FRANCISCO SERRANO DE AGBAYANI, plaintiff- There is no dispute as to the facts.
Plaintiff obtained the
appellee,
vs.
PHILIPPINE NATIONAL BANK and THE
PROVINCIAL SHERIFF OF PANGASINAN,
defendants, PHILIPPINE NATIONAL
BANK, defendant-appellant.
Dionisio E. Moya for plaintiff-appellee.
Ramon B. de los Reyes for defendant-appellant.
FERNANDO, J.:
A correct appreciation of the controlling doctrine as to the
effect, if any, to be attached to a statute subsequently
adjudged invalid, is decisive of this appeal from a lower
court decision. Plaintiff Francisco Serrano de Agbayani,
now appellee, was able to obtain a favorable judgment in
her suit against defendant, now appellant Philippine
National Bank, permanently enjoining the other defendant,
the Provincial Sheriff of Pangasinan, from proceeding with
an extra-judicial foreclosure sale of land belonging to
plaintiff mortgaged to appellant Bank to secure a loan
declared no longer enforceable, the prescriptive period
having lapsed. There was thus a failure to sustain the
defense raised by appellant that if the moratorium under an
Executive Order and later an Act subsequently found
unconstitutional were to be counted in the computation,
then the right to foreclose the mortgage was still subsisting.
In arriving at such a conclusion, the lower court manifested
a tenacious adherence to the inflexible view that an
unconstitutional act is not a law, creating no rights and
imposing no duties, and thus as inoperative as if it had
never been. It was oblivious to the force of the principle
adopted by this Court that while a statute's repugnancy to
the fundamental law deprives it of its character as a
juridical norm, its having been operative prior to its being
nullified is a fact that is not devoid of legal consequences.
As will hereafter be explained, such a failing of the lower
court resulted in an erroneous decision. We find for
appellant Philippine National Bank, and we reverse.
G.R. No. L-23127 April 29, 1971
loan in the amount of P450.00 from defendant Bank dated
July 19, 1939, maturing on July 19, 1944, secured by real
estate mortgage duly registered covering property described
in T.C.T. No. 11275 of the province of Pangasinan. As of
November 27, 1959, the balance due on said loan was in
the amount of P1,294.00. As early as July 13 of the same
year, defendant instituted extra-judicial foreclosure
proceedings in the office of defendant Provincial Sheriff of
Pangasinan for the recovery of the balance of the loan
remaining unpaid. Plaintiff countered with his suit against
both defendants on August 10, 1959, her main allegation
being that the mortgage sought to be foreclosed had long
prescribed, fifteen years having elapsed from the date of
maturity, July 19, 1944. She sought and was able to obtain
a writ of preliminary injunction against defendant
Provincial Sheriff, which was made permanent in the
decision now on appeal. Defendant Bank in its answer
prayed for the dismissal of the suit as even on plaintiff's
own theory the defense of prescription would not be
available if the period from March 10, 1945, when
Executive Order No. 321 was issued, to July 26, 1948,
when the subsequent legislative act2 extending the period of
moratorium was declared invalid, were to be deducted from
the computation of the time during which the bank took no
legal steps for the recovery of the loan. As noted, the lower
court did not find such contention persuasive and decided
the suit in favor of plaintiff.
Hence this appeal, which, as made clear at the outset,
possesses merit, there being a failure on the part of the
lower court to adhere to the applicable constitutional
doctrine as to the effect to be given to a statute
subsequently declared invalid.
1. The decision now on appeal reflects the orthodox view
that an unconstitutional act, for that matter an executive
order or a municipal ordinance likewise suffering from that
infirmity, cannot be the source of any legal rights or duties.
Nor can it justify any official act taken under it. Its
repugnancy to the fundamental law once judicially declared
results in its being to all intents and purposes a mere scrap
of paper. As the new Civil Code puts it: "When the courts
declare a law to be inconsistent with the Constitution, the
former shall be void and the latter shall govern.
Administrative or executive acts, orders and regulations
shall be valid only when they are not contrary to the laws of
the Constitution.3 It is understandable why it should be so,
the Constitution being supreme and paramount. Any
legislative or executive act contrary to its terms cannot
survive.
Such a view has support in logic and possesses the merit of
simplicity. It may not however be sufficiently realistic. It
does not admit of doubt that prior to the declaration of
nullity such challenged legislative or executive act must
have been in force and had to be complied with. This is so
as until after the judiciary, in an appropriate case, declares
its invalidity, it is entitled to obedience and respect. Parties
may have acted under it and may have changed their
positions. What could be more fitting than that in a
subsequent litigation regard be had to what has been done
while such legislative or executive act was in operation and
presumed to be valid in all respects. It is now accepted as a
doctrine that prior to its being nullified, its existence as a
fact must be reckoned with. This is merely to reflect
awareness that precisely because the judiciary is the
governmental organ which has the final say on whether or
not a legislative or executive measure is valid, a period of
time may have elapsed before it can exercise the power of
judicial review that may lead to a declaration of nullity. It
would be to deprive the law of its quality of fairness and
justice then, if there be no recognition of what had
transpired prior to such adjudication.
In the language of an American Supreme Court decision:
"The actual existence of a statute, prior to such a
determination [of unconstitutionality], is an operative fact
and may have consequences which cannot justly be
ignored. The past cannot always be erased by a new
judicial declaration. The effect of the subsequent ruling as
to invalidity may have to be considered in various aspects,
with respect to particular relations, individual and
corporate, and particular conduct, private and
official."4 This language has been quoted with approval in a
resolution in Araneta v. Hill5 and the decision in Manila
Motor Co., Inc. v. Flores.6 An even more recent instance is
the opinion of Justice Zaldivar speaking for the Court
in Fernandez v. Cuerva and Co.7
2. Such an approach all the more commends itself
whenever police power legislation intended to promote
public welfare but adversely affecting property rights is
involved. While subject to be assailed on due process,
equal protection and non-impairment grounds, all that is
required to avoid the corrosion of invalidity is that the
rational basis or reasonableness test is satisfied. The
legislature on the whole is not likely to allow an enactment
suffering, to paraphrase Cardozo, from the infirmity of out
running the bounds of reason and resulting in sheer
oppression. It may be of course that if challenged, an
adverse judgment could be the result, as its running counter
to the Constitution could still be shown. In the meanwhile
though, in the normal course of things, it has been acted
upon by the public and accepted as valid. To ignore such a
fact would indeed be the fruitful parent of injustice.
Moreover, as its constitutionality is conditioned on its
being fair or reasonable, which in turn is dependent on the
actual situation, never static but subject to change, a
measure valid when enacted may subsequently, due to
altered circumstances, be stricken down.
That is precisely what happened in connection with
Republic Act No. 342, the moratorium legislation, which
continued Executive Order No. 32, issued by the then
President Osmeña, suspending the enforcement of payment
of all debts and other monetary obligations payable by war
sufferers. So it was explicitly held in Rutter v.
Esteban8where such enactment was considered in 1953
"unreasonable and oppressive, and should not be prolonged
a minute longer, and, therefore, the same should be
declared null and void and without effect."9 At the time of
the issuance of the above Executive Order in 1945 and of
the passage of such Act in 1948, there was a factual
justification for the moratorium. The Philippines was
confronted with an emergency of impressive magnitude at
the time of her liberation from the Japanese military forces
in 1945. Business was at a standstill. Her economy lay
prostrate. Measures, radical measures, were then devised to
tide her over until some semblance of normalcy could be
restored and an improvement in her economy noted. No
wonder then that the suspension of enforcement of payment
of the obligations then existing was declared first by
executive order and then by legislation. The Supreme Court
was right therefore in rejecting the contention that on its
face, the Moratorium Law was unconstitutional, amounting
as it did to the impairment of the obligation of contracts.
Considering the circumstances confronting the legitimate
government upon its return to the Philippines, some such
remedial device was needed and badly so. An unyielding
insistence then on the rights to property on the part of the
creditors was not likely to meet with judicial sympathy.
Time passed however, and conditions did change.
When the legislation was before this Court in 1953, the
question before it was its satisfying the rational basis test,
not as of the time of its enactment but as of such date.
Clearly, if then it were found unreasonable, the right to
non-impairment of contractual obligations must prevail
over the assertion of community power to remedy an
existing evil. The Supreme Court was convinced that such
indeed was the case. As stated in the opinion of Justice
Bautista Angelo: "But we should not lose sight of the fact
that these obligations had been pending since 1945 as a
result of the issuance of Executive Orders Nos. 25 and 32
and at present their enforcement is still inhibited because of
the enactment of Republic Act No. 342 and would continue
to be unenforceable during the eight-year period granted to
prewar debtors to afford them an opportunity to rehabilitate
themselves, which in plain language means that the
creditors would have to observe a vigil of at least twelve
(12) years before they could affect a liquidation of their
investment dating as far back as 1941. This period seems to
us unreasonable, if not oppressive. While the purpose of
Congress is plausible, and should be commended, the relief
accorded works injustice to creditors who are practically
left at the mercy of the debtors. Their hope to effect
collection becomes extremely remote, more so if the credits
are unsecured. And the injustice is more patent when, under
the law the debtor is not even required to pay interest
during the operation of the relief, unlike similar statutes in
the United States. 10 The conclusion to which the foregoing
considerations inevitably led was that as of the time of
adjudication, it was apparent that Republic Act No. 342
could not survive the test of validity. Executive Order No.
32 should likewise be nullified. That before the decision
they were not constitutionally infirm was admitted
expressly. There is all the more reason then to yield assent
to the now prevailing principle that the existence of a
statute or executive order prior to its being adjudged void is
an operative fact to which legal consequences are attached.
3. Precisely though because of the judicial recognition that
moratorium was a valid governmental response to the
plight of the debtors who were war sufferers, this Court has
made clear its view in a series of cases impressive in their
number and unanimity that during the eight-year period that
Executive Order No. 32 and Republic Act No. 342 were in
force, prescription did not run. So it has been held
from Day v. Court of First
Instance, 11 decided in 1954, to Republic v.
Hernaez, 12 handed down only last year. What is deplorable
is that as of the time of the lower court decision on January
27, 1960, at least eight decisions had left no doubt as to the
prescriptive period being tolled in the meanwhile prior to
such adjudication of invalidity. 13 Speaking of the opposite
view entertained by the lower court, the present Chief
Justice, in Liboro v. Finance and Mining Investments
Corp. 14has categorized it as having been "explicitly and
consistently rejected by this Court." 15
The error of the lower court in sustaining plaintiff's suit is
thus manifest. From July 19, 1944, when her loan matured,
to July 13, 1959, when extra-judicial foreclosure
proceedings were started by appellant Bank, the time
consumed is six days short of fifteen years. The
prescriptive period was tolled however, from March 10,
1945, the effectivity of Executive Order No. 32, to May 18,
1953, when the decision of Rutter v. Esteban was
promulgated, covering eight years, two months and eight
days. Obviously then, when resort was had extra-judicially
to the foreclosure of the mortgage obligation, there was
time to spare before prescription could be availed of as a
defense.
WHEREFORE, the decision of January 27, 1960 is
reversed and the suit of plaintiff filed August 10, 1959
dismissed. No costs.
Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal,
Zaldivar, Castro, Teehankee, Barredo, Villamor, and
Makasiar, JJ., concur.
Footnotes
1 Under Executive Order No. 32 providing for a debt
moratorium, it was specifically stated: "Enforcement of
payment of all debts and other monetary obligations
payable within the Philippines, except debts and other
monetary obligations entered into in any area after
declaration by Presidential Proclamation that such area has
been freed from enemy occupation and control, is
temporarily suspended pending action by the
Commonwealth Government." Executive Order No. 32 was
issued on March 10, 1945. Executive Order No. 32
amended Executive Order No. 25 (1944).
2 According to the declaration of policy in Republic Act
No. 342 (1948), Executive Order No. 32 remains in full
force and effect for the war sufferers as for them the
emergency created by the last war was still existent. Then
came this specific provision: "All debts and other monetary
obligations payable by private parties within the
Philippines originally incurred or contracted before
December 8, 1941, and still remaining unpaid, any
provision or provisions in the contract creating the same or
in any subsequent agreement affecting such obligation to
the contrary notwithstanding, shall not be due and
demandable for a period of eight (8) years from and after
settlement of the war damage claim of the debtor by the
United States Philippine War Damage Commission,
without prejudice, however, to any voluntary agreement
which the interested parties may enter into after the
approval of this Act for the settlement of said obligations."
Sec. 2.
3 ART. 7. In the classic language of Justice Field: "An
unconstitutional Act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no
office; it is in legal contemplation as inoperative as though
it had never been." Norton v. Shelly County, 118 US 425
(1886).
4 Chicot County Drainage Dist. v. Baxter States Bank 308
US 371, 374 (1940).
5 93 Phil. 1002 (1953).
6 99 Phil. 738 (1956).
7 L-21114, Nov. 28, 1967, 21 SCRA 1095.
8 93 Phil. 68 (1953). Rutter v. Esteban was subsequently
cited in the following cases: Araneta v. Hill, 93 Phil. 1002
(1953); Londres v. National Life Insurance Co., 94 Phil.
627 (1954); Dizon v. Ocampo, 94 Phil. 803 (1954); De
Leon v. Ibañez, 95 Phil. 119 (1954); Picornell and Co. v.
Cordovan 95 Phil. 632 (1954); Berg v. Teus, 96 Phil. 102
(1954); Herrera v. Arellano, 97 Phil. 776 (1955); Chua
Lamko v. Dioso, 97 Phil. 821 (1955); Rio y Cia v.
Sandoval, 100 Phil. 407 (1956); Gonzaga v. Rehabilitation
Finance Corp., 100 Phil. 892 (1957); Pacific Commercial
Co. v. Aquino, 100 Phil. 961 (1957); Bachrach motor Co.,
Inc. v. Chua Tua Hian, 101 Phil. 194 (1957); Liboro v.
Finance and Mining Investment Corp., 102 Phil. 489 1957);
Rio y Compania v. Jolkipli 105 Phil. 447 (1959); People v.
Jolliffe 105 Phil. 677 (1959); Uy Hoo and Co., Inc. v. Tan,
105 Phil. 717 (1959); Compania Maritima v. Court of
Appeals and Libby, McNeill and Libby (Phil.), Inc., 108
Phil. 469 (1960).
9 Ibid., p. 82. The same conclusion obtains in the opinion
of the Court as regards Executive Order No. 32.
10 Ibid., p. 77.
11 94 Phil. 816.
12 L-24137, January 30, 1970, 31 SCRA 219, citing
Republic v. Grijaldo, L-20240, December 31, 1965, 15
SCRA 681; Republic v. Rodriguez, L-18967, January 31,
1966, 16 SCRA 53; Nielson and Co., Inc. v. Lepanto
Consolidated Mining Co., L-21601, December 28, 1968, 26
SCRA 540.
13 Day v. Court of First Instance of Tarlac, 94 Phil. 816
(1954); Montilla v. Pacific Commercial Company, 98 Phil.
133 (1955); Pacific Commercial Co. v. Aquino, 100 Phil.
961 (1957); Bachrach Motor Co., Inc. v. Chua Tua Tian
101 Phil. 184 (1957); Liboro v. Finance and Mining
Investment Corp., 102 Phil. 489 (1957); Rio y Compania v.
Jolkipli, 105 Phil. 447 (1959); People v. Jollifee, 105 Phil.
677 (1959) ; Uy Hoo & Co., Inc. v. Tan, 105 Phil. 716
(1959).
14 102 Phil. 489 (1957).
15 Ibid., p. 493.
G.R. No. 104732 June 22, 1993
ROBERTO A. FLORES, DANIEL Y. FIGUEROA,
ROGELIO T. PALO, DOMINGO A. JADLOC,
CARLITO T. CRUZ and MANUEL P.
REYES, Petitioner, vs. HON. FRANKLIN M. DRILON,
Executive Secretary, and RICHARD J.
GORDON, Respondents.
Isagani M. Jungco, Valeriano S. Peralta, Miguel
Famularcano, Jr. and Virgilio E. Acierto for petitioners.
BELLOSILLO, J.:
The constitutionality of Sec. 13, par. (d), of R.A.
7227, 1otherwise known as the "Bases Conversion and
Development Act of 1992," under which respondent Mayor
Richard J. Gordon of Olongapo City was appointed
Chairman and Chief Executive Officer of the Subic Bay
Metropolitan Authority (SBMA), is challenged in this
original petition with prayer for prohibition, preliminary
injunction and temporary restraining order "to prevent
useless and unnecessary expenditures of public funds by
way of salaries and other operational expenses attached to
the office . . . ." 2Paragraph (d) reads -
(d) Chairman administrator - The President shall appoint a
professional manager as administrator of the Subic
Authority with a compensation to be determined by the
Board subject to the approval of the Secretary of Budget,
who shall be the ex oficio chairman of the Board and who
shall serve as the chief executive officer of the Subic
Authority: Provided, however, That for the first year of its
operations from the effectivity of this Act, the mayor of the
City of Olongapo shall be appointed as the chairman and
chief executive officer of the Subic Authority (emphasis
supplied).
Petitioners, who claim to be taxpayers, employees of the
U.S. Facility at the Subic, Zambales, and officers and
members of the Filipino Civilian Employees Association in
U.S. Facilities in the Philippines, maintain that the proviso
in par. (d) of Sec. 13 herein-above quoted in italics
infringes on the following constitutional and statutory
provisions: (a) Sec. 7, first par., Art. IX-B, of the
Constitution, which states that "[n]o elective official shall
be eligible for appointment or designation in any capacity
to any public officer or position during his
tenure," 3because the City Mayor of Olongapo City is an
elective official and the subject posts are public offices; (b)
Sec. 16, Art. VII, of the Constitution, which provides that
"[t]he President shall . . . . appoint all other officers of the
Government whose appointments are not
otherwise provided for by law, and those whom he may be
authorized by law to appoint", 4since it was Congress
through the questioned proviso and not the President who
appointed the Mayor to the subject posts; 5and, (c) Sec. 261,
par. (g), of the Omnibus Election Code, which says:
Sec. 261. Prohibited Acts. - The following shall be guilty of
an election offense: . . . (g) Appointment of new
employees, creation of new position, promotion, or giving
salary increases. - During the period of forty-five days
before a regular election and thirty days before a special
election, (1) any head, official or appointing officer of a
government office, agency or instrumentality, whether
national or local, including government-owned or
controlled corporations, who appoints or hires any new
employee, whether provisional, temporary or casual, or
creates and fills any new position, except upon prior
authority of the Commission. The Commission shall not
grant the authority sought unless it is satisfied that the
position to be filled is essential to the proper functioning of
the office or agency concerned, and that the position shall
not be filled in a manner that may influence the election. As
an exception to the foregoing provisions, a new employee
may be appointed in case of urgent
need: Provided, however, That notice of the appointment
shall be given to the Commission within three days from
the date of the appointment. Any appointment or hiring in
violation of this provision shall be null and void. (2) Any
government official who promotes, or gives any increase of
salary or remuneration or privilege to any government
official or employee, including those in government-owned
or controlled corporations . . . .
for the reason that the appointment of respondent Gordon
to the subject posts made by respondent Executive
Secretary on 3 April 1992 was within the prohibited 45-day
period prior to the 11 May 1992
Elections.chanroblesvirtualawlibrarychanrobles virtual law
library
The principal question is whether the proviso in Sec. 13,
par. (d), of R.A. 7227 which states, "Provided,
however, That for the first year of its operations from the
effectivity of this Act, the mayor of the City of Olongapo
shall be appointed as the chairman and chief executive
officer of the Subic Authority," violates the constitutional
proscription against appointment or designation of elective
officials to other government
posts.chanroblesvirtualawlibrarychanrobles virtual law
library
In full, Sec. 7 of Art. IX-B of the Constitution provides:
No elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure.chanroblesvirtualawlibrarychanrobles
virtual law library
Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries.
The section expresses the policy against the concentration
of several public positions in one person, so that a public
officer or employee may serve full-time with dedication
and thus be efficient in the delivery of public services. It is
an affirmation that a public office is a full-time job. Hence,
a public officer or employee, like the head of an executive
department described in Civil Liberties Union v. Executive
Secretary, G.R. No. 83896, and Anti-Graft League of the
Philippines, Inc. v. Philip Ella C. Juico, as Secretary of
Agrarian Reform, G.R. No. 83815, 6". . . . should be
allowed to attend to his duties and responsibilities without
the distraction of other governmental duties or
employment. He should be precluded from dissipating his
efforts, attention and energy among too many positions of
responsibility, which may result in haphazardness and
inefficiency . . . ."chanrobles virtual law library
Particularly as regards the first paragraph of Sec. 7, "(t)he
basic idea really is to prevent a situation where a local
elective official will work for his appointment in an
executive position in government, and thus neglect his
constituents . . . ." 7chanrobles virtual law library
In the case before us, the subject proviso directs the
President to appoint an elective official, i.e., the Mayor of
Olongapo City, to other government posts (as Chairman of
the Board and Chief Executive Officer of SBMA). Since
this is precisely what the constitutional proscription seeks
to prevent, it needs no stretching of the imagination to
conclude that the proviso contravenes Sec. 7, first par., Art.
IX-B, of the Constitution. Here, the fact that the expertise
of an elective official may be most beneficial to the higher
interest of the body politic is of no
moment.chanroblesvirtualawlibrarychanrobles virtual law
library
It is argued that Sec. 94 of the Local Government Code
(LGC) permits the appointment of a local elective official
to another post if so allowed by law or by the primary
functions of his office. 8But, the contention is fallacious.
Section 94 of the LGC is not determinative of the
constitutionality of Sec. 13, par. (d), of R.A. 7227, for no
legislative act can prevail over the fundamental law of the
land. Moreover, since the constitutionality of Sec. 94 of
LGC is not the issue here nor is that section sought to be
declared unconstitutional, we need not rule on its validity.
Neither can we invoke a practice otherwise unconstitutional
as authority for its
validity.chanroblesvirtualawlibrarychanrobles virtual law
library
In any case, the view that an elective official may be
appointed to another post if allowed by law or by the
primary functions of his office, ignores the clear-cut
difference in the wording of the two (2) paragraphs of Sec.
7, Art.
IX-B, of the Constitution. While the second paragraph
authorizes holding of multiple offices by
an appointive official when allowed by law or by the
primary functions of his position, the first paragraph
appears to be more stringent by not providing any
exception to the rule against appointment or designation of
an elective official to the government post, except as are
particularly recognized in the Constitution itself, e.g., the
President as head of the economic and planning
agency; 9the Vice-President, who may be appointed
Member of the Cabinet; 10and, a member of Congress who
may be designated ex officio member of the Judicial and
Bar Council. 11chanrobles virtual law library
The distinction between the first and second paragraphs of
Sec. 7, Art. IX-B, was not accidental when drawn, and not
without reason. It was purposely sought by the drafters of
the Constitution as shown in their deliberation, thus -
MR. MONSOD. In other words, what then Commissioner
is saying, Mr. Presiding Officer, is that the prohibition is
more strict with respect to elective officials, because in the
case of appointive officials, there may be a law that will
allow them to hold other
positions.chanroblesvirtualawlibrarychanrobles virtual law
library
MR. FOZ. Yes, I suggest we make that difference, because
in the case of appointive officials, there will be certain
situations where the law should allow them to hold some
other positions. 12chanrobles virtual law library
The distinction being clear, the exemption allowed to
appointive officials in the second paragraph cannot be
extended to elective officials who are governed by the first
paragraph.chanroblesvirtualawlibrarychanrobles virtual law
library
It is further argued that the SBMA posts are merely ex
officio to the position of Mayor of Olongapo City, hence,
an excepted circumstance, citing Civil Liberties Union v.
Executive Secretary, 13where we stated that the prohibition
against the holding of any other office or employment by
the President, Vice-President, Members of the Cabinet, and
their deputies or assistants during their tenure,
as provided in Sec. 13, Art. VII, of the Constitution, does
not comprehend additional duties and functions required by
the primary functions of the officials concerned, who are to
perform them in an ex officio capacity as provided by law,
without receiving any additional compensation
therefor.chanroblesvirtualawlibrarychanrobles virtual law
library
This argument is apparently based on a wrong premise.
Congress did not contemplate making the subject SBMA
posts as ex officio or automatically attached to the Office of
the Mayor of Olongapo City without need of appointment.
The phrase "shall be appointed" unquestionably shows the
intent to make the SBMA posts appointive and not merely
adjunct to the post of Mayor of Olongapo City. Had it been
the legislative intent to make the subject positions ex
officio, Congress would have, at least, avoided the word
"appointed" and, instead, "ex officio" would have been
used. 14chanrobles virtual law library
Even in the Senate deliberations, the Senators were fully
aware that subject proviso may contravene Sec. 7, first par.,
Art. IX-B, but they nevertheless passed the bill and decided
to have the controversy resolved by the courts. Indeed, the
Senators would not have been concerned with the effects of
Sec. 7, first par., had they considered the SBMA posts as ex
officio.chanroblesvirtualawlibrarychanrobles virtual law
library
Cognizant of the complication that may arise from the way
the subject proviso was stated, Senator Rene Saguisag
remarked that "if the Conference Committee just said "the
Mayor shall be the Chairman" then that should foreclose
the issue. It is a legislative choice." 15The Senator took a
view that the constitutional proscription against
appointment of elective officials may have been
sidestepped if Congress attached the SBMA posts to the
Mayor of Olongapo City instead of directing the President
to appoint him to the post. Without passing upon this view
of Senator Saguisag, it suffices to state that Congress
intended the posts to be appointive, thus nibbling in the bud
the argument that they are ex
officio.chanroblesvirtualawlibrarychanrobles virtual law
library
The analogy with the position of Chairman of the Metro
Manila Authority made by respondents cannot be applied to
uphold the constitutionality of the challenged proviso since
it is not put in issue in the present case. In the same vein,
the argument that if no elective official may be appointed
or designated to another post then Sec. 8, Art. IX-B, of the
Constitution allowing him to receive double
compensation 16would be useless, is non sequitur since Sec.
8 does not affect the constitutionality of the subject proviso.
In any case, the Vice-President for example, an elective
official who may be appointed to a cabinet post under Sec.
3, Art. VII, may receive the compensation attached to the
cabinet position if specifically authorized by
law.chanroblesvirtualawlibrarychanrobles virtual law
library
Petitioners also assail the legislative encroachment on the
appointing authority of the President. Section 13, par. (d),
itself vests in the President the power to appoint the
Chairman of the Board and the Chief Executive Officer of
SBMA, although he really has no choice under the law but
to appoint the Mayor of Olongapo
City.chanroblesvirtualawlibrarychanrobles virtual law
library
As may be defined, an "appointment" is "[t]he designation
of a person, by the person or persons having authority
therefor, to discharge the duties of some office or
trust," 17or "[t]he selection or designation of a person, by
the person or persons having authority therefor, to fill an
office or public function and discharge the duties of the
same. 18In his treatise, Philippine Political
Law, 19Senior Associate Justice Isagani A. Cruz defines
appointment as "the selection, by the authority vested with
the power, of an individual who is to exercise the functions
of a given office."chanrobles virtual law library
Considering that appointment calls for a selection, the
appointing power necessarily exercises a discretion.
According to Woodbury, J., 20"the choice of a person to fill
an office constitutes the essence of his appointment," 21and
Mr. Justice Malcolm adds that an "[a]ppointment to office
is intrinsically an executive act involving the exercise of
discretion." 22In Pamantasan ng Lungsod ng Maynila v.
Intermediate Appellate Court 23we held:
The power to appoint is, in essence, discretionary. The
appointing power has the right of choice which he may
exercise freely according to his judgment, deciding for
himself who is best qualified among those who have the
necessary qualifications and eligibilities. It is a prerogative
of the appointing power . . . .
Indeed, the power of choice is the heart of the power to
appoint. Appointment involves an exercise of discretion of
whom to appoint; it is not a ministerial act of issuing
appointment papers to the appointee. In other words, the
choice of the appointee is a fundamental component of the
appointing power.chanroblesvirtualawlibrarychanrobles
virtual law library
Hence, when Congress clothes the President with the power
to appoint an officer, it (Congress) cannot at the same time
limit the choice of the President to only one candidate.
Once the power of appointment is conferred on the
President, such conferment necessarily carries the
discretion of whom to appoint. Even on the pretext of
prescribing the qualifications of the officer, Congress may
not abuse such power as to divest the appointing authority,
directly or indirectly, of his discretion to pick his own
choice. Consequently, when the qualifications prescribed
by Congress can only be met by one individual, such
enactment effectively eliminates the discretion of the
appointing power to choose and constitutes an irregular
restriction on the power of appointment. 24chanrobles
virtual law library
In the case at bar, while Congress willed that the subject
posts be filled with a presidential appointee for the first
year of its operations from the effectivity of R.A. 7227,
the proviso nevertheless limits the appointing authority to
only one eligible, i.e., the incumbent Mayor of Olongapo
City. Since only one can qualify for the posts in question,
the President is precluded from exercising his discretion to
choose whom to appoint. Such supposed power of
appointment, sans the essential element of choice, is no
power at all and goes against the very nature itself of
appointment.chanroblesvirtualawlibrarychanrobles virtual
law library
While it may be viewed that the proviso merely sets the
qualifications of the officer during the first year of
operations of SBMA, i.e., he must be the Mayor of
Olongapo City, it is manifestly an abuse of congressional
authority to prescribe qualifications where only one, and no
other, can qualify. Accordingly, while the conferment of
the appointing power on the President is a perfectly valid
legislative act, the proviso limiting his choice to one is
certainly an encroachment on his
prerogative.chanroblesvirtualawlibrarychanrobles virtual
law library
Since the ineligibility of an elective official for
appointment remains all throughout his tenure or during his
incumbency, he may however resign first from his elective
post to cast off the constitutionally-attached disqualification
before he may be considered fit for appointment. The
deliberation in the Constitutional Commission is
enlightening:
MR. DAVIDE. On Section 4, page 3, line 8, I propose the
substitution of the word "term" with
TENURE.chanroblesvirtualawlibrarychanrobles virtual law
library
MR. FOZ. The effect of the proposed amendment is to
make possible for one to resign from his
position.chanroblesvirtualawlibrarychanrobles virtual law
library
MR. DAVIDE. Yes, we should allow that
prerogative.chanroblesvirtualawlibrarychanrobles virtual
law library
MR. FOZ. Resign from his position to accept an executive
position.chanroblesvirtualawlibrarychanrobles virtual law
library
MR. DAVIDE. Besides, it may turn out in a given case that
because of, say, incapacity, he may leave the service, but if
he is prohibited from being appointed within the term for
which he was elected, we may be depriving the government
of the needed expertise of an individual. 25chanrobles
virtual law library
Consequently, as long as he is an incumbent, an elective
official remains ineligible for appointment to another
public office.chanroblesvirtualawlibrarychanrobles virtual
law library
Where, as in the case of respondent Gordon, an incumbent
elective official was, notwithstanding his ineligibility,
appointed to other government posts, he does not
automatically forfeit his elective office nor remove his
ineligibility imposed by the Constitution. On the contrary,
since an incumbent elective official is not eligible to the
appointive position, his appointment or designation thereto
cannot be valid in view of his disqualification or lack of
eligibility. This provision should not be confused with Sec.
13, Art. VI, of the Constitution where "(n)o Senator or
Member of the House of Representatives may hold any
other office or employment in the Government . . . during
his term without forfeiting his seat . . . ." The difference
between the two provisions is significant in the sense that
incumbent national legislators lose their elective posts only
after they have been appointed to another government
office, while other incumbent elective officials must first
resign their posts before they can be appointed, thus
running the risk of losing the elective post as well as not
being appointed to the other post. It is therefore clear that
ineligibility is not directly related with forfeiture of office.
". . . . The effect is quite different where it is
expressly provided by law that a person holding one office
shall be ineligible to another. Such a provision is held to
incapacitate the incumbent of an office from accepting or
holding a second office (State ex rel. Van Antwerp v
Hogan, 283 Ala. 445, 218 So 2d 258; McWilliams v Neal,
130 Ga 733, 61 SE 721) and to render his election or
appointment to the latter office void (State ex rel. Childs v
Sutton, 63 Minn 147, 65 NW 262. Annotation: 40 ALR
945) or voidable (Baskin v State, 107 Okla 272, 232 p 388,
40 ALR 941)." 26"Where the constitution, or statutes
declare that persons holding one office shall be ineligible
for election or appointment to another office, either
generally or of a certain kind, the prohibition has been held
to incapacitate the incumbent of the first office to hold the
second so that any attempt to hold the second is void (Ala. -
State ex rel. Van Antwerp v. Hogan, 218 So 2d 258, 283
Ala 445)." 27chanrobles virtual law library
As incumbent elective official, respondent Gordon is
ineligible for appointment to the position of Chairman of
the Board and Chief Executive of SBMA; hence, his
appointment thereto pursuant to a legislative act that
contravenes the Constitution cannot be sustained. He
however remains Mayor of Olongapo City, and his acts as
SBMA official are not necessarily null and void; he may be
considered a de facto officer, "one whose acts, though not
those of a lawful officer, the law, upon principles of policy
and justice, will hold valid so far as they involve the
interest of the public and third persons, where the duties of
the office were exercised . . . . under color of a known
election or appointment, void because the officer was not
eligible, or because there was a want of power in the
electing or appointing body, or by reason of some defect or
irregularity in its exercise, such ineligibility, want of power
or defect being unknown to the public . . . . [or] under color
of an election, or appointment, by or pursuant to a public
unconstitutional law, before the same is adjudged to be
such(State vs. Carroll, 38 Conn., 499; Wilcox vs. Smith, 5
Wendell [N.Y.], 231; 21 Am. Dec., 213; Sheehan's Case,
122 Mass, 445, 23 Am. Rep., 323)." 28chanrobles virtual
law library
Conformably with our ruling in Civil Liberties Union, any
and all per diems, allowances and other emoluments which
may have been received by respondent Gordon pursuant to
his appointment may be retained by
him.chanroblesvirtualawlibrarychanrobles virtual law
library
The illegality of his appointment to the SBMA posts being
now evident, other matters affecting the legality of the
questioned proviso as well as the appointment of said
respondent made pursuant thereto need no longer be
discussed.chanroblesvirtualawlibrarychanrobles virtual law
library
In thus concluding as we do, we can only share the lament
of Sen. Sotero Laurel which he expressed in the floor
deliberations of S.B. 1648, precursor of R.A. 7227, when
he articulated -
. . . . (much) as we would like to have the present Mayor of
Olongapo City as the Chief Executive of this Authority that
we are creating; (much) as I, myself, would like to because
I know the capacity, integrity, industry and dedication of
Mayor Gordon; (much) as we would like to give him this
terrific, burdensome and heavy responsibility, we cannot do
it because of the constitutional prohibition which is very
clear. It says: "No elective official shall be appointed or
designated to another position in any
capacity." 29chanrobles virtual law library
For, indeed, "a Constitution must be firm and immovable,
like a mountain amidst the strife of storms or a rock in the
ocean amidst the raging of the waves." 30One of the
characteristics of the Constitution is permanence, i.e., "its
capacity to resist capricious or whimsical change dictated
not by legitimate needs but only by passing fancies,
temporary passions or occasional infatuations of the people
with ideas or personalities . . . . Such a Constitution is not
likely to be easily tampered with to suit political
expediency, personal ambitions or ill-advised agitation for
change." 31chanrobles virtual law library
Ergo, under the Constitution, Mayor Gordon has a choice.
We have no choice.chanroblesvirtualawlibrarychanrobles
virtual law library
WHEREFORE, the proviso in par. (d), Sec. 13, of R.A.
7227, which states: ". . . Provided, however, That for the
first year of its operations from the effectivity of this Act,
the Mayor of the City of Olongapo shall be appointed as
the chairman and chief executive officer of the Subic
Authority," is declared unconstitutional; consequently, the
appointment pursuant thereto of the Mayor of Olongapo
City, respondent Richard J. Gordon, is INVALID, hence
NULL and VOID.chanroblesvirtualawlibrarychanrobles
virtual law library
However, all per diems, allowances and other emoluments
received by respondent Gordon, if any, as such Chairman
and Chief Executive Officer may be retained by him, and
all acts otherwise legitimate done by him in the exercise of
his authority as officer de facto of SBMA are hereby
UPHELD.chanroblesvirtualawlibrarychanrobles virtual law
library
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino,
Regalado, Davide, Jr., Romero, Nocon, Melo and Quiason,
JJ., concur.chanroblesvirtualawlibrarychanrobles virtual
law library
Padilla, J., is on leave.
Endnotes:
1 An Act Accelerating the Conversion of Military
Reservations into Other Productive Uses, Creating the
Bases Conversion and Development Authority for this
Purpose, Providing Funds Therefor and for Other
Purposes," approved 13 March 1992, to take effect upon its
publication in a newspaper of general
circulation.chanrobles virtual law library
2 See "Action to Declare Unconstitutional Provisions of
R.A. 7227 with Prohibition and Application for a Writ of
Preliminary Injunction," dated 7 April 1992, p. 6; Rollo p.
7.chanrobles virtual law library
3 Sec. 7, Art. IX-B, provides: "No elective official shall be
eligible for appointment or designation in any capacity to
any public office or position during his tenure.chanrobles
virtual law library
"Unless otherwise allowed by law or by the primary
functions of his position, no appointive official shall hold
any other office or employment in the Government or any
subdivision, agency or instrumentality thereof, including
government-owned or controlled corporations or their
subsidiaries."
4 Sec. 16, Art. VII, provides: "The President shall nominate
and, with the consent of the Commission on Appointments,
appoint the heads of the executive departments,
ambassadors, other public ministers and consuls, or officers
of the armed forces from the rank of colonel or naval
captain, and other officers whose appointments are not
vested in him in this Constitution. He shall also appoint all
other officers of the Government whose appointments are
not otherwise provided for by law, and those whom he may
be authorized by law to appoint. The Congress may, by
law, vest the appointment of other officers lower in rank in
the President alone, in the courts, or in the heads of
departments, agencies, commission, or boards.chanrobles
virtual law library
"The President shall have the power to make appointments
during the recess of the Congress, whether voluntary or
compulsory, but such appointments shall be effective only
until disapproval by the Commission on Appointments or
until the next adjournment of the Congress."
5 Petitioners allege that the proviso constitutes a "limitation
to the power of appointment of the President and therefore
violates the separation of powers" and that "Congress
cannot create the position and at the same time specify the
person to fill up such position" (Petition, pp. 4-5; Rollo, pp.
5-6).chanrobles virtual law library
6 G.R. Nos. 83896 and 83815 were consolidated and
decided jointly on 22 February 1991, 194 SCRA 317,
339.chanrobles virtual law library
7 Record of the Constitutional Commission, Vol. 1, p.
546.chanrobles virtual law library
8 Sec. 94. Appointment of Elective and Appointive Local
Officials; Candidates Who Lost in an Election. - (a) No
elective or appointive local official shall be eligible for
appointment or designation in any capacity to any public
office or position during his tenure.chanrobles virtual law
library
"Unless otherwise allowed by law or by the primary
functions of his position, no elective or appointive local
official shall hold any other office or employment in the
government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporations or their subsidiaries.chanrobles virtual law
library
"(b) Except for losing candidates in barangay elections, no
candidate who lost in any election shall, within one (1) year
after such election, be appointed to any office in the
government or any government-owned or controlled
corporations or in any of their subsidiaries."
9 Sec. 9, Art. XII, of the Constitution.chanrobles virtual
law library
10 Sec. 3, second par., Art. VII, of the
Constitution.chanrobles virtual law library
11 Sec. 8, par. (1), Art. VIII, of the Constitution. This
particular provision was approved in anticipation of a
unicameral legislature. However, as it turn out, we adopted
instead a bicameral form of government so that the seat
allocated to the representative of Congress has to be split
between a member of the Senate and a member of the
House of Representative. Each being entitled to one-half
vote in the deliberations in the Judicial and Bar
Council.chanrobles virtual law library
12 Record of the Constitutional Commission, Vol. 5, p.
156.chanrobles virtual law library
Section 4 of the Proposed Resolution No. 468, the
precursor of the first paragraph of Sec. 7, read: "Unless
otherwise provided by law, no elective official shall be
eligible for appointment or designation in a temporary or
acting capacity to any public office or position during his
term" (Record of the Constitutional Commission, Vol. 1, p.
524).chanrobles virtual law library
The following were reactions on the floor:
FR. BERNAS. On page 3, Section 4, line 5, the provision
begins with the phrase "Unless otherwise provided by law"
which does not exist in the 1973 Constitution. This was
inserted in a 1981 amendment. We know the reason why
this was put here. It practically renders the provision
useless because the whole matter becomes discretionary
with the legislature. It is one of those instance in the 1973
Constitution, as amended and constantly reamended, where
they threw in the phrase "Unless otherwise provided by
law" precisely to give the President a free hand in his
decree-making power.chanrobles virtual law library
xxx xxx xxx
MR. FOZ. As presently worded now, the provision would
allow the legislature to really provide otherwise, meaning,
to allow an elective official to be appointed to an executive
office. (Ibid., Vol. 1, p. 539.)
xxx xxx xxx
MR. COLAYCO . . . . The way I understand this is that we
are giving the legislature the power to authorize the
appointment or designation in a temporary or acting
capacity of an elective official to any public office or
position during his term, Am I right?
MR. FOZ. If a law is passed regarding this matter, then
such law may reverse this provision as worded, but we
have said earlier that we will entertain suggestions from the
floor.chanrobles virtual law library
MR. COLAYCO. Personally, I find the policy established
in this provision meritorious. To make it a firm policy, I
suggest that we delete the prefatory phrase "Unless
otherwise provided by law.chanrobles virtual law library
MR. FOZ. We agree with the Commissioner (Ibid., Vol. 1,
p. 549).chanrobles virtual law library
As revised, known later as Sec. 4 of Resolution No. 10, and
approved on third reading, the subject section read: "No
elective official shall be eligible for appointment or
designation in any capacity to any public office or position
during his tenure" (Ibid., Vol. II, p. 788).chanrobles virtual
law library
13 Supra, p. 335.chanrobles virtual law library
14 . . . . When, in the exigencies of government, it is
necessary to create and define new duties, the legislative
department has the discretion to determine whether
additional offices shall be created, or these duties shall be
attached to and become ex officio duties of existing offices.
The power extends to the consolidation of offices resulting
in abolishing one and attaching its powers and duties to the
other. It matters not that the name commission or board is
given to the body created . . . ." (Tayloe v. Davis, 212 Ala
282, 102 So. 433, 40 ALR 1052, 1057).chanrobles virtual
law library
15 Transcripts of Session Proceedings, Senate, 6 February
1992, p. 57.chanrobles virtual law library
16 Sec. 8, Art. IX-B, provides: "No elective or appointive
public officer or employee shall receive additional, double,
or indirect compensation, unless specifically authorized by
law, nor accept without the consent of the Congress, any
present, emolument, office, or title of any kind from any
foreign government.chanrobles virtual law library
"Pensions or gratuities shall not be considered as
additional, double, or indirect compensation."
17 Black's Law Dictionary, 4th ed., p. 128 citing In re
Nicholson's Estate, 104 Colo, 561, 93 P. 2d 880,
884.chanrobles virtual law library
18 Ibid., citing State v. Braman, 173 Wis. 596, 181 N.W.
729, 730.chanrobles virtual law library
19 1987 ed., p. 180.chanrobles virtual law library
20 Floyd R. Mechem, A Treatise on the Law of Public
Offices and Officers (1890), p. 48, citing In Johnston v.
Wilson, 2 N.H. 205, 9 Am. Dec. 50.chanrobles virtual law
library
21 Mechem, ibid., citing Marbury v. Madison, I Cranch
(U.S.) 137; Craig v. Norfolk, I Mod. 122.chanrobles virtual
law library
22 Concepcion v. Paredes, No. 17539, 23 December 1921;
42 Phil. 599, 603, citing Keim vs. U.S. (1900), 177 U.S.,
290.chanrobles virtual law library
23 G.R. No. 65439, 13 November 1985; 140 SCRA 22,
35.chanrobles virtual law library
24 While it is inarguable that Congress has plenary
authority to prescribe qualifications to a public office, it
"may not however prescribe qualifications such that the
President is entirely stripped of discretion, thus converting
appointment to a mere ministerial act" (Gonzales, Neptali
A., Administrative Law, Law on Public Officers and
Election Law, 1966 ed., p. 173, citing Manalang v.
Quitoriano, No. L-6898, 30 April 1954; 94 Phil.
903).chanrobles virtual law library
25 Record of the Constitutional Commission, vol. 1, p.
G.R. No. 102232 March 9, 1994
VIOLETA ALDOVINO, ALI ALIBASA, FELIX
BALINO, DIONISIO BALLESTEROS, JOSE N.
BALEIN, JR., FREDDIE CAUTON, JANE CORROS,
ROBERTO CRUZ, TRINIDAD DACUMOS,
ANGELITA DIMAPILIS, ANDREA ESTONILO,
EFREN FONTANILLA, MARY PAZ FRIGILLANA,
MANUEL HENSON, SAMUEL HIPOL, MERLENE
IBALIO, MAGDALENA JAMILLA, ALEXANDER
JUSTINIANI, ROMULO MIRADOR, JULIO
MIRAVITE, DANTE NAGTALON, CLARITA
NAMUCO, ALICIA ORBITA, ANGELITA PUCAN,
MYRNA P. SALVADOR, LIBRADA TANTAY, and
ARACELI J. DE VEYRA, petitioners,
vs.
SECRETARY RAFAEL ALUNAN III,
DEPARTMENT OF TOURISM and SECRETARY
GUILLERMO M. CARAGUE, DEPARTMENT OF
BUDGET AND MANAGEMENT, respondents.
JOSEPHINE G. ANDAYA, ROSALINDA T.
ATIENZA, JOSE M. BALDOVINO, JR., ASUNCION
C. BRIONES, RIZALINA P. ESPIRITU, MARIBELLE
A. GARCIA, ABDULIA T. LANDINGIN, FLORITA O.
OCAMPO, ROLANDO SISON, LOURDES V.
TAMAYO, and ROLANDO VALDEZ, intervenors.
ERLINDA PIZA, ELEONOR SAGNIT, FIDEL
SEVIDAL, CONCEPCION TIMARIO, ELOISA
ALONZO, ANGELITO DELA CRUZ, ROLANDO C.
CAGASCA, LYNIE ARCENAS, MARIA EMMA
JASMIN, ALFONSO ANGELES, MACACUNA
PANGANDAMAN, ROSALITA MAUNA, ROMEO
PADILLA, ASCENSION PADILLA, CRISPULO
PADILLA, VIRGILIO DEJERO, MEDARDO ILAO,
ROSITA SOMERA, ARMANDO CRUZ, CATALINO
DABU, FRANCISCO VILLARAIZ, NORMA
JUMILLA, KENNEDY BASA, and ARMANDO
MENDOZA, intervenors.
ANICITA S. BALUYUT, ANTONINO D. EDRALIN,
EVELYN A. ENRIQUEZ, MA. VICTORIA L.
JACOBO, DANIEL M. MANAMTAM, JESSIE C.
MANRIQUE, ENCARNACION T. RADAZA, and
MARIO P. RUIVIVAR, intervenors.
AMOR T. MEDINA and FELIX L.
POLIQUIT, intervenors.
Leven S. Puno for petitioners.
The Solicitor General for respondents.
BELLOSILLO, J.:
ASSERTING that their plight is similar to petitioners'
in Mandani v. Gonzales,1 and in the consolidated cases
of Abrogar v. Garrucho, Jr.,
and Arnaldo v. Garrucho, Jr., 2 herein petitioners and
intervenors seek reinstatement and payment of back wages.
Section 29 of Executive Order No. 120, which took effect
upon its approval on 30 January 1987, reorganizing the
then Ministry of Tourism, provides that incumbents whose
positions are not included in the new position structure and
staffing pattern or who are not reappointed are deemed
separated from the service. Pursuant thereto, the then
Ministry of Tourism (MOT, now Department of Tourism,
DOT) issued various office orders and memoranda
declaring all positions thereat vacant,3 and effecting the
separation of many of its employees,4 which led to
the Mandani, Abrogar and Arnaldo cases, as well as the
instant petition.
In Mandani, we declared null and void all office orders and
memoranda issued pursuant to E.O. 120 and directed
"public respondents or their successors . . . to immediately
restore the petitioners to their positions without loss of
seniority rights and with back salaries computed under the
new staffing pattern from the dates of their invalid
terminations at rates not lower than their former salaries."5
In Abrogar and Arnaldo, we ordered the reinstatement of
petitioners "to their former positions without loss of
seniority rights and with back salaries computed under the
new staffing pattern from the dates of their invalid
dismissals at rates not lower than their former salaries,
provided, however, that no supervening event shall have
occured which would otherwise disqualify them for such
reinstatement, and provided, further, that whatever benefits
they may have received from the Government by reason of
their termination shall be reimbursed through reasonable
salary deduction."6
Herein petitioners and intervenors claiming that they
should not be deprived of the relief granted to their former
co-employees plead for reinstatement "without loss of
seniority rights and with back salaries computed under the
new staffing pattern from dates of their invalid termination
at rates not lower than their former salaries."7
Decisive in this recourse is the determination of whether
the separation of herein petitioners and intervenors from
service was pursuant to office orders and memoranda
declared void in Mandani.
Except for petitioners Samuel Hipol, Jane Corros and
Myrna Salvador, intervenors Concepcion Timario, Efren
Fontanilla, Ascension Padilla and Evelyn Enriquez, public
respondents do not dispute that petitioners and intervenors
were unseated from the then Ministry of Tourism, pursuant
to office orders and memoranda issued under E.O. No. 120.
Public respondents nevertheless pray for the denial of the
petition not only because petitioners and intervenors failed
to exhaust administrative remedies and that their claims are
barred by laches, but also in view of the disruption of the
present organizational set-up if reinstatement is directed.
The Solicitor General argues that while petitioners and
intervenors (except petitioners Samuel Hipol, Jane Corros
and Efren Fontanilla) were dismissed contemporaneously
with their colleagues in Mandani (filed 3 June 1987 and
decided 4 June 1990), Abrogar (filed 31 October 1990 and
decided
6 August 1991) and Arnaldo (filed 7 January 1991 and
decided 6 August 1991), they filed this petition and the
interventions only in October 1991, and February, March,
May and July 1992, or more than four (4) years later,
hence, laches has set in. In reply, petitioners and
intervenors explain —
. . . since the time these DOT employees were illegally
dismissed in May, 1987, most of them returned to the far
away provinces of their origin because they became
jobless. It was only by the slow and unreliable
communication of word of mouth that they came to know
much later on that they are (sic) entitled to be reinstated to
the DOT . . . 8
The doctrine of laches is "principally a question of inequity
of permitting a claim to be enforced, this inequity being
founded on some change in . . . the relation of parties."9 In
the case at bar, equity, if ever invoked, must lean in favor
of petitioners and intervenors who were unjustly injured by
public respondents' unlawful acts. The prejudice from the
high-handed violation of the rights of petitioners and
intervenors resulting in their loss of employment is far
more serious than the inconvenience to public respondents
in rectifying their own mistakes.
Moreover, petitioners and intervenors cannot be deemed to
have slept on their rights considering, as we should, the
following unrebutted allegations in the main petition:
7. Petitioners protested their illegal termination from the
DOT. Many of them questioned their termination with the
Department of Labor and Employment where they filed a
Complaint against the DOT and its top officials for illegal
dismissal. . . . Some of them questioned their illegal
termination before the Civil Service Commission.
8. Many of petitioners joined a picket and demonstration
held by illegally terminated employees of the DOT before
its office at the DOT building at the Luneta Park.
9. Petitioners were forced to receive their separation or
retirement benefits from the DOT, but all under protest.
The others continued to fight their cases with the
Department of Labor and Employment even if they got
their separation and/or retirement benefits.
xxx xxx xxx
11. After the finality of this Decision (Mandani) . . . many
other terminated employees of the DOT wrote to then DOT
Secretary Peter D. Garrucho, Jr., as the successor-in-
interest of former Sec. Jose U. Gonzales, and DBM
Secretary Guillermo Carague, asking that following the
Decision in this Mandani vs. Gonzalez case and being
similarly situated as the twenty-eight (28) petitioners
therein, that they be reinstated to their former or equivalent
positions in the DOT and/or to be paid their back wages.
Then . . . DOT Secretary Garrucho and DBM Sec. Carague
never responded to these letters and did not reinstate and/or
pay any of their back wages.
xxx xxx xxx
16. Following the Decision of this Honorable Court in
the Mandani vs. Gonzalez case and its Resolution in the
consolidated cases of Abrogar vs. Garrucho and Arnaldo
vs. Garrucho, petitioners made representations with the
DOT to be reinstated and/or paid their back
wages . . . . 10
Neither could petitioners and intervenors be faulted for not
joining in the previous petitions because, as we held
in Cristobal v. Melchor (No. L- 43203, 29 July 1977; 78
SCRA 175, 183, 187) —
More importantly, Cristobal could be expected — without
necessarily spending time and money by going to court —
to relie upon the outcome of the case filed by his co-
employees to protect his interests considering the similarity
of his situation to that of the plaintiffs therein and the
identical relief being sought. On this point, We find a
statement of Justice Louis Brandeis of the United States
Supreme Court in Southern Pacific vs. Bogert, relevant and
persuasive, and We quote;
The essence of laches is not merely lapse of time. It is
essential that there be also acquiescence in the alleged
wrong or lack of diligence in seeking a remedy. Here
plaintiffs, or others representing them, protested . . . and
ever since they have . . . persisted in the diligent pursuit of
a remedy . . . Where the cause of action is of such a nature
that a suit to enforce it would be brought on behalf, not
only of the plaintiff, but of all persons similarly situated, it
is not essential that each such person should intervened
(sic) in the suit brought in order that he be deemed
thereafter free from the laches which bars those who sleep
on their rights (citations omitted).
xxx xxx xxx
This Court, applying the principle of equity, need not be
bound by the rigid application of the law, but rather its
action should conform to the conditions or exigencies to a
given problem or situation in order to grant a relief that
will serve the ends of justice.
To paraphrase then Chief Justice John Edwin Marshall of
the United States Supreme Court, let us to (do) complete
justice and not do justice by halves ("The court of equity in
all cases delights to do complete justice and not by halves."
Marshall, C. J. — Knight vs. Knight, 3 P. Wms. 331,
334; Corbet v.Johnson, 1 Brock, 77, 81 — both cited in
Hefner, et al. vs. Northwestern Mutual Life Insurance
Co., 123 U.S., 309, 313).
We emphasize that prescription was never raised here as an
issue; at most, it is deemed waived. In Fernandez v.Grolier
International, Inc., 11 we stated:
In the case of Director of Lands v. Dano (96 SCRA 161,
165), this Court held that "inasmuch as petitioner had
never pleaded the statute of limitations, he is deemed to
have waived the same".
In the cited case of Directors of Lands v. Dano, the
Director of Lands, who was similarly situated as public
respondents herein who represent the Government, was
deemed to have waived the defense of prescription
"inasmuch as petitioner had never pleaded the statute of
limitations."
The matter of prescription, we reiterate, may not be
considered at this late stage, not only because it was never
raised and therefore now foreclosed, but more importantly,
because it must yield to the higher interest of justice.
Incidentally, it is only in the dissent that the question of
prescription is introduced. Not even the Government raised
it.
In 1977, we in fact relaxed the rule on prescription
in Cristobal v. Melchor12 to give way to a determination of
the case on the merits where, like in this case, "[i]t was an
act of the government through its responsible
officials . . . which contributed to the alleged delay in the
filing of . . . complaint for reinstatement." But, we need not
go back that far. On 15 August 1991, the Court En
Banc granted the related petition in intervention of Alberto
A. Peralta,
et al., 13 in the consolidated cases of Abrogar v. Garrucho,
and Arnaldo v. Garrucho, even if filed on 1 August 1991 or
two months after the four-year prescriptive period, which
lapsed on the 14th and 28th of May 1991. As we ruled
in Cristobal v. Melchor, 14 "it is indeed the better rule that
courts, under the principle of equity, will not be guided or
bound strictly by the statute of limitations or the doctrine of
laches when to do so manifest wrong and injustice would
result."
The principle that prescription does not run against the
State, which contemplates a situation where a private party
cannot defeat the claim of the State by raising the defense
of prescription, is inapplicable because in this case the
private parties are the ones filing a suit against the State.
Consequently, we reiterate our pronouncement
in Fernandez v. Grolier International, Inc.,15 that "[i]t is
true that there are exceptions to the rule that an action will
not be declared to have prescribed if prescription is not
expressly invoked (Garcia vs. Mathis, 100 SCRA 250).
However, where considerations of substantial justice come
in (as in this case when the very employment, and therefore
the lifeblood, of each petitioner/intervenor is involved), it is
better to resolve the issues on the basic merits of the case
instead of applying the rule on prescription which the
private respondent waived when it was not pleaded."
Anyhow, it was public respondents who created the
problem of petitioners and intervenors by illegally
abolishing their positions and terminating their services in
outrageous disregard of the basic protection accorded civil
servants, hence our repeated pronouncement that it was
unconstitutional.
An unconstitutional act is not a law; it confers no rights; it
imposes no duties; it affords no protection; it creates no
office; it is, in legal contemplation, inoperative, as if it had
not been passed. It is therefore stricken from the statute
books and considered never to have existed at all. Not only
the parties but all persons are bound by the declaration of
unconstitutionality which means that no one may thereafter
invoke it nor may the courts be permitted to apply it in
subsequent cases. It is, in other words, a total
nullity. 16 Plainly, it was as if petitioners and intervenors
were never served their termination orders and,
consequently, were never separated from the service, The
fact that they were not able to assume office and exercise
their duties is attributable to the continuing refusal of
public respondents to take them in unless they first
obtained court orders, perhaps, for government budgetary
and accounting purposes. Under the circumstances, the
more prudent thing that public respondents could have done
upon receipt of the decision in Mandani, if they were
earnest in making amends and restoring petitioners and
intervenors to their positions, was to inform the latter of the
nullification of their termination orders and to return to
work and resume their functions. After all, many of them
were supposed to be waiting for instructions from the DOT
because in their termination orders it promised to directly
contact them by telephone, telegram or written notice as
soon as funds for their separation would be available. 17
Furthermore, the representations to DOT made by
petitioners and intervenors for their reinstatement partook
of the nature of an administrative proceeding, and public
respondents also failed to raise the issue of prescription
therein. As already adverted to, that issue was never raised
before us. In reciting the alleged instances of delay in
bringing up this suit, the Solicitor General simply referred
to laches, not prescription. Since this case is an original
action, and if we treat the petition and interventions as
ordinary complaints, the failure of public respondents to
raise the issue of prescription in their comments cannot be
interpreted any less than a waiver of that defense. For,
defenses and objections not pleaded either in a motion to
dismiss or in the answer are deemed waived, except the
failure to state a cause of action which may be alleged in a
later pleading, if one is permitted. 18
Above all, what public respondents brought up was the
doctrine of laches, not prescription; and laches is different
from prescription. The defense of laches applies
independently of prescription. While prescription is
concerned with the fact of delay, laches is concerned with
the effect of delay. Prescription is a matter of time; laches
is a question of inequity of permitting a claim to be
enforced, this inequity being founded on some change in
the condition of the property or the relation of the parties.
Prescription is statutory; laches is not. Laches applies in
equity, whereas prescription applies at law. Prescription is
based on fixed time, laches is not. 19 In any case, it can be
said that the prescriptive period was tolled with the filing of
the termination cases before the Department of Labor and
Employment and the Civil Service Commission, the
pendency of which is acknowledged in the Comment and
Memorandum of public respondents.
Incidentally, even the picketing of the premises and the
placards demanding their immediate reinstatement could
not be any less than written demands sufficient to interrupt
the period of prescription. As we noted earlier, "[a]fter the
finality of this Decision (Mandani) . . . many other
terminated employees of the DOT wrote to then DOT
Secretary Peter D. Garrucho, Jr . . . and DBM Secretary
Guillermo Carague asking that following the Decision in
this Mandani vs. Gonzalez case and being similarly situated
as the twenty-eight (28) petitioners therein . . . they be
reinstated to their former or equivalent positions in the
DOT and/or to be paid their back wages." But "[t]hen . . .
DOT Secretary Garrucho and DBM Sec. Carague never
responded to these
letters," 20 so that it may be said that the period that was
interrupted never started to run again against petitioner and
intervenors.
The requirement of prior resort to administrative remedies
is not an absolute rule and this did not bar direct access to
this Court in the analogous cases of Dario
v. Mison, 21 and Mandani v. Gonzalez, 22 thus —
The Court disregards the questions raised as to procedure,
failure to exhaust administrative remedies, the standing of
certain parties to sue (this was raised by the Civil Service
Commission in G.R. No. 86241, and failure to exhaust
administrative remedies was raised in G.R. Nos. 81954 and
81917 by the Solicitor General), and other technical
objections, for two reasons, "[b]ecause of the demands of
public interest, including the need for stability in the public
service" (Sarmiento III v. Mison, G.R. No. 79974,
December 17, 1987, 153 SCRA 549, 551-552) and because
of the serious implications of these cases on the
administration of the Philippine civil service and the rights
of public servants.
On the argument that existing organizational set-up would
be disrupted if reinstatement be directed, we need only
reiterate our 18 October 1990 Resolution in Mandani that
—
An erring head of a Department, Bureau, or Office cannot
avoid reinstatement, payment of back pay, and other acts of
compliance with the orders of this Court by interposing
changes effected subsequent to his unlawful acts and
claiming that such changes make it difficult to obey this
Court's orders.
The basic principle to be applied whenever the Court
declares an administrative official to have acted in an
unlawful manner is for that official to undo the harmful
effects of his illegal act and to accord to the aggrieved
parties restoration or restitution in good faith to make up
for the deprivations which may have been suffered because
of his act. 23
Petitioners and intervenors, who are similarly situated as
their counterparts in Mandani, Abrogar and Arnaldo,
deserve no less than equal treatment.
The Solicitor General takes exception to petitioner Samuel
Hipol who was separated from the service under an order of
19 May 1986 issued pursuant to Sec. 2, Art. III, of
Proclamation No. 3, and not under E.O. No. 120.24 In reply,
petitioner Hipol admits that he was "in the process of
working for his reinstatement/reappointment at the DOT
when . . . all positions thereat were declared vacant . .
." 25 Since his separation from service was not under void
orders issued pursuant to E.O. No. 120 and, worse, he was
not even an incumbent when E.O. No. 120 was issued,
Hipol could not be considered as in the same situation as
the petitioners in Mandani, Abrogar and Arnaldo.
A parallel case is that of intervenor Concepcion Timario
who, according to the Solicitor General, resigned effective
28 May 1987 and was not separated under any of the
invalid orders. 26 Intervenor Timario however contends that
she is entitled to relief because her courtesy resignation was
accepted on 9 June 1987 or during the period positions
were declared vacant pursuant to MOT Office Order No. 9-
87. 27 It is significant to note that Timario's letter of
resignation cited "professional reasons" as cause for her
abdication28 which, obviously, pertains to the nature of her
work. Moreover, conspicuously absent is the customary
order requiring the filing of courtesy resignations. Timario
may not be permitted to characterize, by way of self-
serving assertions, that her resignation was merely a
courtesy resignation pursuant to any of the voided office
orders or memoranda.
The claim of the Solicitor General that petitioners Jane
Corros and Efren Fontanilla were not employees of the
Ministry of Tourism because their names did not appear in
the regular plantilla of the Ministry of Tourism,29 is
specious since the listing of names in the plantilla is not a
conclusive evidence of employment. Nonetheless, in view
of the incessant allegation of the Solicitor General that
Corros and Fontanilla were not employees of the Ministry,
and considering the photocopies of Fontanilla's
appointment papers and termination order submitted by
him, 30 as well as the bare assertion of petitioner Corros that
she was for 11 years PRO I in the Licensing Division of the
Ministry and that her name could not be found in the
plantilla because she is now Jane Ombawa in view of her
marriage,31 the fact of employment should be threshed out
first in a proper forum as this Court is not a trier of facts.
The Solicitor General contends that since petitioner Myrna
Salvador was a casual employee,32 intervenor Ascension
Padilla was a temporary appointee whose appointment
expired 20 February 1987,33 and intervenor Evelyn
Enriquez was also a temporary appointee, 34 their
appointments are terminable at the pleasure of the
appointing authority. Considering however that the office
orders and memoranda which directed the separation of
petitioners and intervenors were annulled, hence in legal
contemplation did not exist, the effect is, as if the
termination did not occur. However, since the
determination in this case is limited only to the extent of
the nullity of said orders and memoranda, the reinstatement
of Salvador, Padilla and Enriquez cannot be ordered in the
instant proceeding.
The Solicitor General also seeks dismissal of the petition
and intervention against intervenors Rizalina T. Espiritu,
Abdulia T. Landingin, Medardo Ilao, Rosita Somera,
Armando Cruz, Catalino Dabu, Francisco Villaraiz, Norma
Jumilia, Kennedy Basa, Rolando G. Cagasca and Alfonso
Angeles because they were already reinstated. However,
because of the unrefuted allegation that these employees
were not yet paid their respective back wages, then to that
extent, their petitions must be granted.
In computing back wages, we cannot blindly accept the
allegation of petitioners and intervenors that since their
separation from the service in 1987, or about seven (7)
years ago, they have been jobless hence entitled to full back
wages. Conformably with existing jurisprudence, the award
of back wages should not exceed a period of five (5)
years. 35
In the final analysis, the dissent admits that petitioners and
intervenors truly deserve the reliefs they pray for except
that their cause of action has allegedly prescribed. Shall we
now frustrate their rightful claims on a ground that was
never raised, nor even hinted at, by public respondents in
the entire proceeding? That would be antithetic to our
concept of social justice; at the very least, it is subversive
of the rudiments of fairplay.
WHEREFORE, the instant petition is GRANTED.
Petitioners Violeta Aldovino, Ali Alibasa, Felix Balino,
Dionisio Ballesteros, Jose N. Balein, Jr., Freddie Cauton,
Roberto Cruz, Trinidad Dacumos, Angelita Dimapilis,
Andrea Estonilo, Mary Paz Frigillana, Manuel Henson,
Merlene Ibalio, Magdalena Jamilla, Alexander Justiniani,
Romulo Mirador, Julio Miravite, Dante Nagtalon, Clarita
Namuco, Alicia Orbita, Angelita Pucan, Myrna P.
Salvador,
Librada Tantay, and Araceli De Veyra, and intervenors
Josephine G. Andaya, Rosalinda T. Atienza, Jose M.
Baldovino, Jr., Asuncion C. Briones,
Maribelle A. Garcia, Florita O. Ocampo, Rolando Sison,
Lourdes B. Tamayo, Rolando Valdez, Erlinda Piza,
Eleonor Sagnit, Fidel Sevidal, Eloisa Alonzo, Angelito
Dela Cruz, Lynie Arcenas, Maria Emma Jasmin, Macacuna
Pangandaman, Rosalia Mauna, Romeo Padilla, Ascencion
Padilla, Crispulo Padilla, Virgilio Dejero, Armando
Mendoza, Anicita S. Baluyut, Antonio D. Edralin, Evelyn
A. Enriquez, Ma. Victoria L. Jacobo, Daniel M.
Manamtam, Jessie C. Manrique, Encarnacion T. Radaza,
Mario P. Ruivivar, Amor T. Medina, and Felix L. Poliquit,
are ordered REINSTATED immediately to their former
positions without loss of seniority rights and with back
salaries computed under the new staffing pattern from the
dates of their invalid dismissals at rates not lower that their
former salaries but not to exceed a period of five (5)
years, provided, however, that no supervening event shall
have occured which would otherwise disqualify then from
such reinstatement, and provided, further, that whatever
benefits they may have received from the Government by
reason of their termination shall be reimbursed through
reasonable salary deductions.
Public respondents are likewise ordered to pay intervenors
Rizalina P. Espiritu, Abdulia T. Landingin, Medardo Ilao,
Rosita Somera, Armando Cruz, Catalino Dabu, Francisco
Villaraiz, Norma Jumilia, Kennedy Basa, Rolando G.
Cagasca and Alfonso Angeles their back salaries similarly
under the above-quoted conditions.
As regards petitioners Samuel Hipol, Jane Corros and Efren
Fontanilla, their petition is DISMISSED, as well as the
petition in intervention of Concepcion Timario.
SO ORDERED.
Padilla, Bidin, Regalado, Romero, Nocon, Melo, Quiason,
Vitug and Kapunan, JJ., concur.
Puno, J., took no part.
Separate Opinions
DAVIDE, JR., J., dissenting:
I fully agree with the majority opinion that the separation
from the service of petitioners and intervenors (save
petitioners Samuel Hipol, Jane Corros, and Efren
Fontanilla) was made pursuant to the office orders and
memoranda declared void in Mandani vs. Gonzales (186
SCRA 108 [1990]). Said case and the subsequent
consolidated cases of Abrogar vs. Garrucho, Jr.
and Arnaldo vs. Garrucho, Jr. (G.R. Nos. 95773 and
96533, 6 August 1991) would have necessarily benefited
petitioners and intervenors and made their reinstatement
inevitable were it not for their failure to bring the action
within the prescriptive period. It is on this point that I am
constrained to disagree with the majority opinion.
I gather from the majority opinion that, as admitted by
petitioners and intervenors, the illegal dismissal took place
in May 1987. This petition was filed only in October 1991.
The interventions were filed in February, April, May and
July, 1992 (Ponencia, 5, last paragraph) or more than four
years after the cause of action had accrued. The petitions
in Mandani, Abrogar and Arnaldo were filed on 3 June
1987, 31 October 1990, and 7 January 1991, respectively,
or all before the expiration of the four-year period. An
illegal dismissal is an injury to a person's rights.
Accordingly, pursuant to Article 1146 of the Civil Code, an
action for reinstatement and back salaries must be filed
within four years from the accrual of the cause of action or
from the illegal dismissal. Since the instant petition and the
interventions were filed long after the lapse of the four-year
period, this Court is left with no other choice except to
dismiss this case. The Office of the Solicitor General is
correct on this point.
Another obstacle to this petition is that it is
for mandamus (Petition, 2) which must be filed within one
year after dismissal. In Madrigal vs. Lecaroz (191 SCRA
20, 25-16 [1990], this Court, through Mr. Justice Leo
Medialdea, held:
The unbending jurisprudence in this jurisdiction is to the
effect that a petition for quo
warranto and mandamus affecting titles to public office
must be filed within one (1) year from the date the
petitioner is ousted from his position (Galano, et al. v.
Roxas, G.R. No. L-31241, September 12, 1975, 67 SCRA
8; Cornejo v. Secretary of Justice, G.R. No. L-32818,
June 28, 1974, 57 SCRA 663; Sison v. Pangramuyen, etc.
et al., G.R. No.
L-40295, July 31, 1978, 84 SCRA 364; Cui v. Cui, G.R.
No. L-18727, August 31, 1964, 11 SCRA 755; Villaruz v.
Zaldivar, G.R. No. L-22754, December 31, 1965, 15 SCRA
710; Villegas v. De la Cruz, G.R. No.
L-23752, December 31, 1965, 15 SCRA 720; De la Maza
v. Ochave, G.R. No. L-22336, May 23, 1967, 20 SCRA
142; Alejo v. Marquez, G.R. No.
L-29053, February 27, 1971, 37 SCRA 762). The reason
behind this ruling was expounded in the case of Unabia v.
City Mayor, etc., 99 Phil. 253 where We said:
. . . [W]e note that in actions of quo warranto involving
right to an office, the action must be instituted within the
period of one year. This has been the law in the island since
1901, the period having been originally fixed in Section
216 of the Code of Civil Procedure (Act No. 190). We find
this provision to be an expression of policy on the part of
the State that persons claiming a right to an office of which
they are illegally dispossessed should immediately take
steps to recover said office and that if they do not do so
within a period of one year, they shall be considered as
having lost their right thereto by abandonment. There are
weighty reasons of public policy and convenience that
demand the adoption of a similar period for persons
claiming rights to positions in the civil service. There must
be stability in the service so that public business may (sic)
be unduly retarded; delays in the statement of the right to
positions in the service must be discouraged. The following
considerations as to public officers, by Mr. Justice
Bengzon, may well be applicable to employees in the civil
service:
Furthermore, constitutional rights may certainly be waived,
and the inaction of the officer for one year could be validly
considered as waiver, i.e., a renunciation which no
principle of justice may prevent, he being at liberty to
resign his position anytime he pleases.
And there is good justification for the limitation period; it is
not proper that the title to public office should be subjected
to continued uncertainly (sic), and the peoples' interest
requires that such right should be determined as speedily as
practicable. (Tumulak vs. Egay, 46 Off. Gaz., [8], 3693,
3695.)
Further, the Government must be immediately informed or
advised if any person claims to be entitled to an office or a
position in civil service as against another actually holding
it, so that the Government may not be faced with the
predicament of having to pay two salaries, one, for the
person actually holding the office, although illegally, and
another, for one not actually rendering service although
entitled to do so. We hold that in view of the policy of the
State contained in the law fixing the period of one year
within which actions for quo warranto may be instituted,
any person claiming right to a position in the civil service
should also be required to file his petition for reinstatement
within the period of one year, otherwise he is thereby
considered as having abandoned his office.
The principle of equity which the majority opinion invokes
is inapplicable. Equity is available only in the absence of
positive law. As beautifully expressed by this Court
through Mr. Justice Isagani A. Cruz in Aguila vs. Court of
First Instance of Batangas (160 SCRA 352, 359-360
[1988]):
For all its conceded merits, equity is available only in the
absence of law and not as its replacement. Equity is
described as justice outside legality, which simply means
that it cannot supplant although it may, as often happens,
supplement the law. We said it in an earlier case [Zabat Jr.
vs. CA, 142 SCRA 587], and we repeat it now, that all
abstract arguments based only on equity should yield to
positive rules, which pre-empt and prevail over such
persuasions. Emotional appeals for justice, while they may
wring the heart of the Court, cannot justify disregard of the
mandate of the law as long as it remains in force. The
applicable maxim, which goes back to the ancient days of
the Roman jurists — and is now still reverently observed
— is aequetas nunquam contravenit legis.
In my view, petitioners and intervenors only desire to take
advantage of our rulings in Mandani, Abrogar and Arnaldo.
Initially, they had no interest, or had lost any, in seeking
judicial remedy after their dismissal. They really did not
care much about their separation from the service.
Otherwise, they would not have wasted precious time
waiting for a herald to bring them good tidings. In short,
they chose to sleep on their rights. The laws aid those who
are vigilant, not those who sleep upon their rights.
To meet the above disquisition, the modified majority
opinion now claims that since the defense of prescription
was never raised by the respondents, it is deemed waived;
and that the following unrebutted allegations in the main
petition bring them within our ruling in Cristobal
vs. Melchor (78 SCRA 175 [1977]):
7. Petitioners protested their illegal termination from the
DOT. Many of them questioned their termination with the
Department of Labor and Employment where they filed a
Complaint against the DOT and its top officials for illegal
dismissal . . . Some of them questioned their illegal
termination before the Civil Service Commission.
8. Many of petitioners joined a picket and demonstration
held by illegally terminated employees of the DOT before
its office at the DOT building at the Luneta Park.
9. Petitioners were forced to receive their separation or
retirement benefits from the DOT, but all under protest.
The others continued to fight their cases with the
Department of Labor and Employment even if they got
their separation and/or retirement benefits.
xxx xxx xxx
11. After the finality of this Decision (Mandani) . . . many
other terminated employees of the DOT wrote to then DOT
Secretary Peter D. Garrucho, Jr., as the successor-in-
interest of former Sec. Jose U. Gonzalez, and DBM
Secretary Guillermo Carague, asking that following the
Decision in this Mandani vs. Gonzalez case and being
similarly situated as the twenty-eight (28) petitioners
therein, that they be reinstated to their former or equivalent
positions in the DOT and/or to be paid their back wages.
Then . . . DOT Secretary Garrucho and DBM Sec. Carague
never responded to these letters and did not reinstate and/or
pay any of their back wages.
xxx xxx xxx
16. Following the Decision of this Honorable Court in
the Mandani vs. Gonzalez case and its Resolution in the
consolidated cases of Abrogar vs. Garrucho and Arnaldo
vs. Garrucho, petitioners made representations with the
DOT to be reinstated and/or paid their back
wages . . . (Ponencia, 6-7)
While it may be true that the public respondents, through
the Office of the Solicitor General, did not raise the defense
of prescription, it cannot be denied that the allegations in
the petition clearly show that the petitioners' cause of action
has indeed prescribed. In Gulang vs. Nadayag (214 SCRA
355, 362-363 [1992], citing Philippine National Bank
vs. Pacific Commission House
(27 SCRA 766 [1969]; Garcia vs. Mathis (100 SCRA 250
[1980]); and Aznar III vs. Bernad (161 SCRA [1988]), we
held:
There is also authority to the effect that the defense of
prescription is not deemed waived, even if not pleaded in a
motion to dismiss or in the answer, if plaintiff's allegation
in the complaint or the evidence he present shows clearly
that the action has prescribed.
Cristobal vs. Melchor has a very peculiar factual backdrop
which justified an exception to the general rule. In the said
case, this Court found the following:
2. It was an act of the government through its responsible
officials more particularly then Executive Secretary
Amelito Mutuc and his successors which contributed to the
alleged delay in the filing of Cristobal's present complaint
for reinstatement.
The evidence of Cristobal establish the following: After
the Ingles suit was filed in court, the dismissed employees,
Cristobal included, continued to seek reconsideration of
their dismissal. It was then that Executive Secretary Mutuc
assured the employees that without prejudice to the
continuation of the civil action, he would work for their
reinstatement. Accordingly, some of the dismissed
employees were recalled to their respective positions in the
Office of the President among whom were the plaintiffs in
the civil case and several others who were not parties
therein. Secretary Mutuc even tried to place the others
outside of the Malacañang Office. An affidavit of Emiliano
Punzal, retired Presidential Records Officer, attests to the
fact that Jose C. Cristobal "was among those in the list of
separated employees ordered for placement to a position
commensurate to his qualification and experience." In the
meantime, however, Secretary Mutuc was replaced by
other Executive Secretaries to whom Cristobal over and
over again presented his request for reinstatement and who
gave the same assurance that Cristobal would be recalled
and re-employed at "the opportune time".
It was this continued promise of the government officials
concerned which led Cristobal to bide his time and wait for
the Office of the President to comply with its commitment.
Furthermore, he had behind him the decision of the
Supreme Court in Ingles vs. Mutuc which he believed
should be applied in his favor. But when Cristobal, in
answer to his various letters, received the letter of May 19,
1971 from the Office of the President denying his
reinstatement and declaring the matters "definitely closed"
because of his failure to file an action in court within one
year from his separation, it was only then that he saw the
necessity of seeking redress from the courts.
In the instant case, the petitioners, as shown in the
aforequoted paragraphs in their main petition, explicitly
admit that they protested their illegal termination from the
DOT; many of them questioned their termination with the
Department of Labor and Employment (DOLE); and some
of them questioned such illegal termination before the Civil
Service Commission (CSC). Considering that they
ultimately took this recourse after four years, it would be
safe to presume that the decisions of the DOLE and the
CSC were adverse to them; they took no further action
thereon, and allowed the decisions to become final. The
petitioners then should not be permitted to belatedly re-
litigate the matter by way of mandamus.
WHEREFORE, I vote to DENY the petition for want of
merit.
Cruz and Feliciano, JJ., concur.
# Separate Opinions
DAVIDE, JR., J., dissenting:
I fully agree with the majority opinion that the separation
from the service of petitioners and intervenors (save
petitioners Samuel Hipol, Jane Corros, and Efren
Fontanilla) was made pursuant to the office orders and
memoranda declared void in Mandani vs. Gonzales (186
SCRA 108 [1990]). Said case and the subsequent
consolidated cases of Abrogar vs. Garrucho, Jr.
and Arnaldo vs. Garrucho, Jr. (G.R. Nos. 95773 and
96533, 6 August 1991) would have necessarily benefited
petitioners and intervenors and made their reinstatement
inevitable were it not for their failure to bring the action
within the prescriptive period. It is on this point that I am
constrained to disagree with the majority opinion.
I gather from the majority opinion that, as admitted by
petitioners and intervenors, the illegal dismissal took place
in May 1987. This petition was filed only in October 1991.
The interventions were filed in February, April, May and
July, 1992 (Ponencia, 5, last paragraph) or more than four
years after the cause of action had accrued. The petitions
in Mandani, Abrogar and Arnaldo were filed on 3 June
1987, 31 October 1990, and 7 January 1991, respectively,
or all before the expiration of the four-year period. An
illegal dismissal is an injury to a person's rights.
Accordingly, pursuant to Article 1146 of the Civil Code, an
action for reinstatement and back salaries must be filed
within four years from the accrual of the cause of action or
from the illegal dismissal. Since the instant petition and the
interventions were filed long after the lapse of the four-year
period, this Court is left with no other choice except to
dismiss this case. The Office of the Solicitor General is
correct on this point.
Another obstacle to this petition is that it is
for mandamus (Petition, 2) which must be filed within one
year after dismissal. In Madrigal vs. Lecaroz (191 SCRA
20, 25-16 [1990], this Court, through Mr. Justice Leo
Medialdea, held:
The unbending jurisprudence in this jurisdiction is to the
effect that a petition for quo
warranto and mandamus affecting titles to public office
must be filed within one (1) year from the date the
petitioner is ousted from his position (Galano, et al. v.
Roxas, G.R. No. L-31241, September 12, 1975, 67 SCRA
8; Cornejo v. Secretary of Justice, G.R. No. L-32818,
June 28, 1974, 57 SCRA 663; Sison v. Pangramuyen, etc.
et al., G.R. No.
L-40295, July 31, 1978, 84 SCRA 364; Cui v. Cui, G.R.
No. L-18727, August 31, 1964, 11 SCRA 755; Villaruz v.
Zaldivar, G.R. No. L-22754, December 31, 1965, 15 SCRA
710; Villegas v. De la Cruz, G.R.
No. L-23752, December 31, 1965, 15 SCRA 720; De la
Maza v. Ochave, G.R. No. L-22336, May 23, 1967, 20
SCRA 142; Alejo v. Marquez, G.R. No. L-29053, February
27, 1971, 37 SCRA 762). The reason behind this ruling was
expounded in the case of Unabia v. City Mayor, etc., 99
Phil. 253 where We said:
. . . [W]e note that in actions of quo warranto involving
right to an office, the action must be instituted within the
period of one year. This has been the law in the island since
1901, the period having been originally fixed in Section
216 of the Code of Civil Procedure (Act No. 190). We find
this provision to be an expression of policy on the part of
the State that persons claiming a right to an office of which
they are illegally dispossessed should immediately take
steps to recover said office and that if they do not do so
within a period of one year, they shall be considered as
having lost their right thereto by abandonment. There are
weighty reasons of public policy and convenience that
demand the adoption of a similar period for persons
claiming rights to positions in the civil service. There must
be stability in the service so that public business may (sic)
be unduly retarded; delays in the statement of the right to
positions in the service must be discouraged. The following
considerations as to public officers, by Mr. Justice
Bengzon, may well be applicable to employees in the civil
service:
Furthermore, constitutional rights may certainly be waived,
and the inaction of the officer for one year could be validly
considered as waiver, i.e., a renunciation which no
principle of justice may prevent, he being at liberty to
resign his position anytime he pleases.
And there is good justification for the limitation period; it is
not proper that the title to public office should be subjected
to continued uncertainly (sic), and the peoples' interest
requires that such right should be determined as speedily as
practicable. (Tumulak vs. Egay, 46 Off. Gaz., [8], 3693,
3695.)
Further, the Government must be immediately informed or
advised if any person claims to be entitled to an office or a
position in civil service as against another actually holding
it, so that the Government may not be faced with the
predicament of having to pay two salaries, one, for the
person actually holding the office, although illegally, and
another, for one not actually rendering service although
entitled to do so. We hold that in view of the policy of the
State contained in the law fixing the period of one year
within which actions for quo warranto may be instituted,
any person claiming right to a position in the civil service
should also be required to file his petition for reinstatement
within the period of one year, otherwise he is thereby
considered as having abandoned his office.
The principle of equity which the majority opinion invokes
is inapplicable. Equity is available only in the absence of
positive law. As beautifully expressed by this Court
through Mr. Justice Isagani A. Cruz in Aguila vs. Court of
First Instance of Batangas (160 SCRA 352, 359-360
[1988]):
For all its conceded merits, equity is available only in the
absence of law and not as its replacement. Equity is
described as justice outside legality, which simply means
that it cannot supplant although it may, as often happens,
supplement the law. We said it in an earlier case [Zabat
Jr. vs. CA, 142 SCRA 587], and we repeat it now, that all
abstract arguments based only on equity should yield to
positive rules, which pre-empt and prevail over such
persuasions. Emotional appeals for justice, while they may
wring the heart of the Court, cannot justify disregard of the
mandate of the law as long as it remains in force. The
applicable maxim, which goes back to the ancient days of
the Roman jurists — and is now still reverently observed
— is aequetas nunquam contravenit legis.
In my view, petitioners and intervenors only desire to take
advantage of our rulings in Mandani, Abrogar and Arnaldo.
Initially, they had no interest, or had lost any, in seeking
judicial remedy after their dismissal. They really did not
care much about their separation from the service.
Otherwise, they would not have wasted precious time
waiting for a herald to bring them good tidings. In short,
they chose to sleep on their rights. The laws aid those who
are vigilant, not those who sleep upon their rights.
To meet the above disquisition, the modified majority
opinion now claims that since the defense of prescription
was never raised by the respondents, it is deemed waived;
and that the following unrebutted allegations in the main
petition bring them within our ruling in Cristobal
vs. Melchor (78 SCRA 175 [1977]):
7. Petitioners protested their illegal termination from the
DOT. Many of them questioned their termination with the
Department of Labor and Employment where they filed a
Complaint against the DOT and its top officials for illegal
dismissal . . . Some of them questioned their illegal
termination before the Civil Service Commission.
8. Many of petitioners joined a picket and demonstration
held by illegally terminated employees of the DOT before
its office at the DOT building at the Luneta Park.
9. Petitioners were forced to receive their separation or
retirement benefits from the DOT, but all under protest.
The others continued to fight their cases with the
Department of Labor and Employment even if they got
their separation and/or retirement benefits.
xxx xxx xxx
11. After the finality of this Decision (Mandani) . . . many
other terminated employees of the DOT wrote to then DOT
Secretary Peter D. Garrucho, Jr., as the successor-in-
interest of former Sec. Jose U. Gonzalez, and DBM
Secretary Guillermo Carague, asking that following the
Decision in this Mandani vs. Gonzalez case and being
similarly situated as the twenty-eight (28) petitioners
therein, that they be reinstated to their former or equivalent
positions in the DOT and/or to be paid their back wages.
Then . . . DOT Secretary Garrucho and DBM Sec. Carague
never responded to these letters and did not reinstate and/or
pay any of their back wages.
xxx xxx xxx
16. Following the Decision of this Honorable Court in
the Mandani vs. Gonzalez case and its Resolution in the
consolidated cases of Abrogar vs. Garrucho and Arnaldo
vs. Garrucho, petitioners made representations with the
DOT to be reinstated and/or paid their back
wages . . . (Ponencia, 6-7)
While it may be true that the public respondents, through
the Office of the Solicitor General, did not raise the defense
of prescription, it cannot be denied that the allegations in
the petition clearly show that the petitioners' cause of action
has indeed prescribed. In Gulang vs. Nadayag (214 SCRA
355, 362-363 [1992], citing Philippine National Bank
vs. Pacific Commission House
(27 SCRA 766 [1969]; Garcia vs. Mathis (100 SCRA 250
[1980]); and Aznar III vs. Bernad (161 SCRA [1988]), we
held:
There is also authority to the effect that the defense of
prescription is not deemed waived, even if not pleaded in a
motion to dismiss or in the answer, if plaintiff's allegation
in the complaint or the evidence he present shows clearly
that the action has prescribed.
Cristobal vs. Melchor has a very peculiar factual backdrop
which justified an exception to the general rule. In the said
case, this Court found the following:
2. It was an act of the government through its responsible
officials more particularly then Executive Secretary
Amelito Mutuc and his successors which contributed to the
alleged delay in the filing of Cristobal's present complaint
for reinstatement.
The evidence of Cristobal establish the following: After
the Ingles suit was filed in court, the dismissed employees,
Cristobal included, continued to seek reconsideration of
their dismissal. It was then that Executive Secretary Mutuc
assured the employees that without prejudice to the
continuation of the civil action, he would work for their
reinstatement. Accordingly, some of the dismissed
employees were recalled to their respective positions in the
Office of the President among whom were the plaintiffs in
the civil case and several others who were not parties
therein. Secretary Mutuc even tried to place the others
outside of the Malacañang Office. An affidavit of Emiliano
Punzal, retired Presidential Records Officer, attests to the
fact that Jose C. Cristobal "was among those in the list of
separated employees ordered for placement to a position
commensurate to his qualification and experience." In the
meantime, however, Secretary Mutuc was replaced by
other Executive Secretaries to whom Cristobal over and
over again presented his request for reinstatement and who
gave the same assurance that Cristobal would be recalled
and re-employed at "the opportune time".
It was this continued promise of the government officials
concerned which led Cristobal to bide his time and wait for
the Office of the President to comply with its commitment.
Furthermore, he had behind him the decision of the
Supreme Court in Ingles vs. Mutuc which he believed
should be applied in his favor. But when Cristobal, in
answer to his various letters, received the letter of May 19,
1971 from the Office of the President denying his
reinstatement and declaring the matters "definitely closed"
because of his failure to file an action in court within one
year from his separation, it was only then that he saw the
necessity of seeking redress from the courts.
In the instant case, the petitioners, as shown in the
aforequoted paragraphs in their main petition, explicitly
admit that they protested their illegal termination from the
DOT; many of them questioned their termination with the
Department of Labor and Employment (DOLE); and some
of them questioned such illegal termination before the Civil
Service Commission (CSC). Considering that they
ultimately took this recourse after four years, it would be
safe to presume that the decisions of the DOLE and the
CSC were adverse to them; they took no further action
thereon, and allowed the decisions to become final. The
petitioners then should not be permitted to belatedly re-
litigate the matter by way of mandamus.
WHEREFORE, I vote to DENY the petition for want of
merit.
Cruz and Feliciano, JJ., concur.

G.R. No. 101083 July 30, 1993
JUAN ANTONIO, ANNA ROSARIO and JOSE
ALFONSO, all surnamed OPOSA, minors, and
represented by their parents ANTONIO and
RIZALINA OPOSA, ROBERTA NICOLE SADIUA,
minor, represented by her parents CALVIN and
ROBERTA SADIUA, CARLO, AMANDA SALUD and
PATRISHA, all surnamed FLORES, minors and
represented by their parents ENRICO and NIDA
FLORES, GIANINA DITA R. FORTUN, minor,
represented by her parents SIGRID and DOLORES
FORTUN, GEORGE II and MA. CONCEPCION, all
surnamed MISA, minors and represented by their
parents GEORGE and MYRA MISA, BENJAMIN
ALAN V. PESIGAN, minor, represented by his parents
ANTONIO and ALICE PESIGAN, JOVIE MARIE
ALFARO, minor, represented by her parents JOSE and
MARIA VIOLETA ALFARO, MARIA CONCEPCION
T. CASTRO, minor, represented by her parents
FREDENIL and JANE CASTRO, JOHANNA
DESAMPARADO,
minor, represented by her parents JOSE and ANGELA
DESAMPRADO, CARLO JOAQUIN T. NARVASA,
minor, represented by his parents GREGORIO II and
CRISTINE CHARITY NARVASA, MA.
MARGARITA, JESUS IGNACIO, MA. ANGELA and
MARIE GABRIELLE, all surnamed SAENZ, minors,
represented by their parents ROBERTO and AURORA
SAENZ, KRISTINE, MARY ELLEN, MAY, GOLDA
MARTHE and DAVID IAN, all surnamed KING,
minors, represented by their parents MARIO and
HAYDEE KING, DAVID, FRANCISCO and
THERESE VICTORIA, all surnamed ENDRIGA,
minors, represented by their parents BALTAZAR and
TERESITA ENDRIGA, JOSE MA. and REGINA MA.,
all surnamed ABAYA, minors, represented by their
parents ANTONIO and MARICA ABAYA, MARILIN,
MARIO, JR. and MARIETTE, all surnamed
CARDAMA, minors, represented by their parents
MARIO and LINA CARDAMA, CLARISSA, ANN
MARIE, NAGEL, and IMEE LYN, all surnamed
OPOSA, minors and represented by their parents
RICARDO and MARISSA OPOSA, PHILIP JOSEPH,
STEPHEN JOHN and ISAIAH JAMES, all surnamed
QUIPIT, minors, represented by their parents JOSE
MAX and VILMI QUIPIT, BUGHAW CIELO,
CRISANTO, ANNA, DANIEL and FRANCISCO, all
surnamed BIBAL, minors, represented by their parents
FRANCISCO, JR. and MILAGROS BIBAL, and THE
PHILIPPINE ECOLOGICAL NETWORK,
INC., petitioners,
vs.
THE HONORABLE FULGENCIO S. FACTORAN,
JR., in his capacity as the Secretary of the Department
of Environment and Natural Resources, and THE
HONORABLE ERIBERTO U. ROSARIO, Presiding
Judge of the RTC, Makati, Branch 66, respondents.
Oposa Law Office for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
In a broader sense, this petition bears upon the right of
Filipinos to a balanced and healthful ecology which the
petitioners dramatically associate with the twin concepts of
"inter-generational responsibility" and "inter-generational
justice." Specifically, it touches on the issue of whether the
said petitioners have a cause of action to "prevent the
misappropriation or impairment" of Philippine rainforests
and "arrest the unabated hemorrhage of the country's vital
life support systems and continued rape of Mother Earth."
The controversy has its genesis in Civil Case No. 90-77
which was filed before Branch 66 (Makati, Metro Manila)
of the Regional Trial Court (RTC), National Capital
Judicial Region. The principal plaintiffs therein, now the
principal petitioners, are all minors duly represented and
joined by their respective parents. Impleaded as an
additional plaintiff is the Philippine Ecological Network,
Inc. (PENI), a domestic, non-stock and non-profit
corporation organized for the purpose of, inter alia,
engaging in concerted action geared for the protection of
our environment and natural resources. The original
defendant was the Honorable Fulgencio S. Factoran, Jr.,
then Secretary of the Department of Environment and
Natural Resources (DENR). His substitution in this petition
by the new Secretary, the Honorable Angel C. Alcala, was
subsequently ordered upon proper motion by the
petitioners.1 The complaint2 was instituted as a taxpayers'
class suit3 and alleges that the plaintiffs "are all citizens of
the Republic of the Philippines, taxpayers, and entitled to
the full benefit, use and enjoyment of the natural resource
treasure that is the country's virgin tropical forests." The
same was filed for themselves and others who are equally
concerned about the preservation of said resource but are
"so numerous that it is impracticable to bring them all
before the Court." The minors further asseverate that they
"represent their generation as well as generations yet
unborn."4 Consequently, it is prayed for that judgment be
rendered:
. . . ordering defendant, his agents, representatives and
other persons acting in his behalf to —
(1) Cancel all existing timber license agreements in the
country;
(2) Cease and desist from receiving, accepting, processing,
renewing or approving new timber license agreements.
and granting the plaintiffs ". . . such other reliefs just and
equitable under the premises."5
The complaint starts off with the general averments that the
Philippine archipelago of 7,100 islands has a land area of
thirty million (30,000,000) hectares and is endowed with
rich, lush and verdant rainforests in which varied, rare and
unique species of flora and fauna may be found; these
rainforests contain a genetic, biological and chemical pool
which is irreplaceable; they are also the habitat of
indigenous Philippine cultures which have existed, endured
and flourished since time immemorial; scientific evidence
reveals that in order to maintain a balanced and healthful
ecology, the country's land area should be utilized on the
basis of a ratio of fifty-four per cent (54%) for forest cover
and forty-six per cent (46%) for agricultural, residential,
industrial, commercial and other uses; the distortion and
disturbance of this balance as a consequence of
deforestation have resulted in a host of environmental
tragedies, such as (a) water shortages resulting from drying
up of the water table, otherwise known as the "aquifer," as
well as of rivers, brooks and streams, (b) salinization of the
water table as a result of the intrusion therein of salt water,
incontrovertible examples of which may be found in the
island of Cebu and the Municipality of Bacoor, Cavite, (c)
massive erosion and the consequential loss of soil fertility
and agricultural productivity, with the volume of soil
eroded estimated at one billion (1,000,000,000) cubic
meters per annum — approximately the size of the entire
island of Catanduanes, (d) the endangering and extinction
of the country's unique, rare and varied flora and fauna, (e)
the disturbance and dislocation of cultural communities,
including the disappearance of the Filipino's indigenous
cultures, (f) the siltation of rivers and seabeds and
consequential destruction of corals and other aquatic life
leading to a critical reduction in marine resource
productivity, (g) recurrent spells of drought as is presently
experienced by the entire country, (h) increasing velocity of
typhoon winds which result from the absence of
windbreakers, (i) the floodings of lowlands and agricultural
plains arising from the absence of the absorbent mechanism
of forests, (j) the siltation and shortening of the lifespan of
multi-billion peso dams constructed and operated for the
purpose of supplying water for domestic uses, irrigation
and the generation of electric power, and (k) the reduction
of the earth's capacity to process carbon dioxide gases
which has led to perplexing and catastrophic climatic
changes such as the phenomenon of global warming,
otherwise known as the "greenhouse effect."
Plaintiffs further assert that the adverse and detrimental
consequences of continued and deforestation are so capable
of unquestionable demonstration that the same may be
submitted as a matter of judicial notice. This
notwithstanding, they expressed their intention to present
expert witnesses as well as documentary, photographic and
film evidence in the course of the trial.
As their cause of action, they specifically allege that:
CAUSE OF ACTION
7. Plaintiffs replead by reference the foregoing allegations.
8. Twenty-five (25) years ago, the Philippines had some
sixteen (16) million hectares of rainforests constituting
roughly 53% of the country's land mass.
9. Satellite images taken in 1987 reveal that there remained
no more than 1.2 million hectares of said rainforests or four
per cent (4.0%) of the country's land area.
10. More recent surveys reveal that a mere 850,000
hectares of virgin old-growth rainforests are left, barely
2.8% of the entire land mass of the Philippine archipelago
and about 3.0 million hectares of immature and
uneconomical secondary growth forests.
11. Public records reveal that the defendant's, predecessors
have granted timber license agreements ('TLA's') to various
corporations to cut the aggregate area of 3.89 million
hectares for commercial logging purposes.
A copy of the TLA holders and the corresponding areas
covered is hereto attached as Annex "A".
12. At the present rate of deforestation, i.e. about 200,000
hectares per annum or 25 hectares per hour — nighttime,
Saturdays, Sundays and holidays included — the
Philippines will be bereft of forest resources after the end
of this ensuing decade, if not earlier.
13. The adverse effects, disastrous consequences, serious
injury and irreparable damage of this continued trend of
deforestation to the plaintiff minor's generation and to
generations yet unborn are evident and incontrovertible. As
a matter of fact, the environmental damages enumerated in
paragraph 6 hereof are already being felt, experienced and
suffered by the generation of plaintiff adults.
14. The continued allowance by defendant of TLA holders
to cut and deforest the remaining forest stands will work
great damage and irreparable injury to plaintiffs —
especially plaintiff minors and their successors — who may
never see, use, benefit from and enjoy this rare and unique
natural resource treasure.
This act of defendant constitutes a misappropriation and/or
impairment of the natural resource property he holds in
trust for the benefit of plaintiff minors and succeeding
generations.
15. Plaintiffs have a clear and constitutional right to a
balanced and healthful ecology and are entitled to
protection by the State in its capacity as the parens patriae.
16. Plaintiff have exhausted all administrative remedies
with the defendant's office. On March 2, 1990, plaintiffs
served upon defendant a final demand to cancel all logging
permits in the country.
A copy of the plaintiffs' letter dated March 1, 1990 is
hereto attached as Annex "B".
17. Defendant, however, fails and refuses to cancel the
existing TLA's to the continuing serious damage and
extreme prejudice of plaintiffs.
18. The continued failure and refusal by defendant to
cancel the TLA's is an act violative of the rights of
plaintiffs, especially plaintiff minors who may be left with
a country that is desertified (sic), bare, barren and devoid of
the wonderful flora, fauna and indigenous cultures which
the Philippines had been abundantly blessed with.
19. Defendant's refusal to cancel the aforementioned TLA's
is manifestly contrary to the public policy enunciated in the
Philippine Environmental Policy which, in pertinent part,
states that it is the policy of the State —
(a) to create, develop, maintain and improve conditions
under which man and nature can thrive in productive and
enjoyable harmony with each other;
(b) to fulfill the social, economic and other requirements of
present and future generations of Filipinos and;
(c) to ensure the attainment of an environmental quality
that is conductive to a life of dignity and well-being. (P.D.
1151, 6 June 1977)
20. Furthermore, defendant's continued refusal to cancel the
aforementioned TLA's is contradictory to the Constitutional
policy of the State to —
a. effect "a more equitable distribution of opportunities,
income and wealth" and "make full and efficient use of
natural resources (sic)." (Section 1, Article XII of the
Constitution);
b. "protect the nation's marine wealth." (Section 2, ibid);
c. "conserve and promote the nation's cultural heritage and
resources (sic)" (Section 14, Article XIV, id.);
d. "protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm
and harmony of nature." (Section 16, Article II, id.)
21. Finally, defendant's act is contrary to the highest law of
humankind — the natural law — and violative of plaintiffs'
right to self-preservation and perpetuation.
22. There is no other plain, speedy and adequate remedy in
law other than the instant action to arrest the unabated
hemorrhage of the country's vital life support systems and
continued rape of Mother Earth. 6
On 22 June 1990, the original defendant, Secretary
Factoran, Jr., filed a Motion to Dismiss the complaint based
on two (2) grounds, namely: (1) the plaintiffs have no cause
of action against him and (2) the issue raised by the
plaintiffs is a political question which properly pertains to
the legislative or executive branches of Government. In
their 12 July 1990 Opposition to the Motion, the petitioners
maintain that (1) the complaint shows a clear and
unmistakable cause of action, (2) the motion is dilatory and
(3) the action presents a justiciable question as it involves
the defendant's abuse of discretion.
On 18 July 1991, respondent Judge issued an order granting
the aforementioned motion to dismiss.7 In the said order,
not only was the defendant's claim — that the complaint
states no cause of action against him and that it raises a
political question — sustained, the respondent Judge
further ruled that the granting of the relief prayed for would
result in the impairment of contracts which is prohibited by
the fundamental law of the land.
Plaintiffs thus filed the instant special civil action
for certiorari under Rule 65 of the Revised Rules of Court
and ask this Court to rescind and set aside the dismissal
order on the ground that the respondent Judge gravely
abused his discretion in dismissing the action. Again, the
parents of the plaintiffs-minors not only represent their
children, but have also joined the latter in this case.8
On 14 May 1992, We resolved to give due course to the
petition and required the parties to submit their respective
Memoranda after the Office of the Solicitor General (OSG)
filed a Comment in behalf of the respondents and the
petitioners filed a reply thereto.
Petitioners contend that the complaint clearly and
unmistakably states a cause of action as it contains
sufficient allegations concerning their right to a sound
environment based on Articles 19, 20 and 21 of the Civil
Code (Human Relations), Section 4 of Executive Order
(E.O.) No. 192 creating the DENR, Section 3 of
Presidential Decree (P.D.) No. 1151 (Philippine
Environmental Policy), Section 16, Article II of the 1987
Constitution recognizing the right of the people to a
balanced and healthful ecology, the concept of generational
genocide in Criminal Law and the concept of man's
inalienable right to self-preservation and self-perpetuation
embodied in natural law. Petitioners likewise rely on the
respondent's correlative obligation per Section 4 of E.O.
No. 192, to safeguard the people's right to a healthful
environment.
It is further claimed that the issue of the respondent
Secretary's alleged grave abuse of discretion in granting
Timber License Agreements (TLAs) to cover more areas
for logging than what is available involves a judicial
question.
Anent the invocation by the respondent Judge of the
Constitution's non-impairment clause, petitioners maintain
that the same does not apply in this case because TLAs are
not contracts. They likewise submit that even if TLAs may
be considered protected by the said clause, it is well settled
that they may still be revoked by the State when the public
interest so requires.
On the other hand, the respondents aver that the petitioners
failed to allege in their complaint a specific legal right
violated by the respondent Secretary for which any relief is
provided by law. They see nothing in the complaint but
vague and nebulous allegations concerning an
"environmental right" which supposedly entitles the
petitioners to the "protection by the state in its capacity
as parens patriae." Such allegations, according to them, do
not reveal a valid cause of action. They then reiterate the
theory that the question of whether logging should be
permitted in the country is a political question which
should be properly addressed to the executive or legislative
branches of Government. They therefore assert that the
petitioners' resources is not to file an action to court, but to
lobby before Congress for the passage of a bill that would
ban logging totally.
As to the matter of the cancellation of the TLAs,
respondents submit that the same cannot be done by the
State without due process of law. Once issued, a TLA
remains effective for a certain period of time — usually for
twenty-five (25) years. During its effectivity, the same can
neither be revised nor cancelled unless the holder has been
found, after due notice and hearing, to have violated the
terms of the agreement or other forestry laws and
regulations. Petitioners' proposition to have all the TLAs
indiscriminately cancelled without the requisite hearing
would be violative of the requirements of due process.
Before going any further, We must first focus on some
procedural matters. Petitioners instituted Civil Case No. 90-
777 as a class suit. The original defendant and the present
respondents did not take issue with this matter.
Nevertheless, We hereby rule that the said civil case is
indeed a class suit. The subject matter of the complaint is of
common and general interest not just to several, but to all
citizens of the Philippines. Consequently, since the parties
are so numerous, it, becomes impracticable, if not totally
impossible, to bring all of them before the court. We
likewise declare that the plaintiffs therein are numerous and
representative enough to ensure the full protection of all
concerned interests. Hence, all the requisites for the filing
of a valid class suit under Section 12, Rule 3 of the Revised
Rules of Court are present both in the said civil case and in
the instant petition, the latter being but an incident to the
former.
This case, however, has a special and novel element.
Petitioners minors assert that they represent their
generation as well as generations yet unborn. We find no
difficulty in ruling that they can, for themselves, for others
of their generation and for the succeeding generations, file
a class suit. Their personality to sue in behalf of the
succeeding generations can only be based on the concept of
intergenerational responsibility insofar as the right to a
balanced and healthful ecology is concerned. Such a right,
as hereinafter expounded, considers
the "rhythm and harmony of nature." Nature means the
created world in its entirety.9 Such rhythm and harmony
indispensably include, inter alia, the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources to the end that
their exploration, development and utilization be equitably
accessible to the present as well as future
generations. 10Needless to say, every generation has a
responsibility to the next to preserve that rhythm and
harmony for the full enjoyment of a balanced and healthful
ecology. Put a little differently, the minors' assertion of
their right to a sound environment constitutes, at the same
time, the performance of their obligation to ensure the
protection of that right for the generations to come.
The locus standi of the petitioners having thus been
addressed, We shall now proceed to the merits of the
petition.
After a careful perusal of the complaint in question and a
meticulous consideration and evaluation of the issues raised
and arguments adduced by the parties, We do not hesitate
to find for the petitioners and rule against the respondent
Judge's challenged order for having been issued with grave
abuse of discretion amounting to lack of jurisdiction. The
pertinent portions of the said order reads as follows:
xxx xxx xxx
After a careful and circumspect evaluation of the
Complaint, the Court cannot help but agree with the
defendant. For although we believe that plaintiffs have but
the noblest of all intentions, it (sic) fell short of alleging,
with sufficient definiteness, a specific legal right they are
seeking to enforce and protect, or a specific legal wrong
they are seeking to prevent and redress (Sec. 1, Rule 2,
RRC). Furthermore, the Court notes that the Complaint is
replete with vague assumptions and vague conclusions
based on unverified data. In fine, plaintiffs fail to state a
cause of action in its Complaint against the herein
defendant.
Furthermore, the Court firmly believes that the matter
before it, being impressed with political color and
involving a matter of public policy, may not be taken
cognizance of by this Court without doing violence to the
sacred principle of "Separation of Powers" of the three (3)
co-equal branches of the Government.
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 11
We do not agree with the trial court's conclusions that the
plaintiffs failed to allege with sufficient definiteness a
specific legal right involved or a specific legal wrong
committed, and that the complaint is replete with vague
assumptions and conclusions based on unverified data. A
reading of the complaint itself belies these conclusions.
The complaint focuses on one specific fundamental legal
right — the right to a balanced and healthful ecology
which, for the first time in our nation's constitutional
history, is solemnly incorporated in the fundamental law.
Section 16, Article II of the 1987 Constitution explicitly
provides:
Sec. 16. The State shall protect and advance the right of the
people to a balanced and healthful ecology in accord with
the rhythm and harmony of nature.
This right unites with the right to health which is provided
for in the preceding section of the same article:
Sec. 15. The State shall protect and promote the right to
health of the people and instill health consciousness among
them.
While the right to a balanced and healthful ecology is to be
found under the Declaration of Principles and State Policies
and not under the Bill of Rights, it does not follow that it is
less important than any of the civil and political rights
enumerated in the latter. Such a right belongs to a different
category of rights altogether for it concerns nothing less
than self-preservation and self-perpetuation — aptly and
fittingly stressed by the petitioners — the advancement of
which may even be said to predate all governments and
constitutions. As a matter of fact, these basic rights need
not even be written in the Constitution for they are assumed
to exist from the inception of humankind. If they are now
explicitly mentioned in the fundamental charter, it is
because of the well-founded fear of its framers that unless
the rights to a balanced and healthful ecology and to health
are mandated as state policies by the Constitution itself,
thereby highlighting their continuing importance and
imposing upon the state a solemn obligation to preserve the
first and protect and advance the second, the day would not
be too far when all else would be lost not only for the
present generation, but also for those to come —
generations which stand to inherit nothing but parched
earth incapable of sustaining life.
The right to a balanced and healthful ecology carries with it
the correlative duty to refrain from impairing the
environment. During the debates on this right in one of the
plenary sessions of the 1986 Constitutional Commission,
the following exchange transpired between Commissioner
Wilfrido Villacorta and Commissioner Adolfo Azcuna who
sponsored the section in question:
MR. VILLACORTA:
Does this section mandate the State to provide sanctions
against all forms of pollution — air, water and noise
pollution?
MR. AZCUNA:
Yes, Madam President. The right to healthful (sic)
environment necessarily carries with it the correlative duty
of not impairing the same and, therefore, sanctions may be
provided for impairment of environmental balance. 12
The said right implies, among many other things, the
judicious management and conservation of the country's
forests.
Without such forests, the ecological or environmental
balance would be irreversiby disrupted.
Conformably with the enunciated right to a balanced and
healthful ecology and the right to health, as well as the
other related provisions of the Constitution concerning the
conservation, development and utilization of the country's
natural resources, 13 then President Corazon C. Aquino
promulgated on 10 June 1987 E.O. No. 192, 14 Section 4 of
which expressly mandates that the Department of
Environment and Natural Resources "shall be the primary
government agency responsible for the conservation,
management, development and proper use of the country's
environment and natural resources, specifically forest and
grazing lands, mineral, resources, including those in
reservation and watershed areas, and lands of the public
domain, as well as the licensing and regulation of all
natural resources as may be provided for by law in order to
ensure equitable sharing of the benefits derived therefrom
for the welfare of the present and future generations of
Filipinos." Section 3 thereof makes the following statement
of policy:
Sec. 3. Declaration of Policy. — It is hereby declared the
policy of the State to ensure the sustainable use,
development, management, renewal, and conservation of
the country's forest, mineral, land, off-shore areas and other
natural resources, including the protection and
enhancement of the quality of the environment, and
equitable access of the different segments of the population
to the development and the use of the country's natural
resources, not only for the present generation but for future
generations as well. It is also the policy of the state to
recognize and apply a true value system including social
and environmental cost implications relative to their
utilization, development and conservation of our natural
resources.
This policy declaration is substantially re-stated it Title
XIV, Book IV of the Administrative Code of
1987,15 specifically in Section 1 thereof which reads:
Sec. 1. Declaration of Policy. — (1) The State shall ensure,
for the benefit of the Filipino people, the full exploration
and development as well as the judicious disposition,
utilization, management, renewal and conservation of the
country's forest, mineral, land, waters, fisheries, wildlife,
off-shore areas and other natural resources, consistent with
the necessity of maintaining a sound ecological balance and
protecting and enhancing the quality of the environment
and the objective of making the exploration, development
and utilization of such natural resources equitably
accessible to the different segments of the present as well
as future generations.
(2) The State shall likewise recognize and apply a true
value system that takes into account social and
environmental cost implications relative to the utilization,
development and conservation of our natural resources.
The above provision stresses "the necessity of maintaining
a sound ecological balance and protecting and enhancing
the quality of the environment." Section 2 of the same
Title, on the other hand, specifically speaks of the mandate
of the DENR; however, it makes particular reference to the
fact of the agency's being subject to law and higher
authority. Said section provides:
Sec. 2. Mandate. — (1) The Department of Environment
and Natural Resources shall be primarily responsible for
the implementation of the foregoing policy.
(2) It shall, subject to law and higher authority, be in charge
of carrying out the State's constitutional mandate to control
and supervise the exploration, development, utilization, and
conservation of the country's natural resources.
Both E.O. NO. 192 and the Administrative Code of 1987
have set the objectives which will serve as the bases for
policy formulation, and have defined the powers and
functions of the DENR.
It may, however, be recalled that even before the
ratification of the 1987 Constitution, specific statutes
already paid special attention to the "environmental right"
of the present and future generations. On 6 June 1977, P.D.
No. 1151 (Philippine Environmental Policy) and P.D. No.
1152 (Philippine Environment Code) were issued. The
former "declared a continuing policy of the State (a) to
create, develop, maintain and improve conditions under
which man and nature can thrive in productive and
enjoyable harmony with each other, (b) to fulfill the social,
economic and other requirements of present and future
generations of Filipinos, and (c) to insure the attainment of
an environmental quality that is conducive to a life of
dignity and well-being." 16 As its goal, it speaks of the
"responsibilities of each generation as trustee and guardian
of the environment for succeeding generations." 17 The
latter statute, on the other hand, gave flesh to the said
policy.
Thus, the right of the petitioners (and all those they
represent) to a balanced and healthful ecology is as clear as
the DENR's duty — under its mandate and by virtue of its
powers and functions under E.O. No. 192 and the
Administrative Code of 1987 — to protect and advance the
said right.
A denial or violation of that right by the other who has the
corelative duty or obligation to respect or protect the same
gives rise to a cause of action. Petitioners maintain that the
granting of the TLAs, which they claim was done with
grave abuse of discretion, violated their right to a balanced
and healthful ecology; hence, the full protection thereof
requires that no further TLAs should be renewed or
granted.
A cause of action is defined as:
. . . an act or omission of one party in violation of the legal
right or rights of the other; and its essential elements are
legal right of the plaintiff, correlative obligation of the
defendant, and act or omission of the defendant in violation
of said legal right. 18
It is settled in this jurisdiction that in a motion to dismiss
based on the ground that the complaint fails to state a cause
of action, 19 the question submitted to the court for
resolution involves the sufficiency of the facts alleged in
the complaint itself. No other matter should be considered;
furthermore, the truth of falsity of the said allegations is
beside the point for the truth thereof is deemed
hypothetically admitted. The only issue to be resolved in
such a case is: admitting such alleged facts to be true, may
the court render a valid judgment in accordance with the
prayer in the complaint? 20 In Militante vs.
Edrosolano, 21 this Court laid down the rule that the
judiciary should "exercise the utmost care and
circumspection in passing upon a motion to dismiss on the
ground of the absence thereof [cause of action] lest, by its
failure to manifest a correct appreciation of the facts
alleged and deemed hypothetically admitted, what the law
grants or recognizes is effectively nullified. If that happens,
there is a blot on the legal order. The law itself stands in
disrepute."
After careful examination of the petitioners' complaint, We
find the statements under the introductory affirmative
allegations, as well as the specific averments under the sub-
heading CAUSE OF ACTION, to be adequate enough to
show, prima facie, the claimed violation of their rights. On
the basis thereof, they may thus be granted, wholly or
partly, the reliefs prayed for. It bears stressing, however,
that insofar as the cancellation of the TLAs is concerned,
there is the need to implead, as party defendants, the
grantees thereof for they are indispensable parties.
The foregoing considered, Civil Case No. 90-777 be said to
raise a political question. Policy formulation or
determination by the executive or legislative branches of
Government is not squarely put in issue. What is
principally involved is the enforcement of a right vis-a-
vis policies already formulated and expressed in legislation.
It must, nonetheless, be emphasized that the political
question doctrine is no longer, the insurmountable obstacle
to the exercise of judicial power or the impenetrable shield
that protects executive and legislative actions from judicial
inquiry or review. The second paragraph of section 1,
Article VIII of the Constitution states that:
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of
any branch or instrumentality of the Government.
Commenting on this provision in his book, Philippine
Political Law, 22 Mr. Justice Isagani A. Cruz, a
distinguished member of this Court, says:
The first part of the authority represents the traditional
concept of judicial power, involving the settlement of
conflicting rights as conferred as law. The second part of
the authority represents a broadening of judicial power to
enable the courts of justice to review what was before
forbidden territory, to wit, the discretion of the political
departments of the government.
As worded, the new provision vests in the judiciary, and
particularly the Supreme Court, the power to rule upon
even the wisdom of the decisions of the executive and the
legislature and to declare their acts invalid for lack or
excess of jurisdiction because tainted with grave abuse of
discretion. The catch, of course, is the meaning of "grave
abuse of discretion," which is a very elastic phrase that can
expand or contract according to the disposition of the
judiciary.
In Daza vs. Singson, 23 Mr. Justice Cruz, now speaking for
this Court, noted:
In the case now before us, the jurisdictional objection
becomes even less tenable and decisive. The reason is that,
even if we were to assume that the issue presented before
us was political in nature, we would still not be precluded
from revolving it under the expanded jurisdiction conferred
upon us that now covers, in proper cases, even the political
question. Article VII, Section 1, of the Constitution clearly
provides: . . .
The last ground invoked by the trial court in dismissing the
complaint is the non-impairment of contracts clause found
in the Constitution. The court a quo declared that:
The Court is likewise of the impression that it cannot, no
matter how we stretch our jurisdiction, grant the reliefs
prayed for by the plaintiffs, i.e., to cancel all existing
timber license agreements in the country and to cease and
desist from receiving, accepting, processing, renewing or
approving new timber license agreements. For to do
otherwise would amount to "impairment of contracts"
abhored (sic) by the fundamental law. 24
We are not persuaded at all; on the contrary, We are
amazed, if not shocked, by such a sweeping
pronouncement. In the first place, the respondent Secretary
did not, for obvious reasons, even invoke in his motion to
dismiss the non-impairment clause. If he had done so, he
would have acted with utmost infidelity to the Government
by providing undue and unwarranted benefits and
advantages to the timber license holders because he would
have forever bound the Government to strictly respect the
said licenses according to their terms and conditions
regardless of changes in policy and the demands of public
interest and welfare. He was aware that as correctly pointed
out by the petitioners, into every timber license must be
read Section 20 of the Forestry Reform Code (P.D. No.
705) which provides:
. . . Provided, That when the national interest so requires,
the President may amend, modify, replace or rescind any
contract, concession, permit, licenses or any other form of
privilege granted herein . . .
Needless to say, all licenses may thus be revoked or
rescinded by executive action. It is not a contract, property
or a property right protested by the due process clause of
the Constitution. In Tan vs. Director of Forestry, 25 this
Court held:
. . . A timber license is an instrument by which the State
regulates the utilization and disposition of forest resources
to the end that public welfare is promoted. A timber license
is not a contract within the purview of the due process
clause; it is only a license or privilege, which can be validly
withdrawn whenever dictated by public interest or public
welfare as in this case.
A license is merely a permit or privilege to do what
otherwise would be unlawful, and is not a contract between
the authority, federal, state, or municipal, granting it and
the person to whom it is granted; neither is it property or a
property right, nor does it create a vested right; nor is it
taxation (37 C.J. 168). Thus, this Court held that the
granting of license does not create irrevocable rights,
neither is it property or property rights (People vs. Ong Tin,
54 O.G. 7576).
We reiterated this pronouncement in Felipe Ysmael, Jr. &
Co., Inc. vs. Deputy Executive Secretary: 26
. . . Timber licenses, permits and license agreements are the
principal instruments by which the State regulates the
utilization and disposition of forest resources to the end that
public welfare is promoted. And it can hardly be gainsaid
that they merely evidence a privilege granted by the State
to qualified entities, and do not vest in the latter a
permanent or irrevocable right to the particular concession
area and the forest products therein. They may be validly
amended, modified, replaced or rescinded by the Chief
Executive when national interests so require. Thus, they are
not deemed contracts within the purview of the due process
of law clause [See Sections 3(ee) and 20 of Pres. Decree
No. 705, as amended. Also, Tan v. Director of Forestry,
G.R. No. L-24548, October 27, 1983, 125 SCRA 302].
Since timber licenses are not contracts, the non-impairment
clause, which reads:
Sec. 10. No law impairing, the obligation of contracts shall
be passed. 27
cannot be invoked.
In the second place, even if it is to be assumed that the
same are contracts, the instant case does not involve a law
or even an executive issuance declaring the cancellation or
modification of existing timber licenses. Hence, the non-
impairment clause cannot as yet be invoked. Nevertheless,
granting further that a law has actually been passed
mandating cancellations or modifications, the same cannot
still be stigmatized as a violation of the non-impairment
clause. This is because by its very nature and purpose, such
as law could have only been passed in the exercise of the
police power of the state for the purpose of advancing the
right of the people to a balanced and healthful ecology,
promoting their health and enhancing the general welfare.
In Abe vs. Foster Wheeler
Corp. 28 this Court stated:
The freedom of contract, under our system of government,
is not meant to be absolute. The same is understood to be
subject to reasonable legislative regulation aimed at the
promotion of public health, moral, safety and welfare. In
other words, the constitutional guaranty of non-impairment
of obligations of contract is limited by the exercise of the
police power of the State, in the interest of public health,
safety, moral and general welfare.
The reason for this is emphatically set forth in Nebia vs.
New York, 29 quoted in Philippine American Life Insurance
Co. vs. Auditor General,30 to wit:
Under our form of government the use of property and the
making of contracts are normally matters of private and not
of public concern. The general rule is that both shall be free
of governmental interference. But neither property rights
nor contract rights are absolute; for government cannot
exist if the citizen may at will use his property to the
detriment of his fellows, or exercise his freedom of contract
to work them harm. Equally fundamental with the private
right is that of the public to regulate it in the common
interest.
In short, the non-impairment clause must yield to the police
power of the state. 31
Finally, it is difficult to imagine, as the trial court did, how
the non-impairment clause could apply with respect to the
prayer to enjoin the respondent Secretary from receiving,
accepting, processing, renewing or approving new timber
licenses for, save in cases of renewal, no contract would
have as of yet existed in the other instances. Moreover,
with respect to renewal, the holder is not entitled to it as a
matter of right.
WHEREFORE, being impressed with merit, the instant
Petition is hereby GRANTED, and the challenged Order of
respondent Judge of 18 July 1991 dismissing Civil Case
No. 90-777 is hereby set aside. The petitioners may
therefore amend their complaint to implead as defendants
the holders or grantees of the questioned timber license
agreements.
No pronouncement as to costs.
SO ORDERED.
Cruz, Padilla, Bidin, Griño-Aquino, Regalado, Romero,
Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Narvasa, C.J., Puno and Vitug, JJ., took no part.
Separate Opinions
FELICIANO, J., concurring
I join in the result reached by my distinguished brother in
the Court, Davide, Jr., J., in this case which, to my mind, is
one of the most important cases decided by this Court in
the last few years. The seminal principles laid down in this
decision are likely to influence profoundly the direction and
course of the protection and management of the
environment, which of course embraces the utilization
of all the natural resources in the territorial base of our
polity. I have therefore sought to clarify, basically to
myself, what the Court appears to be saying.
The Court explicitly states that petitioners have the locus
standi necessary to sustain the bringing and, maintenance
of this suit (Decision, pp. 11-12). Locus standi is not a
function of petitioners' claim that their suit is properly
regarded as a class suit. I understand locus standi to refer to
the legal interest which a plaintiff must have in the subject
matter of the suit. Because of the very broadness of the
concept of "class" here involved — membership in this
"class" appears to embrace everyone living in the country
whether now or in the
future — it appears to me that everyone who may be
expected to benefit from the course of action petitioners
seek to require public respondents to take, is vested with
the necessary locus standi. The Court may be seen
therefore to be recognizing a beneficiaries' right of
action in the field of environmental protection, as against
both the public administrative agency directly concerned
and the private persons or entities operating in the field or
sector of activity involved. Whether such beneficiaries'
right of action may be found under any and all
circumstances, or whether some failure to act, in the first
instance, on the part of the governmental agency concerned
must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably
is left for future determination in an appropriate case.
The Court has also declared that the complaint has alleged
and focused upon "one specific fundamental legal right —
the right to a balanced and healthful ecology" (Decision, p.
14). There is no question that "the right to a balanced and
healthful ecology" is "fundamental" and that, accordingly,
it has been "constitutionalized." But although it is
fundamental in character, I suggest, with very great respect,
that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to
fashion language more comprehensive in scope and
generalized in character than a right to "a balanced and
healthful ecology." The list of particular claims which can
be subsumed under this rubic appears to be entirely open-
ended: prevention and control of emission of toxic fumes
and smoke from factories and motor vehicles; of discharge
of oil, chemical effluents, garbage and raw sewage into
rivers, inland and coastal waters by vessels, oil rigs,
factories, mines and whole communities; of dumping of
organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining
or open-pit mining; kaingin or slash-and-burn farming;
destruction of fisheries, coral reefs and other living sea
resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss
of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive
Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No.
1151, dated 6 June 1977 — all appear to be formulations
of policy, as general and abstract as the constitutional
statements of basic policy in Article II, Section 16 ("the
right — to a balanced and healthful ecology") and 15 ("the
right to health").
P.D. No. 1152, also dated 6 June 1977, entitled "The
Philippine Environment Code," is, upon the other hand, a
compendious collection of more "specific environment
management policies" and "environment quality standards"
(fourth "Whereas" clause, Preamble) relating to an
extremely wide range of topics:
(a) air quality management;
(b) water quality management;
(c) land use management;
(d) natural resources management and conservation
embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the
particular provision or provisions (if any) of the Philippine
Environment Code which give rise to a specific legal right
which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care
the particular government agency charged with the
formulation and implementation of guidelines and
programs dealing with each of the headings and sub-
headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries
of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action
as anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution
are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to
be explored in future cases; those implications are too large
and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right — a right cast
in language of a significantly lower order of generality than
Article II (15) of the Constitution — that is or may be
violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief
prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the
trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
unless the legal right claimed to have been violated or
disregarded is given specification in operational terms,
defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are due
process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution
which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area
of environmental protection and management, our courts
have no claim to special technical competence and
experience and professional qualification. Where no
specific, operable norms and standards are shown to exist,
then the policy making departments — the legislative and
executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the
timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked
that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and
conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies
litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right
petitioners should allege, as well as the reality of the
claimed factual nexus between petitioners' specific legal
rights and the claimed wrongful acts or failures to act of
public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the
protection of the environment, including the forest cover of
our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today
should, however, be subjected to closer examination.
14). There is no question that "the right to a balanced and
healthful ecology" is "fundamental" and that, accordingly,
# Separate Opinions it has been "constitutionalized." But although it is
fundamental in character, I suggest, with very great respect,
FELICIANO, J., concurring that it cannot be characterized as "specific," without doing
excessive violence to language. It is in fact very difficult to
I join in the result reached by my distinguished brother in
fashion language more comprehensive in scope and
the Court, Davide, Jr., J., in this case which, to my mind, is
generalized in character than a right to "a balanced and
one of the most important cases decided by this Court in
healthful ecology." The list of particular claims which can
the last few years. The seminal principles laid down in this
be subsumed under this rubic appears to be entirely open-
decision are likely to influence profoundly the direction and
ended: prevention and control of emission of toxic fumes
course of the protection and management of the
and smoke from factories and motor vehicles; of discharge
environment, which of course embraces the utilization
of oil, chemical effluents, garbage and raw sewage into
of all the natural resources in the territorial base of our
rivers, inland and coastal waters by vessels, oil rigs,
polity. I have therefore sought to clarify, basically to
factories, mines and whole communities; of dumping of
myself, what the Court appears to be saying.
organic and inorganic wastes on open land, streets and
thoroughfares; failure to rehabilitate land after strip-mining
The Court explicitly states that petitioners have the locus
or open-pit mining; kaingin or slash-and-burn farming;
standi necessary to sustain the bringing and, maintenance
destruction of fisheries, coral reefs and other living sea
of this suit (Decision, pp. 11-12). Locus standi is not a
function of petitioners' claim that their suit is properly resources through the use of dynamite or cyanide and other
chemicals; contamination of ground water resources; loss
regarded as a class suit. I understand locus standi to refer to
the legal interest which a plaintiff must have in the subject of certain species of fauna and flora; and so on. The other
statements pointed out by the Court: Section 3, Executive
matter of the suit. Because of the very broadness of the
concept of "class" here involved — membership in this Order No. 192 dated 10 June 1987; Section 1, Title XIV,
Book IV of the 1987 Administrative Code; and P.D. No.
"class" appears to embrace everyone living in the country
whether now or in the 1151, dated 6 June 1977 — all appear to be formulations
of policy, as general and abstract as the constitutional
future — it appears to me that everyone who may be
expected to benefit from the course of action petitioners statements of basic policy in Article II, Section 16 ("the
right — to a balanced and healthful ecology") and 15 ("the
seek to require public respondents to take, is vested with
the necessary locus standi. The Court may be seen right to health").
therefore to be recognizing a beneficiaries' right of
P.D. No. 1152, also dated 6 June 1977, entitled "The
action in the field of environmental protection, as against
Philippine Environment Code," is, upon the other hand, a
both the public administrative agency directly concerned
compendious collection of more "specific environment
and the private persons or entities operating in the field or
management policies" and "environment quality standards"
sector of activity involved. Whether such beneficiaries'
(fourth "Whereas" clause, Preamble) relating to an
right of action may be found under any and all
extremely wide range of topics:
circumstances, or whether some failure to act, in the first
instance, on the part of the governmental agency concerned (a) air quality management;
must be shown ("prior exhaustion of administrative
remedies"), is not discussed in the decision and presumably (b) water quality management;
is left for future determination in an appropriate case.
(c) land use management;
The Court has also declared that the complaint has alleged
and focused upon "one specific fundamental legal right — (d) natural resources management and conservation
the right to a balanced and healthful ecology" (Decision, p. embracing:
(i) fisheries and aquatic resources;
(ii) wild life;
(iii) forestry and soil conservation;
(iv) flood control and natural calamities;
(v) energy development;
(vi) conservation and utilization of surface and ground
water
(vii) mineral resources
Two (2) points are worth making in this connection. Firstly,
neither petitioners nor the Court has identified the
particular provision or provisions (if any) of the Philippine
Environment Code which give rise to a specific legal right
which petitioners are seeking to enforce. Secondly, the
Philippine Environment Code identifies with notable care
the particular government agency charged with the
formulation and implementation of guidelines and
programs dealing with each of the headings and sub-
headings mentioned above. The Philippine Environment
Code does not, in other words, appear to contemplate
action on the part of private persons who are beneficiaries
of implementation of that Code.
As a matter of logic, by finding petitioners' cause of action
as anchored on a legal right comprised in the constitutional
statements above noted, the Court is in effect saying that
Section 15 (and Section 16) of Article II of the Constitution
are self-executing and judicially enforceable even in their
present form. The implications of this doctrine will have to
be explored in future cases; those implications are too large
and far-reaching in nature even to be hinted at here.
My suggestion is simply that petitioners must, before the
trial court, show a more specific legal right — a right cast
in language of a significantly lower order of generality than
Article II (15) of the Constitution — that is or may be
violated by the actions, or failures to act, imputed to the
public respondent by petitioners so that the trial court can
validly render judgment granting all or part of the relief
prayed for. To my mind, the Court should be understood as
simply saying that such a more specific legal right or
rights may well exist in our corpus of law, considering the
general policy principles found in the Constitution and the
existence of the Philippine Environment Code, and that the
trial court should have given petitioners an effective
opportunity so to demonstrate, instead of aborting the
proceedings on a motion to dismiss.
It seems to me important that the legal right which is an
essential component of a cause of action be a specific,
operable legal right, rather than a constitutional or
statutory policy, for at least two (2) reasons. One is that
unless the legal right claimed to have been violated or
disregarded is given specification in operational terms,
defendants may well be unable to defend themselves
intelligently and effectively; in other words, there are due
process dimensions to this matter.
The second is a broader-gauge consideration — where a
specific violation of law or applicable regulation is not
alleged or proved, petitioners can be expected to fall back
on the expanded conception of judicial power in the second
paragraph of Section 1 of Article VIII of the Constitution
which reads:
Section 1. . . .
Judicial power includes the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government. (Emphasis supplied)
When substantive standards as general as "the right to a
balanced and healthy ecology" and "the right to health" are
combined with remedial standards as broad ranging as "a
grave abuse of discretion amounting to lack or excess of
jurisdiction," the result will be, it is respectfully submitted,
to propel courts into the uncharted ocean of social and
economic policy making. At least in respect of the vast area
of environmental protection and management, our courts
have no claim to special technical competence and
experience and professional qualification. Where no
specific, operable norms and standards are shown to exist,
then the policy making departments — the legislative and
executive departments — must be given a real and effective
opportunity to fashion and promulgate those norms and
standards, and to implement them before the courts should
intervene.
My learned brother Davide, Jr., J., rightly insists that the
timber companies, whose concession agreements or TLA's
petitioners demand public respondents should cancel, must
be impleaded in the proceedings below. It might be asked
that, if petitioners' entitlement to the relief demanded
is not dependent upon proof of breach by the timber
companies of one or more of the specific terms and
conditions of their concession agreements (and this,
petitioners implicitly assume), what will those companies
litigate about? The answer I suggest is that they may seek
to dispute the existence of the specific legal right
petitioners should allege, as well as the reality of the
claimed factual nexus between petitioners' specific legal
rights and the claimed wrongful acts or failures to act of
public respondent administrative agency. They may also
controvert the appropriateness of the remedy or remedies
demanded by petitioners, under all the circumstances which
exist.
I vote to grant the Petition for Certiorari because the
protection of the environment, including the forest cover of
our territory, is of extreme importance for the country. The
doctrines set out in the Court's decision issued today
should, however, be subjected to closer examination.
 A decision that does not conform to the form and substance
required by the Constitution and the law is void and
deemed legally inexistent. To be valid, decisions should
comply with the form, the procedure and the substantive
requirements laid out in the Constitution, the Rules of
Court and relevant circulars/orders of the Supreme Court.
For the guidance of the bench and the bar, the Court hereby
discusses these forms, procedures and requirements.
The Case
Before us is a Petition for Review1 under Rule 45 of the
Rules of Court, assailing the June 12, 2003 Decision 2 and
July 29, 2003 Order3 of the Regional Trial Court (RTC) of
Manila (Branch 49).4
The challenged Decision was the offshoot of a Petition for
Declaratory Relief5 filed before the RTC-Manila by herein
Respondent Social Justice Society (SJS) against herein
Petitioner Mariano "Mike" Z. Velarde, together with His
Eminence, Jaime Cardinal Sin, Executive Minister Eraño
Manalo, Brother Eddie Villanueva and Brother Eliseo F.
Soriano as co-respondents. The Petition prayed for the
resolution of the question "whether or not the act of a
religious leader like any of herein respondents, in endorsing
the candidacy of a candidate for elective office or in urging
or requiring the members of his flock to vote for a specified
candidate, is violative of the letter or spirit of the
constitutional provisions x x x."6
Alleging that the questioned Decision did not contain a
statement of facts and a dispositive portion, herein
petitioner filed a Clarificatory Motion and Motion for
Reconsideration before the trial court. Soriano, his co-
respondent, similarly filed a separate Motion for
Reconsideration. In response, the trial court issued the
G.R. No. 159357 April 28, 2004 assailed Order, which held as follows:
Brother MARIANO "MIKE" Z. VELARDE, petitioner,
"x x x [T]his Court cannot reconsider, because what it was
vs.
asked to do, was only to clarify a Constitutional provision
SOCIAL JUSTICE SOCIETY, respondent.
and to declare whether acts are violative thereof. The
Decision did not make a dispositive portion because a
DECISION
dispositive portion is required only in coercive reliefs,
where a redress from wrong suffered and the benefit that
PANGANIBAN, J.:
the prevailing party wronged should get. The step that these
movants have to take, is direct appeal under Rule 45 of the
Rules of Court, for a conclusive interpretation of the
Constitutional provision to the Supreme Court."7
The Antecedent Proceedings
On January 28, 2003, SJS filed a Petition for Declaratory
Relief ("SJS Petition") before the RTC-Manila against
Velarde and his aforesaid co-respondents. SJS, a registered
political party, sought the interpretation of several
constitutional provisions,8 specifically on the separation of
church and state; and a declaratory judgment on the
constitutionality of the acts of religious leaders endorsing a
candidate for an elective office, or urging or requiring the
members of their flock to vote for a specified candidate.
The subsequent proceedings were recounted in the
challenged Decision in these words:
"x x x. Bro. Eddie Villanueva submitted, within the original
period [to file an Answer], a Motion to Dismiss.
Subsequently, Executive Minister Eraño Manalo and Bro.
Mike Velarde, filed their Motions to Dismiss. While His
Eminence Jaime Cardinal L. Sin, filed a Comment and Bro.
Eli Soriano, filed an Answer within the extended period
and similarly prayed for the dismissal of the Petition. All
sought the dismissal of the Petition on the common grounds
that it does not state a cause of action and that there is no
justiciable controversy. They were ordered to submit a
pleading by way of advisement, which was closely
followed by another Order denying all the Motions to
Dismiss. Bro. Mike Velarde, Bro. Eddie Villanueva and
Executive Minister Eraño Manalo moved to reconsider the
denial. His Eminence Jaime Cardinal L. Sin, asked for
extension to file memorandum. Only Bro. Eli Soriano
complied with the first Order by submitting his
Memorandum. x x x.
"x x x the Court denied the Motions to Dismiss, and the
Motions for Reconsideration filed by Bro. Mike Velarde,
Bro. Eddie Villanueva and Executive Minister Eraño
Manalo, which raised no new arguments other than those
already considered in the motions to dismiss x x x."9
After narrating the above incidents, the trial court said that
it had jurisdiction over the Petition, because "in praying for
a determination as to whether the actions imputed to the
respondents are violative of Article II, Section 6 of the
Fundamental Law, [the Petition] has raised only a question
of law."10 It then proceeded to a lengthy discussion of the
issue raised in the Petition – the separation of church and
state – even tracing, to some extent, the historical
background of the principle. Through its discourse, the
court a quo opined at some point that the "[e]ndorsement of
specific candidates in an election to any public office is a
clear violation of the separation clause."11
After its essay on the legal issue, however, the trial court
failed to include a dispositive portion in its assailed
Decision. Thus, Velarde and Soriano filed separate Motions
for Reconsideration which, as mentioned earlier, were
denied by the lower court.
Hence, this Petition for Review.12
This Court, in a Resolution13 dated September 2, 2003,
required SJS and the Office of the Solicitor General (OSG)
to submit their respective comments. In the same
Resolution, the Court gave the other parties -- impleaded as
respondents in the original case below --the opportunity to
comment, if they so desired.
On April 13, 2004, the Court en banc conducted an Oral
Argument.14
The Issues
In his Petition, Brother Mike Velarde submits the following
issues for this Court’s resolution:
"1. Whether or not the Decision dated 12 June 2003
rendered by the court a quo was proper and valid;
"2. Whether or not there exists justiceable controversy in
herein respondent’s Petition for declaratory relief;
"3. Whether or not herein respondent has legal interest in
filing the Petition for declaratory relief;
"4. Whether or not the constitutional question sought to be
resolved by herein respondent is ripe for judicial
determination;
"5. Whether or not there is adequate remedy other than the
declaratory relief; and,
"6. Whether or not the court a quo has jurisdiction over the
Petition for declaratory relief of herein respondent."15
During the Oral Argument, the issues were narrowed down
and classified as follows:
"A. Procedural Issues
"Did the Petition for Declaratory Relief raise a justiciable
controversy? Did it state a cause of action? Did respondent
have any legal standing to file the Petition for Declaratory
Relief?
"B. Substantive Issues
"1. Did the RTC Decision conform to the form and
substance required by the Constitution, the law and the
Rules of Court?
"2. May religious leaders like herein petitioner, Bro. Mike
Velarde, be prohibited from endorsing candidates for public
office? Corollarily, may they be banned from campaigning
against said candidates?"
The Court’s Ruling
The Petition of Brother Mike Velarde is meritorious.
Procedural Issues:
Requisites of Petitions for Declaratory Relief
Section 1 of Rule 63 of the Rules of Court, which deals
with petitions for declaratory relief, provides in part:
"Section 1. Who may file petition.- Any person interested
under a deed, will, contract or other written instrument,
whose rights are affected by a statute, executive order or
regulation, ordinance, or any other governmental regulation
may, before breach or violation thereof, bring an action in
the appropriate Regional Trial Court to determine any
question of construction or validity arising, and for a
declaration of his rights or duties thereunder."
Based on the foregoing, an action for declaratory relief
should be filed by a person interested under a deed, a will, a
contract or other written instrument, and whose rights are
affected by a statute, an executive order, a regulation or an
ordinance. The purpose of the remedy is to interpret or to
determine the validity of the written instrument and to seek
a judicial declaration of the parties’ rights or duties
thereunder.16 The essential requisites of the action are as
follows: (1) there is a justiciable controversy; (2) the
controversy is between persons whose interests are adverse;
(3) the party seeking the relief has a legal interest in the
controversy; and (4) the issue is ripe for judicial
determination.17
Justiciable Controversy
Brother Mike Velarde contends that the SJS Petition failed
to allege, much less establish before the trial court, that
there existed a justiciable controversy or an adverse legal
interest between them; and that SJS had a legal right that
was being violated or threatened to be violated by
petitioner. On the contrary, Velarde alleges that SJS
premised its action on mere speculations, contingent
events, and hypothetical issues that had not yet ripened into
an actual controversy. Thus, its Petition for Declaratory
Relief must fail.
A justiciable controversy refers to an existing case or
controversy that is appropriate or ripe for judicial
determination, not one that is conjectural or merely
anticipatory.18 The SJS Petition for Declaratory Relief fell
short of this test. It miserably failed to allege an existing
controversy or dispute between the petitioner and the
named respondents therein. Further, the Petition did not
sufficiently state what specific legal right of the petitioner
was violated by the respondents therein; and what
particular act or acts of the latter were in breach of its
rights, the law or the Constitution.
As pointed out by Brother Eliseo F. Soriano in his
Comment,19 what exactly has he done that merited the
attention of SJS? He confesses that he does not know the
answer, because the SJS Petition (as well as the assailed
Decision of the RTC) "yields nothing in this respect." His
Eminence, Jaime Cardinal Sin, adds that, at the time SJS
filed its Petition on January 28, 2003, the election season
had not even started yet; and that, in any event, he has not
been actively involved in partisan politics.
An initiatory complaint or petition filed with the trial court
should contain "a plain, concise and direct statement of the
ultimate facts on which the party pleading relies for his
claim x x x."20 Yet, the SJS Petition stated no ultimate
facts.
Indeed, SJS merely speculated or anticipated without
factual moorings that, as religious leaders, the petitioner
and his co-respondents below had endorsed or threatened to
endorse a candidate or candidates for elective offices; and
that such actual or threatened endorsement "will enable
[them] to elect men to public office who [would] in turn be
forever beholden to their leaders, enabling them to control
the government"[;]21 and "pos[ing] a clear and present
danger of serious erosion of the people’s faith in the
electoral process[;] and reinforc[ing] their belief that
religious leaders determine the ultimate result of
elections,"22 which would then be violative of the
separation clause.
Such premise is highly speculative and merely theoretical,
to say the least. Clearly, it does not suffice to constitute a
justiciable controversy. The Petition does not even allege
any indication or manifest intent on the part of any of the
respondents below to champion an electoral candidate, or
to urge their so-called flock to vote for, or not to vote for, a
particular candidate. It is a time-honored rule that sheer
speculation does not give rise to an actionable right.
Obviously, there is no factual allegation that SJS’ rights are
being subjected to any threatened, imminent and inevitable
violation that should be prevented by the declaratory relief
sought. The judicial power and duty of the courts to settle
actual controversies involving rights that are legally
demandable and enforceable23 cannot be exercised when
there is no actual or threatened violation of a legal right.
All that the 5-page SJS Petition prayed for was "that the
question raised in paragraph 9 hereof be resolved."24 In
other words, it merely sought an opinion of the trial court
on whether the speculated acts of religious leaders
endorsing elective candidates for political offices violated
the constitutional principle on the separation of church and
state. SJS did not ask for a declaration of its rights and
duties; neither did it pray for the stoppage of any threatened
violation of its declared rights. Courts, however, are
proscribed from rendering an advisory opinion.25
Cause of Action
Respondent SJS asserts that in order to maintain a petition
for declaratory relief, a cause of action need not be alleged
or proven. Supposedly, for such petition to prosper, there
need not be any violation of a right, breach of duty or
actual wrong committed by one party against the other.
Petitioner, on the other hand, argues that the subject matter
of an action for declaratory relief should be a deed, a will, a
contract (or other written instrument), a statute, an
executive order, a regulation or an ordinance. But the
subject matter of the SJS Petition is "the constitutionality of
an act of a religious leader to endorse the candidacy of a
candidate for elective office or to urge or require the
members of the flock to vote for a specified
candidate."26According to petitioner, this subject matter is
"beyond the realm of an action for declaratory
relief."27 Petitioner avers that in the absence of a valid
subject matter, the Petition fails to state a cause of action
and, hence, should have been dismissed outright by the
court a quo.
A cause of action is an act or an omission of one party in
violation of the legal right or rights of another, causing
injury to the latter.28 Its essential elements are the
following: (1) a right in favor of the plaintiff; (2) an
obligation on the part of the named defendant to respect or
not to violate such right; and (3) such defendant’s act or
omission that is violative of the right of the plaintiff or
constituting a breach of the obligation of the former to the
latter.29
The failure of a complaint to state a cause of action is a
ground for its outright dismissal.30 However, in special civil
actions for declaratory relief, the concept of a cause of
action under ordinary civil actions does not strictly apply.
The reason for this exception is that an action for
declaratory relief presupposes that there has been no actual
breach of the instruments involved or of rights arising
thereunder.31 Nevertheless, a breach or violation should be
impending, imminent or at least threatened.
A perusal of the Petition filed by SJS before the RTC
discloses no explicit allegation that the former had any
legal right in its favor that it sought to protect. We can only
infer the interest, supposedly in its favor, from its bare
allegation that it "has thousands of members who are
citizens-taxpayers-registered voters and who are keenly
interested in a judicial clarification of the constitutionality
of the partisan participation of religious leaders in
Philippine politics and in the process to insure adherence to
the Constitution by everyone x x x."32
Such general averment does not, however, suffice to
constitute a legal right or interest. Not only is the presumed
interest not personal in character; it is likewise too vague,
highly speculative and uncertain.33 The Rules require that
the interest must be material to the issue and affected by the
questioned act or instrument, as distinguished from simple
curiosity or incidental interest in the question raised.34
To bolster its stance, SJS cites the Corpus Juris
Secundum and submits that the "[p]laintiff in a declaratory
judgment action does not seek to enforce a claim against
[the] defendant, but seeks a judicial declaration of [the]
rights of the parties for the purpose of guiding [their] future
conduct, and the essential distinction between a
‘declaratory judgment action’ and the usual ‘action’ is that
no actual wrong need have been committed or loss have
occurred in order to sustain the declaratory judgment
action, although there must be no uncertainty that the loss
will occur or that the asserted rights will be invaded."35
SJS has, however, ignored the crucial point of its own
reference – that there must be no uncertainty that the loss
will occur or that the asserted rights will be invaded.
Precisely, as discussed earlier, it merely conjectures that
herein petitioner (and his co-respondents
below) might actively participate in partisan politics, use
"the awesome voting strength of its faithful flock [to]
enable it to elect men to public office x x x, enabling [it] to
control the government."36
During the Oral Argument, though, Petitioner Velarde and
his co-respondents below all strongly asserted that they had
not in any way engaged or intended to participate in
partisan politics. They all firmly assured this Court that
they had not done anything to trigger the issue raised and to
entitle SJS to the relief sought.
Indeed, the Court finds in the Petition for Declaratory
Relief no single allegation of fact upon which SJS could
base a right of relief from the named respondents. In any
event, even granting that it sufficiently asserted a legal right
it sought to protect, there was nevertheless no certainty that
such right would be invaded by the said respondents. Not
even the alleged proximity of the elections to the time the
Petition was filed below (January 28, 2003) would have
provided the certainty that it had a legal right that would be
jeopardized or violated by any of those respondents.
Legal Standing
Legal standing or locus standi has been defined as a
personal and substantial interest in the case, such that the
party has sustained or will sustain direct injury as a result
of the challenged act.37 Interest means a material interest in
issue that is affected by the questioned act or instrument, as
distinguished from a mere incidental interest in the question
involved.38
Petitioner alleges that "[i]n seeking declaratory relief as to
the constitutionality of an act of a religious leader to
endorse, or require the members of the religious flock to
vote for a specific candidate, herein Respondent SJS has no
legal interest in the controversy";39 it has failed to establish
how the resolution of the proffered question would benefit
or injure it.
Parties bringing suits challenging the constitutionality of a
law, an act or a statute must show "not only that the law [or
act] is invalid, but also that [they have] sustained or [are] in
immediate or imminent danger of sustaining some direct
injury as a result of its enforcement, and not merely that
[they] suffer thereby in some indefinite way."40 They must
demonstrate that they have been, or are about to be, denied
some right or privilege to which they are lawfully entitled,
or that they are about to be subjected to some burdens or
penalties by reason of the statute or act complained of.41
First, parties suing as taxpayers must specifically prove
that they have sufficient interest in preventing the illegal
expenditure of money raised by taxation.42 A taxpayer’s
action may be properly brought only when there is an
exercise by Congress of its taxing or spending power.43 In
the present case, there is no allegation, whether express or
implied, that taxpayers’ money is being illegally disbursed.
Second, there was no showing in the Petition for
Declaratory Relief that SJS as a political party or its
members as registered voters would be adversely affected
by the alleged acts of the respondents below, if the question
at issue was not resolved. There was no allegation that SJS
had suffered or would be deprived of votes due to the acts
imputed to the said respondents. Neither did it allege that
any of its members would be denied the right of suffrage or
the privilege to be voted for a public office they are
seeking.
Finally, the allegedly keen interest of its "thousands of
members who are citizens-taxpayers-registered voters" is
too general44 and beyond the contemplation of the
standards set by our jurisprudence. Not only is the
presumed interest impersonal in character; it is likewise too
vague, highly speculative and uncertain to satisfy the
requirement of standing.45
Transcendental Importance
In any event, SJS urges the Court to take cognizance of the
Petition, even sans legal standing, considering that "the
issues raised are of paramount public interest."
In not a few cases, the Court has liberalized the locus standi
requirement when a petition raises an issue of
transcendental significance or paramount importance to the
people.46 Recently, after holding that the IBP had no locus
standi to bring the suit, the Court in IBP v.
Zamora47 nevertheless entertained the Petition therein. It
noted that "the IBP has advanced constitutional issues
which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents."48
Similarly in the instant case, the Court deemed the
constitutional issue raised in the SJS Petition to be of
paramount interest to the Filipino people. The issue did not
simply concern a delineation of the separation between
church and state, but ran smack into the governance of our
country. The issue was both transcendental in importance
and novel in nature, since it had never been decided before.
The Court, thus, called for Oral Argument to determine
with certainty whether it could resolve the constitutional
issue despite the barren allegations in the SJS Petition as
well as the abbreviated proceedings in the court below.
Much to its chagrin, however, counsels for the parties --
particularly for Respondent SJS -- made no satisfactory
allegations or clarifications that would supply the
deficiencies hereinabove discussed. Hence, even if the
Court would exempt this case from the stringent locus
standi requirement, such heroic effort would be futile
because the transcendental issue cannot be resolved
anyway.
Proper Proceedings Before the Trial Court
To prevent a repetition of this waste of precious judicial
time and effort, and for the guidance of the bench and the
bar, the Court reiterates the elementary procedure49 that
must be followed by trial courts in the conduct of civil
cases.50
Prefatorily, the trial court may -- motu proprio or upon
motion of the defendant -- dismiss a complaint51 (or
petition, in a special civil action) that does not allege the
plaintiff’s (or petitioner’s) cause or causes of action.52 A
complaint or petition should contain "a plain, concise and
direct statement of the ultimate facts on which the party
pleading relies for his claim or defense."53 It should
likewise clearly specify the relief sought.54
Upon the filing of the complaint/petition and the payment
of the requisite legal fees, the clerk of court shall forthwith
issue the corresponding summons to the defendants or the
respondents, with a directive that the defendant
answer55 within 15 days, unless a different period is fixed
by the court.56 The summons shall also contain a notice that
if such answer is not filed, the plaintiffs/petitioners shall
take a judgment by default and may be granted the relief
applied for.57 The court, however, may -- upon such terms
as may be just -- allow an answer to be filed after the time
fixed by the Rules.58
If the answer sets forth a counterclaim or cross-claim, it
must be answered within ten (10) days from service.59 A
reply may be filed within ten (10) days from service of the
pleading responded to.60
When an answer fails to tender an issue or admits the
material allegations of the adverse party’s pleading, the
court may, on motion of that party, direct judgment on such
pleading (except in actions for declaration of nullity or
annulment of marriage or for legal
separation).61 Meanwhile, a party seeking to recover upon a
claim, a counterclaim or crossclaim -- or to obtain a
declaratory relief -- may, at any time after the answer
thereto has been served, move for a summary judgment in
its favor.62 Similarly, a party against whom a claim, a
counterclaim or crossclaim is asserted -- or a declaratory
relief sought -- may, at any time, move for a summary
judgment in its favor.63 After the motion is heard, the
judgment sought shall be rendered forthwith if there is a
showing that, except as to the amount of damages, there is
no genuine issue as to any material fact; and that the
moving party is entitled to a judgment as a matter of law.64
Within the time for -- but before -- filing the answer to the
complaint or petition, the defendant may file a motion to
dismiss based on any of the grounds stated in Section 1 of
Rule 16 of the Rules of Court. During the hearing of the
motion, the parties shall submit their arguments on the
questions of law, and their evidence on the questions of
fact.65 After the hearing, the court may dismiss the action or
claim, deny the motion, or order the amendment of the
pleadings. It shall not defer the resolution of the motion for
the reason that the ground relied upon is not indubitable. In
every case, the resolution shall state clearly and distinctly
the reasons therefor.66
If the motion is denied, the movant may file an answer
within the balance of the period originally prescribed to file
an answer, but not less than five (5) days in any event,
computed from the receipt of the notice of the denial. If the
pleading is ordered to be amended, the defendant shall file
an answer within fifteen (15) days, counted from the
service of the amended pleading, unless the court provides
a longer period.67
After the last pleading has been served and filed, the case
shall be set for pretrial,68 which is a mandatory
proceeding.69 A plaintiff’s/ petitioner’s (or its duly
authorized representative’s) non-appearance at the pretrial,
if without valid cause, shall result in the dismissal of the
action with prejudice, unless the court orders otherwise. A
similar failure on the part of the defendant shall be a cause
for allowing the plaintiff/petitioner to present evidence ex
parte, and the court to render judgment on the basis
thereof.70
The parties are required to file their pretrial briefs; failure
to do so shall have the same effect as failure to appear at
the pretrial.71 Upon the termination thereof, the court shall
issue an order reciting in detail the matters taken up at the
conference; the action taken on them, the amendments
allowed to the pleadings; and the agreements or
admissions, if any, made by the parties regarding any of the
matters considered.72 The parties may further avail
themselves of any of the modes of discovery,73 if they so
wish.
Thereafter, the case shall be set for trial,74 in which the
parties shall adduce their respective evidence in support of
their claims and/or defenses. By their written consent or
upon the application of either party, or on its own motion,
the court may also order any or all of the issues to be
referred to a commissioner, who is to be appointed by it or
to be agreed upon by the parties.75 The trial or hearing
before the commissioner shall proceed in all respects as it
would if held before the court.76
Upon the completion of such proceedings, the
commissioner shall file with the court a written report on
the matters referred by the parties.77 The report shall be set
for hearing, after which the court shall issue an order
adopting, modifying or rejecting it in whole or in part; or
recommitting it with instructions; or requiring the parties to
present further evidence before the commissioner or the
court.78
Finally, a judgment or final order determining the merits of
the case shall be rendered. The decision shall be in writing,
personally and directly prepared by the judge, stating
clearly and distinctly the facts and the law on which it is
based, signed by the issuing magistrate, and filed with the
clerk of court.79
Based on these elementary guidelines, let us examine the
proceedings before the trial court in the instant case.
First, with respect to the initiatory pleading of the SJS.
Even a cursory perusal of the Petition immediately reveals
its gross inadequacy. It contained no statement of ultimate
facts upon which the petitioner relied for its claim.
Furthermore, it did not specify the relief it sought from the
court, but merely asked it to answer a hypothetical
question.
Relief, as contemplated in a legal action, refers to a specific
coercive measure prayed for as a result of a violation of the
rights of a plaintiff or a petitioner.80 As already discussed
earlier, the Petition before the trial court had no allegations
of fact81 or of any specific violation of the petitioner’s
rights, which the respondents had a duty to respect. Such
deficiency amounted to a failure to state a cause of action;
hence, no coercive relief could be sought and adjudicated.
The Petition evidently lacked substantive requirements and,
we repeat, should have been dismissed at the outset.
Second, with respect to the trial court proceedings. Within
the period set to file their respective answers to the SJS
Petition, Velarde, Villanueva and Manalo filed Motions to
Dismiss; Cardinal Sin, a Comment; and Soriano, within a
priorly granted extended period, an Answer in which he
likewise prayed for the dismissal of the Petition.82 SJS filed
a Rejoinder to the Motion of Velarde, who subsequently
filed a Sur-Rejoinder. Supposedly, there were "several
scheduled settings, in which the "[c]ourt was apprised of
the respective positions of the parties."83 The nature of such
settings -- whether pretrial or trial hearings -- was not
disclosed in the records. Before ruling on the Motions to
Dismiss, the trial court issued an Order84 dated May 8,
2003, directing the parties to submit their memoranda.
Issued shortly thereafter was another Order85 dated May 14,
2003, denying all the Motions to Dismiss.
In the latter Order, the trial court perfunctorily ruled:
"The Court now resolves to deny the Motions to Dismiss,
and after all the memoranda are submitted, then, the case
shall be deemed as submitted for resolution."86
Apparently, contrary to the requirement of Section 2 of
Rule 16 of the Rules of Court, the Motions were not heard.
Worse, the Order purportedly resolving the Motions to
Dismiss did not state any reason at all for their denial, in
contravention of Section 3 of the said Rule 16. There was
not even any statement of the grounds relied upon by the
Motions; much less, of the legal findings and conclusions
of the trial court.
Thus, Velarde, Villanueva and Manalo moved for
reconsideration. Pending the resolution of these Motions
for Reconsideration, Villanueva filed a Motion to suspend
the filing of the parties’ memoranda. But instead of
separately resolving the pending Motions fairly and
squarely, the trial court again transgressed the Rules of
Court when it immediately proceeded to issue its Decision,
even before tackling the issues raised in those Motions.
Furthermore, the RTC issued its "Decision" without
allowing the parties to file their answers. For this reason,
there was no joinder of the issues. If only it had allowed the
filing of those answers, the trial court would have known,
as the Oral Argument revealed, that the petitioner and his
co-respondents below had not committed or threatened to
commit the act attributed to them (endorsing candidates) --
the act that was supposedly the factual basis of the suit.
Parenthetically, the court a quo further failed to give a
notice of the Petition to the OSG, which was entitled to be
heard upon questions involving the constitutionality or
validity of statutes and other measures.87
Moreover, as will be discussed in more detail, the
questioned Decision of the trial court was utterly wanting
in the requirements prescribed by the Constitution and the
Rules of Court.
All in all, during the loosely abbreviated proceedings of the
case, the trial court indeed acted with inexplicable haste,
with total ignorance of the law -- or, worse, in cavalier
disregard of the rules of procedure -- and with grave abuse
of discretion.
Contrary to the contentions of the trial judge and of SJS,
proceedings for declaratory relief must still follow the
process described above -- the petition must state a cause of
action; the proceedings must undergo the procedure
outlined in the Rules of Court; and the decision must
adhere to constitutional and legal requirements.
First Substantive Issue:
Fundamental Requirements of a Decision
The Constitution commands that "[n]o decision shall be
rendered by any court without expressing therein clearly
and distinctly the facts and the law on which it is based. No
petition for review or motion for reconsideration of a
decision of the court shall be refused due course or denied
without stating the basis therefor."88
Consistent with this constitutional mandate, Section 1 of
Rule 36 of the Rules on Civil Procedure similarly provides:
"Sec. 1. Rendition of judgments and final orders. – A
judgment or final order determining the merits of the case
shall be in writing personally and directly prepared by the
judge, stating clearly and distinctly the facts and the law on
which it is based, signed by him and filed with the clerk of
court."
In the same vein, Section 2 of Rule 120 of the Rules of
Court on Criminal Procedure reads as follows:
"Sec. 2. Form and contents of judgments. -- The judgment
must be written in the official language, personally and
directly prepared by the judge and signed by him and shall
contain clearly and distinctly a statement of the facts
proved or admitted by the accused and the law upon which
the judgment is based.
"x x x xxx x x x."
Pursuant to the Constitution, this Court also issued on
January 28, 1988, Administrative Circular No. 1,
prompting all judges "to make complete findings of facts in
their decisions, and scrutinize closely the legal aspects of
the case in the light of the evidence presented. They should
avoid the tendency to generalize and form conclusions
without detailing the facts from which such conclusions are
deduced."
In many cases,89 this Court has time and time again
reminded "magistrates to heed the demand of Section 14,
Article VIII of the Constitution." The Court, through Chief
Justice Hilario G. Davide Jr. in Yao v. Court of
Appeals,90discussed at length the implications of this
provision and strongly exhorted thus:
"Faithful adherence to the requirements of Section 14,
Article VIII of the Constitution is indisputably a paramount
component of due process and fair play. It is likewise
demanded by the due process clause of the Constitution.
The parties to a litigation should be informed of how it was
decided, with an explanation of the factual and legal
reasons that led to the conclusions of the court. The court
cannot simply say that judgment is rendered in favor of X
and against Y and just leave it at that without any
justification whatsoever for its action. The losing party is
entitled to know why he lost, so he may appeal to the
higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not
clearly and distinctly state the facts and the law on which it
is based leaves the parties in the dark as to how it was
reached and is precisely prejudicial to the losing party, who
is unable to pinpoint the possible errors of the court for
review by a higher tribunal. More than that, the
requirement is an assurance to the parties that, in reaching
judgment, the judge did so through the processes of legal
reasoning. It is, thus, a safeguard against the impetuosity of
the judge, preventing him from deciding ipse dixit.
Vouchsafed neither the sword nor the purse by the
Constitution but nonetheless vested with the sovereign
prerogative of passing judgment on the life, liberty or
property of his fellowmen, the judge must ultimately
depend on the power of reason for sustained public
confidence in the justness of his decision."
In People v. Bugarin,91 the Court also explained:
"The requirement that the decisions of courts must be in
writing and that they must set forth clearly and distinctly
the facts and the law on which they are based serves many
functions. It is intended, among other things, to inform the
parties of the reason or reasons for the decision so that if
any of them appeals, he can point out to the appellate court
the finding of facts or the rulings on points of law with
which he disagrees. More than that, the requirement is an
assurance to the parties that, in reaching judgment, the
judge did so through the processes of legal reasoning. x x
x."
Indeed, elementary due process demands that the parties to
a litigation be given information on how the case was
decided, as well as an explanation of the factual and legal
reasons that led to the conclusions of the court.92
In Madrid v. Court of Appeals,93 this Court had instructed
magistrates to exert effort to ensure that their decisions
would present a comprehensive analysis or account of the
factual and legal findings that would substantially address
the issues raised by the parties.
In the present case, it is starkly obvious that the assailed
Decision contains no statement of facts -- much less an
assessment or analysis thereof -- or of the court’s findings
as to the probable facts. The assailed Decision begins with
a statement of the nature of the action and the question or
issue presented. Then follows a brief explanation of the
constitutional provisions involved, and what the Petition
sought to achieve. Thereafter, the ensuing procedural
incidents before the trial court are tracked. The Decision
proceeds to a full-length opinion on the nature and the
extent of the separation of church and state. Without
expressly stating the final conclusion she has reached or
specifying the relief granted or denied, the trial judge ends
her "Decision" with the clause "SO ORDERED."
What were the antecedents that necessitated the filing of
the Petition? What exactly were the distinct facts that gave
rise to the question sought to be resolved by SJS? More
important, what were the factual findings and analysis on
which the trial court based its legal findings and
conclusions? None were stated or implied. Indeed, the
RTC’s Decision cannot be upheld for its failure to express
clearly and distinctly the facts on which it was based. Thus,
the trial court clearly transgressed the constitutional
directive.
The significance of factual findings lies in the value of the
decision as a precedent. How can it be so if one cannot
apply the ruling to similar circumstances, simply because
such circumstances are unknown? Otherwise stated, how
will the ruling be applied in the future, if there is no point
of factual comparison?
Moreover, the court a quo did not include a resolutory or
dispositive portion in its so-called Decision. The
importance of such portion was explained in the early
case Manalang v. Tuason de Rickards,94 from which we
quote:
"The resolution of the Court on a given issue as embodied
in the dispositive part of the decision or order is the
investitive or controlling factor that determines and settles
the rights of the parties and the questions presented therein,
notwithstanding the existence of statements or declaration
in the body of said order that may be confusing."
The assailed Decision in the present case leaves us in the
dark as to its final resolution of the Petition. To recall, the
original Petition was for declaratory relief. So, what relief
did the trial court grant or deny? What rights of the parties
did it conclusively declare? Its final statement says, "SO
ORDERED." But what exactly did the court order? It had
the temerity to label its issuance a "Decision," when
nothing was in fact decided.
Respondent SJS insists that the dispositive portion can be
found in the body of the assailed Decision. It claims that
the issue is disposed of and the Petition finally resolved by
the statement of the trial court found on page 10 of its 14-
page Decision, which reads: "Endorsement of specific
candidates in an election to any public office is a clear
violation of the separation clause."95
We cannot agree.
In Magdalena Estate, Inc. v. Caluag,96 the obligation of the
party imposed by the Court was allegedly contained in the
text of the original Decision. The Court, however, held:
"x x x The quoted finding of the lower court cannot supply
deficiencies in the dispositive portion. It is a mere opinion
of the court and the rule is settled that where there is a
conflict between the dispositive part and the opinion, the
former must prevail over the latter on the theory that the
dispositive portion is the final order while the opinion is
merely a statement ordering nothing." (Italics in the
original)
Thus, the dispositive portion cannot be deemed to be the
statement quoted by SJS and embedded in the last
paragraph of page 10 of the assailed 14-page Decision. If at
all, that statement is merely an answer to a hypothetical
legal question and just a part of the opinion of the trial
court. It does not conclusively declare the rights (or
obligations) of the parties to the Petition. Neither does it
grant any -- much less, the proper -- relief under the
circumstances, as required of a dispositive portion.
Failure to comply with the constitutional injunction is a
grave abuse of discretion amounting to lack or excess of
jurisdiction. Decisions or orders issued in careless disregard
of the constitutional mandate are a patent nullity and must
be struck down as void.97
Parts of a Decision
In general, the essential parts of a good decision consist of
the following: (1) statement of the case; (2) statement of
facts; (3) issues or assignment of errors; (4) court ruling, in
which each issue is, as a rule, separately considered and
resolved; and, finally, (5) dispositive portion.
The ponente may also opt to include an introduction or a
prologue as well as an epilogue, especially in cases in
which controversial or novel issues are involved.98
An introduction may consist of a concise but
comprehensive statement of the principal factual or legal
issue/s of the case. In some cases -- particularly those
concerning public interest; or involving complicated
commercial, scientific, technical or otherwise rare subject
matters -- a longer introduction or prologue may serve to
acquaint readers with the specific nature of the controversy
and the issues involved. An epilogue may be a summation
of the important principles applied to the resolution of the
issues of paramount public interest or significance. It may
also lay down an enduring philosophy of law or guiding
principle.
Let us now, again for the guidance of the bench and the bar,
discuss the essential parts of a good decision.
1. Statement of the Case
The Statement of the Case consists of a legal definition of
the nature of the action. At the first instance, this part states
whether the action is a civil case for collection, ejectment,
quieting of title, foreclosure of mortgage, and so on; or, if it
is a criminal case, this part describes the specific charge --
quoted usually from the accusatory portion of the
information -- and the plea of the accused. Also mentioned
here are whether the case is being decided on appeal or on a
petition for certiorari, the court of origin, the case number
in the trial court, and the dispositive portion of the assailed
decision.
In a criminal case, the verbatim reproduction of the
criminal information serves as a guide in determining the
nature and the gravity of the offense for which the accused
may be found culpable. As a rule, the accused cannot be
convicted of a crime different from or graver than that
charged.
Also, quoting verbatim the text of the information is
especially important when there is a question on the
sufficiency of the charge, or on whether qualifying and
modifying circumstances have been adequately alleged
therein.
To ensure that due process is accorded, it is important to
give a short description of the proceedings regarding the
plea of the accused. Absence of an arraignment, or a
serious irregularity therein, may render the judgment void,
and further consideration by the appellate court would be
futile. In some instances, especially in appealed cases, it
would also be useful to mention the fact of the appellants’
detention, in order to dispose of the preliminary query --
whether or not they have abandoned their appeal by
absconding or jumping bail.
Mentioning the court of origin and the case number
originally assigned helps in facilitating the consolidation of
the records of the case in both the trial and the appellate
courts, after entry of final judgment.
Finally, the reproduction of the decretal portion of the
assailed decision informs the reader of how the appealed
case was decided by the court a quo.
2. Statement of Facts
There are different ways of relating the facts of the
case. First, under the objective or reportorial method, the
judge summarizes -- without comment -- the testimony of
each witness and the contents of each
exhibit. Second, under the synthesis method, the factual
theory of the plaintiff or prosecution and then that of the
defendant or defense is summarized according to the
judge’s best light. Third, in the subjective method, the
version of the facts accepted by the judge is simply narrated
without explaining what the parties’ versions
are. Finally, through a combination of objective and
subjective means, the testimony of each witness is reported
and the judge then formulates his or her own version of the
facts.
In criminal cases, it is better to present both the version of
the prosecution and that of the defense, in the interest of
fairness and due process. A detailed evaluation of the
contentions of the parties must follow. The resolution of
most criminal cases, unlike civil and other cases, depends
to a large extent on the factual issues and the appreciation
of the evidence. The plausibility or the implausibility of
each version can sometimes be initially drawn from a
reading of the facts. Thereafter, the bases of the court in
arriving at its findings and conclusions should be
explained.
On appeal, the fact that the assailed decision of the lower
court fully, intelligently and correctly resolved all factual
and legal issues involved may partly explain why the
reviewing court finds no reason to reverse the findings and
conclusions of the former. Conversely, the lower court’s
patent misappreciation of the facts or misapplication of the
law would aid in a better understanding of why its ruling is
reversed or modified.
In appealed civil cases, the opposing sets of facts no longer
need to be presented. Issues for resolution usually involve
questions of law, grave abuse of discretion, or want of
jurisdiction; hence, the facts of the case are often
undisputed by the parties. With few exceptions, factual
issues are not entertained in non-criminal cases.
Consequently, the narration of facts by the lower court, if
exhaustive and clear, may be reproduced; otherwise, the
material factual antecedents should be restated in the words
of the reviewing magistrate.
In addition, the reasoning of the lower court or body whose
decision is under review should be laid out, in order that the
parties may clearly understand why the lower court ruled in
a certain way, and why the reviewing court either finds no
reason to reverse it or concludes otherwise.
3. Issues or Assignment of Errors
Both factual and legal issues should be stated. On appeal,
the assignment of errors, as mentioned in the appellant’s
brief, may be reproduced in toto and tackled seriatim, so as
to avoid motions for reconsideration of the final decision
on the ground that the court failed to consider all assigned
errors that could affect the outcome of the case. But when
the appellant presents repetitive issues or when the assigned
errors do not strike at the main issue, these may be restated
in clearer and more coherent terms.
Though not specifically questioned by the parties,
additional issues may also be included, if deemed important
for substantial justice to be rendered. Note that appealed
criminal cases are given de novo review, in contrast to
noncriminal cases in which the reviewing court is generally
limited to issues specifically raised in the appeal. The few
exceptions are errors of jurisdiction; questions not raised
but necessary in arriving at a just decision on the case; or
unassigned errors that are closely related to those properly
assigned, or upon which depends the determination of the
question properly raised.
4. The Court’s Ruling
This part contains a full discussion of the specific errors or
issues raised in the complaint, petition or appeal, as the
case may be; as well as of other issues the court deems
essential to a just disposition of the case. Where there are
several issues, each one of them should be separately
addressed, as much as practicable. The respective
contentions of the parties should also be mentioned here.
When procedural questions are raised in addition to
substantive ones, it is better to resolve the former
preliminarily.
5. The Disposition or Dispositive Portion
In a criminal case, the disposition should include a finding
of innocence or guilt, the specific crime committed, the
penalty imposed, the participation of the accused, the
modifying circumstances if any, and the civil liability and
costs. In case an acquittal is decreed, the court must order
the immediate release of the accused, if detained, (unless
they are being held for another cause) and order the director
of the Bureau of Corrections (or wherever the accused is
detained) to report, within a maximum of ten (10) days
from notice, the exact date when the accused were set free.
In a civil case as well as in a special civil action, the
disposition should state whether the complaint or petition is
granted or denied, the specific relief granted, and the costs.
The following test of completeness may be
applied. First, the parties should know their rights and
obligations. Second, they should know how to execute the
decision under alternative contingencies. Third, there
should be no need for further proceedings to dispose of the
issues. Fourth, the case should be terminated by according
the proper relief. The "proper relief" usually depends upon
what the parties seek in their pleadings. It may declare their
rights and duties, command the performance of positive
prestations, or order them to abstain from specific acts. The
disposition must also adjudicate costs.
The foregoing parts need not always be discussed in
sequence. But they should all be present and plainly
identifiable in the decision. Depending on the writer’s
character, genre and style, the language should be fresh and
free-flowing, not necessarily stereotyped or in a fixed form;
much less highfalutin, hackneyed and pretentious. At all
times, however, the decision must be clear, concise,
complete and correct.
Second Substantive Issue:
Religious Leaders’ Endorsement
of Candidates for Public Office
The basic question posed in the SJS Petition -- WHETHER
ENDORSEMENTS OF CANDIDACIES BY RELIGIOUS
LEADERS IS UNCONSTITUTIONAL -- undoubtedly
deserves serious consideration. As stated earlier, the Court for Declaratory Relief is DISMISSED for failure to state a
deems this constitutional issue to be of paramount interest cause of action.
to the Filipino citizenry, for it concerns the governance of
our country and its people. Thus, despite the obvious Let a copy of this Decision be furnished the Office of the
procedural transgressions by both SJS and the trial court, Court Administrator to evaluate and recommend whether
this Court still called for Oral Argument, so as not to leave the trial judge may, after observing due process, be held
any doubt that there might be room to entertain and dispose administratively liable for rendering a decision violative of
of the SJS Petition on the merits. the Constitution, the Rules of Court and relevant circulars
of this Court. No costs.
Counsel for SJS has utterly failed, however, to convince the
Court that there are enough factual and legal bases to SO ORDERED.
resolve the paramount issue. On the other hand, the Office
of the Solicitor General has sided with petitioner insofar as Davide, Jr., Puno, Panganiban, Quisumbing, Ynares-
there are no facts supporting the SJS Petition and the Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,
assailed Decision. Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga,
JJ., concur.
We reiterate that the said Petition failed to state directly the
ultimate facts that it relied upon for its claim. During the
Oral Argument, counsel for SJS candidly admitted that
there were no factual allegations in its Petition for
Declaratory Relief. Neither were there factual findings in
the assailed Decision. At best, SJS merely asked the trial
court to answer a hypothetical question. In effect, it merely
sought an advisory opinion, the rendition of which was
beyond the court’s constitutional mandate and
jurisdiction.99
Indeed, the assailed Decision was rendered in clear
violation of the Constitution, because it made no findings
of facts and final disposition. Hence, it is void and deemed
legally inexistent. Consequently, there is nothing for this
Court to review, affirm, reverse or even just modify.
Regrettably, it is not legally possible for the Court to take
up, on the merits, the paramount question involving a
constitutional principle. It is a time-honored rule that "the
constitutionality of a statute [or act] will be passed upon
only if, and to the extent that, it is directly and necessarily
involved in a justiciable controversy and is essential to the
protection of the rights of the parties concerned."100
WHEREFORE, the Petition for Review of Brother Mike
Velarde is GRANTED. The assailed June 12, 2003
Decision and July 29, 2003 Order of the Regional Trial
Court of Manila (Branch 49) are hereby DECLARED
NULL AND VOID and thus SET ASIDE. The SJS Petition

G.R. No. 162230 April 28, 2010
ISABELITA C. VINUYA, VICTORIA C. DELA
PEÑA, HERMINIHILDA MANIMBO, LEONOR H.
SUMAWANG, CANDELARIA L. SOLIMAN, MARIA
L. QUILANTANG, MARIA L. MAGISA, NATALIA
M. ALONZO, LOURDES M. NAVARO, FRANCISCA
M. ATENCIO, ERLINDA MANALASTAS, TARCILA
M. SAMPANG, ESTER M. PALACIO, MAXIMA R.
DELA CRUZ, BELEN A. SAGUM, FELICIDAD
TURLA, FLORENCIA M. DELA PEÑA, EUGENIA
M. LALU, JULIANA G. MAGAT, CECILIA
SANGUYO, ANA ALONZO, RUFINA P. MALLARI,
ROSARIO M. ALARCON, RUFINA C. GULAPA,
ZOILA B. MANALUS, CORAZON C. CALMA,
MARTA A. GULAPA, TEODORA M. HERNANDEZ,
FERMIN B. DELA PEÑA, MARIA DELA PAZ B.
CULALA, ESPERANZA MANAPOL, JUANITA M.
BRIONES, VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B.
BALINGIT, BELEN A. CULALA, PILAR Q.
GALANG, ROSARIO C. BUCO, GAUDENCIA C.
DELA PEÑA, RUFINA Q. CATACUTAN, FRANCIA
A. BUCO, PASTORA C. GUEVARRA, VICTORIA M.
DELA CRUZ, PETRONILA O. DELA CRUZ,
ZENAIDA P. DELA CRUZ, CORAZON M. SUBA,
EMERINCIANA A. VINUYA, LYDIA A. SANCHEZ,
ROSALINA M. BUCO, PATRICIA A. BERNARDO,
LUCILA H. PAYAWAL, MAGDALENA LIWAG,
ESTER C. BALINGIT, JOVITA A. DAVID, EMILIA
C. MANGILIT, VERGINIA M. BANGIT,
GUILLERMA S. BALINGIT, TERECITA
PANGILINAN, MAMERTA C. PUNO,
CRISENCIANA C. GULAPA, SEFERINA S. TURLA,
MAXIMA B. TURLA, LEONICIA G. GUEVARRA,
ROSALINA M. CULALA, CATALINA Y. MANIO,
MAMERTA T. SAGUM, CARIDAD L. TURLA, et al.
In their capacity and as members of the “Malaya Lolas
Organization”, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY
ALBERTO G. ROMULO, THE HONORABLE
SECRETARY OF FOREIGN AFFAIRS DELIA
DOMINGO-ALBERT, THE HONORABLE
SECRETARY OF JUSTICE MERCEDITAS N.
GUTIERREZ, and THE HONORABLE SOLICITOR
GENERAL ALFREDO L. BENIPAYO, Respondents.
DECISION
DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future
peace. History has vindicated the wisdom of that bargain.
And while full compensation for plaintiffs’ hardships, in
the purely economic sense, has been denied these former
prisoners and countless other survivors of the war, the
immeasurable bounty of life for themselves and their
posterity in a free society and in a more peaceful world
services the debt.1
There is a broad range of vitally important areas that must
be regularly decided by the Executive Department without
either challenge or interference by the Judiciary. One such
area involves the delicate arena of foreign relations. It
would be strange indeed if the courts and the executive
spoke with different voices in the realm of foreign policy.
Precisely because of the nature of the questions presented,
and the lapse of more than 60 years since the conduct
complained of, we make no attempt to lay down general
guidelines covering other situations not involved here, and
confine the opinion only to the very questions necessary to
reach a decision on this matter.
Factual Antecedents
This is an original Petition for Certiorari under Rule 65 of
the Rules of Court with an application for the issuance of a
writ of preliminary mandatory injunction against the Office
of the Executive Secretary, the Secretary of the Department
of Foreign Affairs (DFA), the Secretary of the Department
of Justice (DOJ), and the Office of the Solicitor General
(OSG).
Petitioners are all members of the MALAYA LOLAS, a
non-stock, non-profit organization registered with the
Securities and Exchange Commission, established for the
purpose of providing aid to the victims of rape by Japanese
military forces in the Philippines during the Second World
War.
Petitioners narrate that during the Second World War, the
Japanese army attacked villages and systematically raped
the women as part of the destruction of the village. Their
communities were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated, and
slaughtered. Japanese soldiers forcibly seized the women
and held them in houses or cells, where they were
repeatedly raped, beaten, and abused by Japanese soldiers.
As a result of the actions of their Japanese tormentors, the
petitioners have spent their lives in misery, having endured
physical injuries, pain and disability, and mental and
emotional suffering.2
Petitioners claim that since 1998, they have approached the
Executive Department through the DOJ, DFA, and OSG,
requesting assistance in filing a claim against the Japanese
officials and military officers who ordered the
establishment of the “comfort women” stations in the
Philippines. However, officials of the Executive
Department declined to assist the petitioners, and took the
position that the individual claims of the comfort women
for compensation had already been fully satisfied by
Japan’s compliance with the Peace Treaty between the
Philippines and Japan.
Issues
Hence, this petition where petitioners pray for this court to
(a) declare that respondents committed grave abuse of
discretion amounting to lack or excess of discretion in
refusing to espouse their claims for the crimes against
humanity and war crimes committed against them; and (b)
compel the respondents to espouse their claims for official
apology and other forms of reparations against Japan before
the International Court of Justice (ICJ) and other
international tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of claims made by
the Philippine government in the Treaty of Peace with
Japan is void. They claim that the comfort women system
established by Japan, and the brutal rape and enslavement
of petitioners constituted a crime against humanity,3 sexual
slavery,4 and torture.5 They allege that the prohibition
against these international crimes is jus cogens norms from
which no derogation is possible; as such, in waiving the
claims of Filipina comfort women and failing to espouse
their complaints against Japan, the Philippine government
is in breach of its legal obligation not to afford impunity for
crimes against humanity. Finally, petitioners assert that the
Philippine government’s acceptance of the “apologies”
made by Japan as well as funds from the Asian Women’s
Fund (AWF) were contrary to international law.
Respondents’ Arguments
Respondents maintain that all claims of the Philippines and
its nationals relative to the war were dealt with in the San
Francisco Peace Treaty of 1951 and the bilateral
Reparations Agreement of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay reparations to the
Allied Powers for the damage and suffering caused by it
during the war. Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if it is to
maintain a viable economy, to make complete reparation
for all such damage and suffering and at the present time
meet its other obligations.
b) Except as otherwise provided in the present Treaty, the
Allied Powers waive all reparations claims of the Allied
Powers, other claims of the Allied Powers and their
nationals arising out of any actions taken by Japan and its
nationals in the course of the prosecution of the war, and
claims of the Allied Powers for direct military costs of
occupation.
In addition, respondents argue that the apologies made by
Japan8 have been satisfactory, and that Japan had addressed
the individual claims of the women through the atonement
money paid by the Asian Women’s Fund.
Historical Background
The comfort women system was the tragic legacy of the
Rape of Nanking. In December 1937, Japanese military
forces captured the city of Nanking in China and began a
“barbaric campaign of terror” known as the Rape of
Nanking, which included the rapes and murders of an
estimated 20,000 to 80,000 Chinese women, including
young girls, pregnant mothers, and elderly women.9
In reaction to international outcry over the incident, the
Japanese government sought ways to end international
condemnation10 by establishing the “comfort women”
system. Under this system, the military could
simultaneously appease soldiers’ sexual appetites and
contain soldiers’ activities within a regulated
environment.11 Comfort stations would also prevent the
spread of venereal disease among soldiers and discourage
soldiers from raping inhabitants of occupied territories.12
Daily life as a comfort woman was “unmitigated
misery.”13 The military forced victims into barracks-style
stations divided into tiny cubicles where they were forced
to live, sleep, and have sex with as many 30 soldiers per
day.14 The 30 minutes allotted for sexual relations with
each soldier were 30-minute increments of unimaginable
horror for the women.15 Disease was rampant.16 Military
doctors regularly examined the women, but these checks
were carried out to prevent the spread of venereal diseases;
little notice was taken of the frequent cigarette burns,
bruises, bayonet stabs and even broken bones inflicted on
the women by soldiers.
Fewer than 30% of the women survived the war.17 Their
agony continued in having to suffer with the residual
physical, psychological, and emotional scars from their
former lives. Some returned home and were ostracized by
their families. Some committed suicide. Others, out of
shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the Japanese
government to accept legal responsibility and pay
compensatory damages for the comfort women system
were through a series of lawsuits, discussion at the United
Nations (UN), resolutions by various nations, and the
Women’s International Criminal Tribunal. The Japanese
government, in turn, responded through a series of public
apologies and the creation of the AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other survivors
filed the first lawsuit in Japan by former comfort women
against the Japanese government. The Tokyo District Court
however dismissed their case.20 Other suits followed,21 but
the Japanese government has, thus far, successfully caused
the dismissal of every case.22
Undoubtedly frustrated by the failure of litigation before
Japanese courts, victims of the comfort women system
brought their claims before the United States (US). On
September 18, 2000, 15 comfort women filed a class action
lawsuit in the US District Court for the District of
Columbia23 “seeking money damages for [allegedly]
having been subjected to sexual slavery and torture before
and during World War II,” in violation of “both positive
and customary international law.” The case was filed
pursuant to the Alien Tort Claims Act (“ATCA”),24 which
allowed the plaintiffs to sue the Japanese government in a
US federal district court.25 On October 4, 2001, the district
court dismissed the lawsuit due to lack of jurisdiction over
Japan, stating that “[t]here is no question that this court is
not the appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century later x x x
[E]ven if Japan did not enjoy sovereign immunity,
plaintiffs’ claims are non-justiciable and must be
dismissed.”
The District of Columbia Court of Appeals affirmed the
lower court’s dismissal of the case.26 On appeal, the US
Supreme Court granted the women’s petition for writ of
certiorari, vacated the judgment of the District of Columbia
Court of Appeals, and remanded the case.27 On remand, the
Court of Appeals affirmed its prior decision, noting that
“much as we may feel for the plight of the appellants, the
courts of the US simply are not authorized to hear their
case.”28 The women again brought their case to the US
Supreme Court which denied their petition for writ of
certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women Drafted for
Military Sexual Slavery by Japan (KCWS), submitted a
petition to the UN Human Rights Commission (UNHRC),
asking for assistance in investigating crimes committed by
Japan against Korean women and seeking reparations for
former comfort women.29 The UNHRC placed the issue on
its agenda and appointed Radhika Coomaraswamy as the
issue’s special investigator. In 1996, Coomaraswamy
issued a Report reaffirming Japan’s responsibility in
forcing Korean women to act as sex slaves for the imperial
army, and made the following recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort stations set up
by the Japanese Imperial Army during the Second World
War was a violation of its obligations under international
law and accept legal responsibility for that violation;
(b) Pay compensation to individual victims of Japanese
military sexual slavery according to principles outlined by
the Special Rapporteur of the Sub-Commission on
Prevention of Discrimination and Protection of Minorities
on the right to restitution, compensation and rehabilitation
for victims of grave violations of human rights and
fundamental freedoms. A special administrative tribunal for
this purpose should be set up with a limited time-frame
since many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and materials in its
possession with regard to comfort stations and other related
activities of the Japanese Imperial Army during the Second
World War;
(d) Make a public apology in writing to individual women
who have come forward and can be substantiated as women
victims of Japanese military sexual slavery;
(e) Raise awareness of these issues by amending
educational curricula to reflect historical realities;
(f) Identify and punish, as far as possible, perpetrators
involved in the recruitment and institutionalization of
comfort stations during the Second World War.
Gay J. McDougal, the Special Rapporteur for the UN Sub-
Commission on Prevention of Discrimination and
Protection of Minorities, also presented a report to the Sub-
Committee on June 22, 1998 entitled Contemporary Forms
of Slavery: Systematic Rape, Sexual Slavery and Slavery-
like Practices During Armed Conflict. The report included
an appendix entitled An Analysis of the Legal Liability of
the Government of Japan for ‘Comfort Women Stations’
established during the Second World War,30 which
contained the following findings:
68. The present report concludes that the Japanese
Government remains liable for grave violations of human
rights and humanitarian law, violations that amount in their
totality to crimes against humanity. The Japanese
Government’s arguments to the contrary, including
arguments that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain as
unpersuasive today as they were when they were first
raised before the Nuremberg war crimes tribunal more than
50 years ago. In addition, the Japanese Government’s
argument that Japan has already settled all claims from the
Second World War through peace treaties and reparations
agreements following the war remains equally
unpersuasive. This is due, in large part, to the failure until
very recently of the Japanese Government to admit the
extent of the Japanese military’s direct involvement in the
establishment and maintenance of these rape centres. The
Japanese Government’s silence on this point during the
period in which peace and reparations agreements between
Japan and other Asian Governments were being negotiated
following the end of the war must, as a matter of law and
justice, preclude Japan from relying today on these peace
treaties to extinguish liability in these cases.
69. The failure to settle these claims more than half a
century after the cessation of hostilities is a testament to the
degree to which the lives of women continue to be
undervalued. Sadly, this failure to address crimes of a
sexual nature committed on a massive scale during the
Second World War has added to the level of impunity with
which similar crimes are committed today. The
Government of Japan has taken some steps to apologize
and atone for the rape and enslavement of over 200,000
women and girls who were brutalized in “comfort stations”
during the Second World War. However, anything less than
full and unqualified acceptance by the Government of
Japan of legal liability and the consequences that flow from
such liability is wholly inadequate. It must now fall to the
Government of Japan to take the necessary final steps to
provide adequate redress.
The UN, since then, has not taken any official action
directing Japan to provide the reparations sought.
Women’s International War Crimes
Tribunal
The Women’s International War Crimes Tribunal
(WIWCT) was a “people’s tribunal” established by a
number of Asian women and human rights organizations,
supported by an international coalition of non-
governmental organizations.31 First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to “adjudicate
Japan’s military sexual violence, in particular the
enslavement of comfort women, to bring those responsible
for it to justice, and to end the ongoing cycle of impunity
for wartime sexual violence against women.”
After examining the evidence for more than a year, the
“tribunal” issued its verdict on December 4, 2001, finding
the former Emperor Hirohito and the State of Japan guilty
of crimes against humanity for the rape and sexual slavery
of women.32 It bears stressing, however, that although the
tribunal included prosecutors, witnesses, and judges, its
judgment was not legally binding since the tribunal itself
was organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael Honda of
California, along with six co-sponsor representatives,
introduced House Resolution 121 which called for Japanese
action in light of the ongoing struggle for closure by former
comfort women. The Resolution was formally passed on
July 30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives that the
Government of Japan (1) should formally acknowledge,
apologize, and accept historical responsibility in a clear and
unequivocal manner for its Imperial Armed Forces’
coercion of young women into sexual slavery, known to the
world as “comfort women”, during its colonial and wartime
occupation of Asia and the Pacific Islands from the 1930s
through the duration of World War II; (2) would help to
resolve recurring questions about the sincerity and status of
prior statements if the Prime Minister of Japan were to
make such an apology as a public statement in his official
capacity; (3) should clearly and publicly refute any claims
that the sexual enslavement and trafficking of the “comfort
women” for the Japanese Imperial Army never occurred;
and (4) should educate current and future generations about
this horrible crime while following the recommendations of
the international community with respect to the “comfort
women.”34
In December 2007, the European Parliament, the governing
body of the European Union, drafted a resolution similar to
House Resolution 121.35 Entitled, “Justice for Comfort
Women,” the resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles preventing
compensation; and (3) unabridged education of the past.
The resolution also stressed the urgency with which Japan
should act on these issues, stating: “the right of individuals
to claim reparations against the government should be
expressly recognized in national law, and cases for
reparations for the survivors of sexual slavery, as a crime
under international law, should be prioritized, taking into
account the age of the survivors.”
The Canadian and Dutch parliaments have each followed
suit in drafting resolutions against Japan. Canada’s
resolution demands the Japanese government to issue a
formal apology, to admit that its Imperial Military coerced
or forced hundreds of thousands of women into sexual
slavery, and to restore references in Japanese textbooks to
its war crimes.36 The Dutch parliament’s resolution calls
for the Japanese government to uphold the 1993 declaration
of remorse made by Chief Cabinet Secretary Yohei Kono.
The Foreign Affairs Committee of the United Kingdom’s
Parliament also produced a report in November, 2008
entitled, “Global Security: Japan and Korea” which
concluded that Japan should acknowledge the pain caused
by the issue of comfort women in order to ensure
cooperation between Japan and Korea.
Statements of Remorse made by representatives of the
Japanese government
Various officials of the Government of Japan have issued
the following public statements concerning the comfort
system:
a) Statement by the Chief Cabinet Secretary Yohei Kono in
1993:
The Government of Japan has been conducting a study on
the issue of wartime “comfort women” since December
1991. I wish to announce the findings as a result of that
study.
As a result of the study which indicates that comfort
stations were operated in extensive areas for long periods, it
is apparent that there existed a great number of comfort
women. Comfort stations were operated in response to the
request of the military authorities of the day. The then
Japanese military was, directly or indirectly, involved in the
establishment and management of the comfort stations and
the transfer of comfort women. The recruitment of the
comfort women was conducted mainly by private recruiters
who acted in response to the request of the military. The
Government study has revealed that in many cases they
were recruited against their own will, through coaxing
coercion, etc., and that, at times, administrative/military
personnel directly took part in the recruitments. They lived
in misery at comfort stations under a coercive atmosphere.
As to the origin of those comfort women who were
transferred to the war areas, excluding those from Japan,
those from the Korean Peninsula accounted for a large part.
The Korean Peninsula was under Japanese rule in those
days, and their recruitment, transfer, control, etc., were
conducted generally against their will, through coaxing,
coercion, etc.
Undeniably, this was an act, with the involvement of the
military authorities of the day, that severely injured the
honor and dignity of many women. The Government of
Japan would like to take this opportunity once again to
extend its sincere apologies and remorse to all those,
irrespective of place of origin, who suffered immeasurable
pain and incurable physical and psychological wounds as
comfort women.
It is incumbent upon us, the Government of Japan, to
continue to consider seriously, while listening to the views
of learned circles, how best we can express this sentiment.
We shall face squarely the historical facts as described
above instead of evading them, and take them to heart as
lessons of history. We hereby reiterated our firm
determination never to repeat the same mistake by forever
engraving such issues in our memories through the study
and teaching of history.
As actions have been brought to court in Japan and interests
have been shown in this issue outside Japan, the
Government of Japan shall continue to pay full attention to
this matter, including private researched related thereto.
b) Prime Minister Tomiichi Murayama’s Statement in 1994
On the issue of wartime “comfort women”, which seriously
stained the honor and dignity of many women, I would like
to take this opportunity once again to express my profound
and sincere remorse and apologies”
c) Letters from the Prime Minister of Japan to Individual
Comfort Women
The issue of comfort women, with the involvement of the
Japanese military authorities at that time, was a grave
affront to the honor and dignity of a large number of
women.
As Prime Minister of Japan, I thus extend anew my most
sincere apologies and remorse to all the women who
endured immeasurable and painful experiences and
suffered incurable physical and psychological wounds as
comfort women.
I believe that our country, painfully aware of its moral
responsibilities, with feelings of apology and remorse,
should face up squarely to its past history and accurately
convey it to future generations.
d) The Diet (Japanese Parliament) passed resolutions in
1995 and 2005
Solemnly reflecting upon the many instances of colonial
rule and acts of aggression that occurred in modern world
history, and recognizing that Japan carried out such acts in
the past and inflicted suffering on the people of other
countries, especially in Asia, the Members of this House
hereby express deep remorse. (Resolution of the House of
Representatives adopted on June 9, 1995)
e) Various Public Statements by Japanese Prime Minister
Shinzo Abe
I have talked about this matter in the Diet sessions last year,
and recently as well, and to the press. I have been
consistent. I will stand by the Kono Statement. This is our
consistent position. Further, we have been apologizing
sincerely to those who suffered immeasurable pain and
incurable psychological wounds as comfort women.
Former Prime Ministers, including Prime Ministers
Koizumi and Hashimoto, have issued letters to the comfort
women. I would like to be clear that I carry the same
feeling. This has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by NHK,
March 11, 2007).
I am apologizing here and now. I am apologizing as the
Prime Minister and it is as stated in the statement by the
Chief Cabinet Secretary Kono. (Excerpt from Remarks by
Prime Minister Abe at the Budget Committee, the House of
Councilors, the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort women who
suffered hardships, and I have expressed my apologies for
the extremely agonizing circumstances into which they
were placed. (Excerpt from Telephone Conference by
Prime Minister Abe to President George W. Bush, April 3,
2007).
I have to express sympathy from the bottom of my heart to
those people who were taken as wartime comfort women.
As a human being, I would like to express my sympathies,
and also as prime minister of Japan I need to apologize to
them. My administration has been saying all along that we
continue to stand by the Kono Statement. We feel
responsible for having forced these women to go through
that hardship and pain as comfort women under the
circumstances at the time. (Excerpt from an interview
article “A Conversation with Shinzo Abe” by the
Washington Post, April 22, 2007).
x x x both personally and as Prime Minister of Japan, my
heart goes out in sympathy to all those who suffered
extreme hardships as comfort women; and I expressed my
apologies for the fact that they were forced to endure such
extreme and harsh conditions. Human rights are violated in
many parts of the world during the 20th Century; therefore
we must work to make the 21st Century a wonderful
century in which no human rights are violated. And the
Government of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime Minister
Abe’s remarks at the Joint Press Availability after the
summit meeting at Camp David between Prime Minister
Abe and President Bush, April 27, 2007).
The Asian Women’s Fund
Established by the Japanese government in 1995, the AWF
represented the government’s concrete attempt to address
its moral responsibility by offering monetary compensation
to victims of the comfort women system.37 The purpose of
the AWF was to show atonement of the Japanese people
through expressions of apology and remorse to the former
wartime comfort women, to restore their honor, and to
demonstrate Japan’s strong respect for women.38
The AWF announced three programs for former comfort
women who applied for assistance: (1) an atonement fund
paying ¥2 million (approximately $20,000) to each woman;
(2) medical and welfare support programs, paying ¥2.5-3
million ($25,000-$30,000) for each woman; and (3) a letter
of apology from the Japanese Prime Minister to each
woman. Funding for the program came from the Japanese
government and private donations from the Japanese
people. As of March 2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in South
Korea, Taiwan, and the Philippines; ¥380 million
(approximately $3.8 million) in Indonesia; and ¥242
million (approximately $2.4 million) in the Netherlands.
On January 15, 1997, the AWF and the Philippine
government signed a Memorandum of Understanding for
medical and welfare support programs for former comfort
women. Over the next five years, these were implemented
by the Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this case is
whether the Executive Department committed grave abuse
of discretion in not espousing petitioners’ claims for
official apology and other forms of reparations against
Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive
Department has the exclusive prerogative to determine
whether to espouse petitioners’ claims against Japan.
Baker v. Carr39 remains the starting point for analysis
under the political question doctrine. There the US
Supreme Court explained that:
x x x Prominent on the surface of any case held to involve a
political question is found a textually demonstrable
constitutional commitment of the issue to a coordinate
political department or a lack of judicially discoverable and
manageable standards for resolving it, or the impossibility
of deciding without an initial policy determination of a kind
clearly for non-judicial discretion; or the impossibility of a
court’s undertaking independent resolution without
expressing lack of the respect due coordinate branches of
government; or an unusual need for unquestioning
adherence to a political decision already made; or the
potentiality of embarrassment from multifarious
pronouncements by various departments on question.
In Tañada v. Cuenco,40 we held that political questions
refer “to those questions which, under the Constitution, are
to be decided by the people in their sovereign capacity, or
in regard to which full discretionary authority has been
delegated to the legislative or executive branch of the
government. It is concerned with issues dependent upon the
wisdom, not legality of a particular measure.”
Certain types of cases often have been found to present
political questions.41 One such category involves questions
of foreign relations. It is well-established that “[t]he
conduct of the foreign relations of our government is
committed by the Constitution to the executive and
legislative—’the political’—departments of the
government, and the propriety of what may be done in the
exercise of this political power is not subject to judicial
inquiry or decision.”42 The US Supreme Court has further
cautioned that decisions relating to foreign policy are
delicate, complex, and involve large elements of prophecy.
They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or
imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor responsibility. 43
To be sure, not all cases implicating foreign relations
present political questions, and courts certainly possess the
authority to construe or invalidate treaties and executive
agreements.44 However, the question whether the
Philippine government should espouse claims of its
nationals against a foreign government is a foreign relations
matter, the authority for which is demonstrably committed
by our Constitution not to the courts but to the political
branches. In this case, the Executive Department has
already decided that it is to the best interest of the country
to waive all claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom of such
decision is not for the courts to question. Neither could
petitioners herein assail the said determination by the
Executive Department via the instant petition for certiorari.
In the seminal case of US v. Curtiss-Wright Export
Corp.,45 the US Supreme Court held that “[t]he President is
the sole organ of the nation in its external relations, and its
sole representative with foreign relations.”
It is quite apparent that if, in the maintenance of our
international relations, embarrassment—perhaps serious
embarrassment—is to be avoided and success for our aims
achieved, congressional legislation which is to be made
effective through negotiation and inquiry within the
international field must often accord to the President a
degree of discretion and freedom from statutory restriction
which would not be admissible where domestic affairs
alone involved. Moreover, he, not Congress, has the better
opportunity of knowing the conditions which prevail in
foreign countries, and especially is this true in time of war.
He has his confidential sources of information. He has his
agents in the form of diplomatic, consular and other
officials. x x x
This ruling has been incorporated in our jurisprudence
through Bayan v. Executive Secretary46 and Pimentel v.
Executive Secretary;47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice Puno’s
dissent in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes with life and
death significance to the nation especially in times of war.
It can only be entrusted to that department of government
which can act on the basis of the best available information
and can decide with decisiveness. x x x It is also the
President who possesses the most comprehensive and the
most confidential information about foreign countries for
our diplomatic and consular officials regularly brief him on
meaningful events all over the world. He has also unlimited
access to ultra-sensitive military intelligence data. In fine,
the presidential role in foreign affairs is dominant and the
President is traditionally accorded a wider degree of
discretion in the conduct of foreign affairs. The regularity,
nay, validity of his actions are adjudged under less stringent
standards, lest their judicial repudiation lead to breach of an
international obligation, rupture of state relations, forfeiture
of confidence, national embarrassment and a plethora of
other problems with equally undesirable consequences.
The Executive Department has determined that taking up
petitioners’ cause would be inimical to our country’s
foreign policy interests, and could disrupt our relations with
Japan, thereby creating serious implications for stability in
this region. For us to overturn the Executive Department’s
determination would mean an assessment of the foreign
policy judgments by a coordinate political branch to which
authority to make that judgment has been constitutionally
committed.
In any event, it cannot reasonably be maintained that the
Philippine government was without authority to negotiate
the Treaty of Peace with Japan. And it is equally true that,
since time immemorial, when negotiating peace accords
and settling international claims:
x x x [g]overnments have dealt with x x x private claims as
their own, treating them as national assets, and as counters,
`chips’, in international bargaining. Settlement agreements
have lumped, or linked, claims deriving from private debts
with others that were intergovernmental in origin, and
concessions in regard to one category of claims might be
set off against concessions in the other, or against larger
political considerations unrelated to debts.49
Indeed, except as an agreement might otherwise provide,
international settlements generally wipe out the underlying
private claims, thereby terminating any recourse under
domestic law. In Ware v. Hylton,50 a case brought by a
British subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice Chase
wrote:
I apprehend that the treaty of peace abolishes the subject of
the war, and that after peace is concluded, neither the
matter in dispute, nor the conduct of either party, during the
war, can ever be revived, or brought into contest again. All
violences, injuries, or damages sustained by the
government, or people of either, during the war, are buried
in oblivion; and all those things are implied by the very
treaty of peace; and therefore not necessary to be
expressed. Hence it follows, that the restitution of, or
compensation for, British property confiscated, or
extinguished, during the war, by any of the United States,
could only be provided for by the treaty of peace; and if
there had been no provision, respecting these subjects, in
the treaty, they could not be agitated after the treaty, by the
British government, much less by her subjects in courts of
justice. (Emphasis supplied).
This practice of settling claims by means of a peace treaty
is certainly nothing new. For instance, in Dames & Moore
v. Regan,51 the US Supreme Court held:
Not infrequently in affairs between nations, outstanding
claims by nationals of one country against the government
of another country are “sources of friction” between the
two sovereigns. United States v. Pink, 315 U.S. 203, 225,
62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To resolve these
difficulties, nations have often entered into agreements
settling the claims of their respective nationals. As one
treatise writer puts it, international agreements settling
claims by nationals of one state against the government of
another “are established international practice reflecting
traditional international theory.” L. Henkin, Foreign Affairs
and the Constitution 262 (1972). Consistent with that
principle, the United States has repeatedly exercised its
sovereign authority to settle the claims of its nationals
against foreign countries. x x x Under such agreements, the
President has agreed to renounce or extinguish claims of
United States nationals against foreign governments in
return for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these
settlements were encouraged by the United States claimants
themselves, since a claimant’s only hope of obtaining any
payment at all might lie in having his Government
negotiate a diplomatic settlement on his behalf. But it is
also undisputed that the “United States has sometimes
disposed of the claims of its citizens without their consent,
or even without consultation with them, usually without
exclusive regard for their interests, as distinguished from
those of the nation as a whole.” Henkin, supra, at 262-263.
Accord, Restatement (Second) of Foreign Relations Law of
the United States § 213 (1965) (President “may waive or
settle a claim against a foreign state x x x [even] without
the consent of the [injured] national”). It is clear that the
practice of settling claims continues today.
Respondents explain that the Allied Powers concluded the
Peace Treaty with Japan not necessarily for the complete
atonement of the suffering caused by Japanese aggression
during the war, not for the payment of adequate
reparations, but for security purposes. The treaty sought to
prevent the spread of communism in Japan, which occupied
a strategic position in the Far East. Thus, the Peace Treaty
compromised individual claims in the collective interest of
the free world.
This was also the finding in a similar case involving
American victims of Japanese slave labor during the
war.52 In a consolidated case in the Northern District of
California,53the court dismissed the lawsuits filed, relying
on the 1951 peace treaty with Japan,54 because of the
following policy considerations:
The official record of treaty negotiations establishes that a
fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the
possibility of future claims would be an unacceptable
impediment to a lasting peace:
Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
On the one hand, there are claims both vast and just.
Japan’s aggression caused tremendous cost, losses and
suffering.
On the other hand, to meet these claims, there stands a
Japan presently reduced to four home islands which are
unable to produce the food its people need to live, or the
raw materials they need to work. x x x
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of
the Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the
vanquished nation and with a view to reparations payments.
It soon became clear that Japan’s financial condition would
render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic
Japan as a bulwark to communism in the region increased.
At the end of 1948, MacArthur expressed the view that
“[t]he use of reparations as a weapon to retard the
reconstruction of a viable economy in Japan should be
combated with all possible means” and “recommended that
the reparations issue be settled finally and without delay.”
That this policy was embodied in the treaty is clear not only
from the negotiations history but also from the Senate
Foreign Relations Committee report recommending
approval of the treaty by the Senate. The committee noted,
for example:
Obviously insistence upon the payment of reparations in
any proportion commensurate with the claims of the injured
countries and their nationals would wreck Japan’s
economy, dissipate any credit that it may possess at
present, destroy the initiative of its people, and create
misery and chaos in which the seeds of discontent and
communism would flourish. In short, [it] would be contrary
to the basic purposes and policy of x x x the United States x
x x.
We thus hold that, from a municipal law perspective, that
certiorari will not lie. As a general principle—and
particularly here, where such an extraordinary length of
time has lapsed between the treaty’s conclusion and our
consideration—the Executive must be given ample
discretion to assess the foreign policy considerations of
espousing a claim against Japan, from the standpoint of
both the interests of the petitioners and those of the
Republic, and decide on that basis if apologies are
sufficient, and whether further steps are appropriate or
necessary.
The Philippines is not under any international obligation to
espouse petitioners’ claims.
In the international sphere, traditionally, the only means
available for individuals to bring a claim within the
international legal system has been when the individual is
able to persuade a government to bring a claim on the
individual’s behalf.55 Even then, it is not the individual’s
rights that are being asserted, but rather, the state’s own
rights. Nowhere is this position more clearly reflected than
in the dictum of the Permanent Court of International
Justice (PCIJ) in the 1924 Mavrommatis Palestine
Concessions Case:
By taking up the case of one of its subjects and by resorting
to diplomatic action or international judicial proceedings on
his behalf, a State is in reality asserting its own rightto
ensure, in the person of its subjects, respect for the rules of
international law. The question, therefore, whether the
present dispute originates in an injury to a private interest,
which in point of fact is the case in many international
disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an
international tribunal, in the eyes of the latter the State is
sole claimant.56
Since the exercise of diplomatic protection is the right of
the State, reliance on the right is within the absolute
discretion of states, and the decision whether to exercise the
discretion may invariably be influenced by political
considerations other than the legal merits of the particular
claim.57 As clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the limits
prescribed by international law, a State may exercise
diplomatic protection by whatever means and to whatever
extent it thinks fit, for it is its own right that the State is
asserting. Should the natural or legal person on whose
behalf it is acting consider that their rights are not
adequately protected, they have no remedy in international
law. All they can do is resort to national law, if means are
available, with a view to furthering their cause or obtaining
redress. The municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may also
confer upon the national a right to demand the performance
of that obligation, and clothe the right with corresponding
sanctions. However, all these questions remain within the
province of municipal law and do not affect the position
internationally.58 (Emphasis supplied)
The State, therefore, is the sole judge to decide whether its
protection will be granted, to what extent it is granted, and
when will it cease. It retains, in this respect, a discretionary
power the exercise of which may be determined by
considerations of a political or other nature, unrelated to the
particular case.
The International Law Commission’s (ILC’s) Draft Articles
on Diplomatic Protection fully support this traditional view.
They (i) state that “the right of diplomatic protection
belongs to or vests in the State,”59 (ii) affirm its
discretionary nature by clarifying that diplomatic protection
is a “sovereign prerogative” of the State;60 and (iii) stress
that the state “has the right to exercise diplomatic
protection on behalf of a national. It is under no duty or
obligation to do so.”61
It has been argued, as petitioners argue now, that the State
has a duty to protect its nationals and act on his/her behalf
when rights are injured.62 However, at present, there is no
sufficient evidence to establish a general international
obligation for States to exercise diplomatic protection of
their own nationals abroad.63 Though, perhaps desirable,
neither state practice nor opinio juris has evolved in such a
direction. If it is a duty internationally, it is only a moral
and not a legal duty, and there is no means of enforcing its
fulfillment.64
We fully agree that rape, sexual slavery, torture, and sexual
violence are morally reprehensible as well as legally
prohibited under contemporary international
law.65 However, petitioners take quite a theoretical leap in
claiming that these proscriptions automatically imply that
that the Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since petitioners
do not demand the imputation of individual criminal
liability, but seek to recover monetary reparations from the
state of Japan. Absent the consent of states, an applicable
treaty regime, or a directive by the Security Council, there
is no non-derogable duty to institute proceedings against
Japan. Indeed, precisely because of states’ reluctance to
directly prosecute claims against another state, recent
developments support the modern trend to empower
individuals to directly participate in suits against
perpetrators of international crimes.66 Nonetheless,
notwithstanding an array of General Assembly resolutions
calling for the prosecution of crimes against humanity and
the strong policy arguments warranting such a rule, the
practice of states does not yet support the present existence
of an obligation to prosecute international crimes.67 Of
course a customary duty of prosecution is ideal, but we
cannot find enough evidence to reasonably assert its
existence. To the extent that any state practice in this area is
widespread, it is in the practice of granting amnesties,
immunity, selective prosecution, or de facto impunity to
those who commit crimes against humanity.”68
Even the invocation of jus cogens norms and erga omnes
obligations will not alter this analysis. Even if we sidestep
the question of whether jus cogens norms existed in 1951,
petitioners have not deigned to show that the crimes
committed by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was signed, or
that the duty to prosecute perpetrators of international
crimes is an erga omnes obligation or has attained the status
of jus cogens.
The term erga omnes (Latin: in relation to everyone) in
international law has been used as a legal term describing
obligations owed by States towards the community of states
as a whole. The concept was recognized by the ICJ in
Barcelona Traction:
x x x an essential distinction should be drawn between the
obligations of a State towards the international community
as a whole, and those arising vis-à-vis another State in the
field of diplomatic protection. By their very nature, the
former are the concern of all States. In view of the
importance of the rights involved, all States can be held to
have a legal interest in their protection; they are obligations
erga omnes.
Such obligations derive, for example, in contemporary
international law, from the outlawing of acts of aggression,
and of genocide, as also from the principles and rules
concerning the basic rights of the human person, including
protection from slavery and racial discrimination. Some of
the corresponding rights of protection have entered into the
body of general international law … others are conferred
by international instruments of a universal or quasi-
universal character.
The Latin phrase, ‘erga omnes,’ has since become one of
the rallying cries of those sharing a belief in the emergence
of a value-based international public order. However, as is
so often the case, the reality is neither so clear nor so
bright. Whatever the relevance of obligations erga
omnes as a legal concept, its full potential remains to be
realized in practice.69
The term is closely connected with the international law
concept of jus cogens. In international law, the term “jus
cogens” (literally, “compelling law”) refers to norms that
command peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not
admit derogation, and can be modified only by general
international norms of equivalent authority.70
Early strains of the jus cogens doctrine have existed since
the 1700s,71 but peremptory norms began to attract greater
scholarly attention with the publication of Alfred von
Verdross’s influential 1937 article, Forbidden Treaties in
International Law.72 The recognition of jus cogens gained
even more force in the 1950s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law of
Treaties (VCLT).73 Though there was a consensus that
certain international norms had attained the status of jus
cogens,74 the ILC was unable to reach a consensus on the
proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of
jus cogens, the ILC concluded ruefully in 1963 that “there
is not as yet any generally accepted criterion by which to
identify a general rule of international law as having the
character of jus cogens.”75 In a commentary accompanying
the draft convention, the ILC indicated that “the prudent
course seems to be to x x x leave the full content of this
rule to be worked out in State practice and in the
jurisprudence of international tribunals.”76 Thus, while the
existence of jus cogens in international law is undisputed,
no consensus exists on its substance,77 beyond a tiny core
of principles and rules.78
Of course, we greatly sympathize with the cause of
petitioners, and we cannot begin to comprehend the
unimaginable horror they underwent at the hands of the
Japanese soldiers. We are also deeply concerned that, in
apparent contravention of fundamental principles of law,
the petitioners appear to be without a remedy to challenge
those that have offended them before appropriate fora.
Needless to say, our government should take the lead in
protecting its citizens against violation of their fundamental
human rights. Regrettably, it is not within our power to
order the Executive Department to take up the petitioners’
cause. Ours is only the power to urge and exhort the
Executive Department to take up petitioners’ cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.MARIANO C. DEL CASTILLO
Associate Justice