippine citizenship. Section 5(2)6 requires those who have re-acquired Philippine citizenship and
who seek elective public office, to renounce any and all foreign citizenship.

This requirement of renunciation of any and all foreign citizenship, when read together with Section 40(d) of the Local Government
Code7 which disqualifies those with dual citizenship from running for any elective local position, indicates a policy that anyone who
seeks to run for public office must be solely and exclusively a Filipino citizen. To allow a former Filipino who reacquires Philippine
citizenship to continue using a foreign passport which indicates the recognition of a foreign state of the individual as its national
even after the Filipino has renounced his foreign citizenship, is to allow a complete disregard of this policy.

Further, we respectfully disagree that the majority decision rules on a situation of doubt.

Indeed, there is no doubt that Section 40(d) of the Local Government Code disqualifies those with dual citizenship from running for
local elective positions.

There is likewise no doubt that the use of a passport is a positive declaration that one is a citizen of the country which issued the
passport, or that a passport proves that the country which issued it recognizes the person named therein as its national.

It is unquestioned that Arnado is a natural born Filipino citizen, or that he acquired American citizenship by naturalization. There is
no doubt that he reacquired his Filipino citizenship by taking his Oath of Allegiance to the Philippines and that he renounced his
American citizenship. It is also indubitable that after renouncing his American citizenship, Arnado used his U.S. passport at least six
times.

If there is any remaining doubt, it is regarding the efficacy of Arnados renunciation of his American citizenship when he
subsequently used his U.S. passport. The renunciation of foreign citizenship must be complete and unequivocal. The requirement
that the renunciation must be made through an oath emphasizes the solemn duty of the one making the oath of renunciation to
remain true to what he has sworn to. Allowing the subsequent use of a foreign passport because it is convenient for the person to do
so is rendering the oath a hollow act. It devalues the act of taking of an oath, reducing it to a mere ceremonial formality.

The dissent states that the Court has effectively left Arnado "a man without a country".1wphi1 On the contrary, this Court has, in
fact, found Arnado to have more than one. Nowhere in the decision does it say that Arnado is not a Filipino citizen. What the
decision merely points out is that he also possessed another citizenship at the time he filed his certificate of candidacy.

Well-settled is the rule that findings of fact of administrative bodies will not be interfered with by the courts in the absence of grave
abuse of discretion on the part of said agencies, or unless the aforementioned findings are not supported by substantial
evidence.8 They are accorded not only great respect but even finality, and are binding upon this Court, unless it is shown that the
administrative body had arbitrarily disregarded or misapprehended evidence before it to such an extent as to compel a contrary
conclusion had such evidence been properly appreciated.9

Nevertheless, it must be emphasized that COMELEC First Division found that Arnado used his U.S. Passport at least six times after
he renounced his American citizenship. This was debunked by the COMELEC En Banc, which found that Arnado only used his U.S.
passport four times, and which agreed with Arnados claim that he only used his U.S. passport on those occasions because his
Philippine passport was not yet issued. The COMELEC En Banc argued that Arnado was able to prove that he used his Philippine
passport for his travels on the following dates: 12 January 2010, 31 January 2010, 31 March 2010, 16 April 2010, 20 May 2010, and
4 June 2010.

None of these dates coincide with the two other dates indicated in the certification issued by the Bureau of Immigration showing that
on 21 January 2010 and on 23 March 2010, Arnado arrived in the Philippines using his U.S. Passport No. 057782700 which also
indicated therein that his nationality is USA-American. Adding these two travel dates to the travel record provided by the Bureau of
Immigration showing that Arnado also presented his U.S. passport four times (upon departure on 14 April 2009, upon arrival on 25
June 2009, upon departure on 29 July 2009 and upon arrival on 24 November 2009), these incidents sum up to six.

The COMELEC En Banc concluded that "the use of the US passport was because to his knowledge, his Philippine passport was not
yet issued to him for his use."10 This conclusion, however, is not supported by the facts. Arnado claims that his Philippine passport
was issued on 18 June 2009. The records show that he continued to use his U.S. passport even after he already received his
Philippine passport. Arnados travel records show that he presented his U.S. passport on 24 November 2009, on 21 January 2010,
and on 23 March 2010. These facts were never refuted by Arnado.

Thus, the ruling of the COMELEC En Banc is based on a misapprehension of the facts that the use of the U.S. passport was
discontinued when Arnado obtained his Philippine passport. Arnados continued use of his U.S. passport cannot be considered as
isolated acts contrary to what the dissent wants us to believe.

It must be stressed that what is at stake here is the principle that only those who are exclusively Filipinos are qualified to run for
public office. If we allow dual citizens who wish to run for public office to renounce their foreign citizenship and afterwards continue
using their foreign passports, we are creating a special privilege for these dual citizens, thereby effectively junking the prohibition in
Section 40(d) of the Local Government Code.

WHEREFORE, the Motion for Reconsideration and the Supplemental Motion for Reconsideration are hereby DENIED with finality.

SO ORDERED.

Carpio, Velasco, Jr., Peralta, Bersamin, Abad, Villarama, Jr., Perez, Reyes, and Perlas-Bernabe, JJ., concur.
Leonardo-De Castro, Del Castillo, Mendoza, and Leonen, JJ., joins the dissent of J. Brion.
Brion, J., I dissent.

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