Republic of the Philippines

SUPREME COURT
Baguio City

EN BANC

G.R. No. 132922 April 21, 1998

TELECOMMUNICATIONS AND BROADCAST ATTORNEYS OF THE PHILIPPINES, INC.

and GMA NETWORK, INC., petitioners,
vs.
THE COMMISSION ON ELECTIONS, respondent.

MENDOZA, J.:

In Osmea v. COMELEC, G.R. No. 132231, decided March 31, 1998, we upheld the validity
1

of 11(b) of R.A. No. 6646 which prohibits the sale or donation of print space or air time for
political ads, except to the Commission on Elections under 90, of B.P. No. 881, the
Omnibus Election Code, with respect to print media, and 92, with respect to broadcast
media. In the present case, we consider the validity of 92 of B.P. Blg. No. 881 against
claims that the requirement that radio and television time be given free takes property without
due process of law; that it violates the eminent domain clause of the Constitution which
provides for the payment of just compensation; that it denies broadcast media the equal
protection of the laws; and that, in any event, it violates the terms of the franchise of petitioner
GMA Network, Inc.

Petitioner Telecommunications and Broadcast Attorneys of the Philippines, Inc. is an

organization of lawyers of radio and television broadcasting companies. They are suing as
citizens, taxpayers, and registered voters. The other petitioner, GMA Network, Inc., operates
radio and television broadcasting stations throughout the Philippines under a franchise
granted by Congress.

Petitioners challenge the validity of 92 on the ground (1) that it takes property without due
process of law and without just compensation; (2) that it denies radio and television
broadcast companies the equal protection of the laws; and (3) that it is in excess of the power
given to the COMELEC to supervise or regulate the operation of media of communication or
information during the period of election.

The Question of Standing

At the threshold of this suit is the question of standing of petitioner Telecommunications and
Broadcast Attorneys of the Philippines, Inc. (TELEBAP). As already noted, its members
assert an interest as lawyers of radio and television broadcasting companies and as citizens,
taxpayers, and registered voters.

In those cases in which citizens were authorized to sue, this Court upheld their standing in
2

view of the "transcendental importance" of the constitutional question raised which justified
the granting of relief. In contrast, in the case at bar, as will presently be shown, petitioner's
substantive claim is without merit. To the extent, therefore, that a party's standing is
determined by the substantive merit of his case or preliminary estimate thereof, petitioner
TELEBAP must be held to be without standing. Indeed, a citizen will be allowed to raise a
constitutional question only when he can show that he has personally suffered some actual
or threatened injury as a result of the allegedly illegal conduct of the government; the injury
fairly is fairly traceable to the challenged action; and the injury is likely to be redressed by a
favorable action. Members of petitioner have not shown that they have suffered harm as a
3

result of the operation of 92 of B.P. Blg. 881.

Nor do members of petitioner TELEBAP have an interest as registered voters since this case
does not concern their right of suffrage. Their interest in 92 of B.P. Blg. 881 should be
precisely in upholding its validity.

Much less do they have an interest as taxpayers since this case does not involve the
exercise by Congress of its taxing or spending power. A party suing as a taxpayer must
4

specifically show that he has a sufficient interest in preventing the illegal expenditure of
money raised by taxation and that he will sustain a direct injury as a result of the enforcement
of the questioned statute.

Nor indeed as a corporate entity does TELEBAP have standing to assert the rights of radio
and television broadcasting companies. Standing jus tertii will be recognized only if it can be
shown that the party suing has some substantial relation to the third party, or that the third
party cannot assert his constitutional right, or that the eight of the third party will be diluted
unless the party in court is allowed to espouse the third party's constitutional claim. None of
these circumstances is here present. The mere fact that TELEBAP is composed of lawyers in
the broadcast industry does not entitle them to bring this suit in their name as representatives
of the affected companies.

Nevertheless, we have decided to take this case since the other petitioner, GMA Network,
Inc., appears to have the requisite standing to bring this constitutional challenge. Petitioner
operates radio and television broadcast stations in the Philippines affected by the
enforcement of 92 of B.P. Blg. 881 requiring radio and television broadcast companies to
provide free air time to the COMELEC for the use of candidates for campaign and other
political purposes.

Petitioner claims that it suffered losses running to several million pesos in providing
COMELEC Time in connection with the 1992 presidential election and the 1995 senatorial
election and that it stands to suffer even more should it be required to do so again this year.
Petitioner's allegation that it will suffer losses again because it is required to provide free air
time is sufficient to give it standing to question the validity of 92. 5

Airing of COMELEC Time, a

Reasonable Condition for

Grant of Petitioner's

Franchise

As pointed out in our decision in Osmea v. COMELEC, 11(b) of R.A. No. 6646 and 90
and 92 of the B.P. Blg. 881 are part and parcel of a regulatory scheme designed to equalize
the opportunity of candidates in an election in regard to the use of mass media for political
campaigns. These statutory provisions state in relevant parts:

R.A. No. 6646

Sec. 11. Prohibited Forms of Election Propaganda. In addition to the forms of election
propaganda prohibited under Section 85 of Batas Pambansa Blg. 881, it shall be unlawful:

xxx xxx xxx

(b) for any newspapers, radio broadcasting or television station, or other mass media, or any
person making use of the mass media to sell or to give free of charge print space or air time
for campaign or other political purposes except to the Commission as provided under Section
90 and 92 of Batas Pambansa Blg. 881. Any mass media columnist, commentator,
announcer or personality who is a candidate for any elective public office shall take a leave of
absence from his work as such during the campaign period.

B.P. Blg. 881, (Omnibus Election Code)

Sec. 90. Comelec space. The Commission shall procure space in at least one newspaper
of general circulation in every province or city; Provided, however, That in the absence of
said newspaper, publication shall be done in any other magazine or periodical in said
province or city, which shall be known as "Comelec Space" wherein candidates can
announce their candidacy. Said space shall be allocated, free of charge, equally and
impartially by the Commission among all candidates within the area in which the newspaper
is circulated. (Sec. 45, 1978 EC).

Sec. 92. Comelec time. The commission shall procure radio and television time to be
known as "Comelec Time" which shall be allocated equally and impartially among the
candidates within the area of coverage of all radio and television stations. For this purpose,
the franchise of all radio broadcasting and television stations are hereby amended so as to
provide radio or television time, free of charge, during the period of the campaign. (Sec. 46,
1978 EC)

Thus, the law prohibits mass media from selling or donating print space and air time to the
candidates and requires the COMELEC instead to procure print space and air time for
allocation to the candidates. It will be noted that while 90 of B.P. Blg. 881 requires the
COMELEC to procure print space which, as we have held, should be paid for, 92 states that
air time shall be procured by the COMELEC free of charge.

Petitioners contend that 92 of BP Blg. 881 violates the due process clause and the eminent
6

domain provision of the Constitution by taking air time from radio and television broadcasting
7

stations without payment of just compensation. Petitioners claim that the primary source of
revenue of the radio and television stations is the sale of air time to advertisers and that to
require these stations to provide free air time is to authorize a taking which is not "a de
minimis temporary limitation or restraint upon the use of private property." According to
petitioners, in 1992, the GMA Network, Inc. lost P22,498,560.00 in providing free air time of
one (1) hour every morning from Mondays to Fridays and one (1) hour on Tuesdays and
Thursday from 7:00 to 8:00 p.m. (prime time) and, in this year's elections, it stands to lose
P58,980,850.00 in view of COMELEC'S requirement that radio and television stations
provide at least 30 minutes of prime time daily for the COMELEC Time. 8

Petitioners' argument is without merit, All broadcasting, whether by radio or by television

stations, is licensed by the government. Airwave frequencies have to be allocated as there
are more individuals who want to broadcast than there are frequencies to assign. A franchise
9

is thus a privilege subject, among other things, to amended by Congress in accordance with
the constitutional provision that "any such franchise or right granted . . . shall be subject to
amendment, alteration or repeal by the Congress when the common good so requires." 10

The idea that broadcast stations may be required to provide COMELEC Time free of charge
is not new. It goes back to the Election Code of 1971 (R.A. No. 6388), which provided:

Sec. 49. Regulation of election propaganda through mass media. (a) The franchise of all
radio broadcasting and television stations are hereby amended so as to require each such
station to furnish free of charge, upon request of the Commission [on Elections], during the
period of sixty days before the election not more than fifteen minutes of prime time once a
week which shall be known as "Comelec Time" and which shall be used exclusively by the
Commission to disseminate vital election information. Said "Comelec Time" shall be
considered as part of the public service time said stations are required to furnish the
Government for the dissemination of public information and education under their respective
franchises or permits.

The provision was carried over with slight modification by the 1978 Election Code (P.D. No.
1296), which provided:

Sec. 46. COMELEC Time. The Commission [on Elections] shall procure radio and
television time to be known as "COMELEC Time" which shall be allocated equally and
impartially among the candidates within the area of coverage of said radio and television
stations. For this purpose, the franchises of all radio broadcasting and television stations are
hereby amended so as to require such stations to furnish the Commission radio or television
time, free of charge, during the period of the campaign, at least once but not oftener than
every other day.

Substantially the same provision is now embodied in 92 of B.P. Blg. 881.

Indeed, provisions for COMELEC Tima have been made by amendment of the franchises of
radio and television broadcast stations and, until the present case was brought, such
provisions had not been thought of as taking property without just compensation. Art. XII, 11
of the Constitution authorizes the amendment of franchises for "the common good." What
better measure can be conceived for the common good than one for free air time for the
benefit not only of candidates but even more of the public, particularly the voters, so that they
will be fully informed of the issues in an election? "[I]t is the right of the viewers and listeners,
not the right of the broadcasters, which is paramount." 11

Nor indeed can there be any constitutional objection to the requirement that broadcast
stations give free air time. Even in the United States, there are responsible scholars who
believe that government controls on broadcast media can constitutionally be instituted to
ensure diversity of views and attention to public affairs to further the system of free
expression. For this purpose, broadcast stations may be required to give free air time to
candidates in an election. Thus, Professor Cass R. Sunstein of the University of Chicago
12

Law School, in urging reforms in regulations affecting the broadcast industry, writes:

Elections. We could do a lot to improve coverage of electoral campaigns. Most important,

government should ensure free media time for candidates. Almost all European nations
make such provisions; the United States does not. Perhaps government should pay for such
time on its own. Perhaps broadcasters should have to offer it as a condition for receiving a
license. Perhaps a commitment to provide free time would count in favor of the grant of a
license in the first instance. Steps of this sort would simultaneously promote attention to
public affairs and greater diversity of view. They would also help overcome the distorting
effects of "soundbites" and the corrosive financial pressures faced by candidates in seeking
time on the media. 13

In truth, radio and television broadcasting companies, which are given franchises, do not own
the airwaves and frequencies through which they transmit broadcast signals and images.
They are merely given the temporary privilege of using them. Since a franchise is a mere
privilege, the exercise of the privilege may reasonably be burdened with the performance by
the grantee of some form of public service. Thus, in De Villata v. Stanley, a regulation
14

requiring interisland vessels licensed to engage in the interisland trade to carry mail and, for
this purpose, to give advance notice to postal authorities of date and hour of sailings of
vessels and of changes of sailing hours to enable them to tender mail for transportation at the
last practicable hour prior to the vessel's departure, was held to be a reasonable condition for
the state grant of license. Although the question of compensation for the carriage of mail was
not in issue, the Court strongly implied that such service could be without compensation, as
in fact under Spanish sovereignty the mail was carried free. 15

In Philippine Long Distance Telephone Company v. NTC, the Court ordered the PLDT to
16

allow the interconnection of its domestic telephone system with the international gateway
facility of Eastern Telecom. The Court cited (1) the provisions of the legislative franchise
allowing such interconnection; (2) the absence of any physical, technical, or economic basis
for restricting the linking up of two separate telephone systems; and (3) the possibility of
increase in the volume of international traffic and more efficient service, at more moderate
cost, as a result of interconnection.

Similarly, in the earlier case of PLDT v. NTC, it was held:

17

Such regulation of the use and ownership of telecommunications systems is in the exercise
of the plenary police power of the State for the promotion of the general welfare. The 1987
Constitution recognizes the existence of that power when it provides:

Sec. 6. The use of property bears a social function, and all economic agents shall contribute
to the common good. Individuals and private groups, including corporations, cooperatives,
and similar collective organizations, shall have the right to own, establish, and operate
economic enterprises, subject to the duty of the State to promote distributive justice and to
intervene when the common good so demands (Article XII).

The interconnection which has been required of PLDT is a form of "intervention" with property
rights dictated by "the objective of government to promote the rapid expansion of
telecommunications services in all areas of the Philippines, . . . to maximize the use of
telecommunications facilities available, . . . in recognition of the vital role of communications
in nation building . . . and to ensure that all users of the public telecommunications service
have access to all other users of the service wherever they may be within the Philippines at
an acceptable standard of service and at reasonable cost" (DOTC Circular No. 90-248).
Undoubtedly, the encompassing objective is the common good. The NTC, as the regulatory
agency of the State, merely exercised its delegated authority to regulate the use of
telecommunications networks when it decreed interconnection.

In the granting of the privilege to operate broadcast stations and thereafter supervising radio
and television stations, the state spends considerable public funds in licensing and
supervising such stations. It would be strange if it cannot even require the licensees to
18

render public service by giving free air time.

Considerable effort is made in the dissent of Mr. Justice Panganiban to show that the
production of television programs involves large expenditure and requires the use of
equipment for which huge investments have to be made. The dissent cites the claim of GMA
Network that the grant of free air time to the COMELEC for the duration of the 1998
campaign period would cost the company P52,380,000, representing revenue it would
otherwise earn if the air time were sold to advertisers, and the amount of P6,600,850,
representing the cost of producing a program for the COMELEC Time, or the total amount of
P58,980,850.

The claim that petitioner would be losing P52,380,000 in unrealized revenue from advertising
is based on the assumption that air time is "finished product" which, it is said, become the
property of the company, like oil produced from refining or similar natural resources after
undergoing a process for their production. But air time is not owned by broadcast companies.
As held in Red Lion Broadcasting Co. v. F.C.C., which upheld the right of a party personally
19

attacked to reply, "licenses to broadcast do not confer ownership of designated frequencies,

but only the temporary privilege of using them." Consequently, "a license permits
broadcasting, but the license has no constitutional right to be the one who holds the license
or to monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing in
the First Amendment which prevents the Government from requiring a licensee to share his
frequency with others and to conduct himself as a proxy or fiduciary with obligations to
present those views and voices which are representative of his community and which would
otherwise, by necessity, be barred from the airwaves." As radio and television broadcast
20

stations do not own the airwaves, no private property is taken by the requirement that they
provide air time to the COMELEC.

Justice Panganiban's dissent quotes from Tolentino on the Civil Code which says that "the air
lanes themselves 'are not property because they cannot be appropriated for the benefit of
any individual.'" (p. 5) That means neither the State nor the stations own the air lanes. Yet the
dissent also says that "The franchise holders can recover their huge investments only by
selling air time to advertisers." (p. 13) If air lanes cannot be appropriated, how can they be
used to produce air time which the franchise holders can sell to recover their investment?
There is a contradiction here.
As to the additional amount of P6,600,850, it is claimed that this is the cost of producing a
program and it is for such items as "sets and props," "video tapes," "miscellaneous (other
rental, supplies, transportation, etc.)," and "technical facilities (technical crew such as director
and cameraman as well as 'on air plugs')." There is no basis for this claim. Expenses for
these items will be for the account of the candidates. COMELEC Resolution No. 2983, 6(d)
specifically provides in this connection:

(d) Additional services such as tape-recording or video-taping of programs, the preparation of

visual aids, terms and condition thereof, and consideration to be paid therefor may be
arranged by the candidates with the radio/television station concerned. However, no
radio/television station shall make any discrimination among candidates relative to charges,
terms, practices or facilities for in connection with the services rendered.

It is unfortunate that in the effort to show that there is taking of private property worth millions
of pesos, the unsubstantiated charge is made that by its decision the Court permits the
"grand larceny of precious time," and allows itself to become "the people's unwitting
oppressor." The charge is really unfortunate. In Jackson v. Rosenbaun, Justice Holmes was
21

so incensed by the resistance of property owners to the erection of party walls that he was
led to say in his original draft, "a statute, which embodies the community's understanding of
the reciprocal rights and duties of neighboring landowners, does not need to invoke
the penalty larceny of the police power in its justification." Holmes's brethren corrected his
taste, and Holmes had to amend the passage so that in the end it spoke only of invoking "the
police power." Justice Holmes spoke of the "petty larceny" of the police power. Now we are
22

being told of the "grand larceny [by means of the police power] of precious air time."

Giving Free Air Time a Duty

Assumed by Petitioner

Petitioners claim that 92 is an invalid amendment of R.A. No. 7252 which granted GMA
Network, Inc. a franchise for the operation of radio and television broadcasting stations. They
argue that although 5 of R.A. No. 7252 gives the government the power to temporarily use
and operate the stations of petitioner GMA Network or to authorize such use and operation,
the exercise of this right must be compensated.

The cited provision of. R.A. No. 7252 states:

Sec. 5. Right of Government. A special right is hereby reserved to the President of the
Philippines, in times of rebellion, public peril, calamity, emergency, disaster or disturbance of
peace and order, to temporarily take over and operate the stations of the grantee, to
temporarily suspend the operation of any station in the interest of public safety, security and
public welfare, or to authorize the temporary use and operation thereof by any agency of the
Government, upon due compensation to the grantee, for the use of said stations during the
period when they shall be so operated.

The basic flaw in petitioner's argument is that it assumes that the provision for COMELEC
Time constitutes the use and operation of the stations of the GMA Network, Inc., This is not
so. Under 92 of B.P. Blg. 881, the COMELEC does not take over the operation of radio and
television stations but only the allocation of air time to the candidates for the purpose of
ensuring, among other things, equal opportunity, time, and the right to reply as mandated by
the Constitution.23

Indeed, it is wrong to claim an amendment of petitioner's franchise for the reason that B.P.
Blg. 881, which is said to have amended R.A. No. 7252, actually antedated it. The provision
24

of 92 of B.P. Blg. 881 must be deemed instead to be incorporated in R.A. No. 7252. And,
indeed, 4 of the latter statute does.

For the fact is that the duty imposed on the GMA Network, Inc. by its franchise to render
"adequate public service time" implements 92 of B.P. Blg. 881. Undoubtedly, its purpose is
to enable the government to communicate with the people on matters of public interest. Thus,
R.A. No. 7252 provides:

Sec. 4. Responsibility to the Public. The grantee shall provide adequate public service
time to enable the Government, through the said broadcasting stations, to reach the
population on important public issues; provide at all times sound and balanced programming;
promote public participation such as in community programming; assist in the functions of
public information and education; conform to the ethics of honest enterprise; and not use its
station for the broadcasting of obscene and indecent language, speech, act or scene, or for
the dissemination of deliberately false information or willful misrepresentation, or to the
detriment of the public interest, or to incite, encourage, or assist in subversive or treasonable
acts. (Emphasis added).

It is noteworthy that 40 of R.A. No. 6388, from which 92 of B.P. Blg. 881 was taken,
expressly provided that the COMELEC Time should "be considered as part of the public
service time said stations are required to furnish the Government for the dissemination of
public information and education under their respective franchises or permits." There is no
reason to suppose that 92 of B.P. Blg. 881 considers the COMELEC Time therein provided
to be otherwise than as a public service which petitioner is required to render under 4 of its
charter (R.A. No. 7252). In sum, B.P. Blg. 881, 92 is not an invalid amendment of
petitioner's franchise but the enforcement of a duty voluntarily assumed by petitioner in
accepting a public grant of privilege.

Thus far, we have confined the discussion to the provision of 92 of B.P. Blg. 881 for free air
time without taking into account COMELEC Resolution No. 2983-A, 2 of which states:

Sec. 2. Grant of "Comelec Time." Every radio broadcasting and television station
operating under franchise shall grant the Commission, upon payment of just compensation,
at least thirty (30) minutes of prime time daily, to be known as "Comelec Time", effective
February 10, 1998 for candidates for President, Vice-President and Senators, and effective
March 27, 1998, for candidates for local elective offices, until May 9, 1998. (Emphasis
added).

This is because the amendment providing for the payment of "just compensation" is invalid,
being in contravention of 92 of B.P. Blg. 881 that radio and television time given during the
period of the campaign shall be "free of charge." Indeed, Resolution No. 2983 originally
provided that the time allocated shall be "free of charge," just as 92 requires such time to be
given "free of charge." The amendment appears to be a reaction to petitioner's claim in this
case that the original provision was unconstitutional because it allegedly authorized the
taking of property without just compensation.

The Solicitor General, relying on the amendment, claims that there should be no more
dispute because the payment of compensation is now provided for. It is basic, however, that
an administrative agency cannot, in the exercise of lawmaking, amend a statute of Congress.
Since 2 of Resolution No. 2983-A is invalid, it cannot be invoked by the parties.

Law Allows Flextime for Programming

by Stations, Not Confiscation of

Air Time by COMELEC

It is claimed that there is no standard in the law to guide the COMELEC in procuring free air
time and that "theoretically the COMELEC can demand all of the air time of such
stations." Petitioners do not claim that COMELEC Resolution No. 2983-A arbitrarily
25

sequesters radio and television time. What they claim is that because of the breadth of the
statutory language, the provision in question is susceptible of "unbridled, arbitrary and
oppressive exercise." 26

The contention has no basis. For one, the COMELEC is required to procure free air time for
candidates "within the area of coverage" of a particular radio or television broadcaster so that
it cannot, for example, procure such time for candidates outside that area. At what time of the
day and how much time the COMELEC may procure will have to be determined by it in
relation to the overall objective of informing the public about the candidates, their
qualifications and their programs of government. As stated in Osmea v. COMELEC, the
COMELEC Time provided for in 92, as well as the COMELEC Space provided for in 90, is
in lieu of paid ads which candidates are prohibited to have under 11(b) of R.A. No. 6646.
Accordingly, this objective must be kept in mind in determining the details of the COMELEC
Time as well as those of the COMELEC Space.

There would indeed be objection to the grant of power to the COMELEC if 92 were so
detailed as to leave no room for accommodation of the demands of radio and television
programming. For were that the case, there could be an intrusion into the editorial
prerogatives of radio and television stations.

Differential Treatment of

Broadcast Media Justified

Petitioners complain that B.P. Blg. 881, 92 singles out radio and television stations to
provide free air time. They contend that newspapers and magazines are not similarly
required as, in fact, in Philippine Press Institute v.COMELEC, we upheld their right to the
27

payment of just compensation for the print space they may provide under 90.

The argument will not bear analysis. It rests on the fallacy that broadcast media are entitled
to the same treatment under the free speech guarantee of the Constitution as the print media.
There are important differences in the characteristics of the two media, however, which justify
their differential treatment for free speech purposes. Because of the physical limitations of
the broadcast spectrum, the government must, of necessity, allocate broadcast frequencies
to those wishing to use them. There is no similar justification for government allocation and
regulation of the print media. 28

In the allocation of limited resources, relevant conditions may validly be imposed on the
grantees or licensees. The reason for this is that, as already noted, the government spends
public funds for the allocation and regulation of the broadcast industry, which it does not do in
the case of the print media. To require the radio and television broadcast industry to provide
free air time for the COMELEC Time is a fair exchange for what the industry gets.

From another point of view, this Court has also held that because of the unique and
pervasive influence of the broadcast media, "[n]ecessarily . . . the freedom of television and
radio broadcasting is somewhat lesser in scope than the freedom accorded to newspaper
and print media."29

The broadcast media have also established a uniquely pervasive presence in the lives of all
Filipinos. Newspapers and current books are found only in metropolitan areas and in the
poblaciones of municipalities accessible to fast and regular transportation. Even here, there
are low income masses who find the cost of books, newspapers, and magazines beyond
their humble means. Basic needs like food and shelter perforce enjoy high priorities.

On the other hand, the transistor radio is found everywhere. The television set is also
becoming universal. Their message may be simultaneously received by a national or
regional audience of listeners including the indifferent or unwilling who happen to be within
reach of a blaring radio or television set. The materials broadcast over the airwaves reach
every person of every age, persons of varying susceptibilities to persuasion, persons of
different I.Q.s and mental capabilities, persons whose reactions to inflammatory or offensive
speech would he difficult to monitor or predict. The impact of the vibrant speech is forceful
and immediate. Unlike readers of the printed work, the radio audience has lesser opportunity
to cogitate, analyze, and reject the utterance. 30

Petitioners' assertion therefore that 92 of B.P. Blg. 881 denies them the equal protection of
the law has no basis. In addition, their plea that 92 (free air time) and 11(b) of R.A. No.
6646 (ban on paid political ads) should be invalidated would pave the way for a return to the
old regime where moneyed candidates could monopolize media advertising to the
disadvantage of candidates with less resources. That is what Congress tried to reform in
1987 with the enactment of R.A. No. 6646. We are not free to set aside the judgment of
Congress, especially in light of the recent failure of interested parties to have the law
repealed or at least modified.

Requirement of COMELEC Time, a

Reasonable Exercise of the

State's Power to Regulate

Use of Franchises

Finally, it is argued that the power to supervise or regulate given to the COMELEC under Art.
IX-C, 4 of the Constitution does not include the power to prohibit. In the first place, what the
COMELEC is authorized to supervise or regulate by Art. IX-C, 4 of the Constitution, among
31

other things, is the use by media of information of their franchises or permits, while what
Congress (not the COMELEC) prohibits is the sale or donation of print space or air time for
political ads. In other words, the object of supervision or regulation is different from the object
of the prohibition. It is another fallacy for petitioners to contend that the power to regulate
does not include the power to prohibit. This may have force if the object of the power were
the same.

In the second place, the prohibition in 11(b) of R.A. No. 6646 is only half of the regulatory
provision in the statute. The other half is the mandate to the COMELEC to procure print
space and air time for allocation to candidates. As we said in Osmea v. COMELEC:

The term political "ad ban" when used to describe 11(b) of R.A. No. 6646, is misleading, for
even as 11(b) prohibits the sale or donation of print space and air time to political
candidates, it mandates the COMELEC to procure and itself allocate to the candidates space
and time in the media. There is no suppression of political ads but only a regulation of the
time and manner of advertising.

xxx xxx xxx

. . . What is involved here is simply regulation of this nature. Instead of leaving candidates to
advertise freely in the mass media, the law provides for allocation, by the COMELEC of print
space and air time to give all candidates equal time and space for the purpose of ensuring
"free, orderly, honest, peaceful, and credible elections."
With the prohibition on media advertising by candidates themselves, the COMELEC Time
and COMELEC Space are about the only means through which candidates can advertise
their qualifications and programs of government. More than merely depriving their
qualifications and programs of government. More than merely depriving candidates of time
for their ads, the failure of broadcast stations to provide air time unless paid by the
government would clearly deprive the people of their right to know. Art III, 7 of the
Constitution provides that "the right of the people to information on matters of public concern
shall be recognized," while Art. XII, 6 states that "the use of property bears a social function
[and] the right to own, establish, and operate economic enterprises [is] subject to the duty of
the State to promote distributive justice and to intervene when the common good so
demands."

To affirm the validity of 92 of B.P. Blg. 881 is to hold public broadcasters to their obligation
to see to it that the variety and vigor of public debate on issues in an election is maintained.
For while broadcast media are not mere common carriers but entities with free speech rights,
they are also public trustees charged with the duty of ensuring that the people have access to
the diversity of views on political issues. This right of the people is paramount to the
autonomy of broadcast media. To affirm the validity of 92, therefore, is likewise to uphold
the people's right to information on matters of public concern. The use of property bears a
social function and is subject to the state's duty to intervene for the common good. Broadcast
media can find their just and highest reward in the fact that whatever altruistic service they
may render in connection with the holding of elections is for that common good.

For the foregoing reasons, the petition is dismissed.

SO ORDERED.
 EN BANC

[G.R. Nos. 132875-76. February 3, 2000]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO G.

JALOSJOS, accused-appellant.

RESOLUTION

YNARES-SANTIAGO, J.:

The accused-appellant, Romeo G. Jalosjos is a full-fledged member of

Congress who is now confined at the national penitentiary while his
conviction for statutory rape on two counts and acts of lasciviousness on
six counts is pending appeal. The accused-appellant filed this motion
[1]

asking that he be allowed to fully discharge the duties of a Congressman,

including attendance at legislative sessions and committee meetings
despite his having been convicted in the first instance of a non-bailable
offense.

The issue raised is one of first impression.

Does membership in Congress exempt an accused from statutes and

rules which apply to validly incarcerated persons in general? In
answering the query, we are called upon to balance relevant and
conflicting factors in the judicial interpretation of legislative privilege in
the context of penal law.

The accused-appellants "Motion To Be Allowed To Discharge Mandate

As Member of House of Representatives" was filed on the grounds that

1. Accused-appellants reelection being an expression of

popular will cannot be rendered inutile by any ruling, giving
priority to any right or interest not even the police power of
the State.
 2. To deprive the electorate of their elected representative
amounts to taxation without representation.

3. To bar accused-appellant from performing his duties

amounts to his suspension/removal and mocks the renewed
mandate entrusted to him by the people.

4. The electorate of the First District of Zamboanga del

Norte wants their voice to be heard.

5. A precedent-setting U.S. ruling allowed a detained

lawmaker to attend sessions of the U.S. Congress.

6. The House treats accused-appellant as a bona

fide member thereof and urges a co-equal branch of
government to respect its mandate.

7. The concept of temporary detention does not necessarily

curtail the duty of accused-appellant to discharge his
mandate.

8. Accused-appellant has always complied with the

conditions/restrictions when allowed to leave jail.

The primary argument of the movant is the "mandate of sovereign will."

He states that the sovereign electorate of the First District of
Zamboanga del Norte chose him as their representative in Congress.
Having been re-elected by his constituents, he has the duty to perform
the functions of a Congressman. He calls this a covenant with his
constituents made possible by the intervention of the State. He adds
that it cannot be defeated by insuperable procedural restraints arising
from pending criminal cases.

True, election is the expression of the sovereign power of the people. In

the exercise of suffrage, a free people expects to achieve the continuity
of government and the perpetuation of its benefits. However, inspite of
its importance, the privileges and rights arising from having been elected
may be enlarged or restricted by law. Our first task is to ascertain the
applicable law.
We start with the incontestable proposition that all top officials of
Government-executive, legislative, and judicial are subject to the
majesty of law. There is an unfortunate misimpression in the public mind
that election or appointment to high government office, by itself, frees
the official from the common restraints of general law. Privilege has to
be granted by law, not inferred from the duties of a position. In fact, the
higher the rank, the greater is the requirement of obedience rather than
exemption.

The immunity from arrest or detention of Senators and members of the

House of Representatives, the latter customarily addressed as
Congressmen, arises from a provision of the Constitution. The history of
the provision shows that the privilege has always been granted in a
restrictive sense. The provision granting an exemption as a special
privilege cannot be extended beyond the ordinary meaning of its terms.
It may not be extended by intendment, implication or equitable
considerations.

The 1935 Constitution provided in its Article VI on the Legislative

Department:

Sec. 15. The Senators and Members of the House of

Representatives shall in all cases except treason, felony,
and breach of the peace be privileged from arrest during
their attendance at the sessions of Congress, and in going
to and returning from the same; xxx.

Because of the broad coverage of felony and breach of the peace, the
exemption applied only to civil arrests. A congressman like the
accused-appellant, convicted under Title Eleven of the Revised Penal
Code could not claim parliamentary immunity from arrest. He was
subject to the same general laws governing all persons still to be tried or
whose convictions were pending appeal.

The 1973 Constitution broadened the privilege of immunity as follows:

Article VIII, Sec. 9. A Member of the Batasang Pambansa

shall, in all offenses punishable by not more than six years
imprisonment, be privileged from arrest during his
 attendance at its sessions and in going to and returning
from the same.

For offenses punishable by more than six years imprisonment, there

was no immunity from arrest. The restrictive interpretation of immunity
and the intent to confine it within carefully defined parameters is
illustrated by the concluding portion of the provision, to wit:

xxx but the Batasang Pambansa shall surrender the

member involved to the custody of the law within twenty four
hours after its adjournment for a recess or for its next
session, otherwise such privilege shall cease upon its failure
to do so.

The present Constitution adheres to the same restrictive rule minus the
obligation of Congress to surrender the subject Congressman to the
custody of the law. The requirement that he should be attending
sessions or committee meetings has also been removed. For relatively
minor offenses, it is enough that Congress is in session.

The accused-appellant argues that a member of Congress function to

attend sessions is underscored by Section 16 (2), Article VI of the
Constitution which states that

(2) A majority of each House shall constitute a quorum to do

business, but a smaller number may adjourn from day to
day and may compel the attendance of absent Members in
such manner, and under such penalties, as such House
may provide.

However, the accused-appellant has not given any reason why he

should be exempted from the operation of Section 11, Article VI of the
Constitution. The members of Congress cannot compel absent
members to attend sessions if the reason for the absence is a legitimate
one. The confinement of a Congressman charged with a crime
punishable by imprisonment of more than six months is not merely
authorized by law, it has constitutional foundations.
Accused-appellants reliance on the ruling in Aguinaldo v. Santos , [2]

which states, inter alia, that

The Court should never remove a public officer for acts

done prior to his present term of office. To do otherwise
would be to deprive the people of their right to elect their
officers. When a people have elected a man to office, it
must be assumed that they did this with the knowledge of
his life and character, and that they disregarded or forgave
his fault or misconduct, if he had been guilty of any. It is not
for the Court, by reason of such fault or misconduct, to
practically overrule the will of the people.

will not extricate him from his predicament. It can be readily seen in the
above-quoted ruling that the Aguinaldo case involves the administrative
removal of a public officer for acts done prior to his present term of office.
It does not apply to imprisonment arising from the enforcement of
criminal law. Moreover, in the same way that preventive suspension is
not removal, confinement pending appeal is not removal. He remains a
congressman unless expelled by Congress or, otherwise, disqualified.

One rationale behind confinement, whether pending appeal or after final

conviction, is public self-defense. Society must protect itself. It also
serves as an example and warning to others.

A person charged with crime is taken into custody for purposes of the
administration of justice. As stated in United States v. Gustilo, it is the
[3]

injury to the public which State action in criminal law seeks to redress. It
is not the injury to the complainant. After conviction in the Regional Trial
Court, the accused may be denied bail and thus subjected to
incarceration if there is risk of his absconding.[4]

The accused-appellant states that the plea of the electorate which voted
him into office cannot be supplanted by unfounded fears that he might
escape eventual punishment if permitted to perform congressional
duties outside his regular place of confinement.

It will be recalled that when a warrant for accused-appellants arrest was

issued, he fled and evaded capture despite a call from his colleagues in
the House of Representatives for him to attend the sessions and to
surrender voluntarily to the authorities. Ironically, it is now the same
body whose call he initially spurned which accused-appellant is invoking
to justify his present motion. This can not be countenanced because, to
reiterate, aside from its being contrary to well-defined Constitutional
restrains, it would be a mockery of the aims of the States penal system.

Accused-appellant argues that on several occasions, the Regional Trial

Court of Makati granted several motions to temporarily leave his cell at
the Makati City Jail, for official or medical reasons, to wit:

a) to attend hearings of the House Committee on Ethics

held at the Batasan Complex, Quezon City, on the issue of
whether to expel/suspend him from the House of
Representatives;

b) to undergo dental examination and treatment at the clinic

of his dentist in Makati City;

c) to undergo a thorough medical check-up at the Makati

Medical Center, Makati City;

d) to register as a voter at his hometown in Dapitan City. In

this case, accused-appellant commuted by chartered plane
and private vehicle.

He also calls attention to various instances, after his transfer at the New
Bilibid Prison in Muntinlupa City, when he was likewise
allowed/permitted to leave the prison premises, to wit:

a) to join "living-out" prisoners on "work-volunteer program"

for the purpose of 1) establishing a mahogany seedling
bank and 2) planting mahogany trees, at the NBP
reservation. For this purpose, he was assigned one guard
and allowed to use his own vehicle and driver in going to
and from the project area and his place of confinement.

b) to continue with his dental treatment at the clinic of his

dentist in Makati City.
 c) to be confined at the Makati Medical Center in Makati City
for his heart condition.

There is no showing that the above privileges are peculiar to him or to a

member of Congress. Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the discretion of the
authorities or upon court orders.

What the accused-appellant seeks is not of an emergency nature.

Allowing accused-appellant to attend congressional sessions and
committee meetings for five (5) days or more in a week will virtually
make him a free man with all the privileges appurtenant to his position.
Such an aberrant situation not only elevates accused-appellants status
to that of a special class, it also would be a mockery of the purposes of
the correction system. Of particular relevance in this regard are the
following observations of the Court in Martinez v. Morfe: [5]

The above conclusion reached by this Court is bolstered

and fortified by policy considerations. There is, to be sure, a
full recognition of the necessity to have members of
Congress, and likewise delegates to the Constitutional
Convention, entitled to the utmost freedom to enable them
to discharge their vital responsibilities, bowing to no other
force except the dictates of their conscience. Necessarily
the utmost latitude in free speech should be accorded them.
When it comes to freedom from arrest, however, it would
amount to the creation of a privileged class, without
justification in reason, if notwithstanding their liability for a
criminal offense, they would be considered immune during
their attendance in Congress and in going to and returning
from the same. There is likely to be no dissent from the
proposition that a legislator or a delegate can perform his
functions efficiently and well, without the need for any
transgression of the criminal law. Should such an
unfortunate event come to pass, he is to be treated like any
other citizen considering that there is a strong public interest
in seeing to it that crime should not go unpunished. To the
fear that may be expressed that the prosecuting arm of the
government might unjustly go after legislators belonging to
 the minority, it suffices to answer that precisely all the
safeguards thrown around an accused by the Constitution,
solicitous of the rights of an individual, would constitute an
obstacle to such an attempt at abuse of power. The
presumption of course is that the judiciary would remain
independent. It is trite to say that in each and every
manifestation of judicial endeavor, such a virtue is of the
essence.

The accused-appellant avers that his constituents in the First District of

Zamboanga del Norte want their voices to be heard and that since he is
treated as bona fide member of the House of Representatives, the latter
urges a co-equal branch of government to respect his mandate. He also
claims that the concept of temporary detention does not necessarily
curtail his duty to discharge his mandate and that he has always
complied with the conditions/restrictions when he is allowed to leave jail.

We remain unpersuaded.

No less than accused-appellant himself admits that like any other

member of the House of Representatives "[h]e is provided with a
congressional office situated at Room N-214, North Wing Building,
House of Representatives Complex, Batasan Hills, Quezon City,
manned by a full complement of staff paid for by Congress. Through [an]
inter-department coordination, he is also provided with an office at the
Administration Building, New Bilibid Prison, Muntinlupa City, where he
attends to his constituents." Accused-appellant further admits that while
under detention, he has filed several bills and resolutions. It also
appears that he has been receiving his salaries and other monetary
benefits. Succinctly stated, accused-appellant has been discharging his
mandate as a member of the House of Representative consistent with
the restraints upon one who is presently under detention. Being a
detainee, accused-appellant should not even have been allowed by the
prison authorities at the National Pentientiary to perform these acts.

When the voters of his district elected the accused-appellant to

Congress, they did so with full awareness of the limitations on his
freedom of action. They did so with the knowledge that he could achieve
only such legislative results which he could accomplish within the
confines of prison. To give a more drastic illustration, if voters elect a
person with full knowledge that he is suffering from a terminal illness,
they do so knowing that at any time, he may no longer serve his full term
in office.

In the ultimate analysis, the issue before us boils down to a question of

constitutional equal protection.

The Constitution guarantees: "x x x nor shall any person be denied the
equal protection of laws." This simply means that all persons similarly
[6]

situated shall be treated alike both in rights enjoyed and responsibilities

imposed. The organs of government may not show any undue
[7]

favoritism or hostility to any person. Neither partiality nor prejudice shall

be displayed.

Does being an elective official result in a substantial distinction that

allows different treatment? Is being a Congressman a substantial
differentiation which removes the accused-appellant as a prisoner from
the same class as all persons validly confined under law?

The performance of legitimate and even essential duties by public

officers has never been an excuse to free a person validly in prison. The
duties imposed by the "mandate of the people" are multifarious. The
accused-appellant asserts that the duty to legislate ranks highest in the
hierarchy of government. The accused-appellant is only one of 250
members of the House of Representatives, not to mention the 24
members of the Senate, charged with the duties of legislation. Congress
continues to function well in the physical absence of one or a few of its
members. Depending on the exigency of Government that has to be
addressed, the President or the Supreme Court can also be deemed the
highest for that particular duty. The importance of a function depends on
the need for its exercise. The duty of a mother to nurse her infant is most
compelling under the law of nature. A doctor with unique skills has the
duty to save the lives of those with a particular affliction. An elective
governor has to serve provincial constituents. A police officer must
maintain peace and order. Never has the call of a particular duty lifted a
prisoner into a different classification from those others who are validly
restrained by law.
A strict scrutiny of classifications is essential lest wittingly or otherwise,
insidious discriminations are made in favor of or against groups or types
of individuals. [8]

The Court cannot validate badges of inequality. The necessities

imposed by public welfare may justify exercise of government authority
to regulate even if thereby certain groups may plausibly assert that their
interests are disregarded. [9]

We, therefore, find that election to the position of Congressman is not a

reasonable classification in criminal law enforcement. The functions and
duties of the office are not substantial distinctions which lift him from the
class of prisoners interrupted in their freedom and restricted in liberty of
movement. Lawful arrest and confinement are germane to the purposes
of the law and apply to all those belonging to the same class. [10]

Imprisonment is the restraint of a mans personal liberty; coercion

exercised upon a person to prevent the free exercise of his power of
locomotion. [11]

More explicitly, "imprisonment" in its general sense, is the restraint of

ones liberty. As a punishment, it is restraint by judgment of a court or
lawful tribunal, and is personal to the accused. The term refers to the
[12]

restraint on the personal liberty of another; any prevention of his

movements from place to place, or of his free action according to his
own pleasure and will. Imprisonment is the detention of another
[13]

against his will depriving him of his power of locomotion and it "[is]
[14]

something more than mere loss of freedom. It includes the notion

of restraint within limits defined by wall or any exterior barrier." [15]

It can be seen from the foregoing that incarceration, by its nature,

changes an individuals status in society. Prison officials have the
[16]

difficult and often thankless job of preserving the security in a potentially

explosive setting, as well as of attempting to provide rehabilitation that
prepares inmates for re-entry into the social mainstream. Necessarily,
both these demands require the curtailment and elimination of certain
rights.
[17]
Premises considered, we are constrained to rule against the
accused-appellants claim that re-election to public office gives priority to
any other right or interest, including the police power of the State.

WHEREFORE, the instant motion is hereby DENIED.

SO ORDERED.
EN BANC

LOUIS BAROK C. BIRAOGO, G.R. No. 192935

Petitioner,

- versus -

THE PHILIPPINE TRUTH

COMMISSION OF 2010,
Respondent.
x-----------------------x
REP. EDCEL C. LAGMAN, G.R. No. 193036
REP. RODOLFO B. ALBANO, JR.,
REP. SIMEON A. Present:
DATUMANONG, and REP.
ORLANDO B. FUA, SR., CORONA, C.J.,
Petitioners, CARPIO,
CARPIO MORALES,
VELASCO, JR.,
NACHURA,
- versus - LEONARDO-DE CASTRO,
BRION,
PERALTA,
BERSAMIN,
DEL CASTILLO,
ABAD,
VILLARAMA, JR.,
PEREZ,
MENDOZA, and
EXECUTIVE SECRETARY SERENO, JJ.
PAQUITO N. OCHOA, JR. and
DEPARTMENT OF BUDGET AND Promulgated:
MANAGEMENT SECRETARY
FLORENCIO B. ABAD, December 7, 2010
Respondents.

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

DECISION
MENDOZA, J.:

When the judiciary mediates to allocate constitutional

boundaries, it does not assert any superiority over the other
departments; it does not in reality nullify or invalidate an act of
the legislature, but only asserts the solemn and sacred
obligation assigned to it by the Constitution to determine
conflicting claims of authority under the Constitution and to
establish for the parties in an actual controversy the rights
which that instrument secures and guarantees to them.

--- Justice Jose P. Laurel[1]

The role of the Constitution cannot be overlooked. It is through the
Constitution that the fundamental powers of government are established,
limited and defined, and by which these powers are distributed among the
several departments.[2] The Constitution is the basic and paramount law to
which all other laws must conform and to which all persons, including the
highest officials of the land, must defer.[3] Constitutional doctrines must
remain steadfast no matter what may be the tides of time. It cannot be
simply made to sway and accommodate the call of situations and much
more tailor itself to the whims and caprices of government and the people
who run it.[4]

For consideration before the Court are two consolidated cases[5] both of
which essentially assail the validity and constitutionality of Executive Order
No. 1, dated July 30, 2010, entitled Creating the Philippine Truth
Commission of 2010.
 The first case is G.R. No. 192935, a special civil action for
prohibition instituted by petitioner Louis Biraogo (Biraogo) in his capacity
as a citizen and taxpayer. Biraogo assails Executive Order No. 1 for being
violative of the legislative power of Congress under Section 1, Article VI of
the Constitution[6] as it usurps the constitutional authority of the legislature
to create a public office and to appropriate funds therefor.[7]

The second case, G.R. No. 193036, is a special civil action

for certiorari and prohibition filed by petitioners Edcel C. Lagman, Rodolfo
B. Albano Jr., Simeon A. Datumanong, and Orlando B. Fua,
Sr. (petitioners-legislators) as incumbent members of the House of
Representatives.

The genesis of the foregoing cases can be traced to the events prior to the
historic May 2010 elections, when then Senator Benigno Simeon Aquino III
declared his staunch condemnation of graft and corruption with his
slogan, Kung walang corrupt, walang mahirap. The Filipino people,
convinced of his sincerity and of his ability to carry out this noble objective,
catapulted the good senator to the presidency.

To transform his campaign slogan into reality, President Aquino

found a need for a special body to investigate reported cases of graft and
corruption allegedly committed during the previous administration.

Thus, at the dawn of his administration, the President on July 30,

2010, signed Executive Order No. 1 establishing the Philippine Truth
Commission of 2010 (Truth Commission). Pertinent provisions of said
executive order read:
EXECUTIVE ORDER NO. 1

CREATING THE PHILIPPINE TRUTH COMMISSION OF 2010

WHEREAS, Article XI, Section 1 of the 1987 Constitution of the

Philippines solemnly enshrines the principle that a public office is a public
trust and mandates that public officers and employees, who are servants
of the people, must at all times be accountable to the latter, serve them
with utmost responsibility, integrity, loyalty and efficiency, act with
patriotism and justice, and lead modest lives;

WHEREAS, corruption is among the most despicable acts of defiance of

this principle and notorious violation of this mandate;

WHEREAS, corruption is an evil and scourge which seriously affects the

political, economic, and social life of a nation; in a very special way it
inflicts untold misfortune and misery on the poor, the marginalized and
underprivileged sector of society;

WHEREAS, corruption in the Philippines has reached very alarming

levels, and undermined the peoples trust and confidence in the
Government and its institutions;

WHEREAS, there is an urgent call for the determination of the truth

regarding certain reports of large scale graft and corruption in the
government and to put a closure to them by the filing of the appropriate
cases against those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in the
Government and in their public servants;

WHEREAS, the Presidents battlecry during his campaign for the

Presidency in the last elections kung walang corrupt, walang
mahirap expresses a solemn pledge that if elected, he would end
corruption and the evil it breeds;

WHEREAS, there is a need for a separate body dedicated solely to

investigating and finding out the truth concerning the reported cases of
graft and corruption during the previous administration, and which will
recommend the prosecution of the offenders and secure justice for all;
WHEREAS, Book III, Chapter 10, Section 31 of Executive Order No. 292,
otherwise known as the Revised Administrative Code of the Philippines,
gives the President the continuing authority to reorganize the Office of the
President.

NOW, THEREFORE, I, BENIGNO SIMEON AQUINO III, President of the

Republic of the Philippines, by virtue of the powers vested in me by law,
do hereby order:

SECTION 1. Creation of a Commission. There is hereby created

the PHILIPPINE TRUTH COMMISSION, hereinafter referred to as
the COMMISSION, which shall primarily seek and find the truth on, and
toward this end, investigate reports of graft and corruption of such scale
and magnitude that shock and offend the moral and ethical sensibilities of
the people, committed by public officers and employees, their
co-principals, accomplices and accessories from the private sector, if any,
during the previous administration; and thereafter recommend the
appropriate action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.
The Commission shall be composed of a Chairman and four (4) members
who will act as an independent collegial body.

SECTION 2. Powers and Functions. The Commission, which shall have all
the powers of an investigative body under Section 37, Chapter 9, Book I of
the Administrative Code of 1987, is primarily tasked to conduct a
thorough fact-finding investigation of reported cases of graft and
corruption referred to in Section 1, involving third level public officers and
higher, their co-principals, accomplices and accessories from the private
sector, if any, during the previous administration and thereafter submit its
finding and recommendations to the President, Congress and the
Ombudsman.
In particular, it shall:

a) Identify and determine the reported cases of such graft and

corruption which it will investigate;

b) Collect, receive, review and evaluate evidence related to or regarding

the cases of large scale corruption which it has chosen to investigate, and
to this end require any agency, official or employee of the Executive
Branch, including government-owned or controlled corporations, to
produce documents, books, records and other papers;

c) Upon proper request or representation, obtain information and

documents from the Senate and the House of Representatives records of
investigations conducted by committees thereof relating to matters or
subjects being investigated by the Commission;

d) Upon proper request and representation, obtain information from

the courts, including the Sandiganbayan and the Office of the Court
Administrator, information or documents in respect to corruption cases
filed with the Sandiganbayan or the regular courts, as the case may be;

e) Invite or subpoena witnesses and take their testimonies and for that
purpose, administer oaths or affirmations as the case may be;

f) Recommend, in cases where there is a need to utilize any person as a

state witness to ensure that the ends of justice be fully served, that such
person who qualifies as a state witness under the Revised Rules of Court
of the Philippines be admitted for that purpose;

g) Turn over from time to time, for expeditious prosecution, to the

appropriate prosecutorial authorities, by means of a special
or interim report and recommendation, all evidence on corruption of
public officers and employees and their private sector co-principals,
accomplices or accessories, if any, when in the course of its investigation
the Commission finds that there is reasonable ground to believe that they
are liable for graft and corruption under pertinent applicable laws;

h) Call upon any government investigative or prosecutorial agency

such as the Department of Justice or any of the agencies under it, and the
Presidential Anti-Graft Commission, for such assistance and cooperation
as it may require in the discharge of its functions and duties;

i) Engage or contract the services of resource persons, professionals

and other personnel determined by it as necessary to carry out its
mandate;

j) Promulgate its rules and regulations or rules of procedure it deems

necessary to effectively and efficiently carry out the objectives of this
Executive Order and to ensure the orderly conduct of its investigations,
proceedings and hearings, including the presentation of evidence;

k) Exercise such other acts incident to or are appropriate and

necessary in connection with the objectives and purposes of this Order.
SECTION 3. Staffing Requirements. x x x.

SECTION 4. Detail of Employees. x x x.

SECTION 5. Engagement of Experts. x x x

SECTION 6. Conduct of Proceedings. x x x.

SECTION 7. Right to Counsel of Witnesses/Resource Persons. x x x.
SECTION 8. Protection of Witnesses/Resource Persons. x x x.
SECTION 9. Refusal to Obey Subpoena, Take Oath or Give
Testimony. Any government official or personnel who, without lawful
excuse, fails to appear upon subpoena issued by the Commission or who,
appearing before the Commission refuses to take oath or affirmation, give
testimony or produce documents for inspection, when required, shall be
subject to administrative disciplinary action. Any private person who does
the same may be dealt with in accordance with law.
SECTION 10. Duty to Extend Assistance to the Commission. x x x.
SECTION 11. Budget for the Commission. The Office of the President shall
provide the necessary funds for the Commission to ensure that it can
exercise its powers, execute its functions, and perform its duties and
responsibilities as effectively, efficiently, and expeditiously as possible.
SECTION 12. Office. x x x.

SECTION 13. Furniture/Equipment. x x x.

SECTION 14. Term of the Commission. The Commission shall accomplish

its mission on or before December 31, 2012.

SECTION 15. Publication of Final Report. x x x.

SECTION 16. Transfer of Records and Facilities of the Commission. x x x.

SECTION 17. Special Provision Concerning Mandate. If and when in the

judgment of the President there is a need to expand the mandate of the
Commission as defined in Section 1 hereof to include the investigation of
cases and instances of graft and corruption during the prior
 administrations, such mandate may be so extended accordingly by way of
a supplemental Executive Order.

SECTION 18. Separability Clause. If any provision of this Order is

declared unconstitutional, the same shall not affect the validity and
effectivity of the other provisions hereof.

SECTION 19. Effectivity. This Executive Order shall take effect

immediately.

DONE in the City of Manila, Philippines, this 30th day of July 2010.

(SGD.) BENIGNO S. AQUINO III

By the President:

(SGD.) PAQUITO N. OCHOA, JR.

Executive Secretary

Nature of the Truth Commission

As can be gleaned from the above-quoted provisions, the Philippine

Truth Commission (PTC) is a mere ad hoc body formed under the Office of
the President with the primary task to investigate reports of graft and
corruption committed by third-level public officers and employees, their
co-principals, accomplices and accessories during the previous
administration, and thereafter to submit its finding and recommendations to
the President, Congress and the Ombudsman. Though it has been described
as an independent collegial body, it is essentially an entity within the Office
of the President Proper and subject to his control. Doubtless, it constitutes a
public office, as an ad hoc body is one.[8]

To accomplish its task, the PTC shall have all the powers of an
investigative body under Section 37, Chapter 9, Book I of the
Administrative Code of 1987. It is not, however, a quasi-judicial body as it
cannot adjudicate, arbitrate, resolve, settle, or render awards in disputes
between contending parties. All it can do is gather, collect and assess
evidence of graft and corruption and make recommendations. It may have
subpoena powers but it has no power to cite people in contempt, much less
order their arrest. Although it is a fact-finding body, it cannot determine
from such facts if probable cause exists as to warrant the filing of an
information in our courts of law. Needless to state, it cannot impose
criminal, civil or administrative penalties or sanctions.
The PTC is different from the truth commissions in other countries
which have been created as official, transitory and non-judicial fact-finding
bodies to establish the facts and context of serious violations of human
rights or of international humanitarian law in a countrys past. [9] They are
usually established by states emerging from periods of internal unrest, civil
strife or authoritarianism to serve as mechanisms for transitional justice.

Truth commissions have been described as bodies that share the

following characteristics: (1) they examine only past events; (2) they
investigate patterns of abuse committed over a period of time, as opposed to
a particular event; (3) they are temporary bodies that finish their work with
the submission of a report containing conclusions and recommendations;
and (4) they are officially sanctioned, authorized or empowered by the
State.[10] Commissions members are usually empowered to conduct research,
support victims, and propose policy recommendations to prevent recurrence
of crimes. Through their investigations, the commissions may aim to
discover and learn more about past abuses, or formally acknowledge them.
They may aim to prepare the way for prosecutions and recommend
institutional reforms.[11]

Thus, their main goals range from retribution to reconciliation. The

Nuremburg and Tokyo war crime tribunals are examples of a retributory or
vindicatory body set up to try and punish those responsible for crimes
against humanity. A form of a reconciliatory tribunal is the Truth and
Reconciliation Commission of South Africa, the principal function of which
was to heal the wounds of past violence and to prevent future conflict by
providing a cathartic experience for victims.

The PTC is a far cry from South Africas model. The latter placed
more emphasis on reconciliation than on judicial retribution, while
the marching order of the PTC is the identification and punishment of
perpetrators. As one writer[12] puts it:

The order ruled out reconciliation. It translated the

Draconian code spelled out by Aquino in his inaugural
speech: To those who talk about reconciliation, if they mean
that they would like us to simply forget about the wrongs
that they have committed in the past, we have this to say:
There can be no reconciliation without justice. When we
allow crimes to go unpunished, we give consent to their
occurring over and over again.

The Thrusts of the Petitions

Barely a month after the issuance of Executive Order No. 1, the

petitioners asked the Court to declare it unconstitutional and to enjoin the
PTC from performing its functions. A perusal of the arguments of the
petitioners in both cases shows that they are essentially the same. The
petitioners-legislators summarized them in the following manner:

(a) E.O. No. 1 violates the separation of powers as it

arrogates the power of the Congress to create a public office
and appropriate funds for its operation.

(b) The provision of Book III, Chapter 10, Section 31 of

the Administrative Code of 1987 cannot legitimize E.O. No. 1
because the delegated authority of the President to structurally
reorganize the Office of the President to achieve economy,
simplicity and efficiency does not include the power to create
an entirely new public office which was hitherto inexistent like
the Truth Commission.

(c) E.O. No. 1 illegally amended the Constitution and

pertinent statutes when it vested the Truth Commission with
quasi-judicial powers duplicating, if not superseding, those of
the Office of the Ombudsman created under the 1987
 Constitution and the Department of Justice created under the
Administrative Code of 1987.

(d) E.O. No. 1 violates the equal protection clause as it

selectively targets for investigation and prosecution officials
and personnel of the previous administration as if corruption is
their peculiar species even as it excludes those of the other
administrations, past and present, who may be indictable.

(e) The creation of the Philippine Truth Commission of

2010 violates the consistent and general international practice
of four decades wherein States constitute truth commissions to
exclusively investigate human rights violations, which
customary practice forms part of the generally accepted
principles of international law which the Philippines is
mandated to adhere to pursuant to the Declaration of Principles
enshrined in the Constitution.

(f) The creation of the Truth Commission is an exercise

in futility, an adventure in partisan hostility, a launching pad
for trial/conviction by publicity and a mere populist
propaganda to mistakenly impress the people that widespread
poverty will altogether vanish if corruption is eliminated
without even addressing the other major causes of poverty.

(g) The mere fact that previous commissions were not

constitutionally challenged is of no moment because neither
laches nor estoppel can bar an eventual question on the
constitutionality and validity of an executive issuance or even a
statute.[13]

In their Consolidated Comment,[14] the respondents, through the

Office of the Solicitor General (OSG), essentially questioned the legal
standing of petitioners and defended the assailed executive order with the
following arguments:
 1] E.O. No. 1 does not arrogate the powers of Congress to
create a public office because the Presidents executive power
and power of control necessarily include the inherent power to
conduct investigations to ensure that laws are faithfully
executed and that, in any event, the Constitution, Revised
Administrative Code of 1987 (E.O. No. 292), [15] Presidential
Decree (P.D.) No. 1416[16] (as amended by P.D. No. 1772),
R.A. No. 9970,[17] and settled jurisprudence that authorize the
President to create or form such bodies.

2] E.O. No. 1 does not usurp the power of Congress to

appropriate funds because there is no appropriation but a mere
allocation of funds already appropriated by Congress.

3] The Truth Commission does not duplicate or supersede

the functions of the Office of the
Ombudsman (Ombudsman) and the Department of
Justice (DOJ), because it is a fact-finding body and not a
quasi-judicial body and its functions do not duplicate, supplant
or erode the latters jurisdiction.

4] The Truth Commission does not violate the equal

protection clause because it was validly created for laudable
purposes.

The OSG then points to the continued existence and validity of other
executive orders and presidential issuances creating similar bodies to justify
the creation of the PTC such as Presidential Complaint and Action
Commission (PCAC) by President Ramon B. Magsaysay, Presidential
Committee on Administrative Performance Efficiency (PCAPE) by
President Carlos P. Garcia and Presidential Agency on Reform and
Government Operations (PARGO) by President Ferdinand E. Marcos.[18]
From the petitions, pleadings, transcripts, and memoranda, the
following are the principal issues to be resolved:
 1. Whether or not the petitioners have the legal
standing to file their respective petitions and question
Executive Order No. 1;

2. Whether or not Executive Order No. 1 violates

the principle of separation of powers by usurping the powers of
Congress to create and to appropriate funds for public offices,
agencies and commissions;
3. Whether or not Executive Order No. 1 supplants the
powers of the Ombudsman and the DOJ;

4. Whether or not Executive Order No. 1 violates the

equal protection clause; and

5. Whether or not petitioners are entitled to injunctive

relief.

Essential requisites for judicial review

Before proceeding to resolve the issue of the constitutionality of Executive

Order No. 1, the Court needs to ascertain whether the requisites for a valid
exercise of its power of judicial review are present.

Like almost all powers conferred by the Constitution, the power of judicial
review is subject to limitations, to wit: (1) there must be an actual case or
controversy calling for the exercise of judicial power; (2) the person
challenging the act must have the standing to question the validity of the
subject act or issuance; otherwise stated, he must have a personal and
substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest opportunity; and (4) the issue
of constitutionality must be the very lis mota of the case.[19]

Among all these limitations, only the legal standing of the petitioners has
been put at issue.
 Legal Standing of the Petitioners

The OSG attacks the legal personality of the petitioners-legislators to

file their petition for failure to demonstrate their personal stake in the
outcome of the case. It argues that the petitioners have not shown that they
have sustained or are in danger of sustaining any personal injury
attributable to the creation of the PTC. Not claiming to be the subject of the
commissions investigations, petitioners will not sustain injury in its creation
or as a result of its proceedings.[20]

The Court disagrees with the OSG in questioning the legal standing
of the petitioners-legislators to assail Executive Order No. 1.
Evidently, their petition primarily invokes usurpation of the power of the
Congress as a body to which they belong as members. This certainly
justifies their resolve to take the cudgels for Congress as an institution and
present the complaints on the usurpation of their power and rights as
members of the legislature before the Court. As held in Philippine
Constitution Association v. Enriquez,[21]

To the extent the powers of Congress are impaired, so

is the power of each member thereof, since his office confers
a right to participate in the exercise of the powers of that
institution.
An act of the Executive which injures the institution of
Congress causes a derivative but nonetheless substantial
injury, which can be questioned by a member of
Congress. In such a case, any member of Congress can have
a resort to the courts.

Indeed, legislators have a legal standing to see to it that the

prerogative, powers and privileges vested by the Constitution in their office
remain inviolate. Thus, they are allowed to question the validity of any
official action which, to their mind, infringes on their prerogatives as
legislators.[22]
 With regard to Biraogo, the OSG argues that, as a taxpayer, he has no
standing to question the creation of the PTC and the budget for its
operations.[23] It emphasizes that the funds to be used for the creation and
operation of the commission are to be taken from those funds already
appropriated by Congress. Thus, the allocation and disbursement of funds
for the commission will not entail congressional action but will simply be
an exercise of the Presidents power over contingent funds.

As correctly pointed out by the OSG, Biraogo has not shown that he
sustained, or is in danger of sustaining, any personal and direct injury
attributable to the implementation of Executive Order No. 1. Nowhere in his
petition is an assertion of a clear right that may justify his clamor for the
Court to exercise judicial power and to wield the axe over presidential
issuances in defense of the Constitution. The case of David v.
Arroyo[24] explained the deep-seated rules on locus standi. Thus:

Locus standi is defined as a right of appearance in a

court of justice on a given question. In private suits,
standing is governed by the real-parties-in interest rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil
Procedure, as amended. It provides that every action must
be prosecuted or defended in the name of the real party in
interest. Accordingly, the real-party-in interest is the party
who stands to be benefited or injured by the judgment in the
suit or the party entitled to the avails of the suit. Succinctly
put, the plaintiffs standing is based on his own right to the
relief sought.

The difficulty of determining locus standi arises

in public suits. Here, the plaintiff who asserts a public right
in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person
who is affected no differently from any other person. He
could be suing as a stranger, or in the category of a citizen,
or taxpayer. In either case, he has to adequately show that
he is entitled to seek judicial protection. In other words, he
has to make out a sufficient interest in the vindication of the
public order and the securing of relief as a citizen or
taxpayer.

Case law in most jurisdictions now allows both citizen

and taxpayer standing in public actions. The distinction was
first laid down in Beauchamp v. Silk, where it was held that
the plaintiff in a taxpayers suit is in a different category from
the plaintiff in a citizens suit. In the former, the plaintiff is
affected by the expenditure of public funds, while in the
latter, he is but the mere instrument of the public
concern. As held by the New York Supreme Court in People
ex rel Case v. Collins: In matter of mere public right,
howeverthe people are the real partiesIt is at least the right,
if not the duty, of every citizen to interfere and see that a
public offence be properly pursued and punished, and that a
public grievance be remedied. With respect to taxpayers
suits, Terr v. Jordan held that the right of a citizen and a
taxpayer to maintain an action in courts to restrain the
unlawful use of public funds to his injury cannot be denied.

However, to prevent just about any person from

seeking judicial interference in any official policy or act with
which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United
State Supreme Court laid down the more stringent direct
injury test in Ex Parte Levitt, later reaffirmed in Tileston v.
Ullman. The same Court ruled that for a private individual
to invoke the judicial power to determine the validity of an
executive or legislative action, he must show that he has
sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all
members of the public.

This Court adopted the direct injury test in our

jurisdiction. In People v. Vera, it held that the person who
impugns the validity of a statute must have a personal and
substantial interest in the case such that he has sustained, or
will sustain direct injury as a result. The Vera doctrine was
 upheld in a litany of cases, such as, Custodio v. President of
the Senate, Manila Race Horse Trainers Association v. De
la Fuente, Pascual v. Secretary of Public
Works and Anti-Chinese League of the Philippines v.
Felix. [Emphases included. Citations omitted]

Notwithstanding, the Court leans on the doctrine that the rule on

standing is a matter of procedure, hence, can be relaxed for nontraditional
plaintiffs like ordinary citizens, taxpayers, and legislators when the public
interest so requires, such as when the matter is of transcendental
importance, of overreaching significance to society, or of paramount public
interest.[25]

Thus, in Coconut Oil Refiners Association, Inc. v. Torres,[26] the

Court held that in cases of paramount importance where serious
constitutional questions are involved, the standing requirements 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,[27] 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.

The OSG claims that the determinants of transcendental

importance[28] laid down in CREBA v. ERC and Meralco[29] are non-existent
in this case. The Court, however, finds reason in Biraogos assertion that the
petition covers matters of transcendental importance to justify the exercise
of jurisdiction by the Court. There are constitutional issues in the petition
which deserve the attention of this Court in view of their seriousness,
novelty and weight as precedents. Where the issues are of transcendental
and paramount importance not only to the public but also to the Bench and
the Bar, they should be resolved for the guidance of all.[30] Undoubtedly, the
Filipino people are more than interested to know the status of the Presidents
first effort to bring about a promised change to the country. The Court takes
cognizance of the petition not due to overwhelming political undertones that
clothe the issue in the eyes of the public, but because the Court stands firm
in its oath to perform its constitutional duty to settle legal controversies with
overreaching significance to society.

Power of the President to Create the Truth Commission

In his memorandum in G.R. No. 192935, Biraogo asserts that the

Truth Commission is a public office and not merely an adjunct body of the
Office of the President.[31] Thus, in order that the President may create a
public office he must be empowered by the Constitution, a statute or an
authorization vested in him by law. According to petitioner, such power
cannot be presumed[32] since there is no provision in the Constitution or any
specific law that authorizes the President to create a truth commission.[33] He
adds that Section 31 of the Administrative Code of 1987, granting the
President the continuing authority to reorganize his office, cannot serve as
basis for the creation of a truth commission considering the aforesaid
provision merely uses verbs such as reorganize, transfer, consolidate, merge,
and abolish.[34] Insofar as it vests in the President the plenary power to
reorganize the Office of the President to the extent of creating a public
office, Section 31 is inconsistent with the principle of separation of powers
enshrined in the Constitution and must be deemed repealed upon the
effectivity thereof.[35]

Similarly, in G.R. No. 193036, petitioners-legislators argue that the

creation of a public office lies within the province of Congress and not with
the executive branch of government. They maintain that the delegated
authority of the President to reorganize under Section 31 of the Revised
Administrative Code: 1) does not permit the President to create a public
office, much less a truth commission; 2) is limited to the reorganization of
the administrative structure of the Office of the President; 3) is limited to the
restructuring of the internal organs of the Office of the President Proper,
transfer of functions and transfer of agencies; and 4) only to achieve
simplicity, economy and efficiency.[36] Such continuing authority of the
President to reorganize his office is limited, and by issuing Executive Order
No. 1, the President overstepped the limits of this delegated authority.
 The OSG counters that there is nothing exclusively legislative about
the creation by the President of a fact-finding body such as a truth
commission. Pointing to numerous offices created by past presidents, it
argues that the authority of the President to create public offices within the
Office of the President Proper has long been recognized.[37] According to the
OSG, the Executive, just like the other two branches of government,
possesses the inherent authority to create fact-finding committees to assist it
in the performance of its constitutionally mandated functions and in the
exercise of its administrative functions.[38] This power, as the OSG explains
it, is but an adjunct of the plenary powers wielded by the President under
Section 1 and his power of control under Section 17, both of Article VII of
the Constitution.[39]

It contends that the President is necessarily vested with the power to

conduct fact-finding investigations, pursuant to his duty to ensure that all
laws are enforced by public officials and employees of his department and
in the exercise of his authority to assume directly the functions of the
executive department, bureau and office, or interfere with the discretion of
his officials.[40] The power of the President to investigate is not limited to the
exercise of his power of control over his subordinates in the executive
branch, but extends further in the exercise of his other powers, such as his
power to discipline subordinates,[41] his power for rule making, adjudication
and licensing purposes[42] and in order to be informed on matters which he is
entitled to know.[43]

The OSG also cites the recent case of Banda v. Ermita,[44] where it
was held that the President has the power to reorganize the offices and
agencies in the executive department in line with his constitutionally
granted power of control and by virtue of a valid delegation of the
legislative power to reorganize executive offices under existing statutes.

Thus, the OSG concludes that the power of control necessarily

includes the power to create offices. For the OSG, the President may create
the PTC in order to, among others, put a closure to the reported large scale
graft and corruption in the government.[45]
 The question, therefore, before the Court is this: Does the creation of
the PTC fall within the ambit of the power to reorganize as expressed in
Section 31 of the Revised Administrative Code? Section 31 contemplates
reorganization as limited by the following functional and structural lines: (1)
restructuring the internal organization of the Office of the President Proper
by abolishing, consolidating or merging units thereof or transferring
functions from one unit to another; (2) transferring any function under the
Office of the President to any other Department/Agency or vice versa; or (3)
transferring any agency under the Office of the President to any other
Department/Agency or vice versa. Clearly, the provision refers to reduction
of personnel, consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions. These point to situations where a body
or an office is already existent but a modification or alteration thereof has to
be effected. The creation of an office is nowhere mentioned, much less
envisioned in said provision. Accordingly, the answer to the question is in
the negative.

To say that the PTC is borne out of a restructuring of the Office of the
President under Section 31 is a misplaced supposition, even in the plainest
meaning attributable to the term restructure an alteration of an existing
structure.Evidently, the PTC was not part of the structure of the Office of
the President prior to the enactment of Executive Order No. 1. As held
in Buklod ng Kawaning EIIB v. Hon. Executive Secretary,[46]

But of course, the list of legal basis authorizing the

President to reorganize any department or agency in the
executive branch does not have to end here. We must not
lose sight of the very source of the power that which
constitutes an express grant of power. Under Section 31,
Book III of Executive Order No. 292 (otherwise known as
the Administrative Code of 1987), "the President, subject to
the policy in the Executive Office and in order to achieve
simplicity, economy and efficiency, shall have the
continuing authority to reorganize the administrative
structure of the Office of the President." For this purpose, he
 may transfer the functions of other Departments or
Agencies to the Office of the President. In Canonizado v.
Aguirre [323 SCRA 312 (2000)], we ruled that
reorganization "involves the reduction of personnel,
consolidation of offices, or abolition thereof by reason of
economy or redundancy of functions." It takes place when
there is an alteration of the existing structure of government
offices or units therein, including the lines of control,
authority and responsibility between them. The EIIB is a
bureau attached to the Department of Finance. It falls under
the Office of the President. Hence, it is subject to the
Presidents continuing authority to reorganize. [Emphasis
Supplied]

In the same vein, the creation of the PTC is not justified by the
Presidents power of control. Control is essentially the power to alter or
modify or nullify or set aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment of the former with
that of the latter.[47] Clearly, the power of control is entirely different from
the power to create public offices. The former is inherent in the Executive,
while the latter finds basis from either a valid delegation from Congress, or
his inherent duty to faithfully execute the laws.

The question is this, is there a valid delegation of power from

Congress, empowering the President to create a public office?

According to the OSG, the power to create a truth commission

pursuant to the above provision finds statutory basis under P.D. 1416, as
amended by P.D. No. 1772.[48] The said law granted the President the
continuing authority to reorganize the national government, including the
power to group, consolidate bureaus and agencies, to abolish offices, to
transfer functions, to create and classify functions, services and activities,
transfer appropriations, and to standardize salaries and materials. This
decree, in relation to Section 20, Title I, Book III of E.O. 292 has been
invoked in several cases such as Larin v. Executive Secretary.[49]
 The Court, however, declines to recognize P.D. No. 1416 as a
justification for the President to create a public office. Said decree is already
stale, anachronistic and inoperable. P.D. No. 1416 was a delegation to then
President Marcos of the authority to reorganize the administrative structure
of the national government including the power to create offices and
transfer appropriations pursuant to one of the purposes of the decree,
embodied in its last Whereas clause:

WHEREAS, the transition towards the parliamentary

form of government will necessitate flexibility in the
organization of the national government.

Clearly, as it was only for the purpose of providing manageability and

resiliency during the interim, P.D. No. 1416, as amended by P.D. No.
1772, became functus oficio upon the convening of the First Congress, as
expressly provided in Section 6, Article XVIII of the 1987 Constitution. In
fact, even the Solicitor General agrees with this view. Thus:

ASSOCIATE JUSTICE CARPIO: Because P.D. 1416 was

enacted was the last
whereas clause of P.D. 1416
says it was enacted to
prepare the transition from
presidential to
parliamentary. Now, in a
parliamentary form of
government, the legislative
and executive powers are
fused, correct?

SOLICITOR GENERAL CADIZ: Yes, Your Honor.

ASSOCIATE JUSTICE CARPIO: That is why, that P.D. 1416

was issued. Now would you
 agree with me that P.D. 1416
should not be considered
effective anymore upon the
promulgation, adoption,
ratification of the 1987
Constitution.

SOLICITOR GENERAL CADIZ: Not the whole of P.D. [No.]

1416, Your Honor.

ASSOCIATE JUSTICE CARPIO: The power of the President

to reorganize the entire
National Government is
deemed repealed, at least,
upon the adoption of the
1987 Constitution, correct.

SOLICITOR GENERAL CADIZ: Yes, Your Honor.[50]

While the power to create a truth commission cannot pass muster on the
basis of P.D. No. 1416 as amended by P.D. No. 1772, the creation of the
PTC finds justification under Section 17, Article VII of the Constitution,
imposing upon the President the duty to ensure that the laws are faithfully
executed. Section 17 reads:

Section 17. The President shall have control of all the

executive departments, bureaus, and offices. He shall ensure that
the laws be faithfully executed. (Emphasis supplied).

As correctly pointed out by the respondents, the allocation of power

in the three principal branches of government is a grant of all powers
inherent in them. The Presidents power to conduct investigations to aid him
in ensuring the faithful execution of laws in this case, fundamental laws on
public accountability and transparency is inherent in the Presidents powers
as the Chief Executive. That the authority of the President to conduct
investigations and to create bodies to execute this power is not explicitly
mentioned in the Constitution or in statutes does not mean that he is bereft
of such authority.[51] As explained in the landmark case of Marcos v.
Manglapus:[52]

x x x. The 1987 Constitution, however, brought back

the presidential system of government and restored the
separation of legislative, executive and judicial powers by
their actual distribution among three distinct branches of
government with provision for checks and balances.

It would not be accurate, however, to state that

"executive power" is the power to enforce the laws, for the
President is head of state as well as head of government and
whatever powers inhere in such positions pertain to the
office unless the Constitution itself withholds
it. Furthermore, the Constitution itself provides that the
execution of the laws is only one of the powers of the
President. It also grants the President other powers that do
not involve the execution of any provision of law, e.g., his
power over the country's foreign relations.

On these premises, we hold the view that although the

1987 Constitution imposes limitations on the exercise
of specific powers of the President, it maintains intact what
is traditionally considered as within the scope of "executive
power." Corollarily, the powers of the President cannot be
said to be limited only to the specific powers enumerated in
the Constitution. In other words, executive power is more
than the sum of specific powers so enumerated.

It has been advanced that whatever power inherent in

the government that is neither legislative nor judicial has to
be executive. x x x.

Indeed, the Executive is given much leeway in ensuring that our laws are
faithfully executed. As stated above, the powers of the President are not
limited to those specific powers under the Constitution.[53] One of the
recognized powers of the President granted pursuant to this
constitutionally-mandated duty is the power to create ad hoc committees.
This flows from the obvious need to ascertain facts and determine if laws
have been faithfully executed. Thus, in Department of Health v.
Camposano,[54] the authority of the President to issue Administrative Order
No. 298, creating an investigative committee to look into the administrative
charges filed against the employees of the Department of Health for the
anomalous purchase of medicines was upheld. In said case, it was ruled:

The Chief Executives power to create the Ad hoc Investigating

Committee cannot be doubted. Having been constitutionally
granted full control of the Executive Department, to which
respondents belong, the President has the obligation to
ensure that all executive officials and employees faithfully
comply with the law. With AO 298 as mandate, the legality
of the investigation is sustained. Such validity is not affected
by the fact that the investigating team and the PCAGC had
the same composition, or that the former used the offices
and facilities of the latter in conducting the inquiry.
[Emphasis supplied]

It should be stressed that the purpose of allowing ad hoc investigating

bodies to exist is to allow an inquiry into matters which the President is
entitled to know so that he can be properly advised and guided in the
performance of his duties relative to the execution and enforcement of the
laws of the land. And if history is to be revisited, this was also the objective
of the investigative bodies created in the past like the PCAC, PCAPE,
PARGO, the Feliciano Commission, the Melo Commission and the
Zenarosa Commission. There being no changes in the government structure,
the Court is not inclined to declare such executive power as non-existent
just because the direction of the political winds have changed.

On the charge that Executive Order No. 1 transgresses the power of

Congress to appropriate funds for the operation of a public office, suffice it
to say that there will be no appropriation but only an allotment or
allocations of existing funds already appropriated. Accordingly, there is no
usurpation on the part of the Executive of the power of Congress to
appropriate funds. Further, there is no need to specify the amount to be
earmarked for the operation of the commission because, in the words of the
Solicitor General, whatever funds the Congress has provided for the Office
of the President will be the very source of the funds for the
commission.[55] Moreover, since the amount that would be allocated to the
PTC shall be subject to existing auditing rules and regulations, there is no
impropriety in the funding.

Power of the Truth Commission to Investigate

The Presidents power to conduct investigations to ensure that laws are

faithfully executed is well recognized. It flows from the faithful-execution
clause of the Constitution under Article VII, Section 17 thereof.[56] As the
Chief Executive, the president represents the government as a whole and
sees to it that all laws are enforced by the officials and employees of his
department. He has the authority to directly assume the functions of the
executive department.[57]

Invoking this authority, the President constituted the PTC to primarily

investigate reports of graft and corruption and to recommend the appropriate
action. As previously stated, no quasi-judicial powers have been vested in
the said body as it cannot adjudicate rights of persons who come before it. It
has been said that Quasi-judicial powers involve the power to hear and
determine questions of fact to which the legislative policy is to apply and to
decide in accordance with the standards laid down by law itself in enforcing
and administering the same law.[58] In simpler terms, judicial discretion is
involved in the exercise of these quasi-judicial power, such that it is
exclusively vested in the judiciary and must be clearly authorized by the
legislature in the case of administrative agencies.

The distinction between the power to investigate and the power to

adjudicate was delineated by the Court in Cario v. Commission on Human
Rights.[59] Thus:
 "Investigate," commonly understood, means to
examine, explore, inquire or delve or probe into, research on,
study. The dictionary definition of "investigate" is "to
observe or study closely: inquire into systematically: "to
search or inquire into: x x to subject to an official probe x x:
to conduct an official inquiry." The purpose of investigation,
of course, is to discover, to find out, to learn, obtain
information. Nowhere included or intimated is the notion of
settling, deciding or resolving a controversy involved in the
facts inquired into by application of the law to the facts
established by the inquiry.
The legal meaning of "investigate" is essentially the
same: "(t)o follow up step by step by patient inquiry or
observation. To trace or track; to search into; to examine
and inquire into with care and accuracy; to find out by
careful inquisition; examination; the taking of evidence; a
legal inquiry;" "to inquire; to make an investigation,"
"investigation" being in turn described as "(a)n
administrative function, the exercise of which ordinarily
does not require a hearing. 2 Am J2d Adm L Sec. 257; x x an
inquiry, judicial or otherwise, for the discovery and
collection of facts concerning a certain matter or matters."
"Adjudicate," commonly or popularly understood,
means to adjudge, arbitrate, judge, decide, determine,
resolve, rule on, settle. The dictionary defines the term as "to
settle finally (the rights and duties of the parties to a court
case) on the merits of issues raised: x x to pass judgment on:
settle judicially: x x act as judge." And "adjudge" means "to
decide or rule upon as a judge or with judicial or
quasi-judicial powers: x x to award or grant judicially in a
case of controversy x x."
In the legal sense, "adjudicate" means: "To settle in
the exercise of judicial authority. To determine finally.
Synonymous with adjudge in its strictest sense;" and
"adjudge" means: "To pass on judicially, to decide, settle or
decree, or to sentence or condemn. x x. Implies a judicial
 determination of a fact, and the entry of a judgment." [Italics
included. Citations Omitted]

Fact-finding is not adjudication and it cannot be likened to

the judicial function of a court of justice, or even a quasi-judicial agency or
office. The function of receiving evidence and ascertaining therefrom the
facts of a controversy is not a judicial function. To be considered as such,
the act of receiving evidence and arriving at factual conclusions in a
controversy must be accompanied by the authority of applying the law to
the factual conclusions to the end that the controversy may be decided or
resolved authoritatively, finally and definitively, subject to appeals or
modes of review as may be provided by law.[60] Even respondents
themselves admit that the commission is bereft of any quasi-judicial
power.[61]

Contrary to petitioners apprehension, the PTC will not supplant the

Ombudsman or the DOJ or erode their respective powers. If at all, the
investigative function of the commission will complement those of the two
offices. As pointed out by the Solicitor General, the recommendation to
prosecute is but a consequence of the overall task of the commission to
conduct a fact-finding investigation.[62] The actual prosecution of suspected
offenders, much less adjudication on the merits of the charges against
them,[63] is certainly not a function given to the commission. The phrase,
when in the course of its investigation, under Section 2(g), highlights this
fact and gives credence to a contrary interpretation from that of the
petitioners. The function of determining probable cause for the filing of the
appropriate complaints before the courts remains to be with the DOJ and the
Ombudsman.[64]

At any rate, the Ombudsmans power to investigate under R.A. No. 6770 is
not exclusive but is shared with other similarly authorized government
agencies. Thus, in the case of Ombudsman v. Galicia,[65] it was written:

This power of investigation granted to the Ombudsman by

the 1987 Constitution and The Ombudsman Act is not
exclusive but is shared with other similarly authorized
 government agencies such as the PCGG and judges of
municipal trial courts and municipal circuit trial courts. The
power to conduct preliminary investigation on charges
against public employees and officials is likewise
concurrently shared with the Department of Justice.
Despite the passage of the Local Government Code in 1991,
the Ombudsman retains concurrent jurisdiction with the
Office of the President and the local Sanggunians to
investigate complaints against local elective officials.
[Emphasis supplied].

Also, Executive Order No. 1 cannot contravene the power of the

Ombudsman to investigate criminal cases under Section 15 (1) of R.A. No.
6770, which states:

(1) Investigate and prosecute on its own or on

complaint by any person, any act or omission of any public
officer or employee, office or agency, when such act or
omission appears to be illegal, unjust, improper or
inefficient. It has primary jurisdiction over cases cognizable
by the Sandiganbayan and, in the exercise of its primary
jurisdiction, it may take over, at any stage, from any
investigatory agency of government, the investigation of such
cases. [Emphases supplied]

The act of investigation by the Ombudsman as enunciated above

contemplates the conduct of a preliminary investigation or the determination
of the existence of probable cause. This is categorically out of the PTCs
sphere of functions. Its power to investigate is limited to obtaining facts so
that it can advise and guide the President in the performance of his duties
relative to the execution and enforcement of the laws of the land. In this
regard, the PTC commits no act of usurpation of the Ombudsmans
primordial duties.
The same holds true with respect to the DOJ. Its authority under Section 3
(2), Chapter 1, Title III, Book IV in the Revised Administrative Code is by
no means exclusive and, thus, can be shared with a body likewise tasked to
investigate the commission of crimes.

Finally, nowhere in Executive Order No. 1 can it be inferred that the

findings of the PTC are to be accorded conclusiveness. Much like its
predecessors, the Davide Commission, the Feliciano Commission and the
Zenarosa Commission, its findings would, at best, be recommendatory in
nature. And being so, the Ombudsman and the DOJ have a wider degree of
latitude to decide whether or not to reject the recommendation. These
offices, therefore, are not deprived of their mandated duties but will instead
be aided by the reports of the PTC for possible indictments for violations of
graft laws.

Violation of the Equal Protection Clause

Although the purpose of the Truth Commission falls within the

investigative power of the President, the Court finds difficulty in upholding
the constitutionality of Executive Order No. 1 in view of its apparent
transgression of the equal protection clause enshrined in Section 1, Article
III (Bill of Rights) of the 1987 Constitution. Section 1 reads:

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.

The petitioners assail Executive Order No. 1 because it is violative of

this constitutional safeguard. They contend that it does not apply equally to
all members of the same class such that the intent of singling out the
previous administration as its sole object makes the PTC an adventure in
partisan hostility.[66] Thus, in order to be accorded with validity, the
commission must also cover reports of graft and corruption in virtually all
administrations previous to that of former President Arroyo.[67]
 The petitioners argue that the search for truth behind the reported
cases of graft and corruption must encompass acts committed not only
during the administration of former President Arroyo but also during prior
administrations where the same magnitude of controversies and
anomalies[68] were reported to have been committed against the Filipino
people. They assail the classification formulated by the respondents as it
does not fall under the recognized exceptions because first, there is no
substantial distinction between the group of officials targeted for
investigation by Executive Order No. 1 and other groups or persons who
abused their public office for personal gain; and second, the selective
classification is not germane to the purpose of Executive Order No. 1 to end
corruption.[69] In order to attain constitutional permission, the petitioners
advocate that the commission should deal with graft and grafters prior and
subsequent to the Arroyo administration with the strong arm of the law with
equal force.[70]

Position of respondents

According to respondents, while Executive Order No. 1 identifies the

previous administration as the initial subject of the investigation, following
Section 17 thereof, the PTC will not confine itself to cases of large scale
graft and corruption solely during the said
[71]
administration. Assuming arguendo that the commission would confine
its proceedings to officials of the previous administration, the petitioners
argue that no offense is committed against the equal protection clause for
the segregation of the transactions of public officers during the previous
administration as possible subjects of investigation is a valid classification
based on substantial distinctions and is germane to the evils which the
Executive Order seeks to correct.[72] To distinguish the Arroyo
administration from past administrations, it recited the following:

First. E.O. No. 1 was issued in view of widespread

reports of large scale graft and corruption in the previous
administration which have eroded public confidence in public
institutions. There is, therefore, an urgent call for the
determination of the truth regarding certain reports of large
 scale graft and corruption in the government and to put a
closure to them by the filing of the appropriate cases against
those involved, if warranted, and to deter others from
committing the evil, restore the peoples faith and confidence in
the Government and in their public servants.

Second. The segregation of the preceding administration

as the object of fact-finding is warranted by the reality that
unlike with administrations long gone, the current
administration will most likely bear the immediate
consequence of the policies of the previous administration.

Third. The classification of the previous administration

as a separate class for investigation lies in the reality that
the evidence of possible criminal activity, the evidence that
could lead to recovery of public monies illegally dissipated, the
policy lessons to be learned to ensure that anti-corruption laws
are faithfully executed, are more easily established in the
regime that immediately precede the current administration.

Fourth. Many administrations subject the transactions of

their predecessors to investigations to provide closure to issues
that are pivotal to national life or even as a routine measure of
due diligence and good housekeeping by a nascent
administration like the Presidential Commission on Good
Government (PCGG), created by the late President Corazon C.
Aquino under Executive Order No. 1 to pursue the recovery of
ill-gotten wealth of her predecessor former President Ferdinand
Marcos and his cronies, and the Saguisag Commission created
by former President Joseph Estrada under Administrative Order
No, 53, to form an ad-hoc and independent citizens committee
to investigate all the facts and circumstances surrounding
Philippine Centennial projects of his predecessor, former
President Fidel V. Ramos.[73] [Emphases supplied]

Concept of the Equal Protection Clause

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.[74]

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.[75] It requires
public bodies and institutions to treat similarly situated individuals in a
similar manner.[76] The purpose of the equal protection clause is to secure
every person within a states jurisdiction against intentional and arbitrary
discrimination, whether occasioned by the express terms of a statue or by its
improper execution through the states duly constituted authorities.[77] 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.[78]

The equal protection clause is aimed at all official state actions, not
just those of the legislature.[79] 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. [80]

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.[81] Superficial
differences do not make for a valid classification.[82]

For a classification to meet the requirements of constitutionality, it

must include or embrace all persons who naturally belong to the
class.[83] 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.[84]

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. As elucidated
in Victoriano v. Elizalde Rope Workers' Union[85] and reiterated in a long
line of cases,[86]
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.
[Citations omitted]

Applying these precepts to this case, Executive Order No. 1 should be

struck down as violative of the equal protection clause. The clear mandate
of the envisioned truth commission is to investigate and find out the truth
concerning the reported cases of graft and corruption during the previous
administration[87] only. The intent to single out the previous administration
is plain, patent and manifest. Mention of it has been made in at least three
portions of the questioned executive order. Specifically, these are:

WHEREAS, there is a need for a separate body dedicated

solely to investigating and finding out the truth concerning
the reported cases of graft and corruption during
the previous administration, and which will recommend the
prosecution of the offenders and secure justice for all;
 SECTION 1. Creation of a Commission. There is hereby
created the PHILIPPINE TRUTH COMMISSION,
hereinafter referred to as the COMMISSION, which shall
primarily seek and find the truth on, and toward this end,
investigate reports of graft and corruption of such scale and
magnitude that shock and offend the moral and ethical
sensibilities of the people, committed by public officers and
employees, their co-principals, accomplices and accessories
from the private sector, if any, during the previous
administration; and thereafter recommend the appropriate
action or measure to be taken thereon to ensure that the full
measure of justice shall be served without fear or favor.

SECTION 2. Powers and Functions. The Commission, which

shall have all the powers of an investigative body under
Section 37, Chapter 9, Book I of the Administrative Code of
1987, is primarily tasked to conduct a thorough fact-finding
investigation of reported cases of graft and corruption
referred to in Section 1, involving third level public officers
and higher, their co-principals, accomplices and accessories
from the private sector, if any, during the previous
administrationand thereafter submit its finding and
recommendations to the President, Congress and the
Ombudsman. [Emphases supplied]

In this regard, it must be borne in mind that the Arroyo administration

is but just a member of a class, that is, a class of past administrations. It is
not a class of its own. Not to include past administrations similarly situated
constitutes arbitrariness which the equal protection clause cannot
sanction. Such discriminating differentiation clearly reverberates to label the
commission as a vehicle for vindictiveness and selective retribution.

Though the OSG enumerates several differences between the Arroyo

administration and other past administrations, these distinctions are not
substantial enough to merit the restriction of the investigation to the
previous administration only. The reports of widespread corruption in the
Arroyo administration cannot be taken as basis for distinguishing said
administration from earlier administrations which were also blemished by
similar widespread reports of impropriety. They are not inherent in, and do
not inure solely to, the Arroyo administration. As Justice Isagani Cruz put it,
Superficial differences do not make for a valid classification.[88]

The public needs to be enlightened why Executive Order No. 1

chooses to limit the scope of the intended investigation to the previous
administration only. The OSG ventures to opine that to include other past
administrations, at this point, may unnecessarily overburden the commission
and lead it to lose its effectiveness.[89] The reason given is specious. It is
without doubt irrelevant to the legitimate and noble objective of the PTC to
stamp out or end corruption and the evil it breeds.[90]

The probability that there would be difficulty in unearthing evidence

or that the earlier reports involving the earlier administrations were already
inquired into is beside the point. Obviously, deceased presidents and cases
which have already prescribed can no longer be the subjects of inquiry by
the PTC. Neither is the PTC expected to conduct simultaneous
investigations of previous administrations, given the bodys limited time and
resources. The law does not require the impossible (Lex non cogit ad
impossibilia).[91]

Given the foregoing physical and legal impossibility, the Court

logically recognizes the unfeasibility of investigating almost a centurys
worth of graft cases. However, the fact remains that Executive Order No. 1
suffers from arbitrary classification. The PTC, to be true to its mandate of
searching for the truth, must not exclude the other past administrations. The
PTC must, at least, have the authority to investigate all past
administrations. While reasonable prioritization is permitted, it should not
be arbitrary lest it be struck down for being unconstitutional. In the often
quoted language of Yick Wo v. Hopkins,[92]
 Though the law itself be fair on its face and impartial in
appearance, yet, if applied and administered by public
authority with an evil eye and an unequal hand, so as
practically to make unjust and illegal discriminations between
persons in similar circumstances, material to their rights, the
denial of equal justice is still within the prohibition of the
constitution. [Emphasis supplied]

It could be argued that considering that the PTC is an ad hoc body, its
scope is limited. The Court, however, is of the considered view that
although its focus is restricted, the constitutional guarantee of equal
protection under the laws should not in any way be circumvented. The
Constitution is the fundamental and paramount law of the nation to which
all other laws must conform and in accordance with which all private rights
determined and all public authority administered.[93] Laws that do not
conform to the Constitution should be stricken down for being
unconstitutional.[94] While the thrust of the PTC is specific, that is, for
investigation of acts of graft and corruption, Executive Order No. 1, to
survive, must be read together with the provisions of the Constitution. To
exclude the earlier administrations in the guise of substantial distinctions
would only confirm the petitioners lament that the subject executive order is
only an adventure in partisan hostility. In the case of US v. Cyprian,[95] it
was written: A rather limited number of such classifications have routinely
been held or assumed to be arbitrary; those include: race, national origin,
gender, political activity or membership in a political party, union activity
or membership in a labor union, or more generally the exercise of first
amendment rights.

To reiterate, in order for a classification to meet the requirements of

constitutionality, it must include or embrace all persons who naturally
belong to the class.[96] Such a classification must not be based on existing
circumstances only, or so constituted as to preclude additions to the number
included within a class, but must be of such a nature as to embrace all those
who may thereafter be in similar circumstances and conditions. Furthermore,
all who are in situations and circumstances which are relative to the
discriminatory legislation and which are indistinguishable from those of the
members of the class must be brought under the influence of the law and
treated by it in the same way as are the members of the class.[97]

The Court is not unaware that mere underinclusiveness is not fatal to

the validity of a law under the equal protection clause.[98] Legislation is not
unconstitutional merely because it is not all-embracing and does not include
all the evils within its reach.[99] It has been written that a regulation
challenged under the equal protection clause is not devoid of a rational
predicate simply because it happens to be incomplete.[100] In several
instances, the underinclusiveness was not considered a valid reason to strike
down a law or regulation where the purpose can be attained in future
legislations or regulations. These cases refer to the step by step
process.[101] With regard to equal protection claims, a legislature does not
run the risk of losing the entire remedial scheme simply because it fails,
through inadvertence or otherwise, to cover every evil that might
conceivably have been attacked.[102]

In Executive Order No. 1, however, there is no inadvertence. That the

previous administration was picked out was deliberate and intentional as can
be gleaned from the fact that it was underscored at least three times in the
assailed executive order. It must be noted that Executive Order No. 1 does
not even mention any particular act, event or report to be focused on unlike
the investigative commissions created in the past. The equal protection
clause is violated by purposeful and intentional discrimination.[103]

To disprove petitioners contention that there is deliberate

discrimination, the OSG clarifies that the commission does not only confine
itself to cases of large scale graft and corruption committed during the
previous administration.[104] The OSG points to Section 17 of Executive
Order No. 1, which provides:

SECTION 17. Special Provision Concerning Mandate. If and

when in the judgment of the President there is a need to expand
the mandate of the Commission as defined in Section 1 hereof to
 include the investigation of cases and instances of graft and
corruption during the prior administrations, such mandate may be
so extended accordingly by way of a supplemental Executive
Order.

The Court is not convinced. Although Section 17 allows the President

the discretion to expand the scope of investigations of the PTC so as to
include the acts of graft and corruption committed in other past
administrations, it does not guarantee that they would be covered in the
future. Such expanded mandate of the commission will still depend on the
whim and caprice of the President. If he would decide not to include them,
the section would then be meaningless. This will only fortify the fears of the
petitioners that the Executive Order No. 1 was crafted to tailor-fit the
prosecution of officials and personalities of the Arroyo administration.[105]

The Court tried to seek guidance from the pronouncement in the case
of Virata v. Sandiganbayan,[106] that the PCGG Charter (composed of
Executive Orders Nos. 1, 2 and 14) does not violate the equal protection
clause. The decision, however, was devoid of any discussion on how such
conclusory statement was arrived at, the principal issue in said case being
only the sufficiency of a cause of action.

A final word

The issue that seems to take center stage at present is - whether or not
the Supreme Court, in the exercise of its constitutionally mandated power of
Judicial Review with respect to recent initiatives of the legislature and the
executive department, is exercising undue interference. Is the Highest
Tribunal, which is expected to be the protector of the Constitution, itself
guilty of violating fundamental tenets like the doctrine of separation of
powers? Time and again, this issue has been addressed by the Court, but it
seems that the present political situation calls for it to once again explain the
legal basis of its action lest it continually be accused of being a hindrance to
the nations thrust to progress.

The Philippine Supreme Court, according to Article VIII, Section 1 of

the 1987 Constitution, is vested with Judicial Power that 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 of abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the government.

Furthermore, in Section 4(2) thereof, it is vested with the power of

judicial review which is the power to declare a treaty, international or
executive agreement, law, presidential decree, proclamation, order,
instruction, ordinance, or regulation unconstitutional. This power also
includes the duty to rule on the constitutionality of the application, or
operation of presidential decrees, proclamations, orders, instructions,
ordinances, and other regulations. These provisions, however, have been
fertile grounds of conflict between the Supreme Court, on one hand, and the
two co-equal bodies of government, on the other. Many times the Court has
been accused of asserting superiority over the other departments.

To answer this accusation, the words of Justice Laurel would be a

good source of enlightenment, to wit: And when the judiciary mediates to
allocate constitutional boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or invalidate an act of the
legislature, but only asserts the solemn and sacred obligation assigned to it
by the Constitution to determine conflicting claims of authority under the
Constitution and to establish for the parties in an actual controversy the
rights which that instrument secures and guarantees to them.[107]

Thus, the Court, in exercising its power of judicial review, is not

imposing its own will upon a co-equal body but rather simply making sure
that any act of government is done in consonance with the authorities and
rights allocated to it by the Constitution. And, 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. Otherwise, the Court will not be
deterred to pronounce said act as void and unconstitutional.

It cannot be denied that most government actions are inspired with

noble intentions, all geared towards the betterment of the nation and its
people. But then again, it is important to remember this ethical principle:
The end does not justify the means. No matter how noble and worthy of
admiration the purpose of an act, but if the means to be employed in
accomplishing it is simply irreconcilable with constitutional parameters,
then it cannot still be allowed.[108] The Court cannot just turn a blind eye and
simply let it pass. It will continue to uphold the Constitution and its
enshrined principles.

The Constitution must ever remain supreme. All must

bow to the mandate of this law. Expediency must not be
allowed to sap its strength nor greed for power debase its
rectitude.[109]

Lest it be misunderstood, this is not the death knell for a truth

commission as nobly envisioned by the present administration. Perhaps a
revision of the executive issuance so as to include the earlier past
administrations would allow it to pass the test of reasonableness and
not be an affront to the Constitution. Of all the branches of the
government, it is the judiciary which is the most interested in knowing the
truth and so it will not allow itself to be a hindrance or obstacle to its
attainment. It must, however, be emphasized that the search for the truth
must be within constitutional bounds for ours is still a government of laws
and not of men.[110]

WHEREFORE, the petitions are GRANTED. Executive Order No.

1 is hereby declared UNCONSTITUTIONAL insofar as it is violative of the
equal protection clause of the Constitution.

As also prayed for, the respondents are hereby ordered to cease and
desist from carrying out the provisions of Executive Order No. 1.
SO ORDERED.

EN BANC

COMMISSION ON ELECTIONS, G.R. No. 186616

Petitioner,

- versus - Present:

CONRADO CRUZ, SANTIAGO P. PUNO, C.J.,

GO, RENATO F. BORBON, CARPIO,
LEVVINO CHING, CARLOS C. CORONA,*
FLORENTINO, RUBEN G. CARPIO MORALES,
BALLEGA, LOIDA ALCEDO, CHICO-NAZARIO,
MARIO M. CAJUCOM, VELASCO, JR.,I**
EMMANUEL M. CALMA, MANUEL NACHURA,
A. RAYOS, WILMA L. CHUA, LEONARDO-DE CASTRO,
EUFEMIO S. ALFONSO, JESUS M. BRION,
LACANILAO, BONIFACIO N. PERALTA,***
ALCAPA, JOSE H. SILVERIO, BERSAMIN,
RODRIGO DEVELLES, NIDA R. DEL CASTILLO,
PAUNAN, MARIANO B. ESTUYE, ABAD, and
JR., RAFAEL C. AREVALO, VILLARAMA, JR., JJ.
ARTURO T. MANABAT, RICARDO
O. LIZARONDO, LETICIA C.
MATURAN, RODRIGO A.
ALAYAN, LEONILO N. MIRANDA,
DESEDERIO O. MONREAL,
FRANCISCO M. BAHIA, NESTOR
R. FORONDA, VICENTE B. QUE,
JR., AURELIO A. BILUAN, DANILO
R. GATCHALIAN, LOURDES R. Promulgated:
DEL MUNDO, EMMA O.
CALZADO, FELIMON DE LEON,
TANY V. CATACUTAN, AND November 20, 2009
CONCEPCION P. JAO,
Respondents.
x --------------------------------------------------------------------------------------- x
DECISION

BRION, J.:

We resolve in this Decision the constitutional challenge, originally

filed before the Regional Trial Court of Caloocan City, Branch 128 (RTC),
against the following highlighted portion of Section 2 of Republic Act (RA)
No. 9164 (entitled An Act Providing for Synchronized Barangay and
Sangguniang Kabataan Elections, amending RA No. 7160, as amended,
otherwise known as the Local Government Code of 1991):

Sec. 2. Term of Office. The term of office of

all barangay and sangguniang kabataan officials after
the effectivity of this Act shall be three (3) years.

No barangay elective official shall serve for more than

three (3) consecutive terms in the same position: Provided,
however, That the term of office shall be reckoned from the
1994 barangay elections. Voluntary renunciation of office for
any length of time shall not be considered as an interruption in
 the continuity of service for the full term for which the elective
official was elected.

The RTC granted the petition and declared the challenged proviso
constitutionally infirm. The present petition, filed by the Commission on
Elections (COMELEC), seeks a review of the RTC decision.[1]

THE ANTECEDENTS

Before the October 29, 2007

Synchronized Barangay and Sangguniang Kabataan (SK) Elections, some
of the then incumbent officials of several barangays of Caloocan
City[2] filed with the RTC a petition for declaratory relief to challenge the
constitutionality of the above-highlighted proviso, based on the following
arguments:

I. The term limit of Barangay officials should be

applied prospectively and not retroactively.

II. Implementation of paragraph 2 Section 2 of RA

No. 9164 would be a violation of the equal protection of the
law.

III. Barangay officials have always been apolitical.

The RTC agreed with the respondents contention that the challenged
proviso retroactively applied the three-term limit for barangay officials
under the following reasoning:

When the Local Government Code of 1991 took effect

abrogating all other laws inconsistent therewith, a different term
was ordained. Here, this Court agrees with the position of the
petitioners that Section 43 of the Code specifically
exempted barangayelective officials from the coverage of the
three (3) consecutive term limit rule considering that the
provision applicable to these (sic) class of elective officials was
significantly separated from the provisions of paragraphs (a) and
(b) thereof. Paragraph (b) is indeed intended to qualify paragraph
(a) of Section 43 as regards to (sic) all local elective officials
except barangay officials. Had the intention of the framers of the
Code is (sic) to include barangay elective officials, then no
excepting proviso should have been expressly made in paragraph
(a) thereof or, by implication, the contents of paragraph (c)
should have been stated ahead of the contents of paragraph (b).

xxxx

Clearly, the intent of the framers of the constitution (sic) is to

exempt the barangay officials from the three (3) term limits (sic)
which are otherwise applicable to other elected public officials
from the Members of the House of Representatives down to the
members of the sangguniang bayan/panlungsod. It is up for the
Congress whether the three (3) term limit should be applied by
enacting a law for the purpose.

The amendment introduced by R.A. No. 8524 merely increased

the term of office of barangay elective officials from three (3)
years to five (5) years. Like the Local Government Code, it can
be noted that no consecutive term limit for the election
of barangayelective officials was fixed therein.

The advent of R.A. 9164 marked the revival of the

consecutive term limit for the election of barangay elective
officials after the Local Government Code took effect. Under the
assailed provision of this Act, the term of office
of barangay elective officials reverted back to three (3) years
from five (5) years, and, this time, the legislators expressly
declared that no barangay elective official shall serve for more
than three (3) consecutive terms in the same position. The
petitioners are very clear that they are not assailing the validity of
such provision fixing the three (3) consecutive term limit rule for
the election of barangay elective officials to the same
position. The particular provision the constitutionality of which is
under attack is that portion providing for the reckoning of the
 three (3) consecutive term limit of barangay elective officials
beginning from the 1994 barangay elections.

xxx

Section 2, paragraph 2 of R.A. 9164 is not a mere

restatement of Section 43(c) of the Local Government Code. As
discussed above, Section 43(c) of the Local Government Code
does not provide for the consecutive term limit rule
of barangay elective officials. Such specific provision of the
Code has in fact amended the previous enactments (R.A. 6653
and R.A. 6679) providing for the consecutive term limit rule
of barangay elective officials. But, such specific provision of the
Local Government Code was amended by R.A. 9164, which
reverted back to the previous policy of fixing consecutive term
limits of barangay elective officials. [3]

In declaring this retroactive application unconstitutional, the RTC

explained that:

By giving a retroactive reckoning of the three (3) consecutive

term limit rule for barangay officials to the
1994 barangay elections, Congress has violated not only the
principle of prospective application of statutes but also the equal
protection clause of the Constitution inasmuch as
the barangay elective officials were singled out that their
consecutive term limit shall be counted retroactively. There is no
rhyme or reason why the consecutive limit for
these barangay officials shall be counted retroactively while the
consecutive limit for other local and national elective officials are
counted prospectively. For if the purpose of Congress is [sic] to
classify elective barangay officials as belonging to the same class
of public officers whose term of office are limited to three (3)
consecutive terms, then to discriminate them by applying the
proviso retroactively violates the constitutionally enshrined
principle of equal protection of the laws.
Although the Constitution grants Congress the power to
determine such successive term limit of barangay elective
officials, the exercise of the authority granted shall not otherwise
transgress other constitutional and statutory privileges.

This Court cannot subscribe to the position of the respondent that

the legislature clearly intended that the provision of RA No. 9164
be made effective in 1994 and that such provision is valid and
constitutional. If we allow such premise, then the term of office
for those officials elected in the 1997 barangay elections should
have ended in year 2000 and not year 2002 considering that RA
No. 9164 provides for a three-year term of barangay elective
officials. The amendment introduced by R.A. No. 8524 would be
rendered nugatory in view of such retroactive application. This is
absurd and illusory.

True, no person has a vested right to a public office, the same not
being property within the contemplation of constitutional
guarantee. However, a cursory reading of the petition would show
that the petitioners are not claiming vested right to their office but
their right to be voted upon by the electorate without being
burdened by the assailed provision of the law that, in effect,
rendered them ineligible to run for their incumbent
positions. Such right to run for office and be voted for by the
electorate is the right being sought to be protected by assailing the
otherwise unconstitutional provision.

Moreover, the Court likewise agrees with the petitioners that the
law violated the one-act-one subject rule embodied in the
Constitution. x x x x The challenged laws title is AN ACT
PROVIDING FOR THE
SYNCHRONIZED BARANGAY AND SANGGUNIANG KABAT
AAN ELECTIONS, AMENDING REPUBLIC ACT 7160
OTHERWISE KNOWN AS THE LOCAL GOVERNMENT
CODE OF 1991 AND FOR OTHER PURPOSES. x x x x

xxxx
 To this court, the non-inclusion in the title of the act on the
retroactivity of the reckoning of the term limits posed a serious
constitutional breach, particularly on the provision of the
constitution [sic] that every bill must embrace only one subject to
be expressed in the title thereof.

x x x the Court is of the view that the affected barangay officials

were not sufficiently given notice that they were already
disqualified by a new act, when under the previous enactments no
such restrictions were imposed.

Even if this Court would apply the usual test in determining the
sufficiency of the title of the bill, the challenged law would still
be insufficient for how can a retroactivity of the term limits be
germane to the synchronization of an election x x x x.[4]

The COMELEC moved to reconsider this decision but the RTC denied the
motion. Hence, the present petition on a pure question of law.

The Petition

The COMELEC takes the position that the assailed law is valid and
constitutional. RA No. 9164 is an amendatory law to RA No. 7160 (the
Local Government Code of 1991 or LGC) and is not a penal law; hence, it
cannot be considered an ex post facto law. The three-term limit, according
to the COMELEC, has been specifically provided in RA No. 7160, and RA
No. 9164 merely restated the three-term limitation. It further asserts that
laws which are not penal in character may be applied retroactively when
expressly so provided and when it does not impair vested rights. As there is
no vested right to public office, much less to an elective post, there can be
no valid objection to the alleged retroactive application of RA No. 9164.

The COMELEC also argues that the RTCs invalidation of RA No.

9164 essentially involves the wisdom of the law the aspect of the law that
the RTC has no right to inquire into under the constitutional separation of
powers principle. The COMELEC lastly argues that there is no violation of
the one subject-one title rule, as the matters covered by RA No. 9164 are
related; the assailed provision is actually embraced within the title of the
law.

THE COURTS RULING

We find the petition meritorious. The RTC legally erred when it declared
the challenged proviso unconstitutional.

Preliminary Considerations

We find it appropriate, as a preliminary matter, to hark back to the

pre-1987 Constitution history of the barangay political system as outlined
by this Court in David v. COMELEC,[5] and we quote:

As a unit of government, the barangay antedated the

Spanish conquest of the Philippines. The word barangay is
derived from the Malay balangay, a boat which transported them
(the Malays) to these shores. Quoting from Juan de Plasencia, a
Franciscan missionary in 1577, Historian Conrado Benitez wrote
that the barangay was ruled by a dato who exercised absolute
powers of government. While the Spaniards kept the barangay as
the basic structure of government, they stripped
the dato or rajah of his powers.Instead, power was centralized
nationally in the governor general and locally in
the encomiendero and later, in the alcalde mayor and
the gobernadorcillo. The dato or rajah was much later
renamed cabeza de barangay, who was elected by the local
citizens possessing property. The position degenerated from a
title of honor to that of a mere government employee. Only the
poor who needed a salary, no matter how low, accepted the post.

After the Americans colonized the Philippines,

the barangays became known as barrios. For some time, the laws
governing barrio governments were found in the Revised
Administrative Code of 1916 and later in the Revised
Administrative Code of 1917.Barrios were granted autonomy by
the original Barrio Charter, RA 2370, and formally recognized as
 quasi-municipal corporations by the Revised Barrio Charter, RA
3590. During the martial law regime, barrios were declared or
renamed barangays -- a reversion really to their pre-Spanish
names -- by PD. No. 86 and PD No. 557. Their basic organization
and functions under RA 3590, which was expressly adopted as
the Barangay Charter, were retained. However, the titles of the
officials were changed
to barangaycaptain, barangay councilman, barangay secretary
and barangay treasurer.

Pursuant to Sec. 6 of Batas Pambansa Blg. 222,

a Punong Barangay (Barangay Captain) and
six Kagawads ng Sangguniang Barangay (Barangay Councilmen
), who shall constitute the presiding officer and members of
the Sangguniang Barangay (Barangay Council) respectively
were first elected on May 17, 1982. They had a term of six years
which began on June 7, 1982.

The Local Government Code of 1983 also fixed the term

of office of local elective officials at six years. Under this Code,
the chief officials of the barangay were the punong barangay,
six elective sangguniang barangay members,
the kabataangbarangay chairman, a barangay secretary and
a barangay treasurer.

B.P. Blg. 881, the Omnibus Election Code, reiterated

that barangay officials shall hold office for six years, and stated
that their election was to be held on the second Monday of May
nineteen hundred and eighty eight and on the same day every six
years thereafter. [Emphasis supplied.]

The 1987 Philippine Constitution extended constitutional recognition

to barangays under Article X, Section 1 by specifying barangays as one of
the territorial and political subdivisions of the country, supplemented by
Section 8 of the same Article X, which provides:
 SEC. 8. The term of office of elective local
officials, except barangay officials, which shall be determined
by law, shall be three years and no such official shall serve for
more than three consecutive terms. Voluntary renunciation of
the office for any length of time shall not be considered as an
interruption in the continuity of his service for the full term for
which he was elected. [Emphasis supplied.]

The Constitutional Commissions deliberations on Section 8 show that the

authority of Congress to legislate relates not only to the fixing of the term of
office of barangay officials, but also to the application of the three-term
limit. The following deliberations of the Constitutional Commission are
particularly instructive on this point:

MR. NOLLEDO: One clarificatory question, Madam

President. What will be the term of the
office of barangay officials as
provided for?

MR. DAVIDE: As may be determined by law.

MR. NOLLEDO: As provided for in the Local

Government Code?

MR. DAVIDE: Yes.

xxxxxxxxx

THE PRESIDENT: Is there any other comment? Is there

any objection to this proposed new
section as submitted by Commissioner
Davide and accepted by the
Committee?

MR. RODRIGO: Madam President, does this

prohibition to serve for more than
 three consecutive terms apply
to barangay officials?

MR. DAVIDE: Madam President, the voting that we

had on the terms of office did not
include the barangay officials
because it was then the stand of the
Chairman of the Committee on
Local Governments that the term
of barangay officials must be
determined by law. So it is now for
the law to determine whether the
restriction on the number of
reelections will be included in the
Local Government Code.

MR. RODRIGO: So that is up to Congress to decide.

MR. DAVIDE: Yes.

MR. RODRIGO: I just wanted that clear in the

record.[6] [Emphasis supplied.]

After the effectivity of the 1987 Constitution, the barangay election

originally scheduled by Batas Pambansa Blg. 881[7] on the second Monday
of May 1988 was reset to the second Monday of November 1988 and every
five years thereafter by RA No. 6653.[8] Section 2 of RA No. 6653 changed
the term of office of barangay officials and introduced a term limitation as
follows:

SEC. 2. The term of office of barangay officials shall be

for five (5) years from the first day of January following their
election. Provided, however, That no kagawad shall serve for
more than two (2) consecutive terms. [Emphasis supplied]
Under Section 5 of RA No. 6653, the punong barangay was to be chosen by
seven kagawads from among themselves, and they in turn, were to be
elected at large by the barangay electorate. The punong barangay, under
Section 6 of the law, may be recalled for loss of confidence by an absolute
majority vote of the Sangguniang Barangay, embodied in a resolution that
shall necessarily include the punong barangays successor.

The election date set by RA No. 6653 on the second Monday of

November 1988 was postponed yet again to March 28, 1989 by RA No.
6679 whose pertinent provision states:

SEC. 1. The elections of barangay officials set on the

second Monday of November 1988 by Republic Act No. 6653 are
hereby postponed and reset to March 28, 1989. They shall serve
a term which shall begin on the first day of May 1989 and
ending on the thirty-first day of May 1994.

There shall be held a regular election of barangay officials

on the second Monday of May 1994 and on the same day every
five (5) years thereafter. Their term shall be for five (5) years
which shall begin on the first day of June following the election
and until their successors shall have been elected and
qualified: Provided, That no barangay official shall serve for
more than three (3) consecutive terms.

The barangay elections shall be nonpartisan and shall be

conducted in an expeditious and inexpensive manner.

Significantly, the manner of election of the punong barangay was changed

Section 5 of the law provided that while the seven kagawads were to
be elected by the registered voters of the barangay, (t)he candidate who
obtains the highest number of votes shall be the punong barangay and in the
event of a tie, there shall be a drawing of lots under the supervision of the
Commission on Elections.

More than two (2) years after the 1989 barangay elections, RA No.
7160 (the LGC) introduced the following changes in the law:
 SEC. 41. Manner of Election. -- (a) The x x
x punong barangay shall be elected at large x x x by the qualified
voters therein.

SEC. 43. Term of Office. - (a) The term of office of all

local elective officials elected after the effectivity of this Code
shall be three (3) years, starting from noon of June 30, 1992 or
such date as may be provided for by law, except that of
elective barangayofficials: Provided, That all local officials first
elected during the local elections immediately following the
ratification of the 1987 Constitution shall serve until noon of June
30, 1992.

(b) No local elective official shall serve for more than

three (3) consecutive terms in the same position. Voluntary
renunciation of the office for any length of time shall not be
considered as an interruption in the continuity of service for the
full term for which the elective official concerned was elected.

(c) The term of office of barangay officials and

members of the sangguniang kabataan shall be for three (3)
years, which shall begin after the regular election
of barangay officials on the second Monday of May 1994.

SEC. 387. Chief Officials and Offices. -- (a) There shall be

in each barangay a punong barangay, seven (7) sangguniang
barangay members, the sangguniang kabataan chairman,
a barangay secretary and a barangay treasurer.

xxxxxxxxx

SEC. 390. Composition. -- The Sangguniang barangay, the

legislative body of the barangay, shall be composed of
the punong barangay as presiding officer, and the seven (7)
regular sanguniang barangay members elected at large and
 the sanguniang kabataan chairman as members. [Emphasis
supplied.]

This law started the direct and separate election of

the punong barangay by the qualified voters in the barangay and not by the
seven (7) kagawads from among themselves.[9]

Subsequently or on February 14, 1998, RA No. 8524 changed the

three-year term of office of barangay officials under Section 43 of the LGC
to five (5) years. On March 19, 2002, RA No. 9164 introduced the
following significant changes: (1) the term of office of barangay officials
was again fixed at three years on the reasoning that the barangay officials
should not serve a longer term than their supervisors;[10] and (2) the
challenged proviso, which states that the 1994 election shall be the
reckoning point for the application of the three-term limit, was
introduced. Yet another change was introduced three years after or on July
25, 2005 when RA No. 9340 extended the term of the then
incumbent barangay officials due to expire at noon of November 30, 2005
under RA No. 9164 to noon of November 30, 2007. The three-year term
limitation provision survived all these changes.

Congress Plenary Power to

Legislate Term Limits for Barangay
Officials and Judicial Power

In passing upon the issues posed to us, we clarify at the outset the
parameters of our powers.

As reflected in the above-quoted deliberations of the 1987

Constitution, Congress has plenary authority under the Constitution to
determine by legislation not only the duration of the term
of barangay officials, but also the application to them of a consecutive term
limit. Congress invariably exercised this authority when it enacted no less
than six (6) barangay-related laws since 1987.

Through all these statutory changes, Congress had determined at its

discretion both the length of the term of office of barangay officials and
their term limitation. Given the textually demonstrable commitment by the
1987 Constitution to Congress of the authority to determine the term
duration and limition of barangay officials under the Constitution, we
consider it established that whatever Congress, in its wisdom, decides on
these matters are political questions beyond the pale of judicial
scrutiny,[11] subject only to the certiorari jurisdiction of the courts provided
under Section 1, Article VIII of the Constitution and to the judicial authority
to invalidate any law contrary to the Constitution.[12]

Political questions refer to those questions which, under the

Constitution, are to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government; it is concerned with
issues dependent upon the wisdom, not legality of a particular
measure.[13] These questions, previously impervious to judicial scrutiny can
now be inquired into under the limited window provided by Section 1,
Article VIII. Estrada v. Desierto[14] best describes this constitutional
development, and we quote:

To a great degree, the 1987 Constitution has narrowed the reach

of the political 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 todetermine 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 nots 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. In
sync and symmetry with this intent are other provisions of the
1987 Constitution trimming the so called political thicket. xxxx

Thus, we can inquire into a congressional enactment despite the political

question doctrine, although the window provided us is narrow; the challenge
must show grave abuse of discretion to justify our intervention.

Other than the Section 1, Article VIII route, courts can declare a law
invalid when it is contrary to any provision of the Constitution. This
requires the appraisal of the challenged law against the legal standards
provided by the Constitution, not on the basis of the wisdom of the
enactment. To justify its nullification, the breach of the Constitution must be
clear and unequivocal, not a doubtful or equivocal one, as every law enjoys
a strong presumption of constitutionality.[15] These are the hurdles that those
challenging the constitutional validity of a law must overcome.

The present case, as framed by the respondents, poses no challenge

on the issue of grave abuse of discretion. The legal issues posed relate
strictly to compliance with constitutional standards. It is from this prism that
we shall therefore resolve this case.

The Retroactive Application Issue

a. Interpretative / Historical Consideration

The respondents first objection to the challenged provisos

constitutionality is its purported retroactive application of the three-term
limit when it set the 1994 barangay elections as a reckoning point in the
application of the three-term limit.

The respondents argued that the term limit, although present in the
previous laws, was not in RA No. 7160 when it amended all
previous barangay election laws. Hence, it was re-introduced for the first
time by RA No. 9164 (signed into law on March 19, 2002) and was applied
retroactively when it made the term limitation effective from the
1994 barangay elections. As the appealed ruling quoted above shows, the
RTC fully agreed with the respondents position.

Our first point of disagreement with the respondents and with the
RTC is on their position that a retroactive application of the term limitation
was made under RA No. 9164. Our own reading shows that no retroactive
application was made because the three-term limit has been there all
along as early as the second barangay law (RA No. 6679) after the 1987
Constitution took effect; it was continued under the LGC and can still
be found in the current law.We find this obvious from a reading of the
historical development of the law.

The first law that provided a term limitation for barangay officials
was RA No. 6653 (1988); it imposed a two-consecutive term limit. After
only six months, Congress, under RA No. 6679 (1988), changed the
two-term limit by providing for a three-consecutive term limit. This
consistent imposition of the term limit gives no hint of any equivocation in
the congressional intent to provide a term limitation. Thereafter, RA No.
7160 the LGC followed, bringing with it the issue of whether it provided, as
originally worded, for a three-term limit for barangay officials. We differ
with the RTC analysis of this issue.
Section 43 is a provision under Title II of the LGC on Elective
Officials. Title II is divided into several chapters dealing with a wide range
of subject matters, all relating to local elective officials, as follows: a.
Qualifications and Election (Chapter I); b. Vacancies and Succession
(Chapter II), c. Disciplinary Actions (Chapter IV) and d. Recall (Chapter
V). Title II likewise contains a chapter on Local Legislation (Chapter III).

These Title II provisions are intended to apply to all local elective

officials, unless the contrary is clearly provided. A contrary application is
provided with respect to the length of the term of office under Section 43(a);
while it applies to all local elective officials, it does not apply
to barangay officials whose length of term is specifically provided by
Section 43(c). In contrast to this clear case of an exception to a general rule,
the three-term limit under Section 43(b) does not contain any exception; it
applies to all local elective officials who must perforce
include barangay officials.

An alternative perspective is to view Sec. 43(a), (b) and (c) separately

from one another as independently standing and self-contained provisions,
except to the extent that they expressly relate to one another. Thus, Sec.
43(a) relates to the term of local elective officials, except barangay officials
whose term of office is separately provided under Sec. 43(c). Sec. 43(b), by
its express terms, relates to all local elective officials without any exception.
Thus, the term limitation applies to all local elective officials without any
exclusion or qualification.

Either perspective, both of which speak of the same resulting

interpretation, is the correct legal import of Section 43 in the context in
which it is found in Title II of the LGC.

To be sure, it may be argued, as the respondents and the RTC did,

that paragraphs (a) and (b) of Section 43 are the general law for elective
officials (other than barangay officials); and paragraph (c) is the specific
law on barangayofficials, such that the silence of paragraph (c) on term
limitation for barangay officials indicates the legislative intent to
exclude barangay officials from the application of the three-term limit. This
reading, however, is flawed for two reasons.

First, reading Section 43(a) and (b) together to the exclusion of

Section 43(c), is not justified by the plain texts of these provisions. Section
43(a) plainly refers to local elective officials, except
elective barangay officials. In comparison, Section 43(b) refers to all local
elective officials without exclusions or exceptions. Their respective
coverages therefore vary so that one cannot be said to be of the same kind as
the other. Their separate topics additionally strengthen their distinction;
Section 43(a) refers to the term of office while Section 43(b) refers to the
three-term limit. These differences alone indicate that Sections 43(a) and (b)
cannot be read together as one organic whole in the way the RTC suggested.
Significantly, these same distinctions apply between Sec. 43(b) and (c).

Second, the RTC interpretation is flawed because of its total disregard

of the historical background of Section 43(c) a backdrop that we
painstakingly outlined above.

From a historical perspective of the law, the inclusion of Section 43(c)

in the LGC is an absolute necessity to clarify the length of term
of barangay officials. Recall that under RA No. 6679, the term of office
of barangay officials was five (5) years. The real concern was how Section
43 would interface with RA No. 6679. Without a categorical statement on
the length of the term of office of barangay officials, a general three-year
term for all local elective officials under Section 43(a), standing alone, may
not readily and completely erase doubts on the intended abrogation of the
5-year term for barangay officials under RA No. 6679. Thus, Congress
added Section 43(c) which provided a categorical three-year term for these
officials. History tells us, of course, that the unequivocal provision of
Section 43(c) notwithstanding, an issue on what is the exact term of office
of barangay officials was still brought to us via a petition filed by no less
than the President of the Liga ng Mga Barangay in 1997. We fully resolved
the issue in the cited David v. Comelec.

Section 43(c) should therefore be understood in this context and not

in the sense that it intended to provide the complete rule for the election
of barangay officials, so that in the absence of any term limitation proviso
under this subsection, no term limitation applies to barangay officials. That
Congress had the LGCs three-term limit in mind when it enacted RA No.
9164 is clear from the following deliberations in the House of
Representatives (House) on House Bill No. 4456 which later became RA
No. 9164:

MARCH 5, 2002:

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Majority

Leader.
REP. ESCUDERO. Mr. Speaker, next to interpellate is the
Gentleman from Zamboanga City. I ask that the Honorable
Lobregat be recognized.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). The Honorable

Lobregat is recognized.

REP. LOBREGAT. Thank you very much, Mr. Speaker. Mr.

Speaker, this is just

REP. MACIAS. Willingly to the Gentleman

from Zamboanga City.

REP. LOBREGAT. points of clarification, Mr. Speaker, the term

of office. It says in Section 4, The term of office of all Barangay
and sangguniang kabataan officials after the effectivity of this
Act shall be three years. Then it says, No Barangay elective
official shall serve for more than three (3) consecutive terms in
the same position.

Mr. Speaker, I think it is the position of the committee that the

first term should be reckoned from election of what year, Mr.
Speaker?

REP. MACIAS. After the adoption of the Local Government

Code, Your Honor. So that the first election is to be reckoned on,
would be May 8, 1994, as far as the Barangay election is
concerned.

REP. LOBREGAT. Yes, Mr. Speaker. So there was an election in

1994.

REP. MACIAS. Then an election in 1997.

REP. LOBREGAT. There was an election in 1997. And there will

be an election this year
 REP. LOBREGAT. election this year.

REP. MACIAS. That is correct. This will be the third.

xxx xxx

REP. SUMULONG. Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.) The Honorable

Sumulong is recognized.

REP. SUMULONG. Again, with the permission of my Chairman,

I would like to address the question of Congressman Lobregat.

THE DEPUTY SPEAKER (Rep. Espinosa, E.R.). Please proceed.

REP. SUMULONG. With respect to the three-year consecutive

term limits of Barangay Captains that is not provided for in
the Constitution and that is why the election prior to 1991
during the enactment of the Local Government Code is not
counted because it is not in the Constitution but in the Local
Government Code where the three consecutive term limits
has been placed. [Emphasis supplied.]

which led to the following exchanges in the House Committee on

Amendments:

March 6, 2002

COMMITTEE ON AMENDMENTS

REP. GONZALES. May we now proceed to committee

amendment, if any, Mr. Speaker.

THE DEPUTY SPEAKER (Rep. Gonzalez). The Chair

recognizes the distinguished Chairman of the Committee on
Suffrage and Electoral Reforms.
 REP. SYJUCO. Mr. Speaker, on page 2, line 7, after the word
position, substitute the period (.) and add the following:
PROVIDED HOWEVER THAT THE TERM OF OFFICE
SHALL BE RECKONED FROM THE 1994 BARANGAY
ELECTIONS. So that the amended Section 4 now reads as
follows:

SEC. 4. Term of Office. The term of office of all

barangay and sangguniang kabataan officials after the
effectivity of this Act shall be three (3) years.

No barangay elective local official shall serve for

more than three (3) consecutive terms in the same
position COLON (:) PROVIDED, HOWEVER, THAT
THE TERM OF OFFICE SHALL BE RECKONED
FROM THE 1994 BARANGAYELECTIONS. Voluntary
renunciation of office for any length of time shall not be
considered as an interruption in the continuity of service
for the full term for which the elective official was
elected.

The House therefore clearly operated on the premise that the LGC imposed
a three-term limit for barangay officials, and the challenged proviso is its
way of addressing any confusion that may arise from the numerous changes
in the law.

All these inevitably lead to the conclusion that the challenged proviso has
been there all along and does not simply retroact the application of the
three-term limit to the barangay elections of 1994. Congress merely
integrated the past statutory changes into a seamless whole by coming up
with the challenged proviso.

With this conclusion, the respondents constitutional challenge to the

proviso based on retroactivity must fail.

b. No Involvement of Any
Constitutional Standard
 Separately from the above reason, the constitutional challenge must
fail for a more fundamental reason the respondents retroactivity objection
does not involve a violation of any constitutional standard.

Retroactivity of laws is a matter of civil law, not of a constitutional

law, as its governing law is the Civil Code,[16] not the Constitution. Article 4
of the Civil Code provides that laws shall have no retroactive effect unless
the contrary is provided. The application of the Civil Code is of course
self-explanatory laws enacted by Congress may permissibly provide that
they shall have retroactive effect. The Civil Code established a statutory
norm, not a constitutional standard.

The closest the issue of retroactivity of laws can get to a genuine

constitutional issue is if a laws retroactive application will impair vested
rights. Otherwise stated, if a right has already vested in an individual and a
subsequent law effectively takes it away, a genuine due process issue may
arise. What should be involved, however, is a vested right to life, liberty or
property, as these are the ones that may be considered protected by the due
process clause of the Constitution.

In the present case, the respondents never raised due process as an

issue. But even assuming that they did, the respondents themselves concede
that there is no vested right to public office.[17] As the COMELEC correctly
pointed out, too, there is no vested right to an elective post in view of the
uncertainty inherent in electoral exercises.

Aware of this legal reality, the respondents theorized instead that they
had a right to be voted upon by the electorate without being burdened by a
law that effectively rendered them ineligible to run for their incumbent
positions.Again, the RTC agreed with this contention.

We do not agree with the RTC, as we find no such right under the
Constitution; if at all, this claimed right is merely a restatement of a claim of
vested right to a public office. What the Constitution clearly provides is the
power of Congress to prescribe the qualifications for elective local
posts;[18] thus, the question of eligibility for an elective local post is a matter
for Congress, not for the courts, to decide. We dealt with a strikingly similar
issue in Montesclaros v. Commission on Elections[19] where we ruled that
SK membership which was claimed as a property right within the meaning
of the Constitution is a mere statutory right conferred by
law. Montesclaros instructively tells us:

Congress exercises the power to prescribe the

qualifications for SK membership. One who is no longer
qualified because of an amendment in the law cannot complain of
being deprived of a proprietary right to SK membership. Only
those who qualify as SK members can contest, based on a
statutory right, any act disqualifying them from SK membership
or from voting in the SK elections. SK membership is not a
property right protected by the Constitution because it is a
mere statutory right conferred by law. Congress may amend
at any time the law to change or even withdraw the statutory
right.

A public office is not a property right. As the Constitution

expressly states, a [P]ublic office is a public trust. No one has a
vested right to any public office, much less a vested right to an
expectancy of holding a public office. In Cornejo v. Gabriel,
decided in 1920, the Court already ruled:

Again, for this petition to come under the due

process of law prohibition, it would be necessary to
consider an office a property. It is, however, well
settled x x x that a public office is not property
within the sense of the constitutional guaranties of
due process of law, but is a public trust or agency. x
x x The basic idea of the government x x x is that of
a popular representative government, the officers
being mere agents and not rulers of the people, one
where no one man or set of men has a proprietary or
contractual right to an office, but where every
officer accepts office pursuant to the provisions of
 the law and holds the office as a trust for the people
he represents.

Petitioners, who apparently desire to hold public office,

should realize from the very start that no one has a proprietary
right to public office. While the law makes an SK officer
an ex-officio member of a local government legislative council,
the law does not confer on petitioners a proprietary right or even
a proprietary expectancy to sit in local legislative councils. The
constitutional principle of a public office as a public trust
precludes any proprietary claim to public office. Even the State
policy directing equal access to opportunities for public service
cannot bestow on petitioners a proprietary right to SK
membership or a proprietary expectancy to ex-officio public
offices.

Moreover, while the State policy is to encourage the

youths involvement in public affairs, this policy refers to those
who belong to the class of people defined as the youth. Congress
has the power to define who are the youth qualified to join the SK,
which itself is a creation of Congress. Those who do not qualify
because they are past the age group defined as the youth cannot
insist on being part of the youth. In government service, once an
employee reaches mandatory retirement age, he cannot invoke
any property right to cling to his office. In the same manner, since
petitioners are now past the maximum age for membership in the
SK, they cannot invoke any property right to cling to their SK
membership. [Emphasis supplied.]
To recapitulate, we find no merit in the respondents retroactivity
arguments because: (1) the challenged proviso did not provide for the
retroactive application to barangay officials of the three-term limit; Section
43(b) of RA No. 9164 simply continued what had been there before; and (2)
the constitutional challenge based on retroactivity was not anchored on a
constitutional standard but on a mere statutory norm.

The Equal Protection Clause Issue

 The equal protection guarantee under the Constitution is found under
its Section 2, Article III, which provides: Nor shall any person be denied the
equal protection of the laws. Essentially, the equality guaranteed under this
clause is equality under the same conditions and among persons similarly
situated. It is equality among equals, not similarity of treatment of persons
who are different from one another on the basis of substantial distinctions
related to the objective of the law; when things or persons are different in
facts or circumstances, they may be treated differently in law.[20]

Appreciation of how the constitutional equality provision applies

inevitably leads to the conclusion that no basis exists in the present case for
an equal protection challenge. The law can treat barangay officials
differently from other local elective officials because the Constitution itself
provides a significant distinction between these elective officials with
respect to length of term and term limitation. The clear distinction,
expressed in the Constitution itself, is that while the Constitution provides
for a three-year term and three-term limit for local elective officials, it left
the length of term and the application of the three-term limit or any form of
term limitation for determination by Congress through legislation. Not only
does this disparate treatment recognize substantial distinctions, it recognizes
as well that the Constitution itself allows a non-uniform treatment. No equal
protection violation can exist under these conditions.

From another perspective, we see no reason to apply the equal

protection clause as a standard because the challenged proviso did not result
in any differential treatment between barangay officials and all other
elective officials. This conclusion proceeds from our ruling on the
retroactivity issue that the challenged proviso does not involve any
retroactive application.

Violation of the Constitutional

One Subject- One Title Rule
 Every bill passed by the Congress shall embrace only one subject
which shall be expressed in the title thereof. Farias v. Executive
Secretary[21] provides the reasons for this constitutional requirement and the
test for its application, as follows:
The proscription is aimed against the evils of the so-called
omnibus bills and log-rolling legislation as well as surreptitious
and/or unconsidered encroaches. The provision merely calls for
all parts of an act relating to its subject finding expression in its
title.

To determine whether there has been compliance with the

constitutional requirement that the subject of an act shall be
expressed in its title, the Court laid down the rule that

Constitutional provisions relating to the subject matter

and titles of statutes should not be so narrowly construed as to
cripple or impede the power of legislation. The requirement that
the subject of an act shall be expressed in its title should receive
a reasonable and not a technical construction. It is sufficient if
the title be comprehensive enough reasonably to include the
general object which a statute seeks to effect, without expressing
each and every end and means necessary or convenient for the
accomplishing of that object.Mere details need not be set
forth. The title need not be an abstract or index of the Act.

xxxx

x x x This Court has held that 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 subject.

xxxx

x x x Moreover, the avowed purpose of the constitutional

directive that the subject of a bill should be embraced in its title is
to apprise the legislators of the purposes, the nature and scope of
 its provisions, and prevent the enactment into law of matters
which have not received the notice, action and study of the
legislators and the public.

We find, under these settled parameters, that the challenged proviso does
not violate the one subject-one title rule.

First, the title of RA No. 9164, An Act Providing for

Synchronized Barangay and Sangguniang Kabataang Elections, amending
Republic Act No. 7160, as amended, otherwise known as the Local
Government Code of 1991, states the laws general subject matter the
amendment of the LGC to synchronize the barangay and SK elections and
for other purposes. To achieve synchronization of the barangay and SK
elections, the reconciliation of the varying lengths of the terms of office
of barangay officials and SK officials is necessary. Closely related with
length of term is term limitation which defines the total number of terms for
which a barangay official may run for and hold office. This natural linkage
demonstrates that term limitation is not foreign to the general subject
expressed in the title of the law.

Second, the congressional debates we cited above show that the

legislators and the public they represent were fully informed of the purposes,
nature and scope of the laws provisions. Term limitation therefore received
the notice, consideration, and action from both the legislators and the public.

Finally, to require the inclusion of term limitation in the title of RA

No. 9164 is to make the title an index of all the subject matters dealt with by
law; this is not what the constitutional requirement contemplates.
WHEREFORE, premises considered, we GRANT the petition and
accordingly AFFIRM the constitutionality of the challenged proviso under
Section 2, paragraph 2 of Republic Act No. 9164. Costs against the
respondents.

SO ORDERED.