G.R. No.
104768 July 21, 2003 The value of the property located in Quezon City may be estimated modestly at
REPUBLIC OF THE PHILIPPINES, Petitioner, vs. SANDIGANBAYAN, MAJOR
GENERAL JOSEPHUS Q. RAMAS and ELIZABETH DIMAANO, Respondents.
DECISION
CARPIO, J.:
The Case
Before this Court is a petition for review on certiorari seeking to set aside the
Resolutions of the Sandiganbayan (First Division)1 dated 18 November 1991 and 25
March 1992 in Civil Case No. 0037. The first Resolution dismissed petitioner’s
Amended Complaint and ordered the return of the confiscated items to respondent
Elizabeth Dimaano, while the second Resolution denied petitioner’s Motion for
Reconsideration. Petitioner prays for the grant of the reliefs sought in its Amended
Complaint, or in the alternative, for the remand of this case to the Sandiganbayan (First
Division) for further proceedings allowing petitioner to complete the presentation of its
evidence.
Antecedent Facts
Immediately upon her assumption to office following the successful EDSA Revolution,
then President Corazon C. Aquino issued Executive Order No. 1 ("EO No. 1") creating
the Presidential Commission on Good Government ("PCGG"). EO No. 1 primarily
tasked the PCGG to recover all ill-gotten wealth of former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates. EO No. 1
vested the PCGG with the power "(a) to conduct investigation as may be necessary in
order to accomplish and carry out the purposes of this order" and the power "(h) to
promulgate such rules and regulations as may be necessary to carry out the purpose
of this order." Accordingly, the PCGG, through its then Chairman Jovito R. Salonga,
created an AFP Anti-Graft Board ("AFP Board") tasked to investigate reports of
unexplained wealth and corrupt practices by AFP personnel, whether in the active
service or retired.2
Based on its mandate, the AFP Board investigated various reports of alleged
unexplained wealth of respondent Major General Josephus Q. Ramas ("Ramas"). On
27 July 1987, the AFP Board issued a Resolution on its findings and recommendation
on the reported unexplained wealth of Ramas. The relevant part of the Resolution
reads:
III. FINDINGS and EVALUATION:
Evidence in the record showed that respondent is the owner of a house and lot located
at 15-Yakan St., La Vista, Quezon City. He is also the owner of a house and lot located
in Cebu City. The lot has an area of 3,327 square meters.
₱700,000.00.
The equipment/items and communication facilities which were found in the premises of
Elizabeth Dimaano and were confiscated by elements of the PC Command of Batangas
were all covered by invoice receipt in the name of CAPT. EFREN SALIDO, RSO
Command Coy, MSC, PA. These items could not have been in the possession of
Elizabeth Dimaano if not given for her use by respondent Commanding General of the
Philippine Army.
Aside from the military equipment/items and communications equipment, the raiding
team was also able to confiscate money in the amount of ₱2,870,000.00 and $50,000
US Dollars in the house of Elizabeth Dimaano on 3 March 1986.
Affidavits of members of the Military Security Unit, Military Security Command,
Philippine Army, stationed at Camp Eldridge, Los Baños, Laguna, disclosed that
Elizabeth Dimaano is the mistress of respondent. That respondent usually goes and
stays and sleeps in the alleged house of Elizabeth Dimaano in Barangay Tengga, Itaas,
Batangas City and when he arrives, Elizabeth Dimaano embraces and kisses
respondent. That on February 25, 1986, a person who rode in a car went to the
residence of Elizabeth Dimaano with four (4) attache cases filled with money and
owned by MGen Ramas.
Sworn statement in the record disclosed also that Elizabeth Dimaano had no visible
means of income and is supported by respondent for she was formerly a mere
secretary.
Taking in toto the evidence, Elizabeth Dimaano could not have used the military
equipment/items seized in her house on March 3, 1986 without the consent of
respondent, he being the Commanding General of the Philippine Army. It is also
impossible for Elizabeth Dimaano to claim that she owns the ₱2,870,000.00 and
$50,000 US Dollars for she had no visible source of income.
This money was never declared in the Statement of Assets and Liabilities of
respondent. There was an intention to cover the existence of these money because
these are all ill-gotten and unexplained wealth. Were it not for the affidavits of the
members of the Military Security Unit assigned at Camp Eldridge, Los Baños, Laguna,
the existence and ownership of these money would have never been known.
The Statement of Assets and Liabilities of respondent were also submitted for scrutiny
and analysis by the Board’s consultant. Although the amount of ₱2,870,000.00 and
$50,000 US Dollars were not included, still it was disclosed that respondent has an
unexplained wealth of ₱104,134. 60.
IV. CONCLUSION:
In view of the foregoing, the Board finds that a prima facie case exists against
respondent for ill-gotten and unexplained wealth in the amount of ₱2,974,134.00 and
$50,000 US Dollars.
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted
and tried for violation of RA 3019, as amended, otherwise known as "Anti-Graft and
Corrupt Practices Act" and RA 1379, as amended, otherwise known as "The Act for the
Forfeiture of Unlawfully Acquired Property."3
Thus, on 1 August 1987, the PCGG filed a petition for forfeiture under Republic Act No.
1379 ("RA No. 1379") 4against Ramas.
Before Ramas could answer the petition, then Solicitor General Francisco I. Chavez
filed an Amended Complaint naming the Republic of the Philippines ("petitioner"),
represented by the PCGG, as plaintiff and Ramas as defendant. The Amended
Complaint also impleaded Elizabeth Dimaano ("Dimaano") as co-defendant.
The Amended Complaint alleged that Ramas was the Commanding General of the
Philippine Army until 1986. On the other hand, Dimaano was a confidential agent of the
Military Security Unit, Philippine Army, assigned as a clerk-typist at the office of Ramas
from 1 January 1978 to February 1979. The Amended Complaint further alleged that
Ramas "acquired funds, assets and properties manifestly out of proportion to his salary
as an army officer and his other income from legitimately acquired property by taking
undue advantage of his public office and/or using his power, authority and influence as
such officer of the Armed Forces of the Philippines and as a subordinate and close
associate of the deposed President Ferdinand Marcos." 5
The Amended Complaint also alleged that the AFP Board, after a previous inquiry,
found reasonable ground to believe that respondents have violated RA No. 1379. 6 The
Amended Complaint prayed for, among others, the forfeiture of respondents’
properties, funds and equipment in favor of the State.
Ramas filed an Answer with Special and/or Affirmative Defenses and Compulsory
Counterclaim to the Amended Complaint. In his Answer, Ramas contended that his
property consisted only of a residential house at La Vista Subdivision, Quezon City,
valued at ₱700,000, which was not out of proportion to his salary and other legitimate
income. He denied ownership of any mansion in Cebu City and the cash,
communications equipment and other items confiscated from the house of Dimaano.
Dimaano filed her own Answer to the Amended Complaint. Admitting her employment
as a clerk-typist in the office of Ramas from January-November 1978 only, Dimaano
claimed ownership of the monies, communications equipment, jewelry and land titles
taken from her house by the Philippine Constabulary raiding team.
After termination of the pre-trial,7 the court set the case for trial on the merits on 9-11
November 1988.
On 9 November 1988, petitioner asked for a deferment of the hearing due to its lack of
preparation for trial and the absence of witnesses and vital documents to support its
case. The court reset the hearing to 17 and 18 April 1989.
On 13 April 1989, petitioner filed a motion for leave to amend the complaint in order "to
charge the delinquent properties with being subject to forfeiture as having been
unlawfully acquired by defendant Dimaano alone x x x." 8
Nevertheless, in an order dated 17 April 1989, the Sandiganbayan proceeded with
petitioner’s presentation of evidence on the ground that the motion for leave to amend
complaint did not state when petitioner would file the amended complaint. The
Sandiganbayan further stated that the subject matter of the amended complaint was on
its face vague and not related to the existing complaint. The Sandiganbayan also held
that due to the time that the case had been pending in court, petitioner should proceed
to present its evidence.
After presenting only three witnesses, petitioner asked for a postponement of the trial.
On 28 September 1989, during the continuation of the trial, petitioner manifested its
inability to proceed to trial because of the absence of other witnesses or lack of further
evidence to present. Instead, petitioner reiterated its motion to amend the complaint to
conform to the evidence already presented or to change the averments to show that
Dimaano alone unlawfully acquired the monies or properties subject of the forfeiture.
The Sandiganbayan noted that petitioner had already delayed the case for over a year
mainly because of its many postponements. Moreover, petitioner would want the case
to revert to its preliminary stage when in fact the case had long been ready for trial. The
Sandiganbayan ordered petitioner to prepare for presentation of its additional evidence,
if any.
During the trial on 23 March 1990, petitioner again admitted its inability to present
further evidence. Giving petitioner one more chance to present further evidence or to
amend the complaint to conform to its evidence, the Sandiganbayan reset the trial to
18 May 1990. The Sandiganbayan, however, hinted that the re-setting was without
prejudice to any action that private respondents might take under the circumstances.
However, on 18 May 1990, petitioner again expressed its inability to proceed to trial
because it had no further evidence to present. Again, in the interest of justice, the
Sandiganbayan granted petitioner 60 days within which to file an appropriate pleading.
The Sandiganbayan, however, warned petitioner that failure to act would constrain the
court to take drastic action.
Private respondents then filed their motions to dismiss based on Republic v.
Migrino.9 The Court held in Migrino that the PCGG does not have jurisdiction to
investigate and prosecute military officers by reason of mere position held without a
showing that they are "subordinates" of former President Marcos.
On 18 November 1991, the Sandiganbayan rendered a resolution, the dispositive
portion of which states:
WHEREFORE, judgment is hereby rendered dismissing the Amended Complaint,
without pronouncement as to costs. The counterclaims are likewise dismissed for lack
of merit, but the confiscated sum of money, communications equipment, jewelry and
land titles are ordered returned to Elizabeth Dimaano.
The records of this case are hereby remanded and referred to the Hon. Ombudsman,
who has primary jurisdiction over the forfeiture cases under R.A. No. 1379, for such
appropriate action as the evidence warrants. This case is also referred to the
Commissioner of the Bureau of Internal Revenue for a determination of any tax liability
of respondent Elizabeth Dimaano in connection herewith.
SO ORDERED.
On 4 December 1991, petitioner filed its Motion for Reconsideration.
In answer to the Motion for Reconsideration, private respondents filed a Joint
Comment/Opposition to which petitioner filed its Reply on 10 January 1992.
On 25 March 1992, the Sandiganbayan rendered a Resolution denying the Motion for
Reconsideration.
Ruling of the Sandiganbayan
The Sandiganbayan dismissed the Amended Complaint on the following grounds:
(1.) The actions taken by the PCGG are not in accordance with the rulings of
the Supreme Court in Cruz, Jr. v. Sandiganbayan 10 and Republic v.
Migrino11 which involve the same issues.
(2.) No previous inquiry similar to preliminary investigations in criminal cases
was conducted against Ramas and Dimaano.
(3.) The evidence adduced against Ramas does not constitute a prima facie
case against him.
(4.) There was an illegal search and seizure of the items confiscated.
The Issues
Petitioner raises the following issues:
A. RESPONDENT COURT SERIOUSLY ERRED IN CONCLUDING THAT
PETITIONER’S EVIDENCE CANNOT MAKE A CASE FOR FORFEITURE
AND THAT THERE WAS NO SHOWING OF CONSPIRACY, COLLUSION
OR RELATIONSHIP BY CONSANGUINITY OR AFFINITY BY AND
BETWEEN RESPONDENT RAMAS AND RESPONDENT DIMAANO
NOTWITHSTANDING THE FACT THAT SUCH CONCLUSIONS WERE
CLEARLY UNFOUNDED AND PREMATURE, HAVING BEEN RENDERED
PRIOR TO THE COMPLETION OF THE PRESENTATION OF THE
EVIDENCE OF THE PETITIONER.
B. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ACTIONS TAKEN BY THE PETITIONER, INCLUDING THE FILING OF THE
ORIGINAL COMPLAINT AND THE AMENDED COMPLAINT, SHOULD BE
STRUCK OUT IN LINE WITH THE RULINGS OF THE SUPREME COURT IN
CRUZ, JR. v. SANDIGANBAYAN, 194 SCRA 474 AND REPUBLIC v.
MIGRINO, 189 SCRA 289, NOTWITHSTANDING THE FACT THAT:
1. The cases of Cruz, Jr. v. Sandiganbayan, supra, and Republic v.
Migrino, supra, are clearly not applicable to this case;
2. Any procedural defect in the institution of the complaint in Civil
Case No. 0037 was cured and/or waived by respondents with the
filing of their respective answers with counterclaim; and
3. The separate motions to dismiss were evidently improper
considering that they were filed after commencement of the
presentation of the evidence of the petitioner and even before the
latter was allowed to formally offer its evidence and rest its case;
C. RESPONDENT COURT SERIOUSLY ERRED IN HOLDING THAT THE
ARTICLES AND THINGS SUCH AS SUMS OF MONEY,
COMMUNICATIONS EQUIPMENT, JEWELRY AND LAND TITLES
CONFISCATED FROM THE HOUSE OF RESPONDENT DIMAANO WERE
ILLEGALLY SEIZED AND THEREFORE EXCLUDED AS EVIDENCE.12
The Court’s Ruling
First Issue: PCGG’s Jurisdiction to Investigate Private Respondents
This case involves a revisiting of an old issue already decided by this Court in Cruz, Jr.
v. Sandiganbayan13 and Republic v. Migrino.14
The primary issue for resolution is whether the PCGG has the jurisdiction to investigate
and cause the filing of a forfeiture petition against Ramas and Dimaano for unexplained
wealth under RA No. 1379.
We hold that PCGG has no such jurisdiction.
The PCGG created the AFP Board to investigate the unexplained wealth and corrupt
practices of AFP personnel, whether in the active service or retired. 15 The PCGG tasked
the AFP Board to make the necessary recommendations to appropriate government
agencies on the action to be taken based on its findings.16 The PCGG gave this task to
the AFP Board pursuant to the PCGG’s power under Section 3 of EO No. 1 "to conduct
investigation as may be necessary in order to accomplish and to carry out the purposes
of this order." EO No. 1 gave the PCGG specific responsibilities, to wit:
SEC. 2. The Commission shall be charged with the task of assisting the President in
regard to the following matters:
(a) The recovery of all ill-gotten wealth accumulated by former President Ferdinand E.
Marcos, his immediate family, relatives, subordinates and close associates, whether
located in the Philippines or abroad, including the takeover and sequestration of all
business enterprises and entities owned or controlled by them, during his
administration, directly or through nominees, by taking undue advantage of their public
office and/ or using their powers, authority, influence, connections or relationship.
(b) The investigation of such cases of graft and corruption as the President may assign
to the Commission from time to time.
x x x.
The PCGG, through the AFP Board, can only investigate the unexplained wealth and
corrupt practices of AFP personnel who fall under either of the two categories
mentioned in Section 2 of EO No. 1. These are: (1) AFP personnel who have
accumulated ill-gotten wealth during the administration of former President Marcos by
being the latter’s immediate family, relative, subordinate or close associate, taking
undue advantage of their public office or using their powers, influence x x x;17 or (2)
AFP personnel involved in other cases of graft and corruption provided the President
assigns their cases to the PCGG.18
Petitioner, however, does not claim that the President assigned Ramas’ case to the
PCGG. Therefore, Ramas’ case should fall under the first category of AFP personnel
before the PCGG could exercise its jurisdiction over him. Petitioner argues that Ramas
was undoubtedly a subordinate of former President Marcos because of his position as
the Commanding General of the Philippine Army. Petitioner claims that Ramas’ position
enabled him to receive orders directly from his commander-in-chief, undeniably making
him a subordinate of former President Marcos.
We hold that Ramas was not a "subordinate" of former President Marcos in the sense
contemplated under EO No. 1 and its amendments.
Mere position held by a military officer does not automatically make him a "subordinate"
as this term is used in EO Nos. 1, 2, 14 and 14-A absent a showing that he enjoyed
close association with former President Marcos. Migrino discussed this issue in this
wise:
A close reading of EO No. 1 and related executive orders will readily show what is
contemplated within the term ‘subordinate.’ The Whereas Clauses of EO No. 1 express
the urgent need to recover the ill-gotten wealth amassed by former President Ferdinand
E. Marcos, his immediate family, relatives, and close associates both here and abroad.
EO No. 2 freezes ‘all assets and properties in the Philippines in which former President
Marcos and/or his wife, Mrs. Imelda Marcos, their close relatives, subordinates,
business associates, dummies, agents, or nominees have any interest or participation.’
Applying the rule in statutory construction known as ejusdem generis that is-
‘[W]here general words follow an enumeration of persons or things by words of a
particular and specific meaning, such general words are not to be construed in their
widest extent, but are to be held as applying only to persons or things of the same kind
or class as those specifically mentioned [Smith, Bell & Co, Ltd. vs. Register of Deeds
of Davao, 96 Phil. 53, 58, citing Black on Interpretation of Laws, 2nd Ed., 203].’
[T]he term "subordinate" as used in EO Nos. 1 & 2 refers to one who enjoys a close
association with former President Marcos and/or his wife, similar to the immediate
family member, relative, and close associate in EO No. 1 and the close relative,
business associate, dummy, agent, or nominee in EO No. 2.
xxx
It does not suffice, as in this case, that the respondent is or was a government official
or employee during the administration of former President Marcos. There must be a
prima facie showing that the respondent unlawfully accumulated wealth by virtue of his
close association or relation with former Pres. Marcos and/or his wife. (Emphasis
supplied)
Ramas’ position alone as Commanding General of the Philippine Army with the rank of
Major General19 does not suffice to make him a "subordinate" of former President
Marcos for purposes of EO No. 1 and its amendments. The PCGG has to provide a
prima facie showing that Ramas was a close associate of former President Marcos, in
the same manner that business associates, dummies, agents or nominees of former
President Marcos were close to him. Such close association is manifested either by
Ramas’ complicity with former President Marcos in the accumulation of ill-gotten wealth
by the deposed President or by former President Marcos’ acquiescence in Ramas’ own
accumulation of ill-gotten wealth if any.
This, the PCGG failed to do.
Petitioner’s attempt to differentiate the instant case from Migrino does not convince us.
Petitioner argues that unlike in Migrino, the AFP Board Resolution in the instant case
states that the AFP Board conducted the investigation pursuant to EO Nos. 1, 2, 14
and 14-A in relation to RA No. 1379. Petitioner asserts that there is a presumption that
the PCGG was acting within its jurisdiction of investigating crony-related cases of graft
and corruption and that Ramas was truly a subordinate of the former President.
However, the same AFP Board Resolution belies this contention. Although the
Resolution begins with such statement, it ends with the following recommendation:
V. RECOMMENDATION:
Wherefore it is recommended that Maj. Gen. Josephus Q. Ramas (ret.) be prosecuted
and tried for violation of RA 3019, as amended, otherwise known as "Anti-Graft and
Corrupt Practices Act" and RA 1379, as amended, otherwise known as "The Act for the
Forfeiture of Unlawfully Acquired Property."20
Thus, although the PCGG sought to investigate and prosecute private respondents
under EO Nos. 1, 2, 14 and 14-A, the result yielded a finding of violation of Republic
Acts Nos. 3019 and 1379 without any relation to EO Nos. 1, 2, 14 and 14-A. This
absence of relation to EO No. 1 and its amendments proves fatal to petitioner’s case.
EO No. 1 created the PCGG for a specific and limited purpose, and necessarily its
powers must be construed to address such specific and limited purpose.
Moreover, the resolution of the AFP Board and even the Amended Complaint do not
show that the properties Ramas allegedly owned were accumulated by him in his
capacity as a "subordinate" of his commander-in-chief. Petitioner merely enumerated
the properties Ramas allegedly owned and suggested that these properties were
disproportionate to his salary and other legitimate income without showing that Ramas
amassed them because of his close association with former President Marcos.
Petitioner, in fact, admits that the AFP Board resolution does not contain a finding that
Ramas accumulated his wealth because of his close association with former President
Marcos, thus:
10. While it is true that the resolution of the Anti-Graft Board of the New Armed
Forces of the Philippines did not categorically find a prima facie evidence
showing that respondent Ramas unlawfully accumulated wealth by virtue of his
close association or relation with former President Marcos and/or his wife, it is
submitted that such omission was not fatal. The resolution of the Anti-Graft Board
should be read in the context of the law creating the same and the objective of the
investigation which was, as stated in the above, pursuant to Republic Act Nos. 3019
and 1379 in relation to Executive Order Nos. 1, 2, 14 and 14-a;21 (Emphasis supplied)
Such omission is fatal. Petitioner forgets that it is precisely a prima facie showing that
the ill-gotten wealth was accumulated by a "subordinate" of former President Marcos
that vests jurisdiction on PCGG. EO No. 122 clearly premises the creation of the PCGG
on the urgent need to recover all ill-gotten wealth amassed by former President Marcos,
his immediate family, relatives, subordinates and close associates. Therefore, to say
that such omission was not fatal is clearly contrary to the intent behind the creation of
the PCGG.
In Cruz, Jr. v. Sandiganbayan,23 the Court outlined the cases that fall under the
jurisdiction of the PCGG pursuant to EO Nos. 1, 2,24 14,25 14-A:26
A careful reading of Sections 2(a) and 3 of Executive Order No. 1 in relation with
Sections 1, 2 and 3 of Executive Order No. 14, shows what the authority of the
respondent PCGG to investigate and prosecute covers:
(a) the investigation and prosecution of the civil action for the recovery of ill-
gotten wealth under Republic Act No. 1379, accumulated by former President
Marcos, his immediate family, relatives, subordinates and close associates,
whether located in the Philippines or abroad, including the take-over or
sequestration of all business enterprises and entities owned or controlled by
them, during his administration, directly or through his nominees, by taking
undue advantage of their public office and/or using their powers, authority and
influence, connections or relationships; and
(b) the investigation and prosecution of such offenses committed in the
acquisition of said ill-gotten wealth as contemplated under Section 2(a) of
Executive Order No. 1.
However, other violations of the Anti-Graft and Corrupt Practices Act not
otherwise falling under the foregoing categories, require a previous authority of
the President for the respondent PCGG to investigate and prosecute in
accordance with Section 2 (b) of Executive Order No. 1. Otherwise, jurisdiction
over such cases is vested in the Ombudsman and other duly authorized
investigating agencies such as the provincial and city prosecutors, their
assistants, the Chief State Prosecutor and his assistants and the state
prosecutors. (Emphasis supplied)
The proper government agencies, and not the PCGG, should investigate and prosecute
forfeiture petitions not falling under EO No. 1 and its amendments. The preliminary
investigation of unexplained wealth amassed on or before 25 February 1986 falls under
the jurisdiction of the Ombudsman, while the authority to file the corresponding
forfeiture petition rests with the Solicitor General.27 The Ombudsman Act or Republic
Act No. 6770 ("RA No. 6770") vests in the Ombudsman the power to conduct
preliminary investigation and to file forfeiture proceedings involving unexplained wealth
amassed after 25 February 1986.28
After the pronouncements of the Court in Cruz, the PCGG still pursued this case despite
the absence of a prima facie finding that Ramas was a "subordinate" of former
President Marcos. The petition for forfeiture filed with the Sandiganbayan should be
dismissed for lack of authority by the PCGG to investigate respondents since there is
no prima facie showing that EO No. 1 and its amendments apply to respondents. The
AFP Board Resolution and even the Amended Complaint state that there are violations
of RA Nos. 3019 and 1379. Thus, the PCGG should have recommended Ramas’ case
to the Ombudsman who has jurisdiction to conduct the preliminary investigation of
ordinary unexplained wealth and graft cases. As stated in Migrino:
[But] in view of the patent lack of authority of the PCGG to investigate and cause the
prosecution of private respondent for violation of Rep. Acts Nos. 3019 and 1379, the
PCGG must also be enjoined from proceeding with the case, without prejudice to any
action that may be taken by the proper prosecutory agency. The rule of law mandates
that an agency of government be allowed to exercise only the powers granted to it.
Petitioner’s argument that private respondents have waived any defect in the filing of
the forfeiture petition by submitting their respective Answers with counterclaim
deserves no merit as well.
Petitioner has no jurisdiction over private respondents. Thus, there is no jurisdiction to
waive in the first place. The PCGG cannot exercise investigative or prosecutorial
powers never granted to it. PCGG’s powers are specific and limited. Unless given
additional assignment by the President, PCGG’s sole task is only to recover the ill-
gotten wealth of the Marcoses, their relatives and cronies. 29 Without these elements,
the PCGG cannot claim jurisdiction over a case.
Private respondents questioned the authority and jurisdiction of the PCGG to
investigate and prosecute their cases by filing their Motion to Dismiss as soon as they
learned of the pronouncement of the Court in Migrino. This case was decided on 30
August 1990, which explains why private respondents only filed their Motion to Dismiss
on 8 October 1990. Nevertheless, we have held that the parties may raise lack of
jurisdiction at any stage of the proceeding.30 Thus, we hold that there was no waiver of
jurisdiction in this case. Jurisdiction is vested by law and not by the parties to an
action.31
Consequently, the petition should be dismissed for lack of jurisdiction by the PCGG to
conduct the preliminary investigation. The Ombudsman may still conduct the proper
preliminary investigation for violation of RA No. 1379, and if warranted, the Solicitor
General may file the forfeiture petition with the Sandiganbayan. 32 The right of the State
to forfeit unexplained wealth under RA No. 1379 is not subject to prescription, laches
or estoppel.33
Second Issue: Propriety of Dismissal of Case
Before Completion of Presentation of Evidence
Petitioner also contends that the Sandiganbayan erred in dismissing the case before
completion of the presentation of petitioner’s evidence.
We disagree.
Based on the findings of the Sandiganbayan and the records of this case, we find that
petitioner has only itself to blame for non-completion of the presentation of its evidence.
First, this case has been pending for four years before the Sandiganbayan dismissed
it. Petitioner filed its Amended Complaint on 11 August 1987, and only began to present
its evidence on 17 April 1989. Petitioner had almost two years to prepare its evidence.
However, despite this sufficient time, petitioner still delayed the presentation of the rest
of its evidence by filing numerous motions for postponements and extensions. Even
before the date set for the presentation of its evidence, petitioner filed, on 13 April 1989,
a Motion for Leave to Amend the Complaint. 34 The motion sought "to charge the
delinquent properties (which comprise most of petitioner’s evidence) with being subject
to forfeiture as having been unlawfully acquired by defendant Dimaano alone x x x."
The Sandiganbayan, however, refused to defer the presentation of petitioner’s
evidence since petitioner did not state when it would file the amended complaint. On
18 April 1989, the Sandiganbayan set the continuation of the presentation of evidence
on 28-29 September and 9-11 October 1989, giving petitioner ample time to prepare
its evidence. Still, on 28 September 1989, petitioner manifested its inability to proceed
with the presentation of its evidence. The Sandiganbayan issued an Order expressing
its view on the matter, to wit:
The Court has gone through extended inquiry and a narration of the above events
because this case has been ready for trial for over a year and much of the delay hereon
has been due to the inability of the government to produce on scheduled dates for pre-
trial and for trial documents and witnesses, allegedly upon the failure of the military to
supply them for the preparation of the presentation of evidence thereon. Of equal
interest is the fact that this Court has been held to task in public about its alleged failure
to move cases such as this one beyond the preliminary stage, when, in view of the
developments such as those of today, this Court is now faced with a situation where a
case already in progress will revert back to the preliminary stage, despite a five-month
pause where appropriate action could have been undertaken by the plaintiff Republic. 35
On 9 October 1989, the PCGG manifested in court that it was conducting a preliminary
investigation on the unexplained wealth of private respondents as mandated by RA No.
1379.36 The PCGG prayed for an additional four months to conduct the preliminary
investigation. The Sandiganbayan granted this request and scheduled the presentation
of evidence on 26-29 March 1990. However, on the scheduled date, petitioner failed to
inform the court of the result of the preliminary investigation the PCGG supposedly
conducted. Again, the Sandiganbayan gave petitioner until 18 May 1990 to continue
with the presentation of its evidence and to inform the court of "what lies ahead insofar
as the status of the case is concerned x x x." 37 Still on the date set, petitioner failed to
present its evidence. Finally, on 11 July 1990, petitioner filed its Re-Amended
Complaint.38 The Sandiganbayan correctly observed that a case already pending for
years would revert to its preliminary stage if the court were to accept the Re-Amended
Complaint.
Based on these circumstances, obviously petitioner has only itself to blame for failure
to complete the presentation of its evidence. The Sandiganbayan gave petitioner more
than sufficient time to finish the presentation of its evidence. The Sandiganbayan
overlooked petitioner’s delays and yet petitioner ended the long-string of delays with
the filing of a Re-Amended Complaint, which would only prolong even more the
disposition of the case.
Moreover, the pronouncements of the Court in Migrino and Cruz prompted the
Sandiganbayan to dismiss the case since the PCGG has no jurisdiction to investigate
and prosecute the case against private respondents. This alone would have been
sufficient legal basis for the Sandiganbayan to dismiss the forfeiture case against
private respondents.
Thus, we hold that the Sandiganbayan did not err in dismissing the case before
completion of the presentation of petitioner’s evidence.
Third Issue: Legality of the Search and Seizure
Petitioner claims that the Sandiganbayan erred in declaring the properties confiscated
from Dimaano’s house as illegally seized and therefore inadmissible in evidence. This
issue bears a significant effect on petitioner’s case since these properties comprise
most of petitioner’s evidence against private respondents. Petitioner will not have much
evidence to support its case against private respondents if these properties are
inadmissible in evidence.
On 3 March 1986, the Constabulary raiding team served at Dimaano’s residence a
search warrant captioned "Illegal Possession of Firearms and Ammunition." Dimaano
was not present during the raid but Dimaano’s cousins witnessed the raid. The raiding
team seized the items detailed in the seizure receipt together with other items not
included in the search warrant. The raiding team seized these items: one baby armalite
rifle with two magazines; 40 rounds of 5.56 ammunition; one pistol, caliber .45;
communications equipment, cash consisting of ₱2,870,000 and US$50,000, jewelry,
and land titles.
Petitioner wants the Court to take judicial notice that the raiding team conducted the
search and seizure "on March 3, 1986 or five days after the successful EDSA
revolution."39 Petitioner argues that a revolutionary government was operative at that
time by virtue of Proclamation No. 1 announcing that President Aquino and Vice
President Laurel were "taking power in the name and by the will of the Filipino
people."40 Petitioner asserts that the revolutionary government effectively withheld the
operation of the 1973 Constitution which guaranteed private respondents’ exclusionary
right.
Moreover, petitioner argues that the exclusionary right arising from an illegal search
applies only beginning 2 February 1987, the date of ratification of the 1987 Constitution.
Petitioner contends that all rights under the Bill of Rights had already reverted to its
embryonic stage at the time of the search. Therefore, the government may confiscate
the monies and items taken from Dimaano and use the same in evidence against her
since at the time of their seizure, private respondents did not enjoy any constitutional
right.
Petitioner is partly right in its arguments.
The EDSA Revolution took place on 23-25 February 1986. As succinctly stated in
President Aquino’s Proclamation No. 3 dated 25 March 1986, the EDSA Revolution
was "done in defiance of the provisions of the 1973 Constitution."41 The resulting
government was indisputably a revolutionary government bound by no constitution or
legal limitations except treaty obligations that the revolutionary government, as the de
jure government in the Philippines, assumed under international law.
The correct issues are: (1) whether the revolutionary government was bound by the Bill
of Rights of the 1973 Constitution during the interregnum, that is, after the actual and
effective take-over of power by the revolutionary government following the cessation of
resistance by loyalist forces up to 24 March 1986 (immediately before the adoption of
the Provisional Constitution); and (2) whether the protection accorded to individuals
under the International Covenant on Civil and Political Rights ("Covenant") and the
Universal Declaration of Human Rights ("Declaration") remained in effect during the
interregnum.
We hold that the Bill of Rights under the 1973 Constitution was not operative during the
interregnum. However, we rule that the protection accorded to individuals under the
Covenant and the Declaration remained in effect during the interregnum.
During the interregnum, the directives and orders of the revolutionary government were
the supreme law because no constitution limited the extent and scope of such directives
and orders. With the abrogation of the 1973 Constitution by the successful revolution,
there was no municipal law higher than the directives and orders of the revolutionary
government. Thus, during the interregnum, a person could not invoke any exclusionary
right under a Bill of Rights because there was neither a constitution nor a Bill of Rights
during the interregnum. As the Court explained in Letter of Associate Justice Reynato
S. Puno:42
A revolution has been defined as "the complete overthrow of the established
government in any country or state by those who were previously subject to it" or as "a
sudden, radical and fundamental change in the government or political system, usually
effected with violence or at least some acts of violence." In Kelsen's book, General
Theory of Law and State, it is defined as that which "occurs whenever the legal order
of a community is nullified and replaced by a new order . . . a way not prescribed by the
first order itself."
It was through the February 1986 revolution, a relatively peaceful one, and more
popularly known as the "people power revolution" that the Filipino people tore
themselves away from an existing regime. This revolution also saw the unprecedented
rise to power of the Aquino government.
From the natural law point of view, the right of revolution has been defined as "an
inherent right of a people to cast out their rulers, change their policy or effect radical
reforms in their system of government or institutions by force or a general uprising when
the legal and constitutional methods of making such change have proved inadequate
or are so obstructed as to be unavailable." It has been said that "the locus of positive
law-making power lies with the people of the state" and from there is derived "the right
of the people to abolish, to reform and to alter any existing form of government without
regard to the existing constitution."
xxx
It is widely known that Mrs. Aquino’s rise to the presidency was not due to
constitutional processes; in fact, it was achieved in violation of the provisions of
the 1973 Constitution as a Batasang Pambansa resolution had earlier declared
Mr. Marcos as the winner in the 1986 presidential election. Thus it can be said that
the organization of Mrs. Aquino’s Government which was met by little resistance and
her control of the state evidenced by the appointment of the Cabinet and other key
officers of the administration, the departure of the Marcos Cabinet officials, revamp of
the Judiciary and the Military signaled the point where the legal system then in effect,
had ceased to be obeyed by the Filipino. (Emphasis supplied)
To hold that the Bill of Rights under the 1973 Constitution remained operative during
the interregnum would render void all sequestration orders issued by the Philippine
Commission on Good Government ("PCGG") before the adoption of the Freedom
Constitution. The sequestration orders, which direct the freezing and even the take-
over of private property by mere executive issuance without judicial action, would
violate the due process and search and seizure clauses of the Bill of Rights.
During the interregnum, the government in power was concededly a revolutionary
government bound by no constitution. No one could validly question the sequestration
orders as violative of the Bill of Rights because there was no Bill of Rights during the
interregnum. However, upon the adoption of the Freedom Constitution, the
sequestered companies assailed the sequestration orders as contrary to the Bill of
Rights of the Freedom Constitution.
In Bataan Shipyard & Engineering Co. Inc. vs. Presidential Commission on Good
Government,43 petitioner Baseco, while conceding there was no Bill of Rights during
the interregnum, questioned the continued validity of the sequestration orders upon
adoption of the Freedom Constitution in view of the due process clause in its Bill of
Rights. The Court ruled that the Freedom Constitution, and later the 1987 Constitution,
expressly recognized the validity of sequestration orders, thus:
If any doubt should still persist in the face of the foregoing considerations as to the
validity and propriety of sequestration, freeze and takeover orders, it should be
dispelled by the fact that these particular remedies and the authority of the PCGG to
issue them have received constitutional approbation and sanction. As already
mentioned, the Provisional or "Freedom" Constitution recognizes the power and duty
of the President to enact "measures to achieve the mandate of the people to . . .
(r)ecover ill-gotten properties amassed by the leaders and supporters of the previous
regime and protect the interest of the people through orders of sequestration or freezing
of assets or accounts." And as also already adverted to, Section 26, Article XVIII of the
1987 Constitution treats of, and ratifies the "authority to issue sequestration or freeze
orders under Proclamation No. 3 dated March 25, 1986."
The framers of both the Freedom Constitution and the 1987 Constitution were fully
aware that the sequestration orders would clash with the Bill of Rights. Thus, the
framers of both constitutions had to include specific language recognizing the validity
of the sequestration orders. The following discourse by Commissioner Joaquin G.
Bernas during the deliberations of the Constitutional Commission is instructive:
FR. BERNAS: Madam President, there is something schizophrenic about the
arguments in defense of the present amendment.
For instance, I have carefully studied Minister Salonga’s lecture in the Gregorio Araneta
University Foundation, of which all of us have been given a copy. On the one hand, he
argues that everything the Commission is doing is traditionally legal. This is repeated
by Commissioner Romulo also. Minister Salonga spends a major portion of his lecture
developing that argument. On the other hand, almost as an afterthought, he says that
in the end what matters are the results and not the legal niceties, thus suggesting that
the PCGG should be allowed to make some legal shortcuts, another word for niceties
or exceptions.
Now, if everything the PCGG is doing is legal, why is it asking the CONCOM for special
protection? The answer is clear. What they are doing will not stand the test of ordinary
due process, hence they are asking for protection, for exceptions. Grandes malos,
grandes remedios, fine, as the saying stands, but let us not say grandes malos, grande
y malos remedios. That is not an allowable extrapolation. Hence, we should not give
the exceptions asked for, and let me elaborate and give three reasons:
First, the whole point of the February Revolution and of the work of the CONCOM is to
hasten constitutional normalization. Very much at the heart of the constitutional
normalization is the full effectivity of the Bill of Rights. We cannot, in one breath, ask for
constitutional normalization and at the same time ask for a temporary halt to the full
functioning of what is at the heart of constitutionalism. That would be hypocritical; that
would be a repetition of Marcosian protestation of due process and rule of law. The
New Society word for that is "backsliding." It is tragic when we begin to backslide even
before we get there.
Second, this is really a corollary of the first. Habits tend to become ingrained. The
committee report asks for extraordinary exceptions from the Bill of Rights for six months
after the convening of Congress, and Congress may even extend this longer.
Good deeds repeated ripen into virtue; bad deeds repeated become vice. What the
committee report is asking for is that we should allow the new government to acquire
the vice of disregarding the Bill of Rights.
Vices, once they become ingrained, become difficult to shed. The practitioners of the
vice begin to think that they have a vested right to its practice, and they will fight tooth
and nail to keep the franchise. That would be an unhealthy way of consolidating the
gains of a democratic revolution.
Third, the argument that what matters are the results and not the legal niceties is an
argument that is very disturbing. When it comes from a staunch Christian like
Commissioner Salonga, a Minister, and repeated verbatim by another staunch
Christian like Commissioner Tingson, it becomes doubly disturbing and even
discombobulating. The argument makes the PCGG an auctioneer, placing the Bill of
Rights on the auction block. If the price is right, the search and seizure clause will be
sold. "Open your Swiss bank account to us and we will award you the search and
seizure clause. You can keep it in your private safe."
Alternatively, the argument looks on the present government as hostage to the
hoarders of hidden wealth. The hoarders will release the hidden health if the ransom
price is paid and the ransom price is the Bill of Rights, specifically the due process in
the search and seizure clauses. So, there is something positively revolving about either
argument. The Bill of Rights is not for sale to the highest bidder nor can it be used to
ransom captive dollars. This nation will survive and grow strong, only if it would become
convinced of the values enshrined in the Constitution of a price that is beyond monetary
estimation.
For these reasons, the honorable course for the Constitutional Commission is to delete
all of Section 8 of the committee report and allow the new Constitution to take effect in
full vigor. If Section 8 is deleted, the PCGG has two options. First, it can pursue the
Salonga and the Romulo argument — that what the PCGG has been doing has been
completely within the pale of the law. If sustained, the PCGG can go on and should be
able to go on, even without the support of Section 8. If not sustained, however, the
PCGG has only one honorable option, it must bow to the majesty of the Bill of Rights.
The PCGG extrapolation of the law is defended by staunch Christians. Let me conclude
with what another Christian replied when asked to toy around with the law. From his
prison cell, Thomas More said, "I'll give the devil benefit of law for my nation’s safety
sake." I ask the Commission to give the devil benefit of law for our nation’s sake. And
we should delete Section 8.
Thank you, Madam President. (Emphasis supplied)
Despite the impassioned plea by Commissioner Bernas against the amendment
excepting sequestration orders from the Bill of Rights, the Constitutional Commission
still adopted the amendment as Section 26,44 Article XVIII of the 1987 Constitution. The
framers of the Constitution were fully aware that absent Section 26, sequestration
orders would not stand the test of due process under the Bill of Rights.
Thus, to rule that the Bill of Rights of the 1973 Constitution remained in force during the
interregnum, absent a constitutional provision excepting sequestration orders from
such Bill of Rights, would clearly render all sequestration orders void during the
interregnum. Nevertheless, even during the interregnum the Filipino people continued
to enjoy, under the Covenant and the Declaration, almost the same rights found in the
Bill of Rights of the 1973 Constitution.
The revolutionary government, after installing itself as the de jure government,
assumed responsibility for the State’s good faith compliance with the Covenant to which
the Philippines is a signatory. Article 2(1) of the Covenant requires each signatory State
"to respect and to ensure to all individuals within its territory and subject to its jurisdiction
the rights45 recognized in the present Covenant." Under Article 17(1) of the Covenant,
the revolutionary government had the duty to insure that "[n]o one shall be subjected
to arbitrary or unlawful interference with his privacy, family, home or correspondence."
The Declaration, to which the Philippines is also a signatory, provides in its Article 17(2)
that "[n]o one shall be arbitrarily deprived of his property." Although the signatories to
the Declaration did not intend it as a legally binding document, being only a declaration,
the Court has interpreted the Declaration as part of the generally accepted principles
of international law and binding on the State.46 Thus, the revolutionary government was
also obligated under international law to observe the rights 47 of individuals under the
Declaration.
The revolutionary government did not repudiate the Covenant or the Declaration during
the interregnum. Whether the revolutionary government could have repudiated all its
obligations under the Covenant or the Declaration is another matter and is not the issue
here. Suffice it to say that the Court considers the Declaration as part of customary
international law, and that Filipinos as human beings are proper subjects of the rules of
international law laid down in the Covenant. The fact is the revolutionary government
did not repudiate the Covenant or the Declaration in the same way it repudiated the
1973 Constitution. As the de jure government, the revolutionary government could not
escape responsibility for the State’s good faith compliance with its treaty obligations
under international law.
It was only upon the adoption of the Provisional Constitution on 25 March 1986 that the
directives and orders of the revolutionary government became subject to a higher
municipal law that, if contravened, rendered such directives and orders void. The
Provisional Constitution adopted verbatim the Bill of Rights of the 1973
Constitution.48 The Provisional Constitution served as a self-limitation by the
revolutionary government to avoid abuses of the absolute powers entrusted to it by the
people.
During the interregnum when no constitution or Bill of Rights existed, directives and
orders issued by government officers were valid so long as these officers did not
exceed the authority granted them by the revolutionary government. The directives and
orders should not have also violated the Covenant or the Declaration. In this case, the
revolutionary government presumptively sanctioned the warrant since the revolutionary
government did not repudiate it. The warrant, issued by a judge upon proper
application, specified the items to be searched and seized. The warrant is thus valid
with respect to the items specifically described in the warrant.
However, the Constabulary raiding team seized items not included in the warrant. As
admitted by petitioner’s witnesses, the raiding team confiscated items not included in
the warrant, thus:
Direct Examination of Capt. Rodolfo Sebastian
AJ AMORES
Q. According to the search warrant, you are supposed to seize only for weapons. What
else, aside from the weapons, were seized from the house of Miss Elizabeth Dimaano?
A. The communications equipment, money in Philippine currency and US dollars, some
jewelries, land titles, sir.
Q. Now, the search warrant speaks only of weapons to be seized from the house of
Elizabeth Dimaano. Do you know the reason why your team also seized other
properties not mentioned in said search warrant?
A. During the conversation right after the conduct of said raid, I was informed that the
reason why they also brought the other items not included in the search warrant was
because the money and other jewelries were contained in attaché cases and cartons
with markings "Sony Trinitron", and I think three (3) vaults or steel safes. Believing that
the attaché cases and the steel safes were containing firearms, they forced open these
containers only to find out that they contained money.
xxx
Q. You said you found money instead of weapons, do you know the reason why your
team seized this money instead of weapons?
A. I think the overall team leader and the other two officers assisting him decided to
bring along also the money because at that time it was already dark and they felt most
secured if they will bring that because they might be suspected also of taking money
out of those items, your Honor.49
Cross-examination
Atty. Banaag
Q. Were you present when the search warrant in connection with this case was applied
before the Municipal Trial Court of Batangas, Branch 1?
A. Yes, sir.
Q. And the search warrant applied for by you was for the search and seizure of five (5)
baby armalite rifles M-16 and five (5) boxes of ammunition?
A. Yes, sir.
xxx
AJ AMORES
Q. Before you applied for a search warrant, did you conduct surveillance in the house
of Miss Elizabeth Dimaano?
A. The Intelligence Operatives conducted surveillance together with the MSU elements,
your Honor.
Q. And this party believed there were weapons deposited in the house of Miss Elizabeth
Dimaano?
A. Yes, your Honor.
Q. And they so swore before the Municipal Trial Judge?
A. Yes, your Honor.
Q. But they did not mention to you, the applicant for the search warrant, any other
properties or contraband which could be found in the residence of Miss Elizabeth
Dimaano?
A. They just gave us still unconfirmed report about some hidden items, for instance, the
communications equipment and money. However, I did not include that in the
application for search warrant considering that we have not established concrete
evidence about that. So when…
Q. So that when you applied for search warrant, you had reason to believe that only
weapons were in the house of Miss Elizabeth Dimaano?
A. Yes, your Honor.50
xxx
Q. You stated that a .45 caliber pistol was seized along with one armalite rifle M-16 and
how many ammunition?
A. Forty, sir.
Q. And this became the subject of your complaint with the issuing Court, with the fiscal’s
office who charged Elizabeth Dimaano for Illegal Possession of Firearms and
Ammunition?
A. Yes, sir.
Q. Do you know what happened to that case?
A. I think it was dismissed, sir.
Q. In the fiscal’s office?
A. Yes, sir.
Q. Because the armalite rifle you seized, as well as the .45 caliber pistol had a
Memorandum Receipt in the name of Felino Melegrito, is that not correct?
A. I think that was the reason, sir.
Q. There were other articles seized which were not included in the search warrant, like
for instance, jewelries. Why did you seize the jewelries?
A. I think it was the decision of the overall team leader and his assistant to bring along
also the jewelries and other items, sir. I do not really know where it was taken but they
brought along also these articles. I do not really know their reason for bringing the
same, but I just learned that these were taken because they might get lost if they will
just leave this behind.
xxx
Q. How about the money seized by your raiding team, they were not also included in
the search warrant?
A. Yes sir, but I believe they were also taken considering that the money was
discovered to be contained in attaché cases.1âwphi1 These attaché cases were
suspected to be containing pistols or other high powered firearms, but in the course of
the search the contents turned out to be money. So the team leader also decided to
take this considering that they believed that if they will just leave the money behind, it
might get lost also.
Q. That holds true also with respect to the other articles that were seized by your raiding
team, like Transfer Certificates of Title of lands?

A. Yes, sir. I think they were contained in one of the vaults that were opened. 51

It is obvious from the testimony of Captain Sebastian that the warrant did not include
the monies, communications equipment, jewelry and land titles that the raiding team
confiscated. The search warrant did not particularly describe these items and the
raiding team confiscated them on its own authority. The raiding team had no legal basis
to seize these items without showing that these items could be the subject of
warrantless search and seizure.52 Clearly, the raiding team exceeded its authority when
it seized these items.

The seizure of these items was therefore void, and unless these items are contraband
per se,53 and they are not, they must be returned to the person from whom the raiding
seized them. However, we do not declare that such person is the lawful owner of these
items, merely that the search and seizure warrant could not be used as basis to seize
and withhold these items from the possessor. We thus hold that these items should be
returned immediately to Dimaano.

WHEREFORE, the petition for certiorari is DISMISSED. The questioned Resolutions of

the Sandiganbayan dated 18 November 1991 and 25 March 1992 in Civil Case No.
0037, remanding the records of this case to the Ombudsman for such appropriate
action as the evidence may warrant, and referring this case to the Commissioner of the
Bureau of Internal Revenue for a determination of any tax liability of respondent
Elizabeth Dimaano, are AFFIRMED.

SO ORDERED.
G.R. No. 176783 June 27, 2012
ELIZABETH DIMAANO, Petitioner,
vs.
THE HON. SANDIGANBAYAN and REPUBLIC OF THE
PHILIPPINES, Respondents.
DECISION
ABAD, J.:
This is a case about the propriety of collecting sheriff’s percentage fee on the execution
of a court order for return to a party of money that the government illegally confiscated
from her.
The Facts and the Case
On March 3, 1986 respondent Republic of the Philippines, acting through the
Presidential Commission on Good Government (PCGG), confiscated cash of
₱2,868,850.00 and US$50,000.00 and some items from petitioner Elizabeth Dimaano’s
(Dimaano) house on a belief that they were ill-gotten wealth of an army general who
belonged to the martial law regime.1 The PCGG subsequently filed a forfeiture action
against her and others before the Sandiganbayan.2
On November 18, 1991 the Sandiganbayan dismissed the forfeiture case against
Dimaano and ordered the Republic to return the money and items it seized from
her.3 On July 21, 2003 this Court affirmed the order.4Consequently, Dimaano filed with
the Sandiganbayan a motion for the release of the seized cash and items5 which that
court granted on March 3, 20056 and further affirmed on August 1, 2005.7
Following the issuance of the writ of execution on February 14, 2006,8 Dimaano
discovered that the PCGG had transferred the money to accounts that needed
allocation documents from the Department of Budget and Management (DBM) before
it could be withdrawn from the National Treasury. Eventually, however, the mistake was
rectified and on April 4, 2006 the Bureau of Treasury released a ₱4,058,850.00 check
to Dimaano in partial satisfaction of the writ.9 But the Sandiganbayan assessed
Dimaano ₱163,391.50 as sheriff’s percentage collection fee10 pursuant to A.M. 04-2-
04-SC Re: Revision of Rule 141 of the Rules of Court.
Dimaano filed a motion for reconsideration of the Sandiganbayan’s assessment
order.11 She assailed it as unwarranted since the sheriff’s percentage collection fee
applied only to actions for money covering collectibles or unsatisfied debts or in actions
pertaining to interest-bearing obligations. She also argued that the fee assessment
would be iniquitous in her case because a) it penalized her when in fact, she was the
wronged party; and b) it rewarded the police officers’ transgressions of her rights. 12
On January 5, 2007 the Sandiganbayan denied Dimaano’s motion for reconsideration,
holding that the assessment of the challenged fee was not dependent on the "nature of
the case" but on the fact of collection. And since the rule did not distinguish between
"money collected" and "money returned" through the sheriff’s effort, neither should
petitioner, hence, Dimaano’s recourse to this Court.
Issue Presented
The sole issue presented in this case is whether or not the Sandiganbayan rightfully
assessed Dimaano a sheriff’s percentage collection fee on the money that the Republic
returned to her pursuant to the writ of execution that the court issued in the case.
Ruling of the Court
Dimaano attempts to make a distinction between money ordered "collected" from the
judgment debtor and paid to the judgment creditor and money ordered "returned" by
one party to another from whom such money was unlawfully taken. Dimaano claims
that she was already a victim when the government illegally seized her money. It would
be unfair that she should still pay the government some fee to get her money back.
But, first, the imposition of the sheriff’s fee is not a penalty for some wrong that Dimaano
had done.1âwphi1 It is an assessment for the cost of the sheriff’s service in collecting
the judgment amount for her benefit. Its collection is authorized under Rule 141 of the
Rules of Court, as amended,13 thus:
xxxx
SEC. 3. Persons authorized to collect legal fees. – Except as otherwise provided in this
rule, the officers and persons hereinafter mentioned, together with their assistants and
deputies, may demand, receive, and take the several fees hereinafter mentioned x x x.
xxxx
SEC. 10. Sheriffs, PROCESS SERVERS and other persons serving processes. – x x x
(l) For money collected by him x x x by order, execution, attachment, or any other
process, judicial or extrajudicial which shall immediately be turned over to the Clerk of
Court, x x x.
Second, the order to pay a party the money owed him and the order to pay another the
money unlawfully taken from him are both awards of actual or compensatory damages.
They compensate for the pecuniary loss that the party suffered and proved in
court.14 The recipients of the award, whether for money owed or taken from him, benefit
from the court’s intervention and service in collecting the amount. As the
Sandiganbayan correctly said, what determines the assessment of the disputed court
fee is the fact that the court, through valid processes, ordered a certain sum of money
to be placed in the hands of the sheriff for turnover to the winning party.
In addition to raising before the Court the matter of the sheriff’s fee, Dimaano also
questions the Sandiganbayan’s failure to award interest on the amount that was to be
returned to her considering that the government used and invested the money as if it
were its own. But, as the Republic points out, Dimaano could no longer seek the award
of interest since she filed no appeal from the decision of the Sandiganbayan that
ordered merely the return of such amount with no mention of interest.15

WHEREFORE, the Court AFFIRMS the Resolutions of the Sandiganbayan dated July
25, 2006 and January 5, 2007 that assessed petitioner Elizabeth Dimaano sheriff’s
percentage fee for the partial satisfaction of the writ of execution dated February 14,
2006.

SO ORDERED.
G.R. No. 122156 February 3, 1997
MANILA PRINCE HOTEL petitioner,
vs.
GOVERNMENT SERVICE INSURANCE SYSTEM, MANILA HOTEL
CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE OF THE
GOVERNMENT CORPORATE COUNSEL, respondents.
BELLOSILLO, J.:
The FiIipino First Policy enshrined in the 1987 Constitution, i.e., in the grant of rights,
privileges, and concessions covering the national economy and patrimony, the State
shall give preference to qualified Filipinos,1 is in oked by petitioner in its bid to acquire
51% of the shares of the Manila Hotel Corporation (MHC) which owns the historic
Manila Hotel. Opposing, respondents maintain that the provision is not self-executing
but requires an implementing legislation for its enforcement. Corollarily, they ask
whether the 51% shares form part of the national economy and patrimony covered by
the protective mantle of the Constitution.
The controversy arose when respondent Government Service Insurance System
(GSIS), pursuant to the privatization program of the Philippine Government under
Proclamation No. 50 dated 8 December 1986, decided to sell through public bidding
30% to 51% of the issued and outstanding shares of respondent MHC. The winning
bidder, or the eventual "strategic partner," is to provide management expertise and/or
an international marketing/reservation system, and financial support to strengthen the
profitability and performance of the Manila Hotel.2 In a close bidding held on 18
September 1995 only two (2) bidders participated: petitioner Manila Prince Hotel
Corporation, a Filipino corporation, which offered to buy 51% of the MHC or 15,300,000
shares at P41.58 per share, and Renong Berhad, a Malaysian firm, with ITT-Sheraton
as its hotel operator, which bid for the same number of shares at P44.00 per share, or
P2.42 more than the bid of petitioner.
Pertinent provisions of the bidding rules prepared by respondent GSIS state —
I. EXECUTION OF THE NECESSARY
CONTRACTS WITH GSIS/MHC —
1. The Highest Bidder must comply with the conditions set forth
below by October 23, 1995 (reset to November 3, 1995) or the
Highest Bidder will lose the right to purchase the Block of Shares and
GSIS will instead offer the Block of Shares to the other Qualified
Bidders:
a. The Highest Bidder must negotiate and execute
with the GSIS/MHC the Management Contract,
International Marketing/Reservation System
Contract or other type of contract specified by the
Highest Bidder in its strategic plan for the Manila
Hotel. . . .
b. The Highest Bidder must execute the Stock
Purchase and Sale Agreement with GSIS . . . .
K. DECLARATION OF THE WINNING
BIDDER/STRATEGIC PARTNER —
The Highest Bidder will be declared the Winning Bidder/Strategic
Partner after the following conditions are met:
a. Execution of the necessary contracts with
GSIS/MHC not later than October 23, 1995 (reset
to November 3, 1995); and
b. Requisite approvals from the GSIS/MHC and
COP (Committee on Privatization)/OGCC (Office
of the Government Corporate Counsel) are
obtained.3
Pending the declaration of Renong Berhad as the winning bidder/strategic partner and
the execution of the necessary contracts, petitioner in a letter to respondent GSIS dated
28 September 1995 matched the bid price of P44.00 per share tendered by Renong
Berhad.4 In a subsequent letter dated 10 October 1995 petitioner sent a manager's
check issued by Philtrust Bank for Thirty-three Million Pesos (P33.000.000.00) as Bid
Security to match the bid of the Malaysian Group, Messrs. Renong Berhad . . .5 which
respondent GSIS refused to accept.
On 17 October 1995, perhaps apprehensive that respondent GSIS has disregarded the
tender of the matching bid and that the sale of 51% of the MHC may be hastened by
respondent GSIS and consummated with Renong Berhad, petitioner came to this Court
on prohibition and mandamus. On 18 October 1995 the Court issued a temporary
restraining order enjoining respondents from perfecting and consummating the sale to
the Malaysian firm.
On 10 September 1996 the instant case was accepted by the Court En Banc after it
was referred to it by the First Division. The case was then set for oral arguments with
former Chief Justice Enrique M. Fernando and Fr. Joaquin G. Bernas, S.J., as amici
curiae.
In the main, petitioner invokes Sec. 10, second par., Art. XII, of the 1987 Constitution
and submits that the Manila Hotel has been identified with the Filipino nation and has
practically become a historical monument which reflects the vibrancy of Philippine
heritage and culture. It is a proud legacy of an earlier generation of Filipinos who
believed in the nobility and sacredness of independence and its power and capacity to
release the full potential of the Filipino people. To all intents and purposes, it has
become a part of the national patrimony.6 Petitioner also argues that since 51% of the
shares of the MHC carries with it the ownership of the business of the hotel which is
owned by respondent GSIS, a government-owned and controlled corporation, the hotel
business of respondent GSIS being a part of the tourism industry is unquestionably a
part of the national economy. Thus, any transaction involving 51% of the shares of
stock of the MHC is clearly covered by the term national economy, to which Sec. 10,
second par., Art. XII, 1987 Constitution, applies.7
It is also the thesis of petitioner that since Manila Hotel is part of the national patrimony
and its business also unquestionably part of the national economy petitioner should be
preferred after it has matched the bid offer of the Malaysian firm. For the bidding rules
mandate that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per share.8
Respondents except. They maintain that: First, Sec. 10, second par., Art. XII, of the
1987 Constitution is merely a statement of principle and policy since it is not a self-
executing provision and requires implementing legislation(s) . . . Thus, for the said
provision to Operate, there must be existing laws "to lay down conditions under which
business may be done."9
Second, granting that this provision is self-executing, Manila Hotel does not fall under
the term national patrimony which only refers to lands of the public domain, waters,
minerals, coal, petroleum and other mineral oils, all forces of potential energy, fisheries,
forests or timber, wildlife, flora and fauna and all marine wealth in its territorial sea, and
exclusive marine zone as cited in the first and second paragraphs of Sec. 2, Art. XII,
1987 Constitution. According to respondents, while petitioner speaks of the guests who
have slept in the hotel and the events that have transpired therein which make the hotel
historic, these alone do not make the hotel fall under the patrimony of the nation. What
is more, the mandate of the Constitution is addressed to the State, not to respondent
GSIS which possesses a personality of its own separate and distinct from the
Philippines as a State.
Third, granting that the Manila Hotel forms part of the national patrimony, the
constitutional provision invoked is still inapplicable since what is being sold is only 51%
of the outstanding shares of the corporation, not the hotel building nor the land upon
which the building stands. Certainly, 51% of the equity of the MHC cannot be
considered part of the national patrimony. Moreover, if the disposition of the shares of
the MHC is really contrary to the Constitution, petitioner should have questioned it right
from the beginning and not after it had lost in the bidding.
Fourth, the reliance by petitioner on par. V., subpar. J. 1., of the bidding rules which
provides that if for any reason, the Highest Bidder cannot be awarded the Block of
Shares, GSIS may offer this to the other Qualified Bidders that have validly submitted
bids provided that these Qualified Bidders are willing to match the highest bid in terms
of price per share, is misplaced. Respondents postulate that the privilege of submitting
a matching bid has not yet arisen since it only takes place if for any reason, the Highest
Bidder cannot be awarded the Block of Shares. Thus the submission by petitioner of a
matching bid is premature since Renong Berhad could still very well be awarded the
block of shares and the condition giving rise to the exercise of the privilege to submit a
matching bid had not yet taken place.
Finally, the prayer for prohibition grounded on grave abuse of discretion should fail
since respondent GSIS did not exercise its discretion in a capricious, whimsical
manner, and if ever it did abuse its discretion it was not so patent and gross as to
amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined
by law. Similarly, the petition for mandamus should fail as petitioner has no clear legal
right to what it demands and respondents do not have an imperative duty to perform
the act required of them by petitioner.
We now resolve. A constitution is a system of fundamental laws for the governance and
administration of a nation. It is supreme, imperious, absolute and unalterable except by
the authority from which it emanates. It has been defined as the fundamental and
paramount law of the nation. 10 It prescribes the permanent framework of a system of
government, assigns to the different departments their respective powers and duties,
and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws
must conform and in accordance with which all private rights must be determined and
all public authority administered. 11 Under the doctrine of constitutional supremacy, if a
law or contract violates any norm of the constitution that law or contract whether
promulgated by the legislative or by the executive branch or entered into by private
persons for private purposes is null and void and without any force and effect.
Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract.
Admittedly, some constitutions are merely declarations of policies and principles. Their
provisions command the legislature to enact laws and carry out the purposes of the
framers who merely establish an outline of government providing for the different
departments of the governmental machinery and securing certain fundamental and
inalienable rights of citizens. 12 A provision which lays down a general principle, such
as those found in Art. II of the 1987 Constitution, is usually not self-executing. But a
provision which is complete in itself and becomes operative without the aid of
supplementary or enabling legislation, or that which supplies sufficient rule by means
of which the right it grants may be enjoyed or protected, is self-executing. Thus a
constitutional provision is self-executing if the nature and extent of the right conferred
and the liability imposed are fixed by the constitution itself, so that they can be
determined by an examination and construction of its terms, and there is no language
indicating that the subject is referred to the legislature for action. 13
As against constitutions of the past, modern constitutions have been generally drafted
upon a different principle and have often become in effect extensive codes of laws
intended to operate directly upon the people in a manner similar to that of statutory
enactments, and the function of constitutional conventions has evolved into one more
like that of a legislative body. Hence, unless it is expressly provided that a legislative
act is necessary to enforce a constitutional mandate, the presumption now is that all
provisions of the constitution are self-executing If the constitutional provisions are
treated as requiring legislation instead of self-executing, the legislature would have the
power to ignore and practically nullify the mandate of the fundamental law. 14 This can
be cataclysmic. That is why the prevailing view is, as it has always been, that —
. . . in case of doubt, the Constitution should be considered self-
executing rather than non-self-executing . . . . Unless the contrary is
 clearly intended, the provisions of the Constitution should be
considered self-executing, as a contrary rule would give the
legislature discretion to determine when, or whether, they shall be
effective. These provisions would be subordinated to the will of the
lawmaking body, which could make them entirely meaningless by
simply refusing to pass the needed implementing statute. 15
Respondents argue that Sec. 10, second par., Art. XII, of the 1987 Constitution is
clearly not self-executing, as they quote from discussions on the floor of the 1986
Constitutional Commission —
MR. RODRIGO. Madam President, I am asking
this question as the Chairman of the Committee on
Style. If the wording of "PREFERENCE" is given
to QUALIFIED FILIPINOS," can it be understood
as a preference to qualified Filipinos vis-a-
vis Filipinos who are not qualified. So, why do we
not make it clear? To qualified Filipinos as against
aliens?
THE PRESIDENT. What is the question of
Commissioner Rodrigo? Is it to remove the word
"QUALIFIED?".
MR. RODRIGO. No, no, but say definitely "TO
QUALIFIED FILIPINOS" as against whom? As
against aliens or over aliens?
MR. NOLLEDO. Madam President, I think that is
understood. We use the word "QUALIFIED"
because the existing laws or prospective laws will
always lay down conditions under which business
may be done. For example, qualifications on the
setting up of other financial structures, et
cetera (emphasis supplied by respondents)
MR. RODRIGO. It is just a matter of style.
MR. NOLLEDO Yes, 16
Quite apparently, Sec. 10, second par., of Art XII is couched in such a way as not to
make it appear that it is non-self-executing but simply for purposes of style. But,
certainly, the legislature is not precluded from enacting other further laws to enforce the
constitutional provision so long as the contemplated statute squares with the
Constitution. Minor details may be left to the legislature without impairing the self-
executing nature of constitutional provisions.
In self-executing constitutional provisions, the legislature may still enact legislation to
facilitate the exercise of powers directly granted by the constitution, further the
operation of such a provision, prescribe a practice to be used for its enforcement,
provide a convenient remedy for the protection of the rights secured or the
determination thereof, or place reasonable safeguards around the exercise of the right.
The mere fact that legislation may supplement and add to or prescribe a penalty for the
violation of a self-executing constitutional provision does not render such a provision
ineffective in the absence of such legislation. The omission from a constitution of any
express provision for a remedy for enforcing a right or liability is not necessarily an
indication that it was not intended to be self-executing. The rule is that a self-executing
provision of the constitution does not necessarily exhaust legislative power on the
subject, but any legislation must be in harmony with the constitution, further the
exercise of constitutional right and make it more available. 17 Subsequent legislation
however does not necessarily mean that the subject constitutional provision is not, by
itself, fully enforceable.
Respondents also argue that the non-self-executing nature of Sec. 10, second par., of
Art. XII is implied from the tenor of the first and third paragraphs of the same section
which undoubtedly are not self-executing. 18 The argument is flawed. If the first and
third paragraphs are not self-executing because Congress is still to enact measures to
encourage the formation and operation of enterprises fully owned by Filipinos, as in the
first paragraph, and the State still needs legislation to regulate and exercise authority
over foreign investments within its national jurisdiction, as in the third paragraph, then
a fortiori, by the same logic, the second paragraph can only be self-executing as it does
not by its language require any legislation in order to give preference to qualified
Filipinos in the grant of rights, privileges and concessions covering the national
economy and patrimony. A constitutional provision may be self-executing in one part
and non-self-executing in another. 19
Even the cases cited by respondents holding that certain constitutional provisions are
merely statements of principles and policies, which are basically not self-executing and
only placed in the Constitution as moral incentives to legislation, not as judicially
enforceable rights — are simply not in point. Basco v. Philippine Amusements and
Gaming Corporation 20 speaks of constitutional provisions on personal dignity, 21 the
sanctity of family life, 22 the vital role of the youth in nation-building 23 the promotion of
social justice, 24 and the values of education. 25 Tolentino v. Secretary of
Finance 26 refers to the constitutional provisions on social justice and human
rights 27 and on education. 28 Lastly, Kilosbayan, Inc. v. Morato 29 cites provisions on
the promotion of general welfare, 30 the sanctity of family life, 31 the vital role of the
youth in nation-building 32 and the promotion of total human liberation and
development. 33A reading of these provisions indeed clearly shows that they are not
judicially enforceable constitutional rights but merely guidelines for legislation. The very
terms of the provisions manifest that they are only principles upon which the legislations
must be based. Res ipsa loquitur.
On the other hand, Sec. 10, second par., Art. XII of the of the 1987 Constitution is a
mandatory, positive command which is complete in itself and which needs no further
guidelines or implementing laws or rules for its enforcement. From its very words the
provision does not require any legislation to put it in operation. It is per se judicially
enforceable When our Constitution mandates that [i]n the grant of rights, privileges, and
concessions covering national economy and patrimony, the State shall give preference
to qualified Filipinos, it means just that — qualified Filipinos shall be preferred. And
when our Constitution declares that a right exists in certain specified circumstances an
action may be maintained to enforce such right notwithstanding the absence of any that the Filipino First Policy provision is not applicable since what is being sold is only
legislation on the subject; consequently, if there is no statute especially enacted to 51% of the outstanding shares of the corporation, not the Hotel building nor the land
enforce such constitutional right, such right enforces itself by its own inherent potency upon which the building stands. 38
and puissance, and from which all legislations must take their bearings. Where there is
a right there is a remedy. Ubi jus ibi remedium. The argument is pure sophistry. The term qualified Filipinos as used in Our Constitution
also includes corporations at least 60% of which is owned by Filipinos. This is very clear
As regards our national patrimony, a member of the 1986 Constitutional from the proceedings of the 1986 Constitutional Commission
Commission 34 explains —
THE PRESIDENT. Commissioner Davide is
The patrimony of the Nation that should be conserved and developed recognized.
refers not only to out rich natural resources but also to the cultural
heritage of out race. It also refers to our intelligence in arts, sciences MR. DAVIDE. I would like to introduce an
and letters. Therefore, we should develop not only our lands, forests, amendment to the Nolledo amendment. And the
mines and other natural resources but also the mental ability or amendment would consist in substituting the
faculty of our people. words "QUALIFIED FILIPINOS" with the following:
"CITIZENS OF THE PHILIPPINES OR
We agree. In its plain and ordinary meaning, the term patrimony pertains to CORPORATIONS OR ASSOCIATIONS WHOSE
heritage. 35 When the Constitution speaks of national patrimony, it refers not only to the CAPITAL OR CONTROLLING STOCK IS
natural resources of the Philippines, as the Constitution could have very well used the WHOLLY OWNED BY SUCH CITIZENS.
term natural resources, but also to the cultural heritage of the Filipinos.
xxx xxx xxx
Manila Hotel has become a landmark — a living testimonial of Philippine heritage. While
it was restrictively an American hotel when it first opened in 1912, it immediately MR. MONSOD. Madam President, apparently the
evolved to be truly Filipino, Formerly a concourse for the elite, it has since then become proponent is agreeable, but we have to raise a
the venue of various significant events which have shaped Philippine history. It was question. Suppose it is a corporation that is 80-
called the Cultural Center of the 1930's. It was the site of the festivities during the percent Filipino, do we not give it preference?
inauguration of the Philippine Commonwealth. Dubbed as the Official Guest House of
the Philippine Government. it plays host to dignitaries and official visitors who are
accorded the traditional Philippine hospitality. 36 MR. DAVIDE. The Nolledo amendment would
refer to an individual Filipino. What about a
corporation wholly owned by Filipino citizens?
The history of the hotel has been chronicled in the book The Manila Hotel: The Heart
and Memory of a City. 37During World War II the hotel was converted by the Japanese
Military Administration into a military headquarters. When the American forces returned MR. MONSOD. At least 60 percent, Madam
to recapture Manila the hotel was selected by the Japanese together with Intramuros President.
as the two (2) places fro their final stand. Thereafter, in the 1950's and 1960's, the hotel
became the center of political activities, playing host to almost every political MR. DAVIDE. Is that the intention?
convention. In 1970 the hotel reopened after a renovation and reaped numerous
international recognitions, an acknowledgment of the Filipino talent and ingenuity. In MR. MONSOD. Yes, because, in fact, we would
1986 the hotel was the site of a failed coup d' etat where an aspirant for vice-president be limiting it if we say that the preference should
was "proclaimed" President of the Philippine Republic. only be 100-percent Filipino.

For more than eight (8) decades Manila Hotel has bore mute witness to the triumphs MR: DAVIDE. I want to get that meaning clear
and failures, loves and frustrations of the Filipinos; its existence is impressed with public because "QUALIFIED FILIPINOS" may refer only
interest; its own historicity associated with our struggle for sovereignty, independence to individuals and not to juridical personalities or
and nationhood. Verily, Manila Hotel has become part of our national economy and entities.
patrimony. For sure, 51% of the equity of the MHC comes within the purview of the
constitutional shelter for it comprises the majority and controlling stock, so that anyone
39
who acquires or owns the 51% will have actual control and management of the hotel. MR. MONSOD. We agree, Madam President.
In this instance, 51% of the MHC cannot be disassociated from the hotel and the land
on which the hotel edifice stands. Consequently, we cannot sustain respondents' claim
 xxx xxx xxx
MR. RODRIGO. Before we vote, may I request
that the amendment be read again.
MR. NOLLEDO. The amendment will read: "IN
THE GRANT OF RIGHTS, PRIVILEGES AND
CONCESSIONS COVERING THE NATIONAL
ECONOMY AND PATRIMONY, THE STATE
SHALL GIVE PREFERENCE TO QUALIFIED
FILIPINOS." And the word "Filipinos" here, as
intended by the proponents, will include not only
individual Filipinos but also Filipino-controlled
entities or entities fully-controlled by Filipinos. 40
The phrase preference to qualified Filipinos was explained thus —
MR. FOZ. Madam President, I would like to
request Commissioner Nolledo to please restate
his amendment so that I can ask a question.
MR. NOLLEDO. "IN THE GRANT OF RIGHTS,
PRIVILEGES AND CONCESSIONS COVERING
THE NATIONAL ECONOMY AND PATRIMONY,
THE STATE SHALL GIVE PREFERENCE TO
QUALIFIED FILIPINOS."
MR FOZ. In connection with that amendment, if a
foreign enterprise is qualified and a Filipino
enterprise is also qualified, will the Filipino
enterprise still be given a preference?
MR. NOLLEDO. Obviously.
MR. FOZ. If the foreigner is more qualified in some
aspects than the Filipino enterprise, will the
Filipino still be preferred?
MR. NOLLEDO. The answer is "yes."
MR. FOZ. Thank you, 41
Expounding further on the Filipino First Policy provision Commissioner Nolledo
continues —
MR. NOLLEDO. Yes, Madam President. Instead of "MUST," it will be
"SHALL — THE STATE SHALL GlVE PREFERENCE TO
QUALIFIED FILIPINOS. This embodies the so-called "Filipino First"
policy. That means that Filipinos should be given preference in the
grant of concessions, privileges and rights covering the national
patrimony. 42
The exchange of views in the sessions of the Constitutional Commission regarding the
subject provision was still further clarified by Commissioner Nolledo 43 —
Paragraph 2 of Section 10 explicitly mandates the "Pro-Filipino" bias
in all economic concerns. It is better known as the FILIPINO FIRST
Policy . . . This provision was never found in previous Constitutions .
...
The term "qualified Filipinos" simply means that preference shall be
given to those citizens who can make a viable contribution to the
common good, because of credible competence and efficiency. It
certainly does NOT mandate the pampering and preferential
treatment to Filipino citizens or organizations that are incompetent or
inefficient, since such an indiscriminate preference would be counter
productive and inimical to the common good.
In the granting of economic rights, privileges, and concessions, when
a choice has to be made between a "qualified foreigner" end a
"qualified Filipino," the latter shall be chosen over the former."
Lastly, the word qualified is also determinable. Petitioner was so considered by
respondent GSIS and selected as one of the qualified bidders. It was pre-qualified by
respondent GSIS in accordance with its own guidelines so that the sole inference here
is that petitioner has been found to be possessed of proven management expertise in
the hotel industry, or it has significant equity ownership in another hotel company, or it
has an overall management and marketing proficiency to successfully operate the
Manila Hotel. 44
The penchant to try to whittle away the mandate of the Constitution by arguing that the
subject provision is not self-executory and requires implementing legislation is quite
disturbing. The attempt to violate a clear constitutional provision — by the government
itself — is only too distressing. To adopt such a line of reasoning is to renounce the
duty to ensure faithfulness to the Constitution. For, even some of the provisions of the
Constitution which evidently need implementing legislation have juridical life of their
own and can be the source of a judicial remedy. We cannot simply afford the
government a defense that arises out of the failure to enact further enabling,
implementing or guiding legislation. In fine, the discourse of Fr. Joaquin G. Bernas,
S.J., on constitutional government is apt —
The executive department has a constitutional duty to implement
laws, including the Constitution, even before Congress acts —
provided that there are discoverable legal standards for executive
action. When the executive acts, it must be guided by its own
understanding of the constitutional command and of applicable laws.
 The responsibility for reading and understanding the Constitution and
the laws is not the sole prerogative of Congress. If it were, the
executive would have to ask Congress, or perhaps the Court, for an
interpretation every time the executive is confronted by a
constitutional command. That is not how constitutional government
operates. 45
Respondents further argue that the constitutional provision is addressed to the State,
not to respondent GSIS which by itself possesses a separate and distinct personality.
This argument again is at best specious. It is undisputed that the sale of 51% of the
MHC could only be carried out with the prior approval of the State acting through
respondent Committee on Privatization. As correctly pointed out by Fr. Joaquin G.
Bernas, S.J., this fact alone makes the sale of the assets of respondents GSIS and
MHC a "state action." In constitutional jurisprudence, the acts of persons distinct from
the government are considered "state action" covered by the Constitution (1) when the
activity it engages in is a "public function;" (2) when the government is so significantly
involved with the private actor as to make the government responsible for his action;
and, (3) when the government has approved or authorized the action. It is evident that
the act of respondent GSIS in selling 51% of its share in respondent MHC comes under
the second and third categories of "state action." Without doubt therefore the
transaction. although entered into by respondent GSIS, is in fact a transaction of the
State and therefore subject to the constitutional command. 46
When the Constitution addresses the State it refers not only to the people but also to
the government as elements of the State. After all, government is composed of three
(3) divisions of power — legislative, executive and judicial. Accordingly, a constitutional
mandate directed to the State is correspondingly directed to the three(3) branches of
government. It is undeniable that in this case the subject constitutional injunction is
addressed among others to the Executive Department and respondent GSIS, a
government instrumentality deriving its authority from the State.
It should be stressed that while the Malaysian firm offered the higher bid it is not yet the
winning bidder. The bidding rules expressly provide that the highest bidder shall only
be declared the winning bidder after it has negotiated and executed the necessary
contracts, and secured the requisite approvals. Since the "Filipino First Policy provision
of the Constitution bestows preference on qualified Filipinos the mere tending of the
highest bid is not an assurance that the highest bidder will be declared the winning
bidder. Resultantly, respondents are not bound to make the award yet, nor are they
under obligation to enter into one with the highest bidder. For in choosing the awardee
respondents are mandated to abide by the dictates of the 1987 Constitution the
provisions of which are presumed to be known to all the bidders and other interested
parties.
Adhering to the doctrine of constitutional supremacy, the subject constitutional
provision is, as it should be, impliedly written in the bidding rules issued by respondent
GSIS, lest the bidding rules be nullified for being violative of the Constitution. It is a
basic principle in constitutional law that all laws and contracts must conform with the
fundamental law of the land. Those which violate the Constitution lose their reason for
being.
Paragraph V. J. 1 of the bidding rules provides that [if] for any reason the Highest
Bidder cannot be awarded the Block of Shares, GSIS may offer this to other Qualified
Bidders that have validly submitted bids provided that these Qualified Bidders are
willing to match the highest bid in terms of price per
share. 47 Certainly, the constitutional mandate itself is reason enough not to award the
block of shares immediately to the foreign bidder notwithstanding its submission of a
higher, or even the highest, bid. In fact, we cannot conceive of a stronger reason than
the constitutional injunction itself.
In the instant case, where a foreign firm submits the highest bid in a public bidding
concerning the grant of rights, privileges and concessions covering the national
economy and patrimony, thereby exceeding the bid of a Filipino, there is no question
that the Filipino will have to be allowed to match the bid of the foreign entity. And if the
Filipino matches the bid of a foreign firm the award should go to the Filipino. It must be
so if we are to give life and meaning to the Filipino First Policy provision of the 1987
Constitution. For, while this may neither be expressly stated nor contemplated in the
bidding rules, the constitutional fiat is, omnipresent to be simply disregarded. To ignore
it would be to sanction a perilous skirting of the basic law.
This Court does not discount the apprehension that this policy may discourage foreign
investors. But the Constitution and laws of the Philippines are understood to be always
open to public scrutiny. These are given factors which investors must consider when
venturing into business in a foreign jurisdiction. Any person therefore desiring to do
business in the Philippines or with any of its agencies or instrumentalities is presumed
to know his rights and obligations under the Constitution and the laws of the forum.
The argument of respondents that petitioner is now estopped from questioning the sale
to Renong Berhad since petitioner was well aware from the beginning that a foreigner
could participate in the bidding is meritless. Undoubtedly, Filipinos and foreigners alike
were invited to the bidding. But foreigners may be awarded the sale only if no Filipino
qualifies, or if the qualified Filipino fails to match the highest bid tendered by the foreign
entity. In the case before us, while petitioner was already preferred at the inception of
the bidding because of the constitutional mandate, petitioner had not yet matched the
bid offered by Renong Berhad. Thus it did not have the right or personality then to
compel respondent GSIS to accept its earlier bid. Rightly, only after it had matched the
bid of the foreign firm and the apparent disregard by respondent GSIS of petitioner's
matching bid did the latter have a cause of action.
Besides, there is no time frame for invoking the constitutional safeguard unless perhaps
the award has been finally made. To insist on selling the Manila Hotel to foreigners
when there is a Filipino group willing to match the bid of the foreign group is to insist
that government be treated as any other ordinary market player, and bound by its
mistakes or gross errors of judgment, regardless of the consequences to the Filipino
people. The miscomprehension of the Constitution is regrettable. Thus we would rather
remedy the indiscretion while there is still an opportunity to do so than let the
government develop the habit of forgetting that the Constitution lays down the basic
conditions and parameters for its actions.
Since petitioner has already matched the bid price tendered by Renong Berhad
pursuant to the bidding rules, respondent GSIS is left with no alternative but to award
to petitioner the block of shares of MHC and to execute the necessary agreements and
documents to effect the sale in accordance not only with the bidding guidelines and
procedures but with the Constitution as well. The refusal of respondent GSIS to execute
the corresponding documents with petitioner as provided in the bidding rules after the
latter has matched the bid of the Malaysian firm clearly constitutes grave abuse of
discretion.
The Filipino First Policy is a product of Philippine nationalism. It is embodied in the 1987
Constitution not merely to be used as a guideline for future legislation but primarily to
be enforced; so must it be enforced. This Court as the ultimate guardian of the
Constitution will never shun, under any reasonable circumstance, the duty of upholding
the majesty of the Constitution which it is tasked to defend. It is worth emphasizing that
it is not the intention of this Court to impede and diminish, much less undermine, the
influx of foreign investments. Far from it, the Court encourages and welcomes more
business opportunities but avowedly sanctions the preference for Filipinos whenever
such preference is ordained by the Constitution. The position of the Court on this matter
could have not been more appropriately articulated by Chief Justice Narvasa —
As scrupulously as it has tried to observe that it is not its function to
substitute its judgment for that of the legislature or the executive
about the wisdom and feasibility of legislation economic in nature,
the Supreme Court has not been spared criticism for decisions
perceived as obstacles to economic progress and development . . .
in connection with a temporary injunction issued by the Court's First
Division against the sale of the Manila Hotel to a Malaysian Firm and
its partner, certain statements were published in a major daily to the
effect that injunction "again demonstrates that the Philippine legal
system can be a major obstacle to doing business here.
Let it be stated for the record once again that while it is no business
of the Court to intervene in contracts of the kind referred to or set
itself up as the judge of whether they are viable or attainable, it is its
bounden duty to make sure that they do not violate the Constitution
or the laws, or are not adopted or implemented with grave abuse of
discretion amounting to lack or excess of jurisdiction. It will never
shirk that duty, no matter how buffeted by winds of unfair and ill-
informed criticism. 48
Privatization of a business asset for purposes of enhancing its business viability and
preventing further losses, regardless of the character of the asset, should not take
precedence over non-material values. A commercial, nay even a budgetary, objective
should not be pursued at the expense of national pride and dignity. For the Constitution
enshrines higher and nobler non-material values. Indeed, the Court will always defer to
the Constitution in the proper governance of a free society; after all, there is nothing so
sacrosanct in any economic policy as to draw itself beyond judicial review when the
Constitution is involved. 49
Nationalism is inherent, in the very concept of the Philippines being a democratic and
republican state, with sovereignty residing in the Filipino people and from whom all
government authority emanates. In nationalism, the happiness and welfare of the
people must be the goal. The nation-state can have no higher purpose. Any
interpretation of any constitutional provision must adhere to such basic concept.
Protection of foreign investments, while laudible, is merely a policy. It cannot override
the demands of nationalism. 50
The Manila Hotel or, for that matter, 51% of the MHC, is not just any commodity to be
sold to the highest bidder solely for the sake of privatization. We are not talking about
an ordinary piece of property in a commercial district. We are talking about a historic
relic that has hosted many of the most important events in the short history of the
Philippines as a nation. We are talking about a hotel where heads of states would prefer
to be housed as a strong manifestation of their desire to cloak the dignity of the highest
state function to their official visits to the Philippines. Thus the Manila Hotel has played
and continues to play a significant role as an authentic repository of twentieth century
Philippine history and culture. In this sense, it has become truly a reflection of the
Filipino soul — a place with a history of grandeur; a most historical setting that has
played a part in the shaping of a country. 51
This Court cannot extract rhyme nor reason from the determined efforts of respondents
to sell the historical landmark — this Grand Old Dame of hotels in Asia — to a total
stranger. For, indeed, the conveyance of this epic exponent of the Filipino psyche to
alien hands cannot be less than mephistophelian for it is, in whatever manner viewed,
a veritable alienation of a nation's soul for some pieces of foreign silver. And so we ask:
What advantage, which cannot be equally drawn from a qualified Filipino, can be gained
by the Filipinos Manila Hotel — and all that it stands for — is sold to a non-Filipino?
How much of national pride will vanish if the nation's cultural heritage is entrusted to a
foreign entity? On the other hand, how much dignity will be preserved and realized if
the national patrimony is safekept in the hands of a qualified, zealous and well-meaning
Filipino? This is the plain and simple meaning of the Filipino First Policy provision of
the Philippine Constitution. And this Court, heeding the clarion call of the Constitution
and accepting the duty of being the elderly watchman of the nation, will continue to
respect and protect the sanctity of the Constitution.
WHEREFORE, respondents GOVERNMENT SERVICE INSURANCE SYSTEM,
MANILA HOTEL CORPORATION, COMMITTEE ON PRIVATIZATION and OFFICE
OF THE GOVERNMENT CORPORATE COUNSEL are directed to CEASE and
DESIST from selling 51% of the shares of the Manila Hotel Corporation to RENONG
BERHAD, and to ACCEPT the matching bid of petitioner MANILA PRINCE HOTEL
CORPORATION to purchase the subject 51% of the shares of the Manila Hotel
Corporation at P44.00 per share and thereafter to execute the necessary clearances
and to do such other acts and deeds as may be necessary for purpose.
SO ORDERED.
April 18, 2017
G.R. No. 213948
KNIGHTS OF RIZAL, Petitioner.
vs.
DMCI HOMES, INC., DMCI PROJECT DEVELOPERS, INC., CITY OF MANILA,
NATIONAL COMMISSION FOR CULTURE AND THE ARTS, NATIONAL
HISTORICAL COMMISSION OF THE PHILIPPINES, Respondents.
DECISION
CARPIO, J.:
Bury me in the ground, place a stone and a cross over it.
My name, the date of my birth, and of my death. Nothing more.
If you later wish to surround my grave with a fence, you may do so.
No anniversaries. I prefer Paang Bundok.
- Jose Rizal
The Case
Before this Court is a Petition for Injunction, with Applications for Temporary Restraining
Order, Writ of Preliminary Injunction, and Others 1 filed by the Knights of Rizal (KOR)
seeking, among others, for an order to stop the construction of respondent DMCI
Homes, Inc. 's condominium development project known as the Torre de Manila. In its
Resolution dated 25 November 2014, the Court resolved to treat the petition as one for
mandamus. 2
The Facts
On 1 September 2011, DMCI Project Developers, Inc. (DMCI-PDI) 3 acquired a
7,716.60-square meter lot in the City of Manila, located near Taft Avenue, Ermita,
beside the former Manila Jai-Alai Building and Adamson University.4The lot was
earmarked for the construction of DMCI-PDI's Torre de Manila condominium project.
On 2 April 2012, DMCI-PDI secured its Barangay Clearance to start the construction of
its project. It then obtained a Zoning Permit from the City of Manila's City Planning and
Development Office (CPDO) on 19 June 2012.5
Then, on 5 July 2012, the City of Manila's Office of the Building Official granted DMCI-
PDI a Building Permit, allowing it to build a "Forty Nine (49) Storey w/ Basement & 2
penthouse Level Res'l./Condominium" on the property. 6
On 24 July 2012, the City Council of Manila issued Resolution No. 121 enjoining the
Office of the Building Official to temporarily suspend the Building Permit of DMCI-PDI,
citing among others, that "the Torre de Manila Condominium, based on their
development plans, upon completion, will rise up high above the back of the national
monument, to clearly dwarf the statue of our hero, and with such towering heights,
would certainly ruin the line of sight of the Rizal Shrine from the frontal Roxas Boulevard
vantage point[.]"7
Building Official Melvin Q. Balagot then sought the opinion of the City of Manila's City
Legal Officer on whether he is bound to comply with Resolution No. 121.8 In his letter
dated 12 September 2012, City Legal Officer Renato G. Dela Cruz stated that there is
"no legal justification for the temporary suspension of the Building Permit issued in favor
of [DMCI-PDI]" since the construction "lies outside the Luneta Park" and is "simply too
far to I be a repulsive distraction or have an objectionable effect on the artistic and
historical significance" of the Rizal Monument. 9 He also pointed out that "there is no
showing that the [area of subject property has been officially declared as an
anthropological or archeological area. Neither has it ' been categorically designated by
the National Historical Institute as a heritage zone, a cultural property, a historical
landmark or even a national treasure."
Subsequently, both the City of Manila and DMCI-PDI sought the opinion or the National
Historical Commission of the Philippines (NHCP) on the matter. In the letter10 dated 6
November 2012 from NHCP I Chairperson Dr. Maria Serena I. Diokno addressed to
DMCI-PDI and the letter 11 dated 7 November 2012 from NHCP Executive Director III
Ludovico D. Bado)f addressed to then Manila Mayor Alfredo S. Lim, the NHCP
maintained that the Torre de Manila project site is outside the boundaries of the Rizal
f.ark and well to the rear of the Rizal Monument, and thus, cannot possibly obstruct the
frontal view of the National Monument.
On 26 November 2013, following an online petition against the Torre de Manila project
that garnered about 7,800 signatures, the City Council of Manila issued Resolution No.
146, reiterating its directive in Resolution No. 121 1 enjoining the City of Manila's
building officials to temporarily suspend ~MCI-PDI's Building Permit. 12
In a letter to Mayor Joseph Ejercito Estrada dated 18 December 2013, DMCI-PIDI
President Alfredo R. Austria sought clarification on the controversy surrounding its
Zoning Permit. He stated that since the CPDO granted its Zoning Permit, DMCI-PDI
continued with the application for the Building Permit, which was granted, and did not
deem it necessary to go through the process of appealing to the local zoning board. He
then expressed DMCI-PDI's willingness to comply with the process if the City of Manila
deemed it necessary. 13
On 23 December 2013, the Manila Zoning Board of Adjustments and Appeals (MZBAA)
issued Zoning Board Resolution No. 06, Series of 2013, 14 recommending the approval
of DMCI-PDI's application for variance. ;The MZBAA noted that the Torre de Manila
project "exceeds the prescribed maximum Percentage of Land Occupancy (PLO) and
exceeds the prescribeµ Floor Area Ratio (FAR) as stipulated in Article V, Section 17 of
City Ordinance No. 8119[.]" However, the MZBAA still recommended the approval of
the variance subject to the five conditions set under the same resolution.
After some clarification sought by DMCI-PDI, the MZBAA issued Zoning Board
Resolution No. 06-A, Series of 2013, 15 on 8 January 2014, amending condition (c) in
the earlier resolution. 16
Lastly, the KOR claims that the DMCI-PDI's construction was commenced and
continues in bad faith, and is in violation of the City of Manila's zoning ordinance. 27
Arguments of DMCI-PDI
In its Comment, DMCI-PDI argues that the KOR's petition should be dismissed on the
following grounds:

On 16 January 2014, the City Council of Manila issued Resolution No. 5, Series of I.
2014, 17 adopting Zoning Board Resolution Nos. 06 and 06- A. The City Council
resolution states that "the City Council of Manila find[ s] no cogent reason to deny
and/or reverse the aforesaid recommendation of the [MZBAA] and hereby ratif[ies] and THXS HONORABLE COURT HAS NO JURISDICTION OVER THIS ACTION.
confirm[s] all previously issued permits, licenses and approvals issued by the City
[Council] of Manila for Torre de Manila[.]" II.

Arguments of the KOR KOR HAS NO LEGAL RIGHT OR INTEREST TO FILE OR PR0SECUTE THIS
ACTION.
On 12 September 2014, the KOR, a "civic, patriotic, cultural, nonpartisan, non-sectarian
and non-profit organization" 18 created under Republic Act No. 646, 19 filed a Petition III.
for Injunction seeking a temporary restraining I order, and later a permanent injunction,
against the construction of DMCIPDI's Torre de Manila condominium project. The KOR TORRE DE MANILA IS NOT A NUISANCE PER SE.
argues that the subject matter of the present suit is one of "transcendental importance,
paramount public interest, of overarching significance to society, or with far-reaching
implication" involving the desecration of the Rizal Monument. IV.

The KOR asserts that the completed Torre de Manila structure will "[stick] out like a DMCI-PDI ACTED IN GOOD FAITH IN CONSTRUCTING TORRE DE MANILA; AND
sore thumb, [dwarf] all surrounding buildings within a radius of two kilometer/s" and
"forever ruin the sightline of the Rizal Monument in Luneta Park: Torre de Manila V.
building would loom at the back I and overshadow the entire monument, whether up
close or viewed from a distance. ''20
KOR IS NOT ENTITLED TO A TEMPORARY RESTRAINING ORPER AND/OR A
WRIT OF PRELIMINARY INJUNCTION. 28
Further, the KOR argues that the Rizal Monument, as a National Treasure, is entitled
to "full protection of the law"21and the national government must abate the act or activity
First, DMCI-PDI asserts that the Court has no original jurisdiction over actions for
that endangers the nation's cultural heritage "even against the wishes of the local
injunction.29 Even assuming that the Court has concurrent jurisdiction, DMCI-PDI
government hosting it." 22
maintains that the petition should still have been filed with the Regional Trial Court
under the doctrine of hierarchy of courts and because the petition involves questions of
Next, the KOR contends that the project is a nuisance per se23 because "[t]he fact. 30
despoliation of the sight view of the Rizal Monument is a situation that annoy's or
offends the senses' of every Filipino who honors the memory of the National Hero Jose
DMCI-PDI also contends that the KOR's petition is in actuality an opposition' or appeal
Rizal. It is a present, continuing, worsening and aggravating status or condition. Hence,
from the exemption granted by the City of Manila's MZBAA, a matter which is also not
the PROJECT is a nuisance per se. It deserves I to be abated summarily, even without
within the jurisdiction of the Court. 31 DMCI-PDI claims that the proper forum should be
need of judicial proceeding. "24
the MZBAA, and should the KOR fail there, it should appeal the same to the Housing
and Land Use Regulatory Board (HLURB). 32
The KOR also claims that the Torre de Manila project violates the NHCP's Guidelines
on Monuments Honoring National Heroes, Illustrious Filipinos and Other
DMCI-PDI further argues that since the Rizal Monument has been declared a National
Personages, which state that historic monuments should assert a visual "dominance"
Treasure, the power to issue a cease and desist order is lodged with the "appropriate
over its surroundings,25 as well as the country's commitment under the International
cultural agency" under Section 25 of Republic Act No. li0066 or the National Cultural
Charter for the Conservation and Restoration of Monuments and Sites, otherwise
Heritage Act of 2009. 33 Moreover, DMCI-PDI asserts that the KOR availed of the wrong
known as the Venice Charter. 26
remedy since an action for injunction is not the proper remedy for abatement of a
nuisance. 34
Second, DMCI-PDI maintains that the KOR has no standing to institute this proceeding
because it is not a real party in interest in this case. The purposes of the KOR as a
public corporation do not include the preservation of the Rizal Monument as a cultural
or historical heritage site.35 The KOR has also not shown that it suffered an actual or
threatened injury as a result of the alleged illegal conduct of the City of Manila. If there
is any injury to the KOR at all, the same was caused by the private conduct of a private
entity and not the City of Manila. 36
Third, DMCI-PDI argues that the Torre de Manila is not a nuisance per se. DMCI-PDI
reiterates that it obtained all the necessary permits, licenses, clearances, and
certificates for its construction. 37 It also refutes the KOR's claim that the Torre de
Manila would dwarf all other structures around it; considering that there are other tall
buildings even closer to the Rizal Monument itself, namely, the Eton Baypark Tower at
the corner of Roxas Boulevard and T.M. Kalaw Street (29 storeys; 235 meters from the
Rizal Monument) and Sunview Palace at the corner of M.H. Del Pilar and T.M. Kalaw
Streets (42 storeys; 250 meters from the Rizal Monument). 38
Fourth, DMCI-PDI next argues that it did not act in bad faith when it started construction
of its Torre de Manila project. Bad faith cannot be attributed to it since it was within the
"lawful exercise of [its] rights." 39 The KOR failed to present any proof that DMCI-PDI
did not follow the proper procedure and zoning restrictions of the City of Manila. Aside
from obtaining all the necessary permits from the appropriate government
agencies,40 DMCI-PDI also sought clarification on its right to build on its site from the
Office of the City Legal Officer of Manila, the Manila CPDO, and the NHCP.41 Moreover,
even if the KOR proffered such proof, the Court would be 1 in no position to declare
DMCI-PDI's acts as illegal since the Court is not a trier of facts. 42
Finally, DMCI-PDI opposes the KOR's application for a Temporary Restraining Order
(TRO) and writ of preliminary injunction. DMCI-PDI asserts that the KOR has failed to
establish "a clear and unmistakable right to enjoin I the construction of Torre de Manila,
much less request its demolitior."43 DMCI-PDI further argues that it "has complied with
all the legal requirements for the construction of Torre de Manila x x x [and] has violated
o right of KOR that must be protected. Further, KOR stands to suffer o damage because
of its lack of direct pecuniary interest in this petiti1 on. To grant the KOR's application
for injunctive relief would constitute an unjust taking of property without due process of
law. "44
Arguments of the City of Manila
In its Comment, the City of Manila argues that the writ of mandamus cannot issue
"considering that no property or substantive rights whatsoever in favor of [the KOR] is
being affected or x x x entitled to judicial protection[.]" 45
The City of Manila also asserts that the "issuance and revocation of a Building Permit
undoubtedly fall under the category of a discretionary act or duty performed by the
proper officer in light of his meticulous appraisal and evaluation of the pertinent
supporting documents of the application in accordance with the rules laid out under the
National Building Code [and] Presidential Decree No. 1096," 46 while the remedy of
mandamus is available only to compel the performance of a ministerial duty. 47
Further, the City of Manila maintains that the construction of the Torre de Manila did
not violate any existing law, since the "edifice [is] well behind (some 789 meters away)
the line of sight of the Rizal Monument."48 It adds that the City of Manila's "prevailing
Land Use and Zoning Ordinance [Ordinance No. 8119] x xx allows an adjustment in
Floor Area Ratios thru the [MZBAA] subject to further final approval of the City
Council."49 The City Council adopted the MZBAA's favorable: recommendation in its
Resolution No. 5, ratifying all the licenses and permits issued to DMCI-PDI for its Torre
de Manila project.
In its Position Paper dated 15 July 2015, the City of Manila admitted that the Zoning
Permit issued to DMCI-PDI was "in breach of certain provisions of City Ordinance No.
8119."50 It maintained, however, 1 that the deficiency is "procedural in nature and
pertains mostly td the failure of [DMCI-PDI] to comply with the stipulations that allow an
excess in the [FAR] provisions." 51 Further, the City of Manila argued that the MZBAA,
when it recommended the allowance of the project's variance, imposed certain
conditions upon the Torre de Manila project in order to mitigate the possible adverse
effects of an excess FAR. 52
The Issue
The issues raised by the parties can be summed up into one main point: Can the Court
issue a writ of mandamus against the officials of the City of Manila to stop the
construction of DMCI-PDI's Torre de Manila project?
The Court's Ruling
The petition for mandamus lacks merit and must be dismissed.
There is no law prohibiting the construction of the Torre de Manila.
In Manila Electric Company v. Public Service Commission,53 the Court held that "what
is not expressly or impliedly prohibited by law may be done, except when the act
is contrary to morals, customs and I public order." This principle is fundamental in
a democratic society, to protect the weak against the strong, the minority against the
majority, and the individual citizen against the government. In essence, this principle,
which is the foundation of a civilized society under the rule of law, prescribes that the
freedom to act can be curtailed only through law. Without this principle, the rights,
freedoms, and civil liberties of citizens can be arbitrarily and whimsically trampled upon
by the shifting passions of those who can spout the loudest, or those who can gather
the biggest crowd or the most number of Internet trolls. In other instances, 54 the Court
has allowed or upheld actions that were not expressly prohibited by statutes when it
determined that these acts were not contrary to morals, customs, and public order, or
that upholding the same would lead to a more equitable solution to the controversy.
However, it is the law itself - Articles 130655 and 1409(1)56 of the Civil Code - which
prescribes that acts not contrary to morals, good customs, public order, or public policy
are allowed if also not contrary to law.
In this case, there is no allegation or proof that the Torre de Manila project is "contrary
to morals, customs, and public order" or that it brings harm, danger, or hazard to the
community. On the contrary, the City of Manila has determined that DMCI-PDI complied
with the standards set under the pertinent laws and local ordinances to construct its
Torre de Manila project.
There is one fact that is crystal clear in this case. There is no law prohibiting the
construction of the Torre de Manila due to its effect on the background "view, vista,
sightline, or setting" of the Rizal Monument.
Specifically, Section 47 reads:
SEC. 47. Historical Preservation and Conservation Standards. - Historic site and
facilities shall be conserved and preserved. These shall, to the extent possible, be
made accessible for the educational and cultural enrichment of the general public.
The following shall guide the development of historic sites and facilities:
1. Sites with historic buildings or places shall be developed to conserve and enhance
their heritage values.
2. Historic sites and facilities shall be adaptively re-used.
3. Any person who proposes to add, to alter, or partially demolish a designated heritage
property will require the approval of the City Planning and Development Office (CPDO)
and shall be required to prepare a heritage impact statement that will demonstrate to
the satisfaction of CPDO that the proposal will not adversely impact the heritage
significance of the property and shall submit plans for review by the CPDO in
coordination with the National Historical Institute (NHI).
4. Any proposed alteration and/or re-use of designated heritage properties shall be
evaluated based on criteria established by the heritage significance of the particular
property or site.
5. Where an owner of a heritage property applies for approval to demolish a designated
heritage property or properties, the owner shall be required to provide evidence to
satisfaction that demonstrates that rehabilitation and re-use of the property is not viable.
6. Any designated heritage property which is to be demolished or significantly altered
shall be thoroughly documented for archival purposes with! a history, photographic
records, and measured drawings, in accordance with accepted heritage recording
guidelines, prior to demolition or alteration.
7. Residential and commercial infill in heritage areas will be sensitive to the existing
scale and pattern of those areas, which maintains the existing landscape and
streetscape qualities of those areas, and which does not result in the loss of any
heritage resources.
8. Development plans shall ensure that parking facilities (surface lots residential
garages, stand-alone parking garages and parking components as parts of larger
developments) are compatibly integrated into heritage areas, and/or are compatible
with adjacent heritage resources.
9. Local utility companies (hydro, gas, telephone, cable) shall be required to place
metering equipment, transformer boxes, power lines, conduit, equipment boxes, piping,
wireless telecommunication towers and other utility equipment and devices in locations
which do not detract from the visual character of heritage resources, and which do not
have a negative impact on its architectural integrity.
10. Design review approval shall be secured from the CPDO for any alteration of the
heritage property to ensure that design guidelines and standards are met and shall
promote preservation and conservation of the heritage property. (Emphasis supplied)
It is clear that the standards laid down in Section 47 of Ordinance No. 8119 only serve
as guides, as it expressly states that "the following shall guide the :development of
historic sites and facilities." A guide simply sets a direction 'or gives an instruction to
be followed by prope1iy owners and developers in order to conserve and enhance a
property's heritage values.
On the other hand, Section 48 states:
SEC. 48. Site Performance Standards. - The City considers it in the public interest that
all projects are designed and developed in a safe, efficient and aesthetically pleasing
manner. Site development shall consider the environmental character and limitations
of the site and its adjacent properties. All project elements shall be in complete harmony
according to good design principles and the subsequent development must be visually
pleasing as well as efficiently functioning especially in relation to the adjacent properties
and bordering streets.
The design, construction, operation and maintenance of every facility shall be in
harmony with the existing and intended character of its neighborhood. It shall not
change the essential character of the said area but will be a substantial improvement
to the value of the properties in the neighborhood in particular and the community in
general.
Furthermore, designs should consider the following:
1. Sites, buildings and facilities shall be designed and developed with1 regard to safety,
efficiency and high standards of design. The natural environmental character of the site
and its adjacent properties shall be considered in the site development of each building
and facility.
2. The height and bulk of buildings and structures shall be so designed that it does not
impair the entry of light and ventilation, cause the loss I of privacy and/or create
nuisances, hazards or inconveniences to adjacent developments.
3. Abutments to adjacent properties shall not be allowed without the neighbor's prior
written consent which shall be required by the City Planning and Development Office
(CPDO) prior to the granting of a Zoning Permit (Locational Clearance).
4. The capacity of parking areas/lots shall be per the minimum requirements of the
National Building Code. These shall be located, developed and landscaped in order to
enhance the aesthetic quality of the facility. In no case, shall parking areas/lots
encroach into street rights-of-way and shall follow the Traffic Code as set by the City.
5. Developments that attract a significant volume of public modes of transportation,
such as tricycles, jeepneys, buses, etc., shall provide on-site parking for the same.
These shall also provide vehicular loading and unloading bays so as street traffic flow
will not be impeded.
6. Buffers, silencers, mufflers, enclosures and other noise-absorbing I materials shall
be provided to all noise and vibration-producing machinery. Noise levels shall be
maintained according to levels specified in DENR DA9 No. 30 - Abatement of Noise
and Other Forms of Nuisance as Defined by Law.
7. Glare and heat from any operation or activity shall not be radiated, seen or felt from
any point beyond the limits of the property.
8. No large commercial signage and/or pylon, which will be detrimental to the
skyline, shall be allowed.
9. Design guidelines, deeds of restriction, property management plans and other
regulatory tools that will ensure high quality developments shall be required from
developers of commercial subdivisions and condominiums. These shall be submitted
to the City Planning and Development Office (CPDO) for review and approval.
(Emphasis supplied)
Se9tion 4 7 of Ordinance No. 8119 specifically regulates the "development of historic
sites and facilities."Section 48 regulates "large commercial signage and/or
pylon." There is nothing in Sections 47 and 48 of Ordinance No. 8119 that disallows
the construction of a building outside the boundaries of a historic site or
facility, where such building may affect the1 background of a historic site. In this case,
the Torre de Manila stands 870 meters outside and to the rear of the Rizal Monument
and "cannot possibly obstruct the front view of the [Rizal] Monument." 57 Likewise, ;the
Torre de Manila is not in an area that has been declared as an "anthropological or
archeological area" or in an area designated as a heritage zone, cultural property,
historical landmark, or a national treasure by the NHCP. 58
Section 15, Article XIV of the Constitution, which deals with the subject of arts and
culture, provides that "[t]he State shall conserve, promote and popularize the nation's
historical and cultural heritage and resources x x x." Since this provision is not self-
executory, Congress passed laws dealing with the preservation and conservation of
our cultural heritage.
One such law is Republic Act No. 10066,59 or the National Cultural Heritage Act of
2009, which empowers the National Commission for Culture and the Arts and other
cultural agencies to issue a cease and desist order "when the physical integrity of the
national cultural treasures or important cultural properties [is] found to be in danger of
destruction or significant alteration from its original state." 60 This law declares that
the State should protect the "physical integrity" of the heritage property or building if
there is "danger of destruction or significant alteration from its original state." Physical
integrity refers to the structure itself - how strong and sound the structure is. The
same law does not mention that another project, building, or property, not itself a
heritage property or building, may be the subject of a cease and desist order when it
adversely affects the background view, vista, or sightline of a heritage property or
building. Thus, Republic Act No. 10066 cannot apply to the Torre de Manila
condominium project.
Mandamus does not lie against the City of Manila.
The Constitution states that "[n]o person shall be deprived of life, liberty or 1property
without due process of law x x x." 61 It is a fundamental principle that no property shall
be taken away from an individual without due process, whether substantive or
procedural. The dispossession of property, or in this case the stoppage of the
construction of a building in one's own property would violate substantive due process.
The Rules on Civil Procedure are clear that mandamus only issues when there is a
clear legal duty imposed upon the office or the officer sought to be compelled to perform
an act, and when the party seeking mandamus has a clear legal right to the
performance of such act.
In the present case, nowhere is it found in Ordinance No. 8119 or in any law, ordinance,
or rule for that matter, that the construction of a building outside the Rizal Park is
prohibited if the building is within the background sightline or view of the Rizal
Monument. Thus, there is no legal duty on the part of the City of Manila "to
consider," in the words of the Dissenting Opinion, "the standards set under
Ordinance No. 8119" in relation to the applications of DMCI-PDI for the Torre de
Manila since under the ordinance these standards can never be applied outside the
boundaries of Rizal Park. While the Rizal Park has been declared a National
Historical Site, the area where Torre de Manila is being built is a privately-owned
property that is "not pap: of the Rizal Park that has been declared as a National Heritage
Site in 1095," and the Torre de Manila area is in fact "well-beyond" the Rizal Park,
according to NHCP Chairperson Dr. Maria Serena I. Diokno. 62 Neither has the area of
the Torre de Manila been designated as a "heritage zone, a cultural property, a
historical landmark or even a national treasure." 63
Also, to declare that the City of Manila failed to consider the standards under Ordinance
No. 8119 would involve making a finding of fact. A finding lot fact requires notice,
hearing, and the submission of evidence to ascertain compliance with the law or
regulation. In such a case, it is the Regional Trial Court which has the jurisdiction to
hear the case, receive evidence, make a proper finding of fact, and determine whether
the Torre de Manila project properly complied with the standards set by the ordinance.
In Meralco v. Public Service Commission, 64 we held that it is the cardinal right of a
party in trials and administrative proceedings to be heard, which includes the right of
the party interested or affected to present his own case and submit evidence in support
thereof and to have such evidence presented considered by the proper court or tribunal.
To compel the City of Manila to consider the standards under Ordinance No. 8119 to
the Torre de Manila project will be an empty exercise since these standards cannot
apply outside of the Rizal Park - and the Torre de Manila is outside the Rizal Park.
Mandamus will lie only if the officials
The KOR also invokes this Court's exercise of its extraordinary certiorari power of
review under Section 1, Article VIII65 of the Constitution. However, this Court can only
exercise its extraordinary certiorari power if the City of Manila, in issuing the required
permits and licenses, gravely abused its discretion amounting to lack or excess of
jurisdiction. Tellingly, neither the majority nor minority opinion in this case has found
that the City of Manila committed grave abuse of discretion in issuing the permits and
licenses to DMCI-PDI. Thus, there is no justification at all for this Court to exercise its
extraordinary certiorari power.
Moreover, the exercise of this Court's extraordinary certiorari power is limited to actual
cases and controversies that necessarily involve a violation of the Constitution or the
determination of the constitutionality or validity of a governmental act or issuance.
Specific violation of a statute that does not raise the issue of constitutionality or validity
of the statute cannot, as a rule, be the subject of the Court's direct exercise of its
expanded certiorari power. Thus, the KOR's recourse lies with other judicial remedies
or proceedings allowed under the Rules of Court.
In Association of Medical Clinics for Overseas Workers, Inc. v. GCC Approved Medical
Centers Association, Inc., 66we held that in cases where the question of constitutionality
of a governmental action is raised, the judicial power that the courts exercise is likewise
identified as the power of judicial review - the power to review the constitutionality of
the actions of other branches of government. As a rule, as required by the hierarchy of
courts principle, these cases are filed with the lowest court with jurisdiction over the
1subject matter. The judicial review that the courts undertake requires:
1) there be an actual case or controversy calling for the exercise of judicial power;
2) the person challenging the act must have "standing" to challenge; he must have a
personal and substantial interest in the case such that he has sustained, or will sustain,
direct injury as a result of its enforcement;
3) the question of constitutionality must be raised at the earliest possible opportunity;
and
4) the issue of constitutionality must be the very lismota of the case.
The lower court's decision under the constitutional scheme reaches the Supreme Court
through the appeal process, through a petition for review on certiorari under Rule 45 of
the Rules of Court.
In the present case, the KOR elevated this case immediately to this Court in an original
petition for injunction which we later on treated as one for mandamus under Rule 65.
There is, however, no clear legal duty on the City of Manila to consider the provisions
of Ordinance No. 8119 for applications for permits to build outside the protected areas
of the Rizal Park. Even if there were such legal duty, the determination of whether the
City of .Manila failed to abide by this legal duty would involve factual matters which
have not been admitted or established in this case. Establishing factual matters is not
within the realm of this Court. Findings of fact are the province of the trial courts.
There is no standard in Ordinance No. 8119 for defining or determining the background
sightline that is supposed to be protected or that is part of the "physical integrity" of the
Rizal Monument. How far should a building like the Torre de Manila be from the Rizal
Monument - one, two, three, four, or five kilometers? Even the Solicitor General, during
the Oral Arguments, conceded that the ordinance does not prescribe how sightline is
determined, neither is there any way to measure by metes and bounds whether al
construction that is not part of the historic monument itself or is outside the
protected area can be said to violate the Rizal Monument's physicalintegrity, except
only to say "when you stand in front of the Rizal Monument, there can be no doubt that
your view is marred and impaired." This kind of a standard has no parameters and can
include a sightline or a construction as far as the human eyes can see when standing
in front of the Rizal Monument. Obviously, this Court cannot apply such a subjective
and non-uniform standard that adversely affects property rights several kilometers
away from a historical sight or facility.
The Dissenting Opinion claims that "the City, by reason of a mistaken or erroneous
construction of its own Ordinance, had failed to consider its duties under [Ordinance
No. 8119] when it issued permits in DMCI-PDI's favor." However, MZBAA Zoning Board
Resolution Nos. 06 and 06-A67 easily dispel this claim. According to the resolutions, the
City of Manila, through the MZBAA, acted on DMCI-PDI's application for variance under
the powers and standards set forth in Ordinance No. 8119.
Without further proof that the MZBAA acted whimsically, capriciously, or arbitrarily in
issuing said resolution, the Court should respect MZBAA's exercise of discretion. The
Court cannot "substitute its I judgment :for that of said officials who are in a better
position to consider and weigh the same in the light of the authority specifically vested
in them by law." 68 Since the Court has "no supervisory power over the proceedings I
and actions of the administrative departments of the government," it "should not
generally interfere with purely administrative and discretionary functions.; 69 The power
of the Court in mandamus petitions does not extend "to direct the exercise of
judgment or discretion in a particular way or the retraction or reversal of an
action already taken in the exercise of either."70
Still, the Dissenting Opinion insists on directing the re-evaluation by the City of Manila,
through the CPDO, of the permits previously issued in favor of the Torre de Manila
project to determine compliance with the standards ]under Ordinance No. 8119. It also
declares that the circumstances in this case warrant the prohacvice conversion of the
proceedings in the issuance of the permits into a "contested case" necessitating notice
and hearing with all the parties involved.
Prohac vice means a specific decision does not constitute a precedent because the
decision is for the specific case only, not to be followed in other cases. A prohac vice
decision violates statutory law - Article 8 of the Civil Code - which states that "judicial
decisions applying or interpreting the laws or the Constitution shall form part of the legal
system of the Philippines." The decision of the Court in this case cannot be prohac vice
because by mandate bf the law everydecision of the Court forms part of the legal
system of the Philippines. If another case comes up with the same facts as the present
case, that case must be decided in the same way as this case to comply with the
constitutional mandate of equal protection of the law. Thus, a prohac vice decision also
violates the equal protection clause of the Constitution.
It is the policy of the courts not to interfere with the discretionary executive acts of the
executive branch unless there is a clear showing of grave abuse of discretion
amounting to lack or excess of jurisdiction. Mandamus does not lie against the
legislative and executive branches or their members acting in the exercise of their
official discretionary functions. This emanates from the respect accorded by the
judiciary to said branches as co-equal entities under the principle of separation of
powers.
In De Castro v. Salas,71 we held that no rule of law is better established than the one
that provides that mandamus will not issue to control the discretion of an officer or a
court when honestly exercised and when such power and authority is not abused.
In exceptional cases, the Court has granted a prayer for mandamus to compel action
in matters involving judgment and discretion, only "to act, but not to act lone way or the
other," 72 and only in cases where there has been a clear showing of grave abuse
of discretion, manifest injustice, or palpable excess of authority.73
In this case, there can be no determination by this Court that the City of Manila had
been negligent or remiss in its duty under Ordinance No. 8119 considering that this
determination will involve questions of fact. DMCI- PDI had been issued the proper
permits and had secured all approvals and licenses months before the actual
construction began. Even the KOR could not point to any law that respondent City of
Manila had violated and could only point to declarations of policies by the NHCP and
the Venice Charter which do not constitute clear legal bases for the issuance of a writ
of mandam1s.
The Venice Charter is merely a codification of guiding principles for the preservation
and restoration of ancient monuments, sites, and buildings. It brings I together
principles in the field of historical conservation and restoration that have been
developed, agreed upon, and and laid down by experts over the years. Each country,
however, remains "responsible for applying the plan within the framework of its own
culture and traditions."74
The Venice Charter is not a treaty and therefore does not become enforceable as law.
The Philippines is not legally bound to follow its directive, as in fact, these are not
directives but mere guidelines - a set of the best practices and techniques that have
been proven over the years to be the most effective in preserving and restoring
historical monuments, sites and buildings.
The City of Manila concedes that DMCI-PDI's Zoning Permit was granted without going
through the process under Ordinance No. 8119. However, the same was properly
rectified when, faced with mounting opposition, DMCI-PDI itself sought clarification
from the City of Manila and immediately began complying with the procedure for
applying for a variance. The MZBAA did subsequently recommend the approval of the
variance and the City Council of Manila approved the same, ratifying the licenses and
permits already given to DMCI-PDI. Such ratification was well within the right of the City
Council of Manila. The City Council of Manila could have denied the application had it
seen any reason to do so. Again, the ratification is a function of the City Council of
Manila, an exercise of its discretion1 and well within the authority granted it by law and
the City's own Ordinance No. 8119.
The main purpose of zoning is the protection of public safety, health, convenience, and
welfare. There is no indication that the Torre de Manila project brings any harm, danger,
or hazard to the people in the surrounding areas except that the building allegedly
poses an unsightly view on the taking of photos or the visual appreciation of the Rizal
Monument by locals and tourists. In fact, the Court must take the approval of the
MZBAA, and its subsequent ratification by the City Council of Manila, as the duly
authorized exercise of discretion by the city officials. Great care must be taken that the
Court does not unduly tread upon the local government's performance of its duties. It
is not for this Court to dictate upon the other branches bf the government how their
discretion must be exercised so long as these branches do not commit grave abuse of
discretion amounting to lack or excess of jurisdiction.
Likewise, any violation of Ordinance No. 8119 must be determined in the proper case
and before the proper forum. It is not within the power of this Court in this case to make
such determination. Without such determination, this Court cannot simply declare that
the City of Manila had failed to consider its duties under Ordinance No. 8119 when it
issued the permits in DMCI-PDI's favor without making a finding of fact how the City of
Manila failed "to consider" its duties with respect to areas outside the boundaries of the
Rizal Park. In the first place, this Court has no jurisdiction to make findings of fact in an
original action like this before this Court. Moreover the City of Manila could not legally
apply standards to sites outside the area covered by the ordinance that prescribed the
standards. With this, I taken in light of the lack of finding that there was grave abuse of
discretion I on the part of the City of Manila, there is no basis to issue the writ of
mandamus against the City of Manila.
During the Oral Arguments, it was established that the granting of a variance neither
uncommon nor irregular. On the contrary, current practice has made granting of a
variance the rule rather than the exception:
JUSTICE CARPIO: Let's go to Ordinance 8119. For residential condominium that stand
alone, in other words not part of a commercial complex or an industrial complex ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: The [Floor Area Ratio (FAR)] is uniform for the entire City of Manila,
the FAR 4, correct? ATTY. FLAMINIANO: I believe so, Your Honor, it's FAR 4.
JUSTICE CARPIO: So it's FAR 4 for all residential condominium complex or industrial
projects.
ATTY. FLAMINIANO: There might be, the FAR might be different when it comes to
condominiums in commercial areas, Your Honor.
JUSTICE CARPIO: Yes, I'm talking of stand-alone ...
ATTY. FLAMINIANO: Yes, Your Honor.
JUITICE CARPIO: ... residential condominiums...
ATTY. FLAMINIANO: Uniform at FAR 4, Your Honor.
JUSTICE CARPIO: And the percentage of land occupancy is always 60 percent.
ATTY. FLAMINIANO: 60 percent correct, Your Honor.
JUSTICE CARPIO: Okay ... how many square meters is this Torre de Manila?
xxx
ATTY. FLAMINIANO: The land area, Your Honor, it's almost 5,000 ... 5,556.
JUSTICE CARPIO: So, it's almost half a hectare.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And at FAR 4, it can only build up to 18 storeys, I mean at FAR 4,
is that correct?
ATTY. FLAMINIANO: If the 60 percent of the lot...
JUSTICE CARPIO: Yes, but that is a rule.
ATTY. FLAMINIANO: That is a rule, that's the rule, Your Honor.
JUSTICE CARPIO: 60 percent of...
ATTY. FLAMINIANO: Of the land area.
JUSTICE CARPIO: ... buildable, the rest not buildable.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: Okay, so if you look around here in the City of Manila anywhere
you go, you look at stand alone residential condominium buildings...
ATTY. FLAMINIANO: There's a lot of them, Your Honor.
JUSTICE CARPIO: It's always not FAR 4, it's more than FAR 4.
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: And the buildable area is to the edge of the property ...it's not 60
percent, correct?
ATTY. FLAMINIANO: Yes, Your Honor.
JUSTICE CARPIO: So, if you look at all the ... residential buildings in the last ten
years, they [have] all variances. They did not follow the original FAR 4 or the 60
percent (of land occupancy). Every residential building that stand alone was a
variance. ATTY. FLAMINIANO: That's correct, Your Honor.
JUSTICE CARPIO: So the rule really in the City of Manila is variance, and the
exception which is never followed is FAR 4.
ATTY. FLAMINIANO: FAR 4, it appears to be that way, Your Honor.
xxxx
JUSTICE CARPIO: Every developer will have to get a variance because it doesn't
make sense to follow FAR 4 because the land is so expensive and if you can build
only two storeys on a 1,000-square meter lot, you will surely lose money, correct?
ATTY. FLAMINIANO: Exactly, Your Honor. 75 (Emphasis supplied)
This, the MZBAA's grant of the variance cannot be used as a basis to grant the
mandamus petition absent any clear finding that said act amo'1nted to "grave
abuse of discretion, manifest injustice, or palpable excess of authority."
The KOR is Estopped from Questioning the
Torre de Manila Construction.
The KOR is now estopped from questioning the construction of the Torre de Manila
project. The KOR itself came up with the idea to build a structure right behind the Rizal
Monument that would dwarf the Rizal Monument.
In the mid-1950s, the Jose Rizal National Centennial Commission (JRNCC) l
formulated a plan to build an Educational Center within the Rizal Park. In July 1955,
the KOR proposed the inclusion of a national theater on the site of the Educational
Center. The JRNCC adopted the proposal. The following[ year, a law - Republic Act
No. 142776 - authorized the establishment of the Jose Rizal National Cultural Shrine
consisting of a national theater, a national museum, and a national library on a single
site. 77
To be built on the open space right behind the 12.7 meter high Rizal Monument were:
the KOR's proposed nationaltheater, standing 29.25 meters high and 286 meters in
distance from the Rizal Monument; the nationallibrary, standing 25 .6 meters high and
180 meters in distance from the Rizal ;Monument, with its rear along San Luis Street
(now T.M. Kalaw Street); and facing it, the nationalmuseum, at 19.5 meters high and
190 meters in I distance from the Rizal Monument, with its back along P. Burgos
Street. 78
However, several sectors voiced their objections to the construction for various
reasons. Among them, the need to preserve the open space of the park, the high cost
of construction, the desecration of the park's hallowed grounds, and the fact that the
proposed cultural center including the 129.25 meter high national theater
proposed by the KOR would dwarf the 12.7 meter high Rizal Monument. 79 The
JRNCC revised the plan and only the National Library - which still stands today - was
built. 80
According to the NHCP, the KOR even proposed to build a Rizal Center on the park as
recently as 2013.81 The proposal was disapproved by the NHCR and the Department
of Tourism.
Surely, as noble as the KOR's intentions were, its proposed center would have dwarfed
the Rizal Monument with its size and proximity.
In contrast, the Torre de Manila is located well outside the Rizal Park, and to the rear
of the Rizal Monument - approximately 870 meters from the Rizal Monument and 3 0
meters from the edge of Rizal Park. 82
It is a basic principle that "one who seeks equity and justice must come to court with
clean hands. "83 In Jenosa v. Delariarte, 84 the Court reiterated ,that he who seeks
equity must do equity, and he who comes into equity must come with clean hands. This
"signifies that a litigant may be denied relief by a court of equity on the ground that his
conduct has been inequitable, unfair and dishonest, or fraudulent, or deceitful as to the
controversy in issue. " 85Thus, the KOR, having earlier proposed a national theater a
mere 286meters in distance from the back of the Rizal Monument that would have
dwarfed the Rizal Monument, comes to this I Court with unclean hands. It is now
precluded from "seeking any equitable refuge" 86 from the Court. The KOR's petition
should be dismissed on this ground alone.
Torre de Manila is Not a Nuisance Per Se.
In its petition, the KOR claims that the Torre de Manila is a nuisance perse that
deserves to be summarily abated even without judicial proceedings. 87 However, during
the Oral Arguments, counsel for the KOR argued that the KOR now believes that the
Torre de Manila is a nuisance per accidens and not a nuisance perse. 88
Article 694 of the Civil Code defines a nuisance as any act, omission, establishment,
business, condition of property, or anything else which: (1) injures or endangers the
health or safety of others; (2) annoys or offends the senses; (3) shocks, defies or
disregards decency or morality; (4) obstructs or interferes with the free passage of any
public highway or street, or any body of water; or (5) hinders or impairs the use of
property.
Thy Court recognizes two kinds of nuisances. The first, nuisance perse, is on
"recognized as a nuisance under any and all circumstances, because it constitutes a
direct menace to public health or safety, and, for that reason, may be abated summarily
under the undefined law of necessity." 89 The second, nuisance peraccidens, is that
which "depends upon certain conditions and circumstances, and its existence being a
question of fact, it cannot be abated without due hearing thereon in a tribunal authorized
to decide whether such a thing in law constitutes a nuisance. " 90
It can easily be gleaned that the Torre de Manila is not a nuisance per se. The Torre
de Manila project cannot be considered as a "direct menace to I public health or safety."
Not only is a condominium project commonplace in the City of Manila, DMCI-PDI has,
according to the proper government agencies, complied with health and safety
standards set by law. DMCI-PDI has been granted the following permits and clearances
prior to starting the project: (1) Height Clearance Permit from the Civil Aviation Authority
of the Philippines;91 (2) Development Permit from the HLURB;92 (3) Zoning Certification
from the HLURB;93 (4) Certificate of Environmental Compliance Commitment from the
Environment Management Bureau of the Department of Environment and Natural
Resources;94 (5) Barangay Clearance95 (6) Zoning Permit;96 (7) Building Permit;97 (8)
and Electrical and Mechanical Permit.98
Later, DMCI-PDI also obtained the right to build under a variance recommended by the
MZBAA and granted by the City Council of Manila. Thus, there can be no doubt that
the Torre de Manila project is not a nuisance perse.
On the other hand, the KOR now claims that the Torre de Manila is a
nuisance peraccidens.
By definition, a nuisance peraccidens is determined based on its surrounding
conditions and circumstances. These conditions and circumstances must be well
established, not merely alleged. The Court cannot simply accept these conditions and
circumstances as established facts as the KOR would have us do in this case. 99 The
KOR itself concedes that the question of whether the Torre de Manila is a
nuisance peraccidens is a question of fact. 100
The authority to decide when a nuisance exists is an authority to find facts, to estimate
their force, and to apply rules of law to the case thus made. 101 1lhis Court is no such
authority. It is not a trier of facts. It cannot simply take the allegations in the petition and
accept these as facts, more so in this case where these allegations are contested by
the respondents.
The task to receive and evaluate evidence is lodged with the trial courts. The question, [Ako’y mamamatay, ngayong namamalas
then, of whether the Torre de Manila project is a nuisance peraccidens must be settled na sa Silanganan ay namamanaag
after due proceedings brought before the proper Regional Trial Court. The KOR cannot yaong maligayang araw na sisikat
circumvent the process in the guise be protecting national culture and heritage. sa likod ng luksang nagtabing na ulap.] 109

The TRO must be lifted.
Injunctive reliefs are meant to preserve substantive rights and prevent further
injury102 until final adjudication on the merits of the case. In the present case, since the
legal rights of the KOR are not well-defined, clear, and certain, the petition for
mandamus must be dismissed and the TRO lifted.
The general rule is that courts will not disturb the findings of I administrative agencies
when they are supported by substantial evidence. In this case, DMCI-PDI already
acquired vested rights in the various permits, licenses, or even variances it had applied
for in order to build a 49-storey building which is, and had been, allowed by the City of
Manila's zoning ordinance.
As we have time and again held, courts generally hesitate to review discretionary
decisions or actions of administrative agencies in the absence of proof that such
decisions or actions were arrived at with grave abuse of discretion amounting to lack
or excess of jurisdiction.
In JRS Business Corp. v. Montesa, 103
we held that mandamus is the proper remedy if
it could be shown that there was neglect on the part of a tribunal in the performance of
an act which the law specifically enjoins as a duty, or there was an unlawful exclusion
of a party from the use and enjoyment be a right to which he is clearly entitled. Only
specific legal rights may be enforced by mandamus if they are clear and certain. If the
legal rights of th6 petitioner are not well-defined, definite, clear, and certain, 104 the
petition must be dismissed. Stated otherwise, the writ never issues in doubtful cases.
It neither confers powers nor imposes duties. It is simply a command to exercise a
power already possessed and to perform a duty already imposed. 105
In sum, bearing in mind the Court does not intervene in discretionary acts of the
executive department in the absence of grave abuse of discretion, 106 and considering
that mandamus may only be issued to enforce a clear and certain legal right, 107 the
present special civil action for mandamus must be dismissed and the TRO issued
earlier must be lifted.
A FINAL WORD
It had been Rizal’s wish to die facing the rising sun. In his Mi Ultimo Adios, the poem
he left for his family the night before he was executed, Rizal wrote:
[I die just when I see the dawn break,
Through the gloom of night, to herald the day] 110
Yet at the point of his execution, he was made to stand facing West towards Manila
Bay, with his back to the firing squad, like the traitor the colonial government wished to
portray him. He asked to face his executioners, facing the East where the sun would
be rising since it was early morning, but the Spanish captain did not allow it. As he was
shot and a single bullet struck his frail body, Rizal forced himself, with his last remaining
strength, to turn around to face the East and thus he fell on his back with] his face to
the sky and the rising sun. Then, the Spanish captain approached Rizal and finished
him off with one pistol shot to his head.
Before his death, Rizal wrote a letter to his family. He asked for a simple tomb, marked
with a cross and a stone with only his name and the date of his birth and death; no
anniversary celebrations; and interment at Paang Bundok(now, the Manila North
Cemetery). Rizal never wanted his grave to be a burden to future generations.
The letter never made it to his family and his wishes were not carried out. The letter
was discovered many years later, in 1953. By then, his remains had been entombed at
the Rizal Monument, countless anniversaries had been . celebrated, with memorials
and monuments built throughout the world.
Rizal's wish was unmistakable: to be buried without pomp or pageantry; to the point of
reaching oblivion or obscurity in the future. 111 For Rizal's life was never about fame or
vainglory, but for the country he loved dearly and for which he gave up his life.
The Rizal Monument is expressly against Rizal' s own wishes. That Rizal's statue now
stands facing West towards Manila Bay, with Rizal's back to the East, adds salt to the
wound. If we continue the present orientation of Rizal's statue, with Rizal facing West,
we would be like the Spanish captain who refused Rizal's request to die facing the rising
sun in the East. On the other hand, if Rizal' s statue is made to face East, as Rizal had
desired when he was about to be shot, the background - the blue sky above Manila
Bay - would forever be clear of obstruction, and we would be faithful to Rizal's dying
wish.
WHEREFORE, the petition for mandamus is DISMISSED for lack of merit. The
Temporary Restraining Order issued by the Court on 16 June 2015 is LIFTED effective
immediately.

Yo muero cuando veo que el cielo se colora SO ORDERED.

Y al fin anuncia el dia tras lobrego capuz 108
G.R. No. 127325 March 19, 1997
MIRIAM DEFENSOR SANTIAGO, ALEXANDER PADILLA, and MARIA ISABEL
ONGPIN, petitioners,
vs.
COMMISSION ON ELECTIONS, JESUS DELFIN, ALBERTO PEDROSA & CARMEN
PEDROSA, in their capacities as founding members of the People's Initiative for
Reforms, Modernization and Action (PIRMA), respondents.
SENATOR RAUL S. ROCO, DEMOKRASYA-IPAGTANGGOL ANG
KONSTITUSYON (DIK), MOVEMENT OF ATTORNEYS FOR BROTHERHOOD
INTEGRITY AND NATIONALISM, INC. (MABINI), INTEGRATED BAR OF THE
PHILIPPINES (IBP), and LABAN NG DEMOKRATIKONG PILIPINO
(LABAN), petitioners-intervenors.
DAVIDE, JR., J.:
The heart of this controversy brought to us by way of a petition for prohibition under
Rule 65 of the Rules of Court is the right of the people to directly propose amendments
to the Constitution through the system of initiative under Section 2 of Article XVII of the
1987 Constitution. Undoubtedly, this demands special attention, as this system of
initiative was unknown to the people of this country, except perhaps to a few scholars,
before the drafting of the 1987 Constitution. The 1986 Constitutional Commission itself,
through the original proponent1 and the main sponsor2 of the proposed Article on
Amendments or Revision of the Constitution, characterized this system as
"innovative".3 Indeed it is, for both under the 1935 and 1973 Constitutions, only two
methods of proposing amendments to, or revision of, the Constitution were
recognized, viz., (1) by Congress upon a vote of three-fourths of all its members and
(2) by a constitutional convention.4 For this and the other reasons hereafter discussed,
we resolved to give due course to this petition.
On 6 December 1996, private respondent Atty. Jesus S. Delfin filed with public
respondent Commission on Elections (hereafter, COMELEC) a "Petition to Amend the
Constitution, to Lift Term Limits of Elective Officials, by People's Initiative" (hereafter,
Delfin Petition)5 wherein Delfin asked the COMELEC for an order
1. Fixing the time and dates for signature gathering all over the
country;
2. Causing the necessary publications of said Order and the attached
"Petition for Initiative on the 1987 Constitution, in newspapers of
general and local circulation;
3. Instructing Municipal Election Registrars in all Regions of the
Philippines, to assist Petitioners and volunteers, in establishing
signing stations at the time and on the dates designated for the
purpose.
Delfin alleged in his petition that he is a founding member of the Movement for People's
Initiative,6 a group of citizens desirous to avail of the system intended to institutionalize
people power; that he and the members of the Movement and other volunteers intend
to exercise the power to directly propose amendments to the Constitution granted under
Section 2, Article XVII of the Constitution; that the exercise of that power shall be
conducted in proceedings under the control and supervision of the COMELEC; that, as
required in COMELEC Resolution No. 2300, signature stations shall be established all
over the country, with the assistance of municipal election registrars, who shall verify
the signatures affixed by individual signatories; that before the Movement and other
volunteers can gather signatures, it is necessary that the time and dates to be
designated for the purpose be first fixed in an order to be issued by the COMELEC;
and that to adequately inform the people of the electoral process involved, it is likewise
necessary that the said order, as well as the Petition on which the signatures shall be
affixed, be published in newspapers of general and local circulation, under the control
and supervision of the COMELEC.
The Delfin Petition further alleged that the provisions sought to be amended are
Sections 4 and 7 of Article VI,7Section 4 of Article VII,8 and Section 8 of Article X9 of
the Constitution. Attached to the petition is a copy of a "Petition for Initiative on the 1987
Constitution" 10 embodying the proposed amendments which consist in the deletion
from the aforecited sections of the provisions concerning term limits, and with the
following proposition:
DO YOU APPROVE OF LIFTING THE TERM LIMITS OF ALL
ELECTIVE GOVERNMENT OFFICIALS, AMENDING FOR THE
PURPOSE SECTIONS 4 AND 7 OF ARTICLE VI, SECTION 4 OF
ARTICLE VII, AND SECTION 8 OF ARTICLE X OF THE 1987
PHILIPPINE CONSTITUTION?
According to Delfin, the said Petition for Initiative will first be submitted to the people,
and after it is signed by at least twelve per cent of the total number of registered voters
in the country it will be formally filed with the COMELEC.
Upon the filing of the Delfin Petition, which was forthwith given the number UND 96-
037 (INITIATIVE), the COMELEC, through its Chairman, issued an Order 11 (a)
directing Delfin "to cause the publication of the petition, together with the attached
Petition for Initiative on the 1987 Constitution (including the proposal, proposed
constitutional amendment, and the signature form), and the notice of hearing in three
(3) daily newspapers of general circulation at his own expense" not later than 9
December 1996; and (b) setting the case for hearing on 12 December 1996 at 10:00
a.m.
At the hearing of the Delfin Petition on 12 December 1996, the following appeared:
Delfin and Atty. Pete Q. Quadra; representatives of the People's Initiative for Reforms,
Modernization and Action (PIRMA); intervenor-oppositor Senator Raul S. Roco,
together with his two other lawyers, and representatives of, or counsel for, the
Integrated Bar of the Philippines (IBP), Demokrasya-Ipagtanggol ang Konstitusyon
(DIK), Public Interest Law Center, and Laban ng Demokratikong Pilipino
(LABAN). 12 Senator Roco, on that same day, filed a Motion to Dismiss the Delfin
Petition on the ground that it is not the initiatory petition properly cognizable by the
COMELEC.
After hearing their arguments, the COMELEC directed Delfin and the oppositors to file
their "memoranda and/or oppositions/memoranda" within five days. 13
On 18 December 1996, the petitioners herein — Senator Miriam Defensor Santiago,
Alexander Padilla, and Maria Isabel Ongpin — filed this special civil action for
prohibition raising the following arguments:
(1) The constitutional provision on people's initiative to amend the
Constitution can only be implemented by law to be passed by
Congress. No such law has been passed; in fact, Senate Bill No.
1290 entitled An Act Prescribing and Regulating Constitution
Amendments by People's Initiative, which petitioner Senator
Santiago filed on 24 November 1995, is still pending before the
Senate Committee on Constitutional Amendments.
(2) It is true that R.A. No. 6735 provides for three systems of initiative,
namely, initiative on the Constitution, on statutes, and on local
legislation. However, it failed to provide any subtitle on initiative on
the Constitution, unlike in the other modes of initiative, which are
specifically provided for in Subtitle II and Subtitle III. This deliberate
omission indicates that the matter of people's initiative to amend the
Constitution was left to some future law. Former Senator Arturo
Tolentino stressed this deficiency in the law in his privilege speech
delivered before the Senate in 1994: "There is not a single word in
that law which can be considered as implementing [the provision on
constitutional initiative]. Such implementing provisions have been
obviously left to a separate law.
(3) Republic Act No. 6735 provides for the effectivity of the law after
publication in print media. This indicates that the Act covers only laws
and not constitutional amendments because the latter take effect
only upon ratification and not after publication.
(4) COMELEC Resolution No. 2300, adopted on 16 January 1991 to
govern "the conduct of initiative on the Constitution and initiative and
referendum on national and local laws, is ultra vires insofar
as initiative on amendments to the Constitution is concerned, since
the COMELEC has no power to provide rules and regulations for the
exercise of the right of initiative to amend the Constitution. Only
Congress is authorized by the Constitution to pass the implementing
law.
(5) The people's initiative is limited to amendments to the
Constitution, not to revision thereof. Extending or lifting of term limits
constitutes a revision and is, therefore, outside the power of the
people's initiative.
(6) Finally, Congress has not yet appropriated funds for people's
initiative; neither the COMELEC nor any other government
department, agency, or office has realigned funds for the purpose.
To justify their recourse to us via the special civil action for prohibition, the petitioners
allege that in the event the COMELEC grants the Delfin Petition, the people's initiative
spearheaded by PIRMA would entail expenses to the national treasury for general re-
registration of voters amounting to at least P180 million, not to mention the millions of
additional pesos in expenses which would be incurred in the conduct of the initiative
itself. Hence, the transcendental importance to the public and the nation of the issues
raised demands that this petition for prohibition be settled promptly and definitely,
brushing aside technicalities of procedure and calling for the admission of a taxpayer's
and legislator's suit. 14 Besides, there is no other plain, speedy, and adequate remedy
in the ordinary course of law.
On 19 December 1996, this Court (a) required the respondents to comment on the
petition within a non-extendible period of ten days from notice; and (b) issued a
temporary restraining order, effective immediately and continuing until further orders,
enjoining public respondent COMELEC from proceeding with the Delfin Petition, and
private respondents Alberto and Carmen Pedrosa from conducting a signature drive for
people's initiative to amend the Constitution.
On 2 January 1997, private respondents, through Atty Quadra, filed their
Comment 15 on the petition. They argue therein that:
1. IT IS NOT TRUE THAT "IT WOULD ENTAIL EXPENSES TO THE
NATIONAL TREASURY FOR GENERAL REGISTRATION OF
VOTERS AMOUNTING TO AT LEAST PESOS: ONE HUNDRED
EIGHTY MILLION (P180,000,000.00)" IF THE "COMELEC GRANTS
THE PETITION FILED BY RESPONDENT DELFIN BEFORE THE
COMELEC.
2. NOT A SINGLE CENTAVO WOULD BE SPENT BY THE
NATIONAL GOVERNMENT IF THE COMELEC GRANTS THE
PETITION OF RESPONDENT DELFIN. ALL EXPENSES IN THE
SIGNATURE GATHERING ARE ALL FOR THE ACCOUNT OF
RESPONDENT DELFIN AND HIS VOLUNTEERS PER THEIR
PROGRAM OF ACTIVITIES AND EXPENDITURES SUBMITTED
TO THE COMELEC. THE ESTIMATED COST OF THE DAILY PER
DIEM OF THE SUPERVISING SCHOOL TEACHERS IN THE
SIGNATURE GATHERING TO BE DEPOSITED and TO BE PAID
BY DELFIN AND HIS VOLUNTEERS IS P2,571,200.00;
3. THE PENDING PETITION BEFORE THE COMELEC IS ONLY
ON THE SIGNATURE GATHERING WHICH BY LAW COMELEC IS
DUTY BOUND "TO SUPERVISE CLOSELY" PURSUANT TO ITS
"INITIATORY JURISDICTION" UPHELD BY THE HONORABLE
COURT IN ITS RECENT SEPTEMBER 26, 1996 DECISION IN THE
CASE OF SUBIC BAY METROPOLITAN AUTHORITY
VS. COMELEC, ET AL. G.R. NO. 125416;
 4. REP. ACT NO. 6735 APPROVED ON AUGUST 4, 1989 IS THE
ENABLING LAW IMPLEMENTING THE POWER OF PEOPLE
INITIATIVE TO PROPOSE AMENDMENTS TO THE
CONSTITUTION. SENATOR DEFENSOR-SANTIAGO'S SENATE
BILL NO. 1290 IS A DUPLICATION OF WHAT ARE ALREADY
PROVIDED FOR IN REP. ACT NO. 6735;
5. COMELEC RESOLUTION NO. 2300 PROMULGATED ON
JANUARY 16, 1991 PURSUANT TO REP. ACT 6735 WAS UPHELD
BY THE HONORABLE COURT IN THE RECENT SEPTEMBER 26,
1996 DECISION IN THE CASE OF SUBIC BAY METROPOLITAN
AUTHORITY VS. COMELEC, ET AL. G.R. NO. 125416 WHERE
THE HONORABLE COURT SAID: "THE COMMISSION ON
ELECTIONS CAN DO NO LESS BY SEASONABLY AND
JUDICIOUSLY PROMULGATING GUIDELINES AND RULES FOR
BOTH NATIONAL AND LOCAL USE, IN IMPLEMENTING OF
THESE LAWS."
6. EVEN SENATOR DEFENSOR-SANTIAGO'S SENATE BILL NO.
1290 CONTAINS A PROVISION DELEGATING TO THE COMELEC
THE POWER TO "PROMULGATE SUCH RULES AND
REGULATIONS AS MAY BE NECESSARY TO CARRY OUT THE
PURPOSES OF THIS ACT." (SEC. 12, S.B. NO. 1290, ENCLOSED
AS ANNEX E, PETITION);
7. THE LIFTING OF THE LIMITATION ON THE TERM OF OFFICE
OF ELECTIVE OFFICIALS PROVIDED UNDER THE 1987
CONSTITUTION IS NOT A "REVISION" OF THE CONSTITUTION.
IT IS ONLY AN AMENDMENT. "AMENDMENT ENVISAGES AN
ALTERATION OF ONE OR A FEW SPECIFIC PROVISIONS OF
THE CONSTITUTION. REVISION CONTEMPLATES A RE-
EXAMINATION OF THE ENTIRE DOCUMENT TO DETERMINE
HOW AND TO WHAT EXTENT IT SHOULD BE ALTERED." (PP.
412-413, 2ND. ED. 1992, 1097 PHIL. CONSTITUTION, BY
JOAQUIN G. BERNAS, S.J.).
Also on 2 January 1997, private respondent Delfin filed in his own behalf a
Comment 16 which starts off with an assertion that the instant petition is a "knee-jerk
reaction to a draft 'Petition for Initiative on the 1987 Constitution'. . . which is not formally
filed yet." What he filed on 6 December 1996 was an "Initiatory Pleading" or "Initiatory
Petition," which was legally necessary to start the signature campaign to amend the
Constitution or to put the movement to gather signatures under COMELEC power and
function. On the substantive allegations of the petitioners, Delfin maintains as follows:
(1) Contrary to the claim of the petitioners, there is a law, R.A. No.
6735, which governs the conduct of initiative to amend the
Constitution. The absence therein of a subtitle for such initiative is
not fatal, since subtitles are not requirements for the validity or
sufficiency of laws.
(2) Section 9(b) of R.A. No. 6735 specifically provides that the
proposition in an initiative to amend the Constitution approved by the
majority of the votes cast in the plebiscite shall become effective as
of the day of the plebiscite.
(3) The claim that COMELEC Resolution No. 2300 is ultra vires is
contradicted by (a) Section 2, Article IX-C of the Constitution, which
grants the COMELEC the power to enforce and administer all laws
and regulations relative to the conduct of an election,
plebiscite, initiative, referendum, and recall; and (b) Section 20 of
R.A. 6735, which empowers the COMELEC to promulgate such rules
and regulations as may be necessary to carry out the purposes of
the Act.
(4) The proposed initiative does not involve a revision of, but
mere amendment to, the Constitution because it seeks to alter only
a few specific provisions of the Constitution, or more specifically, only
those which lay term limits. It does not seek to reexamine or overhaul
the entire document.
As to the public expenditures for registration of voters, Delfin considers petitioners'
estimate of P180 million as unreliable, for only the COMELEC can give the exact figure.
Besides, if there will be a plebiscite it will be simultaneous with the 1997 Barangay
Elections. In any event, fund requirements for initiative will be a priority government
expense because it will be for the exercise of the sovereign power of the people.
In the Comment 17 for the public respondent COMELEC, filed also on 2 January 1997,
the Office of the Solicitor General contends that:
(1) R.A. No. 6735 deals with, inter alia, people's initiative to amend
the Constitution. Its Section 2 on Statement of Policy explicitly
affirms, recognizes, and guarantees that power; and its Section 3,
which enumerates the three systems of initiative, includes initiative
on the Constitution and defines the same as the power to propose
amendments to the Constitution. Likewise, its Section 5 repeatedly
mentions initiative on the Constitution.
(2) A separate subtitle on initiative on the Constitution is not
necessary in R.A. No. 6735 because, being national in scope, that
system of initiative is deemed included in the subtitle on National
Initiative and Referendum; and Senator Tolentino simply overlooked
pertinent provisions of the law when he claimed that nothing therein
was provided for initiative on the Constitution.
(3) Senate Bill No. 1290 is neither a competent nor a material proof
that R.A. No. 6735 does not deal with initiative on the Constitution.
(4) Extension of term limits of elected officials constitutes a mere
amendment to the Constitution, not a revision thereof.
 (5) COMELEC Resolution No. 2300 was validly issued under Section
20 of R.A. No. 6735 and under the Omnibus Election Code. The rule-
making power of the COMELEC to implement the provisions of R.A.
No. 6735 was in fact upheld by this Court in Subic Bay Metropolitan
Authority vs. COMELEC.
On 14 January 1997, this Court (a) confirmed nunc pro tunc the temporary restraining
order; (b) noted the aforementioned Comments and the Motion to Lift Temporary
Restraining Order filed by private respondents through Atty. Quadra, as well as the
latter's Manifestation stating that he is the counsel for private respondents Alberto and
Carmen Pedrosa only and the Comment he filed was for the Pedrosas; and (c) granted
the Motion for Intervention filed on 6 January 1997 by Senator Raul Roco and allowed
him to file his Petition in Intervention not later than 20 January 1997; and (d) set the
case for hearing on 23 January 1997 at 9:30 a.m.
On 17 January 1997, the Demokrasya-Ipagtanggol ang Konstitusyon (DIK) and the
Movement of Attorneys for Brotherhood Integrity and Nationalism, Inc. (MABINI), filed
a Motion for Intervention. Attached to the motion was their Petition in Intervention, which
was later replaced by an Amended Petition in Intervention wherein they contend that:
(1) The Delfin proposal does not involve a mere amendment to, but
a revision of, the Constitution because, in the words of Fr. Joaquin
Bernas, S.J., 18 it would involve a change from a political philosophy
that rejects unlimited tenure to one that accepts unlimited tenure; and
although the change might appear to be an isolated one, it can affect
other provisions, such as, on synchronization of elections and on the
State policy of guaranteeing equal access to opportunities for public
service and prohibiting political dynasties. 19 A revision cannot be
done by initiative which, by express provision of Section 2 of Article
XVII of the Constitution, is limited to amendments.
(2) The prohibition against reelection of the President and the limits
provided for all other national and local elective officials are based
on the philosophy of governance, "to open up the political arena to
as many as there are Filipinos qualified to handle the demands of
leadership, to break the concentration of political and economic
powers in the hands of a few, and to promote effective proper
empowerment for participation in policy and decision-making for the
common good"; hence, to remove the term limits is to negate and
nullify the noble vision of the 1987 Constitution.
(3) The Delfin proposal runs counter to the purpose of initiative,
particularly in a conflict-of-interest situation. Initiative is intended as
a fallback position that may be availed of by the people only if they
are dissatisfied with the performance of their elective officials, but not
as a premium for good performance. 20
(4) R.A. No. 6735 is deficient and inadequate in itself to be called the
enabling law that implements the people's initiative on amendments
to the Constitution. It fails to state (a) the proper parties who may file
the petition, (b) the appropriate agency before whom the petition is
to be filed, (c) the contents of the petition, (d) the publication of the
same, (e) the ways and means of gathering the signatures of the
voters nationwide and 3% per legislative district, (f) the proper parties
who may oppose or question the veracity of the signatures, (g) the
role of the COMELEC in the verification of the signatures and the
sufficiency of the petition, (h) the appeal from any decision of the
COMELEC, (I) the holding of a plebiscite, and (g) the appropriation
of funds for such people's initiative. Accordingly, there being no
enabling law, the COMELEC has no jurisdiction to hear Delfin's
petition.
(5) The deficiency of R.A. No. 6735 cannot be rectified or remedied
by COMELEC Resolution No. 2300, since the COMELEC is without
authority to legislate the procedure for a people's initiative under
Section 2 of Article XVII of the Constitution. That function exclusively
pertains to Congress. Section 20 of R.A. No. 6735 does not
constitute a legal basis for the Resolution, as the former does not set
a sufficient standard for a valid delegation of power.
On 20 January 1997, Senator Raul Roco filed his Petition in
Intervention. 21 He avers that R.A. No. 6735 is the enabling law that implements the
people's right to initiate constitutional amendments. This law is a consolidation of
Senate Bill No. 17 and House Bill No. 21505; he co-authored the House Bill and even
delivered a sponsorship speech thereon. He likewise submits that the COMELEC was
empowered under Section 20 of that law to promulgate COMELEC Resolution No.
2300. Nevertheless, he contends that the respondent Commission is without
jurisdiction to take cognizance of the Delfin Petition and to order its publication because
the said petition is not the initiatory pleading contemplated under the Constitution,
Republic Act No. 6735, and COMELEC Resolution No. 2300. What vests jurisdiction
upon the COMELEC in an initiative on the Constitution is the filing of a petition for
initiative which is signed by the required number of registered voters. He also submits
that the proponents of a constitutional amendment cannot avail of the authority and
resources of the COMELEC to assist them is securing the required number of
signatures, as the COMELEC's role in an initiative on the Constitution is limited to the
determination of the sufficiency of the initiative petition and the call and supervision of
a plebiscite, if warranted.
On 20 January 1997, LABAN filed a Motion for Leave to Intervene.
The following day, the IBP filed a Motion for Intervention to which it attached a Petition
in Intervention raising the following arguments:
(1) Congress has failed to enact an enabling law mandated under
Section 2, Article XVII of the 1987 Constitution.
(2) COMELEC Resolution No. 2300 cannot substitute for the
required implementing law on the initiative to amend the Constitution.
 (3) The Petition for Initiative suffers from a fatal defect in that it does
not have the required number of signatures.
(4) The petition seeks, in effect a revision of the Constitution, which
can be proposed only by Congress or a constitutional convention. 22
On 21 January 1997, we promulgated a Resolution (a) granting the Motions for
Intervention filed by the DIK and MABINI and by the IBP, as well as the Motion for
Leave to Intervene filed by LABAN; (b) admitting the Amended Petition in Intervention
of DIK and MABINI, and the Petitions in Intervention of Senator Roco and of the IBP;
(c) requiring the respondents to file within a nonextendible period of five days their
Consolidated Comments on the aforesaid Petitions in Intervention; and (d) requiring
LABAN to file its Petition in Intervention within a nonextendible period of three days
from notice, and the respondents to comment thereon within a nonextendible period of
five days from receipt of the said Petition in Intervention.
At the hearing of the case on 23 January 1997, the parties argued on the following
pivotal issues, which the Court formulated in light of the allegations and arguments
raised in the pleadings so far filed:
1. Whether R.A. No. 6735, entitled An Act Providing for a System of
Initiative and Referendum and Appropriating Funds Therefor, was
intended to include or cover initiative on amendments to the
Constitution; and if so, whether the Act, as worded, adequately
covers such initiative.
2. Whether that portion of COMELEC Resolution No. 2300 (In re:
Rules and Regulations Governing the Conduct of Initiative on the
Constitution, and Initiative and Referendum on National and Local
Laws) regarding the conduct of initiative on amendments to the
Constitution is valid, considering the absence in the law of specific
provisions on the conduct of such initiative.
3. Whether the lifting of term limits of elective national and local
officials, as proposed in the draft "Petition for Initiative on the 1987
Constitution," would constitute a revision of, or an amendment to, the
Constitution.
4. Whether the COMELEC can take cognizance of, or has jurisdiction
over, a petition solely intended to obtain an order (a) fixing the time
and dates for signature gathering; (b) instructing municipal election
officers to assist Delfin's movement and volunteers in establishing
signature stations; and (c) directing or causing the publication
of, inter alia, the unsigned proposed Petition for Initiative on the 1987
Constitution.
5. Whether it is proper for the Supreme Court to take cognizance of
the petition when there is a pending case before the COMELEC.
After hearing them on the issues, we required the parties to submit simultaneously their
respective memoranda within twenty days and requested intervenor Senator Roco to
submit copies of the deliberations on House Bill No. 21505.
On 27 January 1997, LABAN filed its Petition in Intervention wherein it adopts the
allegations and arguments in the main Petition. It further submits that the COMELEC
should have dismissed the Delfin Petition for failure to state a sufficient cause of action
and that the Commission's failure or refusal to do so constituted grave abuse of
discretion amounting to lack of jurisdiction.
On 28 January 1997, Senator Roco submitted copies of portions of both the Journal
and the Record of the House of Representatives relating to the deliberations of House
Bill No. 21505, as well as the transcripts of stenographic notes on the proceedings of
the Bicameral Conference Committee, Committee on Suffrage and Electoral Reforms,
of 6 June 1989 on House Bill No. 21505 and Senate Bill No. 17.
Private respondents Alberto and Carmen Pedrosa filed their Consolidated Comments
on the Petitions in Intervention of Senator Roco, DIK and MABINI, and IBP. 23 The
parties thereafter filed, in due time, their separate memoranda. 24
As we stated in the beginning, we resolved to give due course to this special civil action.
For a more logical discussion of the formulated issues, we shall first take up the fifth
issue which appears to pose a prejudicial procedural question.
I
THE INSTANT PETITION IS VIABLE DESPITE THE PENDENCY IN THE
COMELEC OF THE DELFIN PETITION.
Except for the petitioners and intervenor Roco, the parties paid no serious attention to
the fifth issue, i.e., whether it is proper for this Court to take cognizance of this special
civil action when there is a pending case before the COMELEC. The petitioners provide
an affirmative answer. Thus:
28. The Comelec has no jurisdiction to take cognizance of the petition
filed by private respondent Delfin. This being so, it becomes
imperative to stop the Comelec from proceeding any further, and
under the Rules of Court, Rule 65, Section 2, a petition for prohibition
is the proper remedy.
29. The writ of prohibition is an extraordinary judicial writ issuing out
of a court of superior jurisdiction and directed to an inferior court, for
the purpose of preventing the inferior tribunal from usurping a
jurisdiction with which it is not legally vested. (People v. Vera, supra.,
p. 84). In this case the writ is an urgent necessity, in view of the highly
divisive and adverse environmental consequences on the body
politic of the questioned Comelec order. The consequent climate of
 legal confusion and political instability begs for judicial they be settled promptly and definitely, brushing aside, if we must,
statesmanship. technicalities of procedure.

30. In the final analysis, when the system of constitutional law is II

threatened by the political ambitions of man, only the Supreme Court
can save a nation in peril and uphold the paramount majesty of the blunt 30 That section reads as follows:
Constitution. 25
Sec. 1. Any amendment to, or revision of, this Constitution may be proposed:
It must be recalled that intervenor Roco filed with the COMELEC a motion to dismiss
the Delfin Petition on the ground that the COMELEC has no jurisdiction or authority to
entertain the petition. 26 The COMELEC made no ruling thereon evidently because after (a) by the National Assembly upon a vote of three-fourths of all its
having heard the arguments of Delfin and the oppositors at the hearing on 12 December members; or
1996, it required them to submit within five days their memoranda or
oppositions/memoranda. 27 Earlier, or specifically on 6 December 1996, it practically (b) by a constitutional convention; or
gave due course to the Delfin Petition by ordering Delfin to cause the publication of the
petition, together with the attached Petition for Initiative, the signature form, and the (c) directly by the people themselves thru initiative as provided for in
notice of hearing; and by setting the case for hearing. The COMELEC's failure to act Article___ Section ___of the Constitution. 31
on Roco's motion to dismiss and its insistence to hold on to the petition rendered ripe
and viable the instant petition under Section 2 of Rule 65 of the Rules of Court, which
provides: After several interpellations, but before the period of amendments, the
Committee submitted a new formulation of the concept of initiative which it
denominated as Section 2; thus:
Sec. 2. Petition for prohibition. — Where the proceedings of any
tribunal, corporation, board, or person, whether exercising functions
judicial or ministerial, are without or in excess of its or his jurisdiction, MR. SUAREZ. Thank you, Madam President. May
or with grave abuse of discretion, and there is no appeal or any other we respectfully call attention of the Members of the
plain, speedy and adequate remedy in the ordinary course of law, a Commission that pursuant to the mandate given to
person aggrieved thereby may file a verified petition in the proper us last night, we submitted this afternoon a
court alleging the facts with certainty and praying that judgment be complete Committee Report No. 7 which
rendered commanding the defendant to desist from further embodies the proposed provision governing the
proceedings in the action or matter specified therein. matter of initiative. This is now covered by Section
2 of the complete committee report. With the
permission of the Members, may I quote Section
It must also be noted that intervenor Roco claims that the COMELEC has no jurisdiction 2:
over the Delfin Petition because the said petition is not supported by the required
minimum number of signatures of registered voters. LABAN also asserts that the
COMELEC gravely abused its discretion in refusing to dismiss the Delfin Petition, which The people may, after five years from the date of the last plebiscite
does not contain the required number of signatures. In light of these claims, the instant held, directly propose amendments to this Constitution thru initiative
case may likewise be treated as a special civil action for certiorari under Section I of upon petition of at least ten percent of the registered voters.
Rule 65 of the Rules of Court.
This completes the blanks appearing in the original Committee
In any event, as correctly pointed out by intervenor Roco in his Memorandum, this Court Report No. 7. 32
may brush aside technicalities of procedure in
cases of transcendental importance. As we stated in Kilosbayan, Inc. v. Guingona, The interpellations on Section 2 showed that the details for carrying out Section 2 are
Jr. 28 left to the legislature. Thus:

A party's standing before this Court is a procedural technicality which FR. BERNAS. Madam President, just two simple,
it may, in the exercise of its discretion, set aside in view of the clarificatory questions.
importance of issues raised. In the landmark Emergency Powers
Cases, this Court brushed aside this technicality because the
First, on Section 1 on the matter of initiative upon
transcendental importance to the public of these cases demands that
petition of at least 10 percent, there are no details
 in the provision on how to carry this out. Do we
understand, therefore, that we are leaving this
matter to the legislature?
MR. SUAREZ. That is right, Madam President.
FR. BERNAS. And do we also understand,
therefore, that for as long as the legislature does
not pass the necessary implementing law on this,
this will not operate?
MR. SUAREZ. That matter was also taken up
during the committee hearing, especially with
respect to the budget appropriations which would
have to be legislated so that the plebiscite could
be called. We deemed it best that this matter be
left to the legislature. The Gentleman is right. In
any event, as envisioned, no amendment through
the power of initiative can be called until after five
years from the date of the ratification of this
Constitution. Therefore, the first amendment that
could be proposed through the exercise of this
initiative power would be after five years. It is
reasonably expected that within that five-year
period, the National Assembly can come up with
the appropriate rules governing the exercise of this
power.
FR. BERNAS. Since the matter is left to the
legislature — the details on how this is to be
carried out — is it possible that, in effect, what will
be presented to the people for ratification is the
work of the legislature rather than of the people?
Does this provision exclude that possibility?
MR. SUAREZ. No, it does not exclude that
possibility because even the legislature itself as a
body could propose that amendment, maybe
individually or collectively, if it fails to muster the
three-fourths vote in order to constitute itself as a
constituent assembly and submit that proposal to
the people for ratification through the process of
an initiative.
xxx xxx xxx
MS. AQUINO. Do I understand from the sponsor
that the intention in the proposal is to vest
constituent power in the people to amend the
Constitution?
MR. SUAREZ. That is absolutely correct, Madam
President.
MS. AQUINO. I fully concur with the underlying
precept of the proposal in terms of institutionalizing
popular participation in the drafting of the
Constitution or in the amendment thereof, but I
would have a lot of difficulties in terms of accepting
the draft of Section 2, as written. Would the
sponsor agree with me that in the hierarchy of
legal mandate, constituent power has primacy
over all other legal mandates?
MR. SUAREZ. The Commissioner is right, Madam
President.
MS. AQUINO. And would the sponsor agree with
me that in the hierarchy of legal values, the
Constitution is source of all legal mandates and
that therefore we require a great deal of
circumspection in the drafting and in the
amendments of the Constitution?
MR. SUAREZ. That proposition is nondebatable.
MS. AQUINO. Such that in order to underscore the
primacy of constituent power we have a separate
article in the constitution that would specifically
cover the process and the modes of amending the
Constitution?
MR. SUAREZ. That is right, Madam President.
MS. AQUINO. Therefore, is the sponsor inclined,
as the provisions are drafted now, to again
concede to the legislature the process or the
requirement of determining the mechanics of
amending the Constitution by people's initiative?
MR. SUAREZ. The matter of implementing this
could very well be placed in the hands of the
National Assembly, not unless we can incorporate
into this provision the mechanics that would
adequately cover all the conceivable situations. 33
It was made clear during the interpellations that the aforementioned Section 2 is limited
to proposals to AMEND — not to REVISE — the Constitution; thus:
MR. SUAREZ. . . . This proposal was suggested
on the theory that this matter of initiative, which
came about because of the extraordinary
developments this year, has to be separated from
the traditional modes of amending the Constitution
as embodied in Section 1. The committee
members felt that this system of initiative should
not extend to the revision of the entire Constitution,
so we removed it from the operation of Section 1
of the proposed Article on Amendment or
Revision. 34
xxx xxx xxx
MS. AQUINO. In which case, I am seriously
bothered by providing this process of initiative as
a separate section in the Article on Amendment.
Would the sponsor be amenable to accepting an
amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of
setting it up as another separate section as if it
were a self-executing provision?
MR. SUAREZ. We would be amenable except
that, as we clarified a while ago, this process of
initiative is limited to the matter of amendment and
should not expand into a revision which
contemplates a total overhaul of the Constitution.
That was the sense that was conveyed by the
Committee.
MS. AQUINO. In other words, the Committee was
attempting to distinguish the coverage of modes
(a) and (b) in Section 1 to include the process of
revision; whereas the process of initiation to
amend, which is given to the public, would only
apply to amendments?
MR. SUAREZ. That is right. Those were the terms
envisioned in the Committee. 35
Amendments to the proposed Section 2 were thereafter introduced by then
Commissioner Hilario G. Davide, Jr., which the Committee accepted. Thus:
MR. DAVIDE. Thank you Madam President. I
propose to substitute the entire Section 2 with the
following:
MR. DAVIDE. Madam President, I have modified
the proposed amendment after taking into account
the modifications submitted by the sponsor himself
and the honorable Commissioners Guingona,
Monsod, Rama, Ople, de los Reyes and Romulo.
The modified amendment in substitution of the
proposed Section 2 will now read as follows:
"SECTION 2. — AMENDMENTS TO THIS
CONSTITUTION MAY LIKEWISE BE DIRECTLY
PROPOSED BY THE PEOPLE THROUGH
INITIATIVE UPON A PETITION OF AT LEAST
TWELVE PERCENT OF THE TOTAL NUMBER
Of REGISTERED VOTERS, OF WHICH EVERY
LEGISLATIVE DISTRICT MUST BE
REPRESENTED BY AT LEAST THREE
PERCENT OF THE REGISTERED VOTERS
THEREOF. NO AMENDMENT UNDER THIS
SECTION SHALL BE AUTHORIZED WITHIN
FIVE YEARS FOLLOWING THE RATIFICATION
OF THIS CONSTITUTION NOR OFTENER THAN
ONCE EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW
PROVIDE FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT.
MR. SUAREZ. Madam President, considering that
the proposed amendment is reflective of the sense
contained in Section 2 of our completed
Committee Report No. 7, we accept the proposed
amendment. 36
The interpellations which ensued on the proposed modified amendment to Section 2
clearly showed that it was a legislative act which must implement the exercise of the
right. Thus:
MR. ROMULO. Under Commissioner Davide's
amendment, is it possible for the legislature to set
forth certain procedures to carry out the initiative. .
.?
MR. DAVIDE. It can.
xxx xxx xxx
 MR. ROMULO. But the Commissioner's
amendment does not prevent the legislature from
asking another body to set the proposition in
proper form.
MR. DAVIDE. The Commissioner is correct. In
other words, the implementation of this particular
right would be subject to legislation, provided the
legislature cannot determine anymore the
percentage of the requirement.
MR. ROMULO. But the procedures, including the
determination of the proper form for submission to
the people, may be subject to legislation.
MR. DAVIDE. As long as it will not destroy the
substantive right to initiate. In other words, none of
the procedures to be proposed by the legislative
body must diminish or impair the right conceded
here.
MR. ROMULO. In that provision of the
Constitution can the procedures which I have
discussed be legislated?
MR. DAVIDE. Yes. 37
Commissioner Davide also reaffirmed that his modified amendment strictly
confines initiative to AMENDMENTS to — NOT REVISION of — the Constitution. Thus:
MR. DAVIDE. With pleasure, Madam President.
MR. MAAMBONG. My first question:
Commissioner Davide's proposed amendment on
line 1 refers to "amendment." Does it not cover the
word "revision" as defined by Commissioner
Padilla when he made the distinction between the
words "amendments" and "revision"?
MR. DAVIDE. No, it does not, because
"amendments" and "revision" should be covered
by Section 1. So insofar as initiative is concerned,
it can only relate to "amendments" not
"revision." 38
Commissioner Davide further emphasized that the process of proposing amendments
through initiative must be more rigorous and difficult than the initiative on legislation.
Thus:
MR. DAVIDE. A distinction has to be made that
under this proposal, what is involved is an
amendment to the Constitution. To amend a
Constitution would ordinarily require a proposal by
the National Assembly by a vote of three-fourths;
and to call a constitutional convention would
require a higher number. Moreover, just to submit
the issue of calling a constitutional convention, a
majority of the National Assembly is required, the
import being that the process of amendment must
be made more rigorous and difficult than probably
initiating an ordinary legislation or putting an end
to a law proposed by the National Assembly by
way of a referendum. I cannot agree to reducing
the requirement approved by the Committee on
the Legislative because it would require another
voting by the Committee, and the voting as
precisely based on a requirement of 10 percent.
Perhaps, I might present such a proposal, by way
of an amendment, when the Commission shall
take up the Article on the Legislative or on the
National Assembly on plenary sessions. 39
The Davide modified amendments to Section 2 were subjected to amendments, and
the final version, which the Commission approved by a vote of 31 in favor and 3 against,
reads as follows:
MR. DAVIDE. Thank you Madam President.
Section 2, as amended, reads as follows:
"AMENDMENT TO THIS CONSTITUTION MAY
LIKEWISE BE DIRECTLY PROPOSED BY THE
PEOPLE THROUGH INITIATIVE UPON A
PETITION OF AT LEAST TWELVE PERCENT OF
THE TOTAL NUMBER OF REGISTERED
VOTERS, OF WHICH EVERY LEGISLATIVE
DISTRICT MUST BE REPRESENTED BY AT
LEAST THREE PERCENT OF THE
REGISTERED VOTERS THEREOF. NO
AMENDMENT UNDER THIS SECTION SHALL
BE AUTHORIZED WITHIN FIVE YEARS
FOLLOWING THE RATIFICATION OF THIS
CONSTITUTION NOR OFTENER THAN ONCE
EVERY FIVE YEARS THEREAFTER.
THE NATIONAL ASSEMBLY SHALL BY LAW
PROVIDE
FOR THE IMPLEMENTATION OF THE
EXERCISE OF THIS RIGHT. 40
 The entire proposed Article on Amendments or Revisions was approved on
second reading on 9 July 1986. 41Thereafter, upon his motion for
reconsideration, Commissioner Gascon was allowed to introduce an
amendment to Section 2 which, nevertheless, was withdrawn. In view thereof,
the Article was again approved on Second and Third Readings on 1 August
1986. 42
However, the Committee on Style recommended that the approved Section 2 be
amended by changing "percent" to "per centum" and "thereof" to "therein" and deleting
the phrase "by law" in the second paragraph so that said paragraph reads: The
Congress 43 shall provide for the implementation of the exercise of this right. 44 This
amendment was approved and is the text of the present second paragraph of Section
2.
The conclusion then is inevitable that, indeed, the system of initiative on the
Constitution under Section 2 of Article XVII of the Constitution is not self-executory.
Has Congress "provided" for the implementation of the exercise of this right? Those
who answer the question in the affirmative, like the private respondents and intervenor
Senator Roco, point to us R.A. No. 6735.
There is, of course, no other better way for Congress to implement the exercise of the
right than through the passage of a statute or legislative act. This is the essence or
rationale of the last minute amendment by the Constitutional Commission to substitute
the last paragraph of Section 2 of Article XVII then reading:
The Congress 45 shall by law provide for the implementation of the
exercise of this right.
with
The Congress shall provide for the implementation of the exercise of
this right.
This substitute amendment was an investiture on Congress of a power to
provide for the rules implementing the exercise of the right. The "rules" means
"the details on how [the right] is to be carried out." 46
We agree that R.A. No. 6735 was, as its history reveals, intended to cover initiative to
propose amendments to the Constitution. The Act is a consolidation of House Bill No.
21505 and Senate Bill No. 17. The former was prepared by the Committee on Suffrage
and Electoral Reforms of the House of Representatives on the basis of two House Bills
referred to it, viz., (a) House Bill No. 497, 47 which dealt with the initiative and
referendum mentioned
in Sections 1 and 32 of Article VI of the Constitution; and (b) House Bill No.
988, 48 which dealt with the subject matter of House Bill No. 497, as well as with
initiative and referendum under Section 3 of Article X (Local Government) and initiative
provided for in Section 2 of Article XVII of the Constitution. Senate Bill No. 17 49 solely
dealt with initiative and referendum concerning ordinances or resolutions of local
government units. The Bicameral Conference Committee consolidated Senate Bill No.
17 and House Bill No. 21505 into a draft bill, which was subsequently approved on 8
June 1989 by the Senate 50 and by the House of Representatives. 51 This approved bill
is now R.A. No. 6735.
But is R.A. No. 6735 a full compliance with the power and duty of Congress to "provide
for the implementation of the exercise of the right?"
A careful scrutiny of the Act yields a negative answer.
First. Contrary to the assertion of public respondent COMELEC, Section 2 of the Act
does not suggest an initiative on amendments to the Constitution. The said section
reads:
Sec. 2. Statement and Policy. — The power of the people under a
system of initiative and referendum to directly propose, enact,
approve or reject, in whole or in part, the Constitution, laws,
ordinances, or resolutions passed by any legislative body upon
compliance with the requirements of this Act is hereby affirmed,
recognized and guaranteed. (Emphasis supplied).
The inclusion of the word "Constitution" therein was a delayed afterthought.
That word is neither germane nor relevant to said section, which exclusively
relates to initiative and referendum on national laws and local laws,
ordinances, and resolutions. That section is silent as to amendments on the
Constitution. As pointed out earlier, initiative on the Constitution is confined
only to proposals to AMEND. The people are not accorded the power to
"directly propose, enact, approve, or reject, in whole or in part, the
Constitution" through the system of initiative. They can only do so with respect
to "laws, ordinances, or resolutions."
The foregoing conclusion is further buttressed by the fact that this section was lifted
from Section 1 of Senate Bill No. 17, which solely referred to a statement of policy on
local initiative and referendum and appropriately used the phrases "propose and enact,"
"approve or reject" and "in whole or in part." 52
Second. It is true that Section 3 (Definition of Terms) of the Act defines initiative on
amendments to the Constitution and mentions it as one of the three systems
of initiative, and that Section 5 (Requirements) restates the constitutional requirements
as to the percentage of the registered voters who must submit the proposal. But unlike
in the case of the other systems of initiative, the Act does not provide for the contents
of a petition for initiative on the Constitution. Section 5, paragraph (c) requires, among
other things, statement of the proposed law sought to be enacted, approved or rejected,
amended or repealed, as the case may be. It does not include, as among the contents
of the petition, the provisions of the Constitution sought to be amended, in the case of
initiative on the Constitution. Said paragraph (c) reads in full as follows:
(c) The petition shall state the following:
 c.1 contents or text of the proposed law sought to be enacted,
approved or rejected, amended or repealed, as the case may be;
c.2 the proposition;
c.3 the reason or reasons therefor;
c.4 that it is not one of the exceptions provided therein;
c.5 signatures of the petitioners or registered voters; and
c.6 an abstract or summary proposition is not more than one hundred
(100) words which shall be legibly written or printed at the top of
every page of the petition. (Emphasis supplied).
The use of the clause "proposed laws sought to be enacted, approved or
rejected, amended or repealed" only strengthens the conclusion that Section
2, quoted earlier, excludes initiative on amendments to the Constitution.
Third. While the Act provides subtitles for National Initiative and Referendum (Subtitle
II) and for Local Initiative and Referendum (Subtitle III), no subtitle is provided
for initiative on the Constitution. This conspicuous silence as to the latter simply means
that the main thrust of the Act is initiative and referendum on national and local laws. If
Congress intended R.A. No. 6735 to fully provide for the implementation of
the initiative on amendments to the Constitution, it could have provided for a subtitle
therefor, considering that in the order of things, the primacy of interest, or hierarchy of
values, the right of the people to directly propose amendments to the Constitution is far
more important than the initiative on national and local laws.
We cannot accept the argument that the initiative on amendments to the Constitution
is subsumed under the subtitle on National Initiative and Referendum because it is
national in scope. Our reading of Subtitle II (National Initiative and Referendum) and
Subtitle III (Local Initiative and Referendum) leaves no room for doubt that the
classification is not based on the scope of the initiative involved, but on
its nature and character. It is "national initiative," if what is proposed to be adopted or
enacted is a national law, or a law which only Congress can pass. It is "local initiative"
if what is proposed to be adopted or enacted is a law, ordinance, or resolution which
only the legislative bodies of the governments of the autonomous regions, provinces,
cities, municipalities, and barangays can pass. This classification of initiative
into national and local is actually based on Section 3 of the Act, which we quote for
emphasis and clearer understanding:
Sec. 3. Definition of terms —
xxx xxx xxx
There are three (3) systems of initiative, namely:
a.1 Initiative on the Constitution which refers to a petition proposing
amendments to the Constitution;
a.2 Initiative on Statutes which refers to a petition proposing to enact
a national legislation; and
a.3 Initiative on local legislation which refers to a petition proposing
to enact a regional, provincial, city, municipal, or barangay law,
resolution or ordinance. (Emphasis supplied).
Hence, to complete the classification under subtitles there should have been a subtitle
on initiative on amendments to the Constitution. 53
A further examination of the Act even reveals that the subtitling is not accurate.
Provisions not germane to the subtitle on National Initiative and Referendum are placed
therein, like (1) paragraphs (b) and (c) of Section 9, which reads:
(b) The proposition in an initiative on the Constitution approved by
the majority of the votes cast in the plebiscite shall become effective
as to the day of the plebiscite.
(c) A national or local initiative proposition approved by majority of
the votes cast in an election called for the purpose shall become
effective fifteen (15) days after certification and proclamation of the
Commission. (Emphasis supplied).
(2) that portion of Section 11 (Indirect Initiative) referring to indirect initiative with the
legislative bodies of local governments; thus:
Sec. 11. Indirect Initiative. — Any duly accredited people's
organization, as defined by law, may file a petition for indirect
initiative with the House of Representatives, and other legislative
bodies. . . .
and (3) Section 12 on Appeal, since it applies to decisions of the COMELEC
on the findings of sufficiency or insufficiency of the petition for initiative or
referendum, which could be petitions for both national and local initiative and
referendum.
Upon the other hand, Section 18 on "Authority of Courts" under subtitle III on Local
Initiative and Referendum is misplaced, 54 since the provision therein applies to both
national and local initiative and referendum. It reads:
Sec. 18. Authority of Courts. — Nothing in this Act shall prevent or
preclude the proper courts from declaring null and void any
proposition approved pursuant to this Act for violation of the
Constitution or want of capacity of the local legislative body to enact
the said measure.
Curiously, too, while R.A. No. 6735 exerted utmost diligence and care in providing for
the details in the implementation of initiative and referendum on national and local
legislation thereby giving them special attention, it failed, rather intentionally, to do so
on the system of initiative on amendments to the Constitution. Anent the initiative on
national legislation, the Act provides for the following:
(a) The required percentage of registered voters to sign the petition and the contents
of the petition;
(b) The conduct and date of the initiative;
(c) The submission to the electorate of the proposition and the required number of votes
for its approval;
(d) The certification by the COMELEC of the approval of the proposition;
(e) The publication of the approved proposition in the Official Gazette or in a newspaper
of general circulation in the Philippines; and
(f) The effects of the approval or rejection of the proposition. 55
As regards local initiative, the Act provides for the following:
(a) The preliminary requirement as to the number of signatures of registered voters for
the petition;
(b) The submission of the petition to the local legislative body concerned;
(c) The effect of the legislative body's failure to favorably act thereon, and the invocation
of the power of initiative as a consequence thereof;
(d) The formulation of the proposition;
(e) The period within which to gather the signatures;
(f) The persons before whom the petition shall be signed;
(g) The issuance of a certification by the COMELEC through its official in the local
government unit concerned as to whether the required number of signatures have been
obtained;
(h) The setting of a date by the COMELEC for the submission of the proposition to the
registered voters for their approval, which must be within the period specified therein;
(i) The issuance of a certification of the result;
(j) The date of effectivity of the approved proposition;
(k) The limitations on local initiative; and
(l) The limitations upon local legislative bodies. 56
Upon the other hand, as to initiative on amendments to the Constitution, R.A. No. 6735,
in all of its twenty-three sections, merely (a) mentions, the word "Constitution" in Section
2; (b) defines "initiative on the Constitution" and includes it in the enumeration of the
three systems of initiative in Section 3; (c) speaks of "plebiscite" as the process by
which the proposition in an initiative on the Constitution may be approved or rejected
by the people; (d) reiterates the constitutional requirements as to the number of voters
who should sign the petition; and (e) provides for the date of effectivity of the approved
proposition.
There was, therefore, an obvious downgrading of the more important or the paramount
system of initiative. RA. No. 6735 thus delivered a humiliating blow to the system of
initiative on amendments to the Constitution by merely paying it a reluctant lip
service. 57
The foregoing brings us to the conclusion that R.A. No. 6735 is incomplete, inadequate,
or wanting in essential terms and conditions insofar as initiative on amendments to the
Constitution is concerned. Its lacunae on this substantive matter are fatal and cannot
be cured by "empowering" the COMELEC "to promulgate such rules and regulations
as may be necessary to carry out the purposes of [the] Act. 58
The rule is that what has been delegated, cannot be delegated or as expressed in a
Latin maxim: potestas delegata non delegari potest. 59 The recognized exceptions to
the rule are as follows:
(1) Delegation of tariff powers to the President under Section 28(2) of Article VI of the
Constitution;
(2) Delegation of emergency powers to the President under Section 23(2) of Article VI
of the Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies. 60
Empowering the COMELEC, an administrative body exercising quasi-judicial functions,
to promulgate rules and regulations is a form of delegation of legislative authority under
no. 5 above. However, in every case of permissible delegation, there must be a showing
that the delegation itself is valid. It is valid only if the law (a) is complete in itself, setting
forth therein the policy to be executed, carried out, or implemented by the delegate;
and (b) fixes a standard — the limits of which are sufficiently determinate and
determinable — to which the delegate must conform in the performance of his
functions. 61 A sufficient standard is one which defines legislative policy, marks its
limits, maps out its boundaries and specifies the public agency to apply it. It indicates
the circumstances under which the legislative command is to be effected. 62
Insofar as initiative to propose amendments to the Constitution is concerned, R.A. No.
6735 miserably failed to satisfy both requirements in subordinate legislation. The
delegation of the power to the COMELEC is then invalid.
III
COMELEC RESOLUTION NO. 2300, INSOFAR AS IT PRESCRIBES RULES
AND REGULATIONS ON THE CONDUCT OF INITIATIVE ON
AMENDMENTS TO THE CONSTITUTION, IS VOID.
It logically follows that the COMELEC cannot validly promulgate rules and regulations
to implement the exercise of the right of the people to directly propose amendments to
the Constitution through the system of initiative. It does not have that power under R.A.
No. 6735. Reliance on the COMELEC's power under Section 2(1) of Article IX-C of the
Constitution is misplaced, for the laws and regulations referred to therein are those
promulgated by the COMELEC under (a) Section 3 of Article IX-C of the Constitution,
or (b) a law where subordinate legislation is authorized and which satisfies the
"completeness" and the "sufficient standard" tests.
IV
COMELEC ACTED WITHOUT JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION IN ENTERTAINING THE DELFIN PETITION.
Even if it be conceded ex gratia that R.A. No. 6735 is a full compliance with the power
of Congress to implement the right to initiate constitutional amendments, or that it has
validly vested upon the COMELEC the power of subordinate legislation and that
COMELEC Resolution No. 2300 is valid, the COMELEC acted without jurisdiction or
with grave abuse of discretion in entertaining the Delfin Petition.
Under Section 2 of Article XVII of the Constitution and Section 5(b) of R.A. No. 6735, a
petition for initiative on the Constitution must be signed by at least 12% of the total
number of registered voters of which every legislative district is represented by at least
3% of the registered voters therein. The Delfin Petition does not contain signatures of
the required number of voters. Delfin himself admits that he has not yet gathered
signatures and that the purpose of his petition is primarily to obtain assistance in his
drive to gather signatures. Without the required signatures, the petition cannot be
deemed validly initiated.
The COMELEC acquires jurisdiction over a petition for initiative only after its filing. The
petition then is the initiatory pleading. Nothing before its filing is cognizable by the
COMELEC, sitting en banc. The only participation of the COMELEC or its personnel
before the filing of such petition are (1) to prescribe the form of the petition; 63 (2) to
issue through its Election Records and Statistics Office a certificate on the total number
of registered voters in each legislative district; 64 (3) to assist, through its election
registrars, in the establishment of signature stations; 65 and (4) to verify, through its
election registrars, the signatures on the basis of the registry list of voters, voters'
affidavits, and voters' identification cards used in the immediately preceding election. 66
Since the Delfin Petition is not the initiatory petition under R.A. No. 6735 and
COMELEC Resolution No. 2300, it cannot be entertained or given cognizance of by the
COMELEC. The respondent Commission must have known that the petition does not
fall under any of the actions or proceedings under the COMELEC Rules of Procedure
or under Resolution No. 2300, for which reason it did not assign to the petition a docket
number. Hence, the said petition was merely entered as UND, meaning, undocketed.
That petition was nothing more than a mere scrap of paper, which should not have
been dignified by the Order of 6 December 1996, the hearing on 12 December 1996,
and the order directing Delfin and the oppositors to file their memoranda or oppositions.
In so dignifying it, the COMELEC acted without jurisdiction or with grave abuse of
discretion and merely wasted its time, energy, and resources.
The foregoing considered, further discussion on the issue of whether the proposal to
lift the term limits of elective national and local officials is an amendment to, and not
a revision of, the Constitution is rendered unnecessary, if not academic.
CONCLUSION
This petition must then be granted, and the COMELEC should be permanently enjoined
from entertaining or taking cognizance of any petition for initiative on amendments to
the Constitution until a sufficient law shall have been validly enacted to provide for the
implementation of the system.
We feel, however, that the system of initiative to propose amendments to the
Constitution should no longer be kept in the cold; it should be given flesh and blood,
energy and strength. Congress should not tarry any longer in complying with the
constitutional mandate to provide for the implementation of the right of the people under
that system.
WHEREFORE, judgment is hereby rendered
a) GRANTING the instant petition;
b) DECLARING R.A. No. 6735 inadequate to cover the system of initiative on
amendments to the Constitution, and to have failed to provide sufficient standard for
subordinate legislation;
c) DECLARING void those parts of Resolution No. 2300 of the Commission on
Elections prescribing rules and regulations on the conduct of initiative or amendments
to the Constitution; and
d) ORDERING the Commission on Elections to forthwith DISMISS the DELFIN petition
(UND-96-037).

The Temporary Restraining Order issued on 18 December 1996 is made permanent

as against the Commission on Elections, but is LIFTED as against private respondents.

Resolution on the matter of contempt is hereby reserved.

SO ORDERED.
G.R. No. 174153 October 25, 2006 TRADE UNION CONGRESS OF THE PHILIPPINES, Intervenor.

RAUL L. LAMBINO and ERICO B. AUMENTADO, TOGETHER WITH 6,327,952 x---------------------------------------------------------x

REGISTERED VOTERS,Petitioners,
vs.
THE COMMISSION ON ELECTIONS, Respondent.
x--------------------------------------------------------x
ALTERNATIVE LAW GROUPS, INC., Intervenor.
x ------------------------------------------------------ x
LUWALHATI RICASA ANTONINO, Intervenor.
x ------------------------------------------------------- x
PHILIPPINE CONSTITUTION ASSOCIATION (PHILCONSA), CONRADO F.
ESTRELLA, TOMAS C. TOLEDO, MARIANO M. TAJON, FROILAN M. BACUNGAN,
JOAQUIN T. VENUS, JR., FORTUNATO P. AGUAS, and AMADO GAT
INCIONG, Intervenors.

ONEVOICE INC., CHRISTIAN S.MONSOD, RENE B. AZURIN, MANUEL L. QUEZON x ------------------------------------------------------- x

III, BENJAMIN T. TOLOSA, JR., SUSAN V. OPLE, and CARLOS P. MEDINA,
JR., Intervenors. RONALD L. ADAMAT, ROLANDO MANUEL RIVERA, and RUELO
BAYA, Intervenors.
x------------------------------------------------------ x
x -------------------------------------------------------- x
ATTY. PETE QUIRINO QUADRA, Intervenor.
PHILIPPINE TRANSPORT AND GENERAL WORKERS ORGANIZATION (PTGWO)
x--------------------------------------------------------x and MR. VICTORINO F. BALAIS, Intervenors.

BAYAN represented by its Chairperson Dr. Carolina Pagaduan-Araullo, BAYAN x -------------------------------------------------------- x

MUNA represented by its Chairperson Dr. Reynaldo Lesaca, KILUSANG MAYO
UNO represented by its Secretary General Joel Maglunsod, HEAD represented SENATE OF THE PHILIPPINES, represented by its President, MANUEL VILLAR,
by its Secretary General Dr. Gene Alzona Nisperos, ECUMENICAL BISHOPS JR., Intervenor.
FORUM represented by Fr. Dionito Cabillas, MIGRANTE represented by its
Chairperson Concepcion Bragas-Regalado, GABRIELA represented by its
Secretary General Emerenciana de Jesus, GABRIELA WOMEN'S PARTY x ------------------------------------------------------- x
represented by Sec. Gen. Cristina Palabay, ANAKBAYAN represented by
Chairperson Eleanor de Guzman, LEAGUE OF FILIPINO STUDENTS represented SULONG BAYAN MOVEMENT FOUNDATION, INC., Intervenor.
by Chair Vencer Crisostomo Palabay, JOJO PINEDA of the League of Concerned
Professionals and Businessmen, DR. DARBY SANTIAGO of the Solidarity of x ------------------------------------------------------- x
Health Against Charter Change, DR. REGINALD PAMUGAS of Health Action for
Human Rights,Intervenors.
JOSE ANSELMO I. CADIZ, BYRON D. BOCAR, MA. TANYA KARINA A. LAT,
ANTONIO L. SALVADOR, and RANDALL TABAYOYONG, Intervenors.
x--------------------------------------------------------x

x -------------------------------------------------------- x
LORETTA ANN P. ROSALES, MARIO JOYO AGUJA, and ANA THERESA
HONTIVEROS-BARAQUEL,Intervenors.
INTEGRATED BAR OF THE PHILIPPINES, CEBU CITY AND CEBU PROVINCE
CHAPTERS, Intervenors.
x--------------------------------------------------------x

x --------------------------------------------------------x
ARTURO M. DE CASTRO, Intervenor.

x ------------------------------------------------------- x
SENATE MINORITY LEADER AQUILINO Q. PIMENTEL, JR. and SENATORS
SERGIO R. OSMENA III, JAMBY MADRIGAL, JINGGOY ESTRADA, ALFREDO S.
LIM and PANFILO LACSON, Intervenors.
x -----------------------------------------------------x
JOSEPH EJERCITO ESTRADA and PWERSA NG MASANG PILIPINO, Intervenors.
x -----------------------------------------------------x
G.R. No. 174299 October 25, 2006
MAR-LEN ABIGAIL BINAY, SOFRONIO UNTALAN, JR., and RENE A.V.
SAGUISAG, Petitioners,
vs.
COMMISSION ON ELECTIONS, represented by Chairman BENJAMIN S. ABALOS,
SR., and Commissioners RESURRECCION Z. BORRA, FLORENTINO A. TUASON,
JR., ROMEO A. BRAWNER, RENE V. SARMIENTO, NICODEMO T. FERRER, and
John Doe and Peter Doe,, Respondent.
DECISION
CARPIO, J.:
The Case
These are consolidated petitions on the Resolution dated 31 August 2006 of the
Commission on Elections ("COMELEC") denying due course to an initiative petition to
amend the 1987 Constitution.
Antecedent Facts
On 15 February 2006, petitioners in G.R. No. 174153, namely Raul L. Lambino and
Erico B. Aumentado ("Lambino Group"), with other groups 1 and individuals,
commenced gathering signatures for an initiative petition to change the 1987
Constitution. On 25 August 2006, the Lambino Group filed a petition with the
COMELEC to hold a plebiscite that will ratify their initiative petition under Section 5(b)
and (c)2 and Section 73 of Republic Act No. 6735 or the Initiative and Referendum Act
("RA 6735").
The Lambino Group alleged that their petition had the support of 6,327,952 individuals
constituting at least twelve per centum (12%) of all registered voters, with each
legislative district represented by at least three per centum (3%) of its registered voters.
The Lambino Group also claimed that COMELEC election registrars had verified the
signatures of the 6.3 million individuals.
The Lambino Group's initiative petition changes the 1987 Constitution by modifying
Sections 1-7 of Article VI (Legislative Department)4 and Sections 1-4 of Article VII
(Executive Department)5 and by adding Article XVIII entitled "Transitory
Provisions."6 These proposed changes will shift the present Bicameral-Presidential
system to a Unicameral-Parliamentary form of government. The Lambino Group prayed
that after due publication of their petition, the COMELEC should submit the following
proposition in a plebiscite for the voters' ratification:
DO YOU APPROVE THE AMENDMENT OF ARTICLES VI AND VII OF THE
1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT FROM
THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL-
PARLIAMENTARY SYSTEM, AND PROVIDING ARTICLE XVIII AS
TRANSITORY PROVISIONS FOR THE ORDERLY SHIFT FROM ONE
SYSTEM TO THE OTHER?
On 30 August 2006, the Lambino Group filed an Amended Petition with the COMELEC
indicating modifications in the proposed Article XVIII (Transitory Provisions) of their
initiative.7
The Ruling of the COMELEC
On 31 August 2006, the COMELEC issued its Resolution denying due course to the
Lambino Group's petition for lack of an enabling law governing initiative petitions to
amend the Constitution. The COMELEC invoked this Court's ruling in Santiago v.
Commission on Elections8 declaring RA 6735 inadequate to implement the initiative
clause on proposals to amend the Constitution.9
In G.R. No. 174153, the Lambino Group prays for the issuance of the writs of certiorari
and mandamus to set aside the COMELEC Resolution of 31 August 2006 and to
compel the COMELEC to give due course to their initiative petition. The Lambino Group
contends that the COMELEC committed grave abuse of discretion in denying due
course to their petition since Santiago is not a binding precedent. Alternatively, the
Lambino Group claims that Santiago binds only the parties to that case, and their
petition deserves cognizance as an expression of the "will of the sovereign people."
In G.R. No. 174299, petitioners ("Binay Group") pray that the Court require respondent
COMELEC Commissioners to show cause why they should not be cited in contempt
for the COMELEC's verification of signatures and for "entertaining" the Lambino
Group's petition despite the permanent injunction in Santiago. The Court treated the
Binay Group's petition as an opposition-in-intervention.
In his Comment to the Lambino Group's petition, the Solicitor General joined causes
with the petitioners, urging the Court to grant the petition despite the Santiago ruling.
The Solicitor General proposed that the Court treat RA 6735 and its implementing rules
"as temporary devises to implement the system of initiative."
Various groups and individuals sought intervention, filing pleadings supporting or
opposing the Lambino Group's petition. The supporting intervenors10 uniformly hold the
view that the COMELEC committed grave abuse of discretion in relying on Santiago.
On the other hand, the opposing intervenors11 hold the contrary view and maintain
that Santiago is a binding precedent. The opposing intervenors also challenged (1) the
Lambino Group's standing to file the petition; (2) the validity of the signature gathering
and verification process; (3) the Lambino Group's compliance with the minimum
requirement for the percentage of voters supporting an initiative petition under Section
2, Article XVII of the 1987 Constitution;12 (4) the nature of the proposed changes as
revisions and not mere amendments as provided under Section 2, Article XVII of the
1987 Constitution; and (5) the Lambino Group's compliance with the requirement in
Section 10(a) of RA 6735 limiting initiative petitions to only one subject.
The Court heard the parties and intervenors in oral arguments on 26 September 2006.
After receiving the parties' memoranda, the Court considered the case submitted for
resolution.
The Issues
The petitions raise the following issues:
1. Whether the Lambino Group's initiative petition complies with Section 2, Article XVII
of the Constitution on amendments to the Constitution through a people's initiative;
2. Whether this Court should revisit its ruling in Santiago declaring RA 6735
"incomplete, inadequate or wanting in essential terms and conditions" to implement the
initiative clause on proposals to amend the Constitution; and
3. Whether the COMELEC committed grave abuse of discretion in denying due course
to the Lambino Group's petition.
The Ruling of the Court
There is no merit to the petition.
The Lambino Group miserably failed to comply with the basic requirements of the
Constitution for conducting a people's initiative. Thus, there is even no need to
revisit Santiago, as the present petition warrants dismissal based alone on the
Lambino Group's glaring failure to comply with the basic requirements of the
Constitution. For following the Court's ruling in Santiago, no grave abuse of discretion
is attributable to the Commision on Elections.
1. The Initiative Petition Does Not Comply with Section 2, Article XVII of the
Constitution on Direct Proposal by the People
Section 2, Article XVII of the Constitution is the governing constitutional provision that
allows a people's initiative to propose amendments to the Constitution. This section
states:
Sec. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative upon a petition of at least twelve per
centum of the total number of registered voters of which every legislative
district must be represented by at least three per centum of the registered
voters therein. x x x x (Emphasis supplied)
The deliberations of the Constitutional Commission vividly explain the meaning of an
amendment "directly proposed by the people through initiative upon a petition,"
thus:
MR. RODRIGO: Let us look at the mechanics. Let us say some voters want
to propose a constitutional amendment. Is the draft of the proposed
constitutional amendment ready to be shown to the people when they
are asked to sign?
MR. SUAREZ: That can be reasonably assumed, Madam President.
MR. RODRIGO: What does the sponsor mean? The draft is ready and
shown to them before they sign. Now, who prepares the draft?
MR. SUAREZ: The people themselves, Madam President.
MR. RODRIGO: No, because before they sign there is already a draft
shown to them and they are asked whether or not they want to propose this
constitutional amendment.
MR. SUAREZ: As it is envisioned, any Filipino can prepare that proposal
and pass it around for signature.13 (Emphasis supplied)
Clearly, the framers of the Constitution intended that the "draft of the proposed
constitutional amendment" should be "ready and shown" to the people "before"
they sign such proposal. The framers plainly stated that "before they sign there is
already a draft shown to them." The framers also "envisioned" that the people should
sign on the proposal itself because the proponents must "prepare that proposal and
pass it around for signature."
The essence of amendments "directly proposed by the people through initiative
upon a petition" is that the entire proposal on its face is a petition by the people.
This means two essential elements must be present. First, the people must author and
thus sign the entire proposal. No agent or representative can sign on their behalf.
Second, as an initiative upon a petition, the proposal must be embodied in a petition.
These essential elements are present only if the full text of the proposed amendments
is first shown to the people who express their assent by signing such complete
proposal in a petition. Thus, an amendment is "directly proposed by the people
through initiative upon a petition" only if the people sign on a petition that
contains the full text of the proposed amendments.
The full text of the proposed amendments may be either written on the face of the
petition, or attached to it. If so attached, the petition must state the fact of such
attachment. This is an assurance that every one of the several millions of signatories
to the petition had seen the full text of the proposed amendments before signing.
Otherwise, it is physically impossible, given the time constraint, to prove that every one
of the millions of signatories had seen the full text of the proposed amendments before
signing.
The framers of the Constitution directly borrowed14 the concept of people's initiative
from the United States where various State constitutions incorporate an initiative
clause. In almost all States15 which allow initiative petitions, the unbending
requirement is that the people must first see the full text of the proposed
amendments before they sign to signify their assent, and that the people must
sign on an initiative petition that contains the full text of the proposed
amendments.16
The rationale for this requirement has been repeatedly explained in several decisions
of various courts. Thus, in Capezzuto v. State Ballot Commission, the Supreme
Court of Massachusetts, affirmed by the First Circuit Court of Appeals, declared:
[A] signature requirement would be meaningless if the person supplying
the signature has not first seen what it is that he or she is signing.
Further, and more importantly, loose interpretation of the subscription
requirement can pose a significant potential for fraud. A person permitted to
describe orally the contents of an initiative petition to a potential signer, without
the signer having actually examined the petition, could easily mislead the
signer by, for example, omitting, downplaying, or even flatly misrepresenting,
portions of the petition that might not be to the signer's liking. This danger
seems particularly acute when, in this case, the person giving the
description is the drafter of the petition, who obviously has a vested
interest in seeing that it gets the requisite signatures to qualify for the
ballot.17 (Boldfacing and underscoring supplied)
Likewise, in Kerr v. Bradbury,18 the Court of Appeals of Oregon explained:
The purposes of "full text" provisions that apply to amendments by initiative
commonly are described in similar terms. x x x (The purpose of the full text
requirement is to provide sufficient information so that registered voters
can intelligently evaluate whether to sign the initiative petition."); x x x
(publication of full text of amended constitutional provision required because
it is "essential for the elector to have x x x the section which is proposed to be
added to or subtracted from. If he is to vote intelligently, he must have this
knowledge. Otherwise in many instances he would be required to vote in the
dark.") (Emphasis supplied)
Moreover, "an initiative signer must be informed at the time of signing of the nature
and effect of that which is proposed" and failure to do so is "deceptive and
misleading" which renders the initiative void.19
Section 2, Article XVII of the Constitution does not expressly state that the petition must
set forth the full text of the proposed amendments. However, the deliberations of the
framers of our Constitution clearly show that the framers intended to adopt the relevant
American jurisprudence on people's initiative. In particular, the deliberations of the
Constitutional Commission explicitly reveal that the framers intended that the people
must first see the full text of the proposed amendments before they sign, and
that the people must sign on a petition containing such full text. Indeed, Section
5(b) of Republic Act No. 6735, the Initiative and Referendum Act that the Lambino
Group invokes as valid, requires that the people must sign the "petition x x x as
signatories."
The proponents of the initiative secure the signatures from the people. The proponents
secure the signatures in their private capacity and not as public officials. The
proponents are not disinterested parties who can impartially explain the advantages
and disadvantages of the proposed amendments to the people. The proponents
present favorably their proposal to the people and do not present the arguments against
their proposal. The proponents, or their supporters, often pay those who gather the
signatures.
Thus, there is no presumption that the proponents observed the constitutional
requirements in gathering the signatures. The proponents bear the burden of proving
that they complied with the constitutional requirements in gathering the signatures
- that the petition contained, or incorporated by attachment, the full text of the
proposed amendments.
The Lambino Group did not attach to their present petition with this Court a copy of the
paper that the people signed as their initiative petition. The Lambino Group submitted
to this Court a copy of a signature sheet20 after the oral arguments of 26 September
2006 when they filed their Memorandum on 11 October 2006. The signature sheet with
this Court during the oral arguments was the signature sheet attached 21 to the
opposition in intervention filed on 7 September 2006 by intervenor Atty. Pete Quirino-
Quadra.
The signature sheet attached to Atty. Quadra's opposition and the signature sheet
attached to the Lambino Group's Memorandum are the same. We reproduce below the
signature sheet in full:
Province: City/Municipality: No. of
Legislative District: Barangay:
Verified
Signatures:
PROPOSITION: "DO YOU APPROVE OF THE AMENDMENT OF ARTICLES VI AND their amended petition filed on 30 August 2006 with the COMELEC, Atty. Lambino
VII OF THE 1987 CONSTITUTION, CHANGING THE FORM OF GOVERNMENT initially replied that they circulated both. However, Atty. Lambino changed his answer
FROM THE PRESENT BICAMERAL-PRESIDENTIAL TO A UNICAMERAL- and stated that what his group circulated was the draft of the 30 August 2006 amended
PARLIAMENTARY SYSTEM OF GOVERNMENT, IN ORDER TO ACHIEVE petition, not the draft of the 25 August 2006 petition.
GREATER EFFICIENCY, SIMPLICITY AND ECONOMY IN GOVERNMENT; AND
PROVIDING AN ARTICLE XVIII AS TRANSITORY PROVISIONS FOR THE The Lambino Group would have this Court believe that they prepared the draft of the
ORDERLY SHIFT FROM ONE SYSTEM TO ANOTHER?" 30 August 2006 amended petition almost seven months earlier in February
2006 when they started gathering signatures. Petitioner Erico B. Aumentado's
I hereby APPROVE the proposed amendment to the 1987 Constitution. My signature "Verification/Certification" of the 25 August 2006 petition, as well as of the 30 August
herein which shall form part of the petition for initiative to amend the Constitution 2006 amended petition, filed with the COMELEC, states as follows:
signifies my support for the filing thereof.
I have caused the preparation of the foregoing [Amended] Petition in my
Precinct Name Address Birthdate Signature personal capacity as a registered voter, for and on behalf of the Union of
Verification
Number Local Authorities of the Philippines, as shown by ULAP Resolution No.
2006-02 hereto attached, and as representative of the mass of signatories
Last Name, First Name, MM/DD/YY
hereto. (Emphasis supplied)
M.I.
1
The Lambino Group failed to attach a copy of ULAP Resolution No. 2006-02 to the
2
present petition. However, the "Official Website of the Union of Local Authorities of the
3 Philippines"22 has posted the full text of Resolution No. 2006-02, which provides:
4
5 RESOLUTION NO. 2006-02
6
7 RESOLUTION SUPPORTING THE PROPOSALS OF THE PEOPLE'S
8 CONSULTATIVE COMMISSION ON CHARTER CHANGE THROUGH
9 PEOPLE'S INITIATIVE AND REFERENDUM AS A MODE OF AMENDING
THE 1987 CONSTITUTION
10
_________________ _________________ __________________ WHEREAS, there is a need for the Union of Local Authorities of the
Barangay Official Witness Witness Philippines (ULAP) to adopt a common stand on the approach to support the
(Print Name and Sign) (Print Name and Sign) (Print Name and Sign)
proposals of the People's Consultative Commission on Charter Change;

There is not a single word, phrase, or sentence of text of the Lambino Group's
proposed changes in the signature sheet. Neither does the signature sheet state
that the text of the proposed changes is attached to it. Petitioner Atty. Raul Lambino
admitted this during the oral arguments before this Court on 26 September 2006.
The signature sheet merely asks a question whether the people approve a shift from
the Bicameral-Presidential to the Unicameral-Parliamentary system of
government. The signature sheet does not show to the people the draft of the
proposed changes before they are asked to sign the signature sheet. Clearly, the
signature sheet is not the "petition" that the framers of the Constitution envisioned when
they formulated the initiative clause in Section 2, Article XVII of the Constitution.
Petitioner Atty. Lambino, however, explained that during the signature-gathering from
February to August 2006, the Lambino Group circulated, together with the signature
sheets, printed copies of the Lambino Group's draft petition which they later filed on 25
August 2006 with the COMELEC. When asked if his group also circulated the draft of
WHEREAS, ULAP maintains its unqualified support to the agenda of Her
Excellency President Gloria Macapagal-Arroyo for constitutional reforms as
embodied in the ULAP Joint Declaration for Constitutional Reforms signed by
the members of the ULAP and the majority coalition of the House of
Representatives in Manila Hotel sometime in October 2005;
WHEREAS, the People's Consultative Commission on Charter Change
created by Her Excellency to recommend amendments to the 1987
Constitution has submitted its final report sometime in December 2005;
WHEREAS, the ULAP is mindful of the current political developments in
Congress which militates against the use of the expeditious form of amending
the 1987 Constitution;
WHEREAS, subject to the ratification of its institutional members and the
failure of Congress to amend the Constitution as a constituent assembly,
 ULAP has unanimously agreed to pursue the constitutional reform agenda
through People's Initiative and Referendum without prejudice to other
pragmatic means to pursue the same;
WHEREFORE, BE IT RESOLVED AS IT IS HEREBY RESOLVED,
THAT ALL THE MEMBER-LEAGUES OF THE UNION OF LOCAL
AUTHORITIES OF THE PHILIPPINES (ULAP) SUPPORT THE
PORPOSALS (SIC) OF THE PEOPLE'S CONSULATATIVE (SIC)
COMMISSION ON CHARTER CHANGE THROUGH PEOPLE'S INITIATIVE
AND REFERENDUM AS A MODE OF AMENDING THE 1987
CONSTITUTION;
DONE, during the ULAP National Executive Board special meeting held on 14
January 2006 at the Century Park Hotel, Manila.23 (Underscoring supplied)
ULAP Resolution No. 2006-02 does not authorize petitioner Aumentado to prepare
the 25 August 2006 petition, or the 30 August 2006 amended petition, filed with the
COMELEC. ULAP Resolution No. 2006-02 "support(s) the porposals (sic) of the
Consulatative (sic) Commission on Charter Change through people's initiative and
referendum as a mode of amending the 1987 Constitution." The proposals of the
Consultative Commission24 are vastly different from the proposed changes of the
Lambino Group in the 25 August 2006 petition or 30 August 2006 amended petition
filed with the COMELEC.
For example, the proposed revisions of the Consultative Commission affect all
provisions of the existing Constitution, from the Preamble to the Transitory
Provisions. The proposed revisions have profound impact on the Judiciary and the
National Patrimony provisions of the existing Constitution, provisions that the Lambino
Group's proposed changes do not touch. The Lambino Group's proposed changes
purport to affect only Articles VI and VII of the existing Constitution, including the
introduction of new Transitory Provisions.
The ULAP adopted Resolution No. 2006-02 on 14 January 2006 or more than six
months before the filing of the 25 August 2006 petition or the 30 August 2006 amended
petition with the COMELEC. However, ULAP Resolution No. 2006-02 does not
establish that ULAP or the Lambino Group caused the circulation of the draft petition,
together with the signature sheets, six months before the filing with the COMELEC. On
the contrary, ULAP Resolution No. 2006-02 casts grave doubt on the Lambino
Group's claim that they circulated the draft petition together with the signature
sheets. ULAP Resolution No. 2006-02 does not refer at all to the draft petition or
to the Lambino Group's proposed changes.
In their Manifestation explaining their amended petition before the COMELEC, the
Lambino Group declared:
After the Petition was filed, Petitioners belatedly realized that the proposed
amendments alleged in the Petition, more specifically, paragraph 3 of Section
4 and paragraph 2 of Section 5 of the Transitory Provisions were inaccurately
stated and failed to correctly reflect their proposed amendments.
The Lambino Group did not allege that they were amending the petition because the
amended petition was what they had shown to the people during the February to August
2006 signature-gathering. Instead, the Lambino Group alleged that the petition of 25
August 2006 "inaccurately stated and failed to correctly reflect their proposed
amendments."
The Lambino Group never alleged in the 25 August 2006 petition or the 30 August
2006 amended petition with the COMELEC that they circulated printed copies of the
draft petition together with the signature sheets. Likewise, the Lambino Group
did not allege in their present petition before this Court that they circulated printed
copies of the draft petition together with the signature sheets. The signature sheets do
not also contain any indication that the draft petition is attached to, or circulated with,
the signature sheets.
It is only in their Consolidated Reply to the Opposition-in-Interventions that the Lambino
Group first claimed that they circulated the "petition for initiative filed with the
COMELEC," thus:
[T]here is persuasive authority to the effect that "(w)here there is not (sic)
fraud, a signer who did not read the measure attached to a referendum
petition cannot question his signature on the ground that he did not
understand the nature of the act." [82 C.J.S. S128h. Mo. State v. Sullivan,
224, S.W. 327, 283 Mo. 546.] Thus, the registered voters who signed the
signature sheets circulated together with the petition for initiative filed
with the COMELEC below, are presumed to have understood the proposition
contained in the petition. (Emphasis supplied)
The Lambino Group's statement that they circulated to the people "the petition for
initiative filed with the COMELEC" appears an afterthought, made after the
intervenors Integrated Bar of the Philippines (Cebu City Chapter and Cebu Province
Chapters) and Atty. Quadra had pointed out that the signature sheets did not contain
the text of the proposed changes. In their Consolidated Reply, the Lambino Group
alleged that they circulated "the petition for initiative" but failed to mention
the amended petition. This contradicts what Atty. Lambino finally stated during the
oral arguments that what they circulated was the draft of the amended petition of 30
August 2006.
The Lambino Group cites as authority Corpus Juris Secundum, stating that "a signer
who did not read the measure attached to a referendum petition cannot question his
signature on the ground that he did not understand the nature of the act." The Lambino
Group quotes an authority that cites a proposed change attached to the petition
signed by the people. Even the authority the Lambino Group quotes requires that the
proposed change must be attached to the petition. The same authority the Lambino
Group quotes requires the people to sign on the petition itself.
Indeed, it is basic in American jurisprudence that the proposed amendment must be
incorporated with, or attached to, the initiative petition signed by the people. In the
present initiative, the Lambino Group's proposed changes were not incorporated with,
or attached to, the signature sheets. The Lambino Group's citation of Corpus Juris
Secundumpulls the rug from under their feet.
It is extremely doubtful that the Lambino Group prepared, printed, circulated, from
February to August 2006 during the signature-gathering period, the draft of the petition
or amended petition they filed later with the COMELEC. The Lambino Group are less
than candid with this Court in their belated claim that they printed and circulated,
together with the signature sheets, the petition or amended petition. Nevertheless,
even assuming the Lambino Group circulated the amended petition during the
signature-gathering period, the Lambino Group admitted circulating only very
limited copies of the petition.
During the oral arguments, Atty. Lambino expressly admitted that they printed only
100,000 copies of the draft petition they filed more than six months later with the
COMELEC. Atty. Lambino added that he also asked other supporters to print additional
copies of the draft petition but he could not state with certainty how many additional
copies the other supporters printed. Atty. Lambino could only assure this Court of
the printing of 100,000 copies because he himself caused the printing of these
100,000 copies.
Likewise, in the Lambino Group's Memorandum filed on 11 October 2006, the
Lambino Group expressly admits that "petitioner Lambino initiated the printing
and reproduction of 100,000 copies of the petition for initiative x x x." 25 This
admission binds the Lambino Group and establishes beyond any doubt that the
Lambino Group failed to show the full text of the proposed changes to the great
majority of the people who signed the signature sheets.
Thus, of the 6.3 million signatories, only 100,000 signatories could have received with
certainty one copy each of the petition, assuming a 100 percent distribution with no
wastage. If Atty. Lambino and company attached one copy of the petition to each
signature sheet, only 100,000 signature sheets could have circulated with the petition.
Each signature sheet contains space for ten signatures. Assuming ten people signed
each of these 100,000 signature sheets with the attached petition, the maximum
number of people who saw the petition before they signed the signature sheets would
not exceed 1,000,000.
With only 100,000 printed copies of the petition, it would be physically impossible for all
or a great majority of the 6.3 million signatories to have seen the petition before they
signed the signature sheets. The inescapable conclusion is that the Lambino
Group failed to show to the 6.3 million signatories the full text of the proposed
changes. If ever, not more than one million signatories saw the petition before they
signed the signature sheets.
In any event, the Lambino Group's signature sheets do not contain the full text of the
proposed changes, either on the face of the signature sheets, or as attachment with an
indication in the signature sheet of such attachment. Petitioner Atty. Lambino
admitted this during the oral arguments, and this admission binds the Lambino
Group. This fact is also obvious from a mere reading of the signature sheet. This
omission is fatal. The failure to so include the text of the proposed changes in the
signature sheets renders the initiative void for non-compliance with the constitutional
requirement that the amendment must be "directly proposed by the people through
initiative upon a petition." The signature sheet is not the "petition" envisioned in the
initiative clause of the Constitution.
For sure, the great majority of the 6.3 million people who signed the signature sheets
did not see the full text of the proposed changes before signing. They could not have
known the nature and effect of the proposed changes, among which are:
1. The term limits on members of the legislature will be lifted and thus
members of Parliament can be re-elected indefinitely;26
2. The interim Parliament can continue to function indefinitely until its
members, who are almost all the present members of Congress, decide to call
for new parliamentary elections. Thus, the members of the interim
Parliament will determine the expiration of their own term of office; 27
3. Within 45 days from the ratification of the proposed changes, the interim
Parliament shall convene to propose further amendments or revisions
to the Constitution.28
These three specific amendments are not stated or even indicated in the Lambino
Group's signature sheets. The people who signed the signature sheets had no idea that
they were proposing these amendments. These three proposed changes are highly
controversial. The people could not have inferred or divined these proposed changes
merely from a reading or rereading of the contents of the signature sheets.
During the oral arguments, petitioner Atty. Lambino stated that he and his
group assured the people during the signature-gathering that the elections for
the regular Parliament would be held during the 2007 local elections if the
proposed changes were ratified before the 2007 local elections. However, the text of
the proposed changes belies this.
The proposed Section 5(2), Article XVIII on Transitory Provisions, as found in the
amended petition, states:
Section 5(2). The interim Parliament shall provide for the election of the
members of Parliament, which shall be synchronized and held
simultaneously with the election of all local government officials. x x x x
(Emphasis supplied)
Section 5(2) does not state that the elections for the regular Parliament will be held
simultaneously with the 2007 local elections. This section merely requires that the
elections for the regular Parliament shall be held simultaneously with the local
elections without specifying the year.
Petitioner Atty. Lambino, who claims to be the principal drafter of the proposed
changes, could have easily written the word "next" before the phrase "election of all
local government officials." This would have insured that the elections for the regular
Parliament would be held in the next local elections following the ratification of the
proposed changes. However, the absence of the word "next" allows the interim
Parliament to schedule the elections for the regular Parliament simultaneously
with any future local elections.
Thus, the members of the interim Parliament will decide the expiration of their own term
of office. This allows incumbent members of the House of Representatives to hold office
beyond their current three-year term of office, and possibly even beyond the five-year
term of office of regular members of the Parliament. Certainly, this is contrary to the
representations of Atty. Lambino and his group to the 6.3 million people who
signed the signature sheets. Atty. Lambino and his group deceived the 6.3 million
signatories, and even the entire nation.
This lucidly shows the absolute need for the people to sign an initiative petition that
contains the full text of the proposed amendments to avoid fraud or misrepresentation.
In the present initiative, the 6.3 million signatories had to rely on the verbal
representations of Atty. Lambino and his group because the signature sheets did not
contain the full text of the proposed changes. The result is a grand deception on the
6.3 million signatories who were led to believe that the proposed changes would require
the holding in 2007 of elections for the regular Parliament simultaneously with the local
elections.
The Lambino Group's initiative springs another surprise on the people who signed the
signature sheets. The proposed changes mandate the interim Parliament to make
further amendments or revisions to the Constitution. The proposed Section 4(4), Article
XVIII on Transitory Provisions, provides:
Section 4(4). Within forty-five days from ratification of these amendments, the
interim Parliament shall convene to propose amendments to, or revisions
of, this Constitution consistent with the principles of local autonomy,
decentralization and a strong bureaucracy. (Emphasis supplied)
During the oral arguments, Atty. Lambino stated that this provision is a "surplusage"
and the Court and the people should simply ignore it. Far from being a surplusage, this
provision invalidates the Lambino Group's initiative.
Section 4(4) is a subject matter totally unrelated to the shift from the Bicameral-
Presidential to the Unicameral-Parliamentary system. American jurisprudence on
initiatives outlaws this as logrolling - when the initiative petition incorporates an
unrelated subject matter in the same petition. This puts the people in a dilemma since
they can answer only either yes or no to the entire proposition, forcing them to sign a
petition that effectively contains two propositions, one of which they may find
unacceptable.
Under American jurisprudence, the effect of logrolling is to nullify the entire
proposition and not only the unrelated subject matter. Thus, in Fine v.
Firestone,29 the Supreme Court of Florida declared:
Combining multiple propositions into one proposal constitutes
"logrolling," which, if our judicial responsibility is to mean anything, we
cannot permit. The very broadness of the proposed amendment amounts to
logrolling because the electorate cannot know what it is voting on - the
amendment's proponents' simplistic explanation reveals only the tip of the
iceberg. x x x x The ballot must give the electorate fair notice of the proposed
amendment being voted on. x x x x The ballot language in the instant case
fails to do that. The very broadness of the proposal makes it impossible to
state what it will affect and effect and violates the requirement that proposed
amendments embrace only one subject. (Emphasis supplied)
Logrolling confuses and even deceives the people. In Yute Air Alaska v.
McAlpine,30 the Supreme Court of Alaska warned against "inadvertence, stealth and
fraud" in logrolling:
Whenever a bill becomes law through the initiative process, all of the problems that the
single-subject rule was enacted to prevent are exacerbated. There is a greater danger
of logrolling, or the deliberate intermingling of issues to increase the likelihood of an
initiative's passage, and there is a greater opportunity for "inadvertence, stealth
and fraud" in the enactment-by-initiative process. The drafters of an initiative
operate independently of any structured or supervised process. They often emphasize
particular provisions of their proposition, while remaining silent on other (more complex
or less appealing) provisions, when communicating to the public. x x x Indeed,
initiative promoters typically use simplistic advertising to present their initiative
to potential petition-signers and eventual voters. Many voters will never read the
full text of the initiative before the election. More importantly, there is no process for
amending or splitting the several provisions in an initiative proposal. These difficulties
clearly distinguish the initiative from the legislative process. (Emphasis supplied)
Thus, the present initiative appears merely a preliminary step for further amendments
or revisions to be undertaken by the interim Parliament as a constituent assembly. The
people who signed the signature sheets could not have known that their signatures
would be used to propose an amendment mandating the interim Parliament to
propose further amendments or revisions to the Constitution.
Apparently, the Lambino Group inserted the proposed Section 4(4) to compel the
interim Parliament to amend or revise again the Constitution within 45 days from
ratification of the proposed changes, or before the May 2007 elections. In the
absence of the proposed Section 4(4), the interim Parliament has the discretion
whether to amend or revise again the Constitution. With the proposed Section 4(4), the
initiative proponents want the interim Parliament mandated to immediately amend or
revise again the Constitution.
However, the signature sheets do not explain the reason for this rush in amending or
revising again so soon the Constitution. The signature sheets do not also explain what
specific amendments or revisions the initiative proponents want the interim Parliament
to make, and why there is a need for such further amendments or revisions. The
people are again left in the dark to fathom the nature and effect of the proposed
changes. Certainly, such an initiative is not "directly proposed by the people" because
the people do not even know the nature and effect of the proposed changes.
There is another intriguing provision inserted in the Lambino Group's amended petition
of 30 August 2006. The proposed Section 4(3) of the Transitory Provisions states:
 Section 4(3). Senators whose term of office ends in 2010 shall be members
of Parliament until noon of the thirtieth day of June 2010.
After 30 June 2010, not one of the present Senators will remain as member of
Parliament if the interim Parliament does not schedule elections for the regular
Parliament by 30 June 2010. However, there is no counterpart provision for the present
members of the House of Representatives even if their term of office will all end on 30
June 2007, three years earlier than that of half of the present Senators. Thus, all the
present members of the House will remain members of the interim Parliament after 30
June 2010.
The term of the incumbent President ends on 30 June 2010. Thereafter, the Prime
Minister exercises all the powers of the President. If the interim Parliament does not
schedule elections for the regular Parliament by 30 June 2010, the Prime Minister will
come only from the present members of the House of Representatives to
the exclusion of the present Senators.
The signature sheets do not explain this discrimination against the Senators. The 6.3
million people who signed the signature sheets could not have known that their
signatures would be used to discriminate against the Senators. They could not
have known that their signatures would be used to limit, after 30 June 2010, the
interim Parliament's choice of Prime Minister only to members of the existing
House of Representatives.
An initiative that gathers signatures from the people without first showing to the people
the full text of the proposed amendments is most likely a deception, and can operate
as a gigantic fraud on the people. That is why the Constitution requires that an
initiative must be "directly proposed by the people x x x in a petition" - meaning that
the people must sign on a petition that contains the full text of the proposed
amendments. On so vital an issue as amending the nation's fundamental law, the
writing of the text of the proposed amendments cannot be hidden from the
people under a general or special power of attorney to unnamed, faceless, and
unelected individuals.
The Constitution entrusts to the people the power to directly propose amendments to
the Constitution. This Court trusts the wisdom of the people even if the members of this
Court do not personally know the people who sign the petition. However, this trust
emanates from a fundamental assumption: the full text of the proposed
amendment is first shown to the people before they sign the petition, not after
they have signed the petition.
In short, the Lambino Group's initiative is void and unconstitutional because it dismally
fails to comply with the requirement of Section 2, Article XVII of the Constitution that
the initiative must be "directly proposed by the people through initiative upon a
petition."
2. The Initiative Violates Section 2, Article XVII of the Constitution Disallowing
Revision through Initiatives
A people's initiative to change the Constitution applies only to an amendment of the
Constitution and not to its revision. In contrast, Congress or a constitutional convention
can propose both amendments and revisions to the Constitution. Article XVII of the
Constitution provides:
ARTICLE XVII
AMENDMENTS OR REVISIONS
Sec. 1. Any amendment to, or revision of, this Constitution may be
proposed by:
(1) The Congress, upon a vote of three-fourths of all its Members, or
(2) A constitutional convention.
Sec. 2. Amendments to this Constitution may likewise be directly proposed
by the people through initiative x x x. (Emphasis supplied)
Article XVII of the Constitution speaks of three modes of amending the Constitution.
The first mode is through Congress upon three-fourths vote of all its Members. The
second mode is through a constitutional convention. The third mode is through a
people's initiative.
Section 1 of Article XVII, referring to the first and second modes, applies to "[A]ny
amendment to, or revision of, this Constitution." In contrast, Section 2 of Article XVII,
referring to the third mode, applies only to "[A]mendments to this Constitution." This
distinction was intentional as shown by the following deliberations of the Constitutional
Commission:
MR. SUAREZ: Thank you, Madam President.
May we respectfully call the attention of the Members of the Commission that
pursuant to the mandate given to us last night, we submitted this afternoon a
complete Committee Report No. 7 which embodies the proposed provision
governing the matter of initiative. This is now covered by Section 2 of the
complete committee report. With the permission of the Members, may I quote
Section 2:
The people may, after five years from the date of the last plebiscite held,
directly propose amendments to this Constitution thru initiative upon petition
of at least ten percent of the registered voters.
This completes the blanks appearing in the original Committee Report No. 7.
This proposal was suggested on the theory that this matter of initiative, which
came about because of the extraordinary developments this year, has to be
separated from the traditional modes of amending the Constitution as
embodied in Section 1. The committee members felt that this system of
initiative should be limited to amendments to the Constitution and
 should not extend to the revision of the entire Constitution, so we
removed it from the operation of Section 1 of the proposed Article on
Amendment or Revision. x x x x
xxxx
MS. AQUINO: [I] am seriously bothered by providing this process of initiative
as a separate section in the Article on Amendment. Would the sponsor be
amenable to accepting an amendment in terms of realigning Section 2 as
another subparagraph (c) of Section 1, instead of setting it up as another
separate section as if it were a self-executing provision?
MR. SUAREZ: We would be amenable except that, as we clarified a while
ago, this process of initiative is limited to the matter of amendment and
should not expand into a revision which contemplates a total overhaul
of the Constitution. That was the sense that was conveyed by the
Committee.
MS. AQUINO: In other words, the Committee was attempting to
distinguish the coverage of modes (a) and (b) in Section 1 to include the
process of revision; whereas, the process of initiation to amend, which
is given to the public, would only apply to amendments?
MR. SUAREZ: That is right. Those were the terms envisioned in the
Committee.
MS. AQUINO: I thank the sponsor; and thank you, Madam President.
xxxx
MR. MAAMBONG: My first question: Commissioner Davide's proposed
amendment on line 1 refers to "amendments." Does it not cover the word
"revision" as defined by Commissioner Padilla when he made the
distinction between the words "amendments" and "revision"?
MR. DAVIDE: No, it does not, because "amendments" and "revision"
should be covered by Section 1. So insofar as initiative is concerned, it
can only relate to "amendments" not "revision."
MR. MAAMBONG: Thank you.31 (Emphasis supplied)
There can be no mistake about it. The framers of the Constitution intended, and wrote,
a clear distinction between "amendment" and "revision" of the Constitution. The
framers intended, and wrote, that only Congress or a constitutional convention may
propose revisions to the Constitution. The framers intended, and wrote, that a
people's initiative may propose only amendments to the Constitution. Where the intent
and language of the Constitution clearly withhold from the people the power to propose
revisions to the Constitution, the people cannot propose revisions even as they are
empowered to propose amendments.
This has been the consistent ruling of state supreme courts in the United States. Thus,
in McFadden v. Jordan,32the Supreme Court of California ruled:
The initiative power reserved by the people by amendment to the
Constitution x x x applies only to the proposing and the adopting or
rejecting of 'laws and amendments to the Constitution' and does not
purport to extend to a constitutional revision. x x x x It is thus clear that a
revision of the Constitution may be accomplished only through ratification by
the people of a revised constitution proposed by a convention called for that
purpose as outlined hereinabove. Consequently if the scope of the proposed
initiative measure (hereinafter termed 'the measure') now before us is so
broad that if such measure became law a substantial revision of our present
state Constitution would be effected, then the measure may not properly be
submitted to the electorate until and unless it is first agreed upon by a
constitutional convention, and the writ sought by petitioner should issue. x x x
x (Emphasis supplied)
Likewise, the Supreme Court of Oregon ruled in Holmes v. Appling:33
It is well established that when a constitution specifies the manner in which it
may be amended or revised, it can be altered by those who favor
amendments, revision, or other change only through the use of one of the
specified means. The constitution itself recognizes that there is a difference
between an amendment and a revision; and it is obvious from an examination
of the measure here in question that it is not an amendment as that term is
generally understood and as it is used in Article IV, Section 1. The document
appears to be based in large part on the revision of the constitution drafted by
the 'Commission for Constitutional Revision' authorized by the 1961
Legislative Assembly, x x x and submitted to the 1963 Legislative Assembly.
It failed to receive in the Assembly the two-third's majority vote of both houses
required by Article XVII, Section 2, and hence failed of adoption, x x x.
While differing from that document in material respects, the measure
sponsored by the plaintiffs is, nevertheless, a thorough overhauling of the
present constitution x x x.
To call it an amendment is a misnomer.
Whether it be a revision or a new constitution, it is not such a measure as can
be submitted to the people through the initiative. If a revision, it is subject to
the requirements of Article XVII, Section 2(1); if a new constitution, it can only
be proposed at a convention called in the manner provided in Article XVII,
Section 1. x x x x
Similarly, in this jurisdiction there can be no dispute that a people's initiative can only
propose amendments to the Constitution since the Constitution itself limits initiatives to
amendments. There can be no deviation from the constitutionally prescribed modes
of revising the Constitution. A popular clamor, even one backed by 6.3 million
signatures, cannot justify a deviation from the specific modes prescribed in the
Constitution itself.
As the Supreme Court of Oklahoma ruled in In re Initiative Petition No. 364:34
It is a fundamental principle that a constitution can only be revised or
amended in the manner prescribed by the instrument itself, and that any
attempt to revise a constitution in a manner other than the one provided
in the instrument is almost invariably treated as extra-constitutional and
revolutionary. x x x x "While it is universally conceded that the people are
sovereign and that they have power to adopt a constitution and to change their
own work at will, they must, in doing so, act in an orderly manner and
according to the settled principles of constitutional law. And where the people,
in adopting a constitution, have prescribed the method by which the people
may alter or amend it, an attempt to change the fundamental law in violation
of the self-imposed restrictions, is unconstitutional." x x x x (Emphasis
supplied)
This Court, whose members are sworn to defend and protect the Constitution, cannot
shirk from its solemn oath and duty to insure compliance with the clear command of the
Constitution ― that a people's initiative may only amend, never revise, the Constitution.
The question is, does the Lambino Group's initiative constitute an amendment or
revision of the Constitution? If the Lambino Group's initiative constitutes a revision, then
the present petition should be dismissed for being outside the scope of Section 2,
Article XVII of the Constitution.
Courts have long recognized the distinction between an amendment and a revision of
a constitution. One of the earliest cases that recognized the distinction described the
fundamental difference in this manner:
[T]he very term "constitution" implies an instrument of a permanent and
abiding nature, and the provisions contained therein for its revision
indicate the will of the people that the underlying principles upon which
it rests, as well as the substantial entirety of the instrument, shall be of a
like permanent and abiding nature. On the other hand, the significance of the
term "amendment" implies such an addition or change within the lines of the
original instrument as will effect an improvement, or better carry out the
purpose for which it was framed.35 (Emphasis supplied)
Revision broadly implies a change that alters a basic principle in the constitution,
like altering the principle of separation of powers or the system of checks-and-balances.
There is also revision if the change alters the substantial entirety of the
constitution, as when the change affects substantial provisions of the
constitution. On the other hand, amendment broadly refers to a change that adds,
reduces, or deletes without altering the basic principle involved. Revision
generally affects several provisions of the constitution, while amendment generally
affects only the specific provision being amended.
In California where the initiative clause allows amendments but not revisions to the
constitution just like in our Constitution, courts have developed a two-part test: the
quantitative test and the qualitative test. The quantitative test asks whether the
proposed change is "so extensive in its provisions as to change directly the 'substantial
entirety' of the constitution by the deletion or alteration of numerous existing
provisions."36 The court examines only the number of provisions affected and does not
consider the degree of the change.
The qualitative test inquires into the qualitative effects of the proposed change in the
constitution. The main inquiry is whether the change will "accomplish such far reaching
changes in the nature of our basic governmental plan as to amount to a
revision."37 Whether there is an alteration in the structure of government is a proper
subject of inquiry. Thus, "a change in the nature of [the] basic governmental plan"
includes "change in its fundamental framework or the fundamental powers of its
Branches."38 A change in the nature of the basic governmental plan also includes
changes that "jeopardize the traditional form of government and the system of check
and balances."39
Under both the quantitative and qualitative tests, the Lambino Group's initiative is a
revision and not merely an amendment. Quantitatively, the Lambino Group's proposed
changes overhaul two articles - Article VI on the Legislature and Article VII on the
Executive - affecting a total of 105 provisions in the entire Constitution. 40Qualitatively,
the proposed changes alter substantially the basic plan of government, from
presidential to parliamentary, and from a bicameral to a unicameral legislature.
A change in the structure of government is a revision of the Constitution, as when the
three great co-equal branches of government in the present Constitution are reduced
into two. This alters the separation of powers in the Constitution. A shift from the
present Bicameral-Presidential system to a Unicameral-Parliamentary system is a
revision of the Constitution. Merging the legislative and executive branches is a radical
change in the structure of government.
The abolition alone of the Office of the President as the locus of Executive Power alters
the separation of powers and thus constitutes a revision of the Constitution. Likewise,
the abolition alone of one chamber of Congress alters the system of checks-and-
balances within the legislature and constitutes a revision of the Constitution.
By any legal test and under any jurisdiction, a shift from a Bicameral-Presidential to
a Unicameral-Parliamentary system, involving the abolition of the Office of the
President and the abolition of one chamber of Congress, is beyond doubt a revision,
not a mere amendment. On the face alone of the Lambino Group's proposed changes,
it is readily apparent that the changes will radically alter the framework of
government as set forth in the Constitution. Father Joaquin Bernas, S.J., a leading
member of the Constitutional Commission, writes:
An amendment envisages an alteration of one or a few specific and separable
provisions. The guiding original intention of an amendment is to improve specific parts
or to add new provisions deemed necessary to meet new conditions or to suppress
specific portions that may have become obsolete or that are judged to be dangerous.
In revision, however, the guiding original intention and plan contemplates a re-
examination of the entire document, or of provisions of the document which have over-
all implications for the entire document, to determine how and to what extent they
should be altered. Thus, for instance a switch from the presidential system to a
parliamentary system would be a revision because of its over-all impact on the
entire constitutional structure. So would a switch from a bicameral system to a
unicameral system be because of its effect on other important provisions of the
Constitution.41 (Emphasis supplied)
In Adams v. Gunter,42 an initiative petition proposed the amendment of the Florida
State constitution to shift from a bicameral to a unicameral legislature. The issue
turned on whether the initiative "was defective and unauthorized where [the] proposed
amendment would x x x affect several other provisions of [the] Constitution." The
Supreme Court of Florida, striking down the initiative as outside the scope of the
initiative clause, ruled as follows:
The proposal here to amend Section 1 of Article III of the 1968 Constitution to
provide for a Unicameral Legislature affects not only many other
provisions of the Constitution but provides for a change in the form of
the legislative branch of government, which has been in existence in the
United States Congress and in all of the states of the nation, except one, since
the earliest days. It would be difficult to visualize a more revolutionary
change. The concept of a House and a Senate is basic in the American form
of government. It would not only radically change the whole pattern of
government in this state and tear apart the whole fabric of the
Constitution, but would even affect the physical facilities necessary to
carry on government.
xxxx
We conclude with the observation that if such proposed amendment were
adopted by the people at the General Election and if the Legislature at its next
session should fail to submit further amendments to revise and clarify the
numerous inconsistencies and conflicts which would result, or if after
submission of appropriate amendments the people should refuse to adopt
them, simple chaos would prevail in the government of this State. The same
result would obtain from an amendment, for instance, of Section 1 of Article
V, to provide for only a Supreme Court and Circuit Courts-and there could be
other examples too numerous to detail. These examples point unerringly to
the answer.
The purpose of the long and arduous work of the hundreds of men and women
and many sessions of the Legislature in bringing about the Constitution of
1968 was to eliminate inconsistencies and conflicts and to give the State a
workable, accordant, homogenous and up-to-date document. All of this could
disappear very quickly if we were to hold that it could be amended in the
manner proposed in the initiative petition here.43(Emphasis supplied)
The rationale of the Adams decision applies with greater force to the present petition.
The Lambino Group's initiative not only seeks a shift from a bicameral to a unicameral
legislature, it also seeks to merge the executive and legislative departments. The
initiative in Adams did not even touch the executive department.
In Adams, the Supreme Court of Florida enumerated 18 sections of the Florida
Constitution that would be affected by the shift from a bicameral to a unicameral
legislature. In the Lambino Group's present initiative, no less than 105 provisions of
the Constitution would be affected based on the count of Associate Justice Romeo
J. Callejo, Sr.44 There is no doubt that the Lambino Group's present initiative seeks far
more radical changes in the structure of government than the initiative in Adams.
The Lambino Group theorizes that the difference between "amendment" and "revision"
is only one of procedure, not of substance. The Lambino Group posits that when a
deliberative body drafts and proposes changes to the Constitution, substantive
changes are called "revisions" because members of the deliberative body work full-
time on the changes. However, the same substantive changes, when proposed
through an initiative, are called "amendments" because the changes are made by
ordinary people who do not make an "occupation, profession, or vocation" out
of such endeavor.
Thus, the Lambino Group makes the following exposition of their theory in their
Memorandum:
99. With this distinction in mind, we note that the constitutional provisions
expressly provide for both "amendment" and "revision" when it speaks of
legislators and constitutional delegates, while the same provisions expressly
provide only for "amendment" when it speaks of the people. It would seem
that the apparent distinction is based on the actual experience of the people,
that on one hand the common people in general are not expected to work full-
time on the matter of correcting the constitution because that is not their
occupation, profession or vocation; while on the other hand, the legislators
and constitutional convention delegates are expected to work full-time on the
same matter because that is their occupation, profession or vocation. Thus,
the difference between the words "revision" and "amendment" pertain
only to the process or procedure of coming up with the corrections, for
purposes of interpreting the constitutional provisions.
100. Stated otherwise, the difference between "amendment" and
"revision" cannot reasonably be in the substance or extent of the
correction. x x x x (Underlining in the original; boldfacing supplied)
The Lambino Group in effect argues that if Congress or a constitutional convention had
drafted the same proposed changes that the Lambino Group wrote in the present
initiative, the changes would constitute a revision of the Constitution. Thus, the
Lambino Group concedes that the proposed changes in the present initiative
constitute a revision if Congress or a constitutional convention had drafted the
changes. However, since the Lambino Group as private individuals drafted the
proposed changes, the changes are merely amendments to the Constitution. The
Lambino Group trivializes the serious matter of changing the fundamental law of the
land.
The express intent of the framers and the plain language of the
Constitution contradict the Lambino Group's theory. Where the intent of the framers
and the language of the Constitution are clear and plainly stated, courts do not deviate
from such categorical intent and language.45 Any theory espousing a construction
contrary to such intent and language deserves scant consideration. More so, if such
theory wreaks havoc by creating inconsistencies in the form of government established
in the Constitution. Such a theory, devoid of any jurisprudential mooring and inviting
inconsistencies in the Constitution, only exposes the flimsiness of the Lambino Group's
position. Any theory advocating that a proposed change involving a radical structural
change in government does not constitute a revision justly deserves rejection.
The Lambino Group simply recycles a theory that initiative proponents in American
jurisdictions have attempted to advance without any success. In Lowe v.
Keisling,46 the Supreme Court of Oregon rejected this theory, thus:
Mabon argues that Article XVII, section 2, does not apply to changes to the
constitution proposed by initiative. His theory is that Article XVII, section 2
merely provides a procedure by which the legislature can propose a
revision of the constitution, but it does not affect proposed revisions
initiated by the people.
Plaintiffs argue that the proposed ballot measure constitutes a wholesale
change to the constitution that cannot be enacted through the initiative
process. They assert that the distinction between amendment and revision is
determined by reviewing the scope and subject matter of the proposed
enactment, and that revisions are not limited to "a formal overhauling of the
constitution." They argue that this ballot measure proposes far reaching
changes outside the lines of the original instrument, including profound
impacts on existing fundamental rights and radical restructuring of the
government's relationship with a defined group of citizens. Plaintiffs assert
that, because the proposed ballot measure "will refashion the most basic
principles of Oregon constitutional law," the trial court correctly held that it
violated Article XVII, section 2, and cannot appear on the ballot without the
prior approval of the legislature.
We first address Mabon's argument that Article XVII, section 2(1), does not
prohibit revisions instituted by initiative. In Holmes v. Appling, x x x, the
Supreme Court concluded that a revision of the constitution may not be
accomplished by initiative, because of the provisions of Article XVII, section 2.
After reviewing Article XVII, section1, relating to proposed amendments, the
court said:
"From the foregoing it appears that Article IV, Section 1, authorizes the use of
the initiative as a means of amending the Oregon Constitution, but it contains
no similar sanction for its use as a means of revising the constitution." x x x x
It then reviewed Article XVII, section 2, relating to revisions, and said: "It is the
only section of the constitution which provides the means for constitutional
revision and it excludes the idea that an individual, through the initiative, may
place such a measure before the electorate." x x x x
Accordingly, we reject Mabon's argument that Article XVII, section 2,
does not apply to constitutional revisions proposed by initiative.
(Emphasis supplied)
Similarly, this Court must reject the Lambino Group's theory which negates the express
intent of the framers and the plain language of the Constitution.
We can visualize amendments and revisions as a spectrum, at one end green for
amendments and at the other end red for revisions. Towards the middle of the
spectrum, colors fuse and difficulties arise in determining whether there is an
amendment or revision. The present initiative is indisputably located at the far end of
the red spectrum where revision begins. The present initiative seeks a radical overhaul
of the existing separation of powers among the three co-equal departments of
government, requiring far-reaching amendments in several sections and articles of the
Constitution.
Where the proposed change applies only to a specific provision of the Constitution
without affecting any other section or article, the change may generally be considered
an amendment and not a revision. For example, a change reducing the voting age from
18 years to 15 years47 is an amendment and not a revision. Similarly, a change
reducing Filipino ownership of mass media companies from 100 percent to 60 percent
is an amendment and not a revision.48 Also, a change requiring a college degree as an
additional qualification for election to the Presidency is an amendment and not a
revision.49
The changes in these examples do not entail any modification of sections or articles of
the Constitution other than the specific provision being amended. These changes do
not also affect the structure of government or the system of checks-and-balances
among or within the three branches. These three examples are located at the far green
end of the spectrum, opposite the far red end where the revision sought by the present
petition is located.
However, there can be no fixed rule on whether a change is an amendment or a
revision. A change in a single word of one sentence of the Constitution may be a
revision and not an amendment. For example, the substitution of the word "republican"
with "monarchic" or "theocratic" in Section 1, Article II50 of the Constitution radically
overhauls the entire structure of government and the fundamental ideological basis of
the Constitution. Thus, each specific change will have to be examined case-by-case,
depending on how it affects other provisions, as well as how it affects the structure of
government, the carefully crafted system of checks-and-balances, and the underlying
ideological basis of the existing Constitution.
Since a revision of a constitution affects basic principles, or several provisions of a
constitution, a deliberative body with recorded proceedings is best suited to
undertake a revision. A revision requires harmonizing not only several provisions, but
also the altered principles with those that remain unaltered. Thus, constitutions
normally authorize deliberative bodies like constituent assemblies or constitutional
conventions to undertake revisions. On the other hand, constitutions allow people's
initiatives, which do not have fixed and identifiable deliberative bodies or recorded
proceedings, to undertake only amendments and not revisions.
In the present initiative, the Lambino Group's proposed Section 2 of the Transitory
Provisions states:
Section 2. Upon the expiration of the term of the incumbent President and Vice
President, with the exception of Sections 1, 2, 3, 4, 5, 6 and 7 of Article VI of
the 1987 Constitution which shall hereby be amended and Sections 18 and
24 which shall be deleted, all other Sections of Article VI are hereby retained
and renumbered sequentially as Section 2, ad seriatim up to 26, unless they
are inconsistent with the Parliamentary system of government, in which
case, they shall be amended to conform with a unicameral parliamentary
form of government; x x x x (Emphasis supplied)
The basic rule in statutory construction is that if a later law is irreconcilably inconsistent
with a prior law, the later law prevails. This rule also applies to construction of
constitutions. However, the Lambino Group's draft of Section 2 of the Transitory
Provisions turns on its head this rule of construction by stating that in case of such
irreconcilable inconsistency, the earlier provision "shall be amended to conform with
a unicameral parliamentary form of government." The effect is to freeze the two
irreconcilable provisions until the earlier one "shall be amended," which requires a
future separate constitutional amendment.
Realizing the absurdity of the need for such an amendment, petitioner Atty. Lambino
readily conceded during the oral arguments that the requirement of a future amendment
is a "surplusage." In short, Atty. Lambino wants to reinstate the rule of statutory
construction so that the later provision automatically prevails in case of irreconcilable
inconsistency. However, it is not as simple as that.
The irreconcilable inconsistency envisioned in the proposed Section 2 of the Transitory
Provisions is not between a provision in Article VI of the 1987 Constitution and a
provision in the proposed changes. The inconsistency is between a provision in Article
VI of the 1987 Constitution and the "Parliamentary system of government," and the
inconsistency shall be resolved in favor of a "unicameral parliamentary form of
government."
Now, what "unicameral parliamentary form of government" do the Lambino Group's
proposed changes refer to ― the Bangladeshi, Singaporean, Israeli, or New Zealand
models, which are among the few countries with unicameral parliaments? The
proposed changes could not possibly refer to the traditional and well-known
parliamentary forms of government ― the British, French, Spanish, German, Italian,
Canadian, Australian, or Malaysian models, which have all bicameral parliaments. Did
the people who signed the signature sheets realize that they were adopting the
Bangladeshi, Singaporean, Israeli, or New Zealand parliamentary form of government?
This drives home the point that the people's initiative is not meant for revisions of the
Constitution but only for amendments. A shift from the present Bicameral-Presidential
to a Unicameral-Parliamentary system requires harmonizing several provisions in many
articles of the Constitution. Revision of the Constitution through a people's initiative will
only result in gross absurdities in the Constitution.
In sum, there is no doubt whatsoever that the Lambino Group's initiative is a revision
and not an amendment. Thus, the present initiative is void and unconstitutional because
it violates Section 2, Article XVII of the Constitution limiting the scope of a people's
initiative to "[A]mendments to this Constitution."
3. A Revisit of Santiago v. COMELEC is Not Necessary
The present petition warrants dismissal for failure to comply with the basic requirements
of Section 2, Article XVII of the Constitution on the conduct and scope of a people's
initiative to amend the Constitution. There is no need to revisit this Court's ruling
in Santiago declaring RA 6735 "incomplete, inadequate or wanting in essential terms
and conditions" to cover the system of initiative to amend the Constitution. An
affirmation or reversal of Santiago will not change the outcome of the present petition.
Thus, this Court must decline to revisit Santiago which effectively ruled that RA 6735
does not comply with the requirements of the Constitution to implement the initiative
clause on amendments to the Constitution.
This Court must avoid revisiting a ruling involving the constitutionality of a statute if the
case before the Court can be resolved on some other grounds. Such avoidance is a
logical consequence of the well-settled doctrine that courts will not pass upon the
constitutionality of a statute if the case can be resolved on some other grounds. 51
Nevertheless, even assuming that RA 6735 is valid to implement the constitutional
provision on initiatives to amend the Constitution, this will not change the result here
because the present petition violates Section 2, Article XVII of the Constitution. To be
a valid initiative, the present initiative must first comply with Section 2, Article XVII of
the Constitution even before complying with RA 6735.
Even then, the present initiative violates Section 5(b) of RA 6735 which requires that
the "petition for an initiative on the 1987 Constitution must have at least twelve per
centum (12%) of the total number of registered voters as signatories." Section 5(b) of
RA 6735 requires that the people must sign the "petition x x x as signatories."
The 6.3 million signatories did not sign the petition of 25 August 2006 or the amended
petition of 30 August 2006 filed with the COMELEC. Only Atty. Lambino, Atty.
Demosthenes B. Donato, and Atty. Alberto C. Agra signed the petition and
amended petition as counsels for "Raul L. Lambino and Erico B. Aumentado,
Petitioners." In the COMELEC, the Lambino Group, claiming to act "together with" the
6.3 million signatories, merely attached the signature sheets to the petition and
amended petition. Thus, the petition and amended petition filed with the COMELEC did
not even comply with the basic requirement of RA 6735 that the Lambino Group claims
as valid.
The Lambino Group's logrolling initiative also violates Section 10(a) of RA 6735 stating,
"No petition embracing more than one (1) subject shall be submitted to the
electorate; x x x." The proposed Section 4(4) of the Transitory Provisions, mandating
the interim Parliament to propose further amendments or revisions to the Constitution,
is a subject matter totally unrelated to the shift in the form of government. Since the
present initiative embraces more than one subject matter, RA 6735 prohibits
submission of the initiative petition to the electorate. Thus, even if RA 6735 is valid, the
Lambino Group's initiative will still fail.
4. The COMELEC Did Not Commit Grave Abuse of Discretion in Dismissing the
Lambino Group's Initiative
In dismissing the Lambino Group's initiative petition, the COMELEC en banc merely
followed this Court's ruling in Santiago and People's Initiative for Reform,
Modernization and Action (PIRMA) v. COMELEC.52 For following this Court's ruling,
no grave abuse of discretion is attributable to the COMELEC. On this ground alone, the
present petition warrants outright dismissal. Thus, this Court should reiterate
its unanimous ruling in PIRMA:
The Court ruled, first, by a unanimous vote, that no grave abuse of discretion
could be attributed to the public respondent COMELEC in dismissing the
petition filed by PIRMA therein, it appearing that it only complied with the
dispositions in the Decisions of this Court in G.R. No. 127325, promulgated
on March 19, 1997, and its Resolution of June 10, 1997.
5. Conclusion
The Constitution, as the fundamental law of the land, deserves the utmost respect and
obedience of all the citizens of this nation. No one can trivialize the Constitution by
cavalierly amending or revising it in blatant violation of the clearly specified modes of
amendment and revision laid down in the Constitution itself.
To allow such change in the fundamental law is to set adrift the Constitution in
unchartered waters, to be tossed and turned by every dominant political group of the
day. If this Court allows today a cavalier change in the Constitution outside the
constitutionally prescribed modes, tomorrow the new dominant political group that
comes will demand its own set of changes in the same cavalier and unconstitutional
fashion. A revolving-door constitution does not augur well for the rule of law in this
country.
An overwhelming majority − 16,622,111 voters comprising 76.3 percent of the total
votes cast53 − approved our Constitution in a national plebiscite held on 11 February
1987. That approval is the unmistakable voice of the people, the full expression
of the people's sovereign will. That approval included the prescribed modes for
amending or revising the Constitution.
No amount of signatures, not even the 6,327,952 million signatures gathered by the
Lambino Group, can change our Constitution contrary to the specific modes that the
people, in their sovereign capacity, prescribed when they ratified the Constitution. The
alternative is an extra-constitutional change, which means subverting the people's
sovereign will and discarding the Constitution. This is one act the Court cannot and
should never do. As the ultimate guardian of the Constitution, this Court is sworn to
perform its solemn duty to defend and protect the Constitution, which embodies the real
sovereign will of the people.
Incantations of "people's voice," "people's sovereign will," or "let the people decide"
cannot override the specific modes of changing the Constitution as prescribed in the
Constitution itself. Otherwise, the Constitution ― the people's fundamental covenant
that provides enduring stability to our society ― becomes easily susceptible to
manipulative changes by political groups gathering signatures through false promises.
Then, the Constitution ceases to be the bedrock of the nation's stability.
The Lambino Group claims that their initiative is the "people's voice." However, the
Lambino Group unabashedly states in ULAP Resolution No. 2006-02, in the verification
of their petition with the COMELEC, that "ULAP maintains its unqualified support to
the agenda of Her Excellency President Gloria Macapagal-Arroyo for constitutional
reforms." The Lambino Group thus admits that their "people's" initiative is an
"unqualified support to the agenda" of the incumbent President to change the
Constitution. This forewarns the Court to be wary of incantations of "people's voice" or
"sovereign will" in the present initiative.
This Court cannot betray its primordial duty to defend and protect the Constitution. The
Constitution, which embodies the people's sovereign will, is the bible of this Court. This
Court exists to defend and protect the Constitution. To allow this constitutionally
infirm initiative, propelled by deceptively gathered signatures, to alter basic principles
in the Constitution is to allow a desecration of the Constitution. To allow such alteration
and desecration is to lose this Court's raison d'etre.
WHEREFORE, we DISMISS the petition in G.R. No. 174153.
SO ORDERED.
G.R No. 187167 August 16, 2011
PROF. MERLIN M. MAGALLONA, AKBAYAN PARTY-LIST REP. RISA
HONTIVEROS, PROF. HARRY C. ROQUE, JR., AND UNIVERSITY OF THE
PHILIPPINES COLLEGE OF LAW STUDENTS, ALITHEA BARBARA ACAS,
VOLTAIRE ALFERES, CZARINA MAY ALTEZ, FRANCIS ALVIN ASILO, SHERYL
BALOT, RUBY AMOR BARRACA, JOSE JAVIER BAUTISTA, ROMINA
BERNARDO, VALERIE PAGASA BUENAVENTURA, EDAN MARRI CAÑETE,
VANN ALLEN DELA CRUZ, RENE DELORINO, PAULYN MAY DUMAN, SHARON
ESCOTO, RODRIGO FAJARDO III, GIRLIE FERRER, RAOULLE OSEN FERRER,
CARLA REGINA GREPO, ANNA MARIE CECILIA GO, IRISH KAY KALAW, MARY
ANN JOY LEE, MARIA LUISA MANALAYSAY, MIGUEL RAFAEL MUSNGI,
MICHAEL OCAMPO, JAKLYN HANNA PINEDA, WILLIAM RAGAMAT, MARICAR
RAMOS, ENRIK FORT REVILLAS, JAMES MARK TERRY RIDON, JOHANN
FRANTZ RIVERA IV, CHRISTIAN RIVERO, DIANNE MARIE ROA, NICHOLAS
SANTIZO, MELISSA CHRISTINA SANTOS, CRISTINE MAE TABING, VANESSA
ANNE TORNO, MARIA ESTER VANGUARDIA, and MARCELINO VELOSO
III, Petitioners,
vs.
HON. EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE SECRETARY, HON.
ALBERTO ROMULO, IN HIS CAPACITY AS SECRETARY OF THE DEPARTMENT
OF FOREIGN AFFAIRS, HON. ROLANDO ANDAYA, IN HIS CAPACITY AS
SECRETARY OF THE DEPARTMENT OF BUDGET AND MANAGEMENT, HON.
DIONY VENTURA, IN HIS CAPACITY AS ADMINISTRATOR OF THE NATIONAL
MAPPING & RESOURCE INFORMATION AUTHORITY, and HON. HILARIO
DAVIDE, JR., IN HIS CAPACITY AS REPRESENTATIVE OF THE PERMANENT
MISSION OF THE REPUBLIC OF THE PHILIPPINES TO THE UNITED
NATIONS,Respondents.
DECISION
CARPIO, J.:
The Case
This original action for the writs of certiorari and prohibition assails the constitutionality
of Republic Act No. 95221(RA 9522) adjusting the country’s archipelagic baselines and
classifying the baseline regime of nearby territories.
The Antecedents
In 1961, Congress passed Republic Act No. 3046 (RA 3046)2 demarcating the maritime
baselines of the Philippines as an archipelagic State. 3 This law followed the framing of
the Convention on the Territorial Sea and the Contiguous Zone in 1958 (UNCLOS
I),4 codifying, among others, the sovereign right of States parties over their "territorial
sea," the breadth of which, however, was left undetermined. Attempts to fill this void
during the second round of negotiations in Geneva in 1960 (UNCLOS II) proved futile.
Thus, domestically, RA 3046 remained unchanged for nearly five decades, save for
legislation passed in 1968 (Republic Act No. 5446 [RA 5446]) correcting typographical
errors and reserving the drawing of baselines around Sabah in North Borneo.
In March 2009, Congress amended RA 3046 by enacting RA 9522, the statute now
under scrutiny. The change was prompted by the need to make RA 3046 compliant
with the terms of the United Nations Convention on the Law of the Sea (UNCLOS
III),5 which the Philippines ratified on 27 February 1984. 6 Among others, UNCLOS III
prescribes the water-land ratio, length, and contour of baselines of archipelagic States
like the Philippines7 and sets the deadline for the filing of application for the extended
continental shelf.8 Complying with these requirements, RA 9522 shortened one
baseline, optimized the location of some basepoints around the Philippine archipelago
and classified adjacent territories, namely, the Kalayaan Island Group (KIG) and the
Scarborough Shoal, as "regimes of islands" whose islands generate their own
applicable maritime zones.
Petitioners, professors of law, law students and a legislator, in their respective
capacities as "citizens, taxpayers or x x x legislators," 9 as the case may be, assail the
constitutionality of RA 9522 on two principal grounds, namely: (1) RA 9522 reduces
Philippine maritime territory, and logically, the reach of the Philippine state’s sovereign
power, in violation of Article 1 of the 1987 Constitution, 10 embodying the terms of the
Treaty of Paris11 and ancillary treaties,12 and (2) RA 9522 opens the country’s waters
landward of the baselines to maritime passage by all vessels and aircrafts, undermining
Philippine sovereignty and national security, contravening the country’s nuclear-free
policy, and damaging marine resources, in violation of relevant constitutional
provisions.13
In addition, petitioners contend that RA 9522’s treatment of the KIG as "regime of
islands" not only results in the loss of a large maritime area but also prejudices the
livelihood of subsistence fishermen.14 To buttress their argument of territorial
diminution, petitioners facially attack RA 9522 for what it excluded and included – its
failure to reference either the Treaty of Paris or Sabah and its use of UNCLOS III’s
framework of regime of islands to determine the maritime zones of the KIG and the
Scarborough Shoal.
Commenting on the petition, respondent officials raised threshold issues questioning
(1) the petition’s compliance with the case or controversy requirement for judicial review
grounded on petitioners’ alleged lack of locus standi and (2) the propriety of the writs
of certiorari and prohibition to assail the constitutionality of RA 9522. On the merits,
respondents defended RA 9522 as the country’s compliance with the terms of UNCLOS
III, preserving Philippine territory over the KIG or Scarborough Shoal. Respondents add
that RA 9522 does not undermine the country’s security, environment and economic
interests or relinquish the Philippines’ claim over Sabah.
Respondents also question the normative force, under international law, of petitioners’
assertion that what Spain ceded to the United States under the Treaty of Paris were
the islands and all the waters found within the boundaries of the rectangular area drawn
under the Treaty of Paris.
We left unacted petitioners’ prayer for an injunctive writ.
The Issues constitutionality of statutes,19 and indeed, of acts of other branches of
government.20 Issues of constitutional import are sometimes crafted out of statutes
The petition raises the following issues: which, while having no bearing on the personal interests of the petitioners, carry such
relevance in the life of this nation that the Court inevitably finds itself constrained to
take cognizance of the case and pass upon the issues raised, non-compliance with the
1. Preliminarily – letter of procedural rules notwithstanding. The statute sought to be reviewed here is
one such law.
1. Whether petitioners possess locus standi to bring this suit; and
RA 9522 is Not Unconstitutional
2. Whether the writs of certiorari and prohibition are the proper RA 9522 is a Statutory Tool
remedies to assail the constitutionality of RA 9522. to Demarcate the Country’s
Maritime Zones and Continental
2. On the merits, whether RA 9522 is unconstitutional. Shelf Under UNCLOS III, not to
Delineate Philippine Territory

The Ruling of the Court

Petitioners submit that RA 9522 "dismembers a large portion of the national
territory"21 because it discards the pre-UNCLOS III demarcation of Philippine territory
On the threshold issues, we hold that (1) petitioners possess locus standi to bring this under the Treaty of Paris and related treaties, successively encoded in the definition of
suit as citizens and (2) the writs of certiorari and prohibition are proper remedies to test national territory under the 1935, 1973 and 1987 Constitutions. Petitioners theorize that
the constitutionality of RA 9522. On the merits, we find no basis to declare RA 9522 this constitutional definition trumps any treaty or statutory provision denying the
unconstitutional. Philippines sovereign control over waters, beyond the territorial sea recognized at the
time of the Treaty of Paris, that Spain supposedly ceded to the United States.
On the Threshold Issues Petitioners argue that from the Treaty of Paris’ technical description, Philippine
Petitioners Possess Locus sovereignty over territorial waters extends hundreds of nautical miles around the
Standi as Citizens Philippine archipelago, embracing the rectangular area delineated in the Treaty of
Paris.22
Petitioners themselves undermine their assertion of locus standi as legislators and
taxpayers because the petition alleges neither infringement of legislative Petitioners’ theory fails to persuade us.
prerogative15 nor misuse of public funds,16 occasioned by the passage and
implementation of RA 9522. Nonetheless, we recognize petitioners’ locus standi as UNCLOS III has nothing to do with the acquisition (or loss) of territory. It is a multilateral
citizens with constitutionally sufficient interest in the resolution of the merits of the case treaty regulating, among others, sea-use rights over maritime zones (i.e., the territorial
which undoubtedly raises issues of national significance necessitating urgent waters [12 nautical miles from the baselines], contiguous zone [24 nautical miles from
resolution. Indeed, owing to the peculiar nature of RA 9522, it is understandably difficult the baselines], exclusive economic zone [200 nautical miles from the baselines]), and
to find other litigants possessing "a more direct and specific interest" to bring the suit, continental shelves that UNCLOS III delimits.23 UNCLOS III was the culmination of
thus satisfying one of the requirements for granting citizenship standing. 17 decades-long negotiations among United Nations members to codify norms regulating
the conduct of States in the world’s oceans and submarine areas, recognizing coastal
The Writs of Certiorari and Prohibition and archipelagic States’ graduated authority over a limited span of waters and
Are Proper Remedies to Test submarine lands along their coasts.
the Constitutionality of Statutes
On the other hand, baselines laws such as RA 9522 are enacted by UNCLOS III States
In praying for the dismissal of the petition on preliminary grounds, respondents seek a parties to mark-out specific basepoints along their coasts from which baselines are
strict observance of the offices of the writs of certiorari and prohibition, noting that the drawn, either straight or contoured, to serve as geographic starting points to measure
writs cannot issue absent any showing of grave abuse of discretion in the exercise of the breadth of the maritime zones and continental shelf. Article 48 of UNCLOS III on
judicial, quasi-judicial or ministerial powers on the part of respondents and resulting archipelagic States like ours could not be any clearer:
prejudice on the part of petitioners.18
Article 48. Measurement of the breadth of the territorial sea, the contiguous zone, the
Respondents’ submission holds true in ordinary civil proceedings. When this Court exclusive economic zone and the continental shelf. – The breadth of the territorial sea,
exercises its constitutional power of judicial review, however, we have, by tradition, the contiguous zone, the exclusive economic zone and the continental shelf shall be
viewed the writs of certiorari and prohibition as proper remedial vehicles to test the measured from archipelagic baselines drawn in accordance with article 47.
(Emphasis supplied)
Thus, baselines laws are nothing but statutory mechanisms for UNCLOS III States
parties to delimit with precision the extent of their maritime zones and continental
shelves. In turn, this gives notice to the rest of the international community of the scope
of the maritime space and submarine areas within which States parties exercise treaty-
based rights, namely, the exercise of sovereignty over territorial waters (Article 2), the
jurisdiction to enforce customs, fiscal, immigration, and sanitation laws in the
contiguous zone (Article 33), and the right to exploit the living and non-living resources
in the exclusive economic zone (Article 56) and continental shelf (Article 77).
9522 as a statutory renunciation of the Philippines’ claim over the KIG, assuming that
baselines are relevant for this purpose.
Petitioners’ assertion of loss of "about 15,000 square nautical miles of territorial waters"
under RA 9522 is similarly unfounded both in fact and law. On the contrary, RA 9522,
by optimizing the location of basepoints, increased the Philippines’ total maritime
space (covering its internal waters, territorial sea and exclusive economic zone) by
145,216 square nautical miles, as shown in the table below: 29

Even under petitioners’ theory that the Philippine territory embraces the islands and all
the waters within the rectangular area delimited in the Treaty of Paris, the baselines of Extent of maritime area
Extent of maritime area
the Philippines would still have to be drawn in accordance with RA 9522 because this using RA 3046, as
using RA 9522, taking
is the only way to draw the baselines in conformity with UNCLOS III. The baselines amended, taking into
into account UNCLOS III
cannot be drawn from the boundaries or other portions of the rectangular area account the Treaty of
(in square nautical
delineated in the Treaty of Paris, but from the "outermost islands and drying reefs of Paris’ delimitation (in
miles)
the archipelago."24 square nautical miles)
Internal or
UNCLOS III and its ancillary baselines laws play no role in the acquisition, enlargement archipelagic waters 166,858 171,435
or, as petitioners claim, diminution of territory. Under traditional international law
typology, States acquire (or conversely, lose) territory through occupation, accretion, Territorial Sea 274,136 32,106
cession and prescription,25 not by executing multilateral treaties on the regulations of
Exclusive Economic
sea-use rights or enacting statutes to comply with the treaty’s terms to delimit maritime
Zone 382,669
zones and continental shelves. Territorial claims to land features are outside UNCLOS
III, and are instead governed by the rules on general international law.26 TOTAL 440,994 586,210

RA 9522’s Use of the Framework

of Regime of Islands to Determine the Thus, as the map below shows, the reach of the exclusive economic zone drawn under
Maritime Zones of the KIG and the RA 9522 even extends way beyond the waters covered by the rectangular demarcation
Scarborough Shoal, not Inconsistent under the Treaty of Paris. Of course, where there are overlapping exclusive economic
with the Philippines’ Claim of Sovereignty zones of opposite or adjacent States, there will have to be a delineation of maritime
Over these Areas boundaries in accordance with UNCLOS III.30

Petitioners next submit that RA 9522’s use of UNCLOS III’s regime of islands
framework to draw the baselines, and to measure the breadth of the applicable maritime
zones of the KIG, "weakens our territorial claim" over that area.27Petitioners add that
the KIG’s (and Scarborough Shoal’s) exclusion from the Philippine archipelagic
baselines results in the loss of "about 15,000 square nautical miles of territorial waters,"
prejudicing the livelihood of subsistence fishermen.28 A comparison of the configuration
of the baselines drawn under RA 3046 and RA 9522 and the extent of maritime space
encompassed by each law, coupled with a reading of the text of RA 9522 and its
congressional deliberations, vis-à-vis the Philippines’ obligations under UNCLOS III,
belie this view.1avvphi1

The configuration of the baselines drawn under RA 3046 and RA 9522 shows that RA
9522 merely followed the basepoints mapped by RA 3046, save for at least nine
basepoints that RA 9522 skipped to optimize the location of basepoints and adjust the
length of one baseline (and thus comply with UNCLOS III’s limitation on the maximum
length of baselines). Under RA 3046, as under RA 9522, the KIG and the Scarborough
Shoal lie outside of the baselines drawn around the Philippine archipelago. This
undeniable cartographic fact takes the wind out of petitioners’ argument branding RA

Further, petitioners’ argument that the KIG now lies outside Philippine territory because
the baselines that RA 9522 draws do not enclose the KIG is negated by RA 9522 itself.
Section 2 of the law commits to text the Philippines’ continued claim of sovereignty and
jurisdiction over the KIG and the Scarborough Shoal:
SEC. 2. The baselines in the following areas over which the Philippines likewise
exercises sovereignty and jurisdiction shall be determined as "Regime of Islands"
under the Republic of the Philippines consistent with Article 121 of the United Nations
Convention on the Law of the Sea (UNCLOS):
a) The Kalayaan Island Group as constituted under Presidential Decree No.
1596 and
b) Bajo de Masinloc, also known as Scarborough Shoal. (Emphasis supplied)
Had Congress in RA 9522 enclosed the KIG and the Scarborough Shoal as part of the
Philippine archipelago, adverse legal effects would have ensued. The Philippines would
have committed a breach of two provisions of UNCLOS III. First, Article 47 (3) of
UNCLOS III requires that "[t]he drawing of such baselines shall not depart to any
appreciable extent from the general configuration of the archipelago." Second, Article
47 (2) of UNCLOS III requires that "the length of the baselines shall not exceed 100
nautical miles," save for three per cent (3%) of the total number of baselines which can
reach up to 125 nautical miles.31
Although the Philippines has consistently claimed sovereignty over the KIG 32 and the
Scarborough Shoal for several decades, these outlying areas are located at an
appreciable distance from the nearest shoreline of the Philippine archipelago, 33 such
that any straight baseline loped around them from the nearest basepoint will inevitably
"depart to an appreciable extent from the general configuration of the archipelago."
The principal sponsor of RA 9522 in the Senate, Senator Miriam Defensor-Santiago,
took pains to emphasize the foregoing during the Senate deliberations:
What we call the Kalayaan Island Group or what the rest of the world call[] the Spratlys
and the Scarborough Shoal are outside our archipelagic baseline because if we put
them inside our baselines we might be accused of violating the provision of international
law which states: "The drawing of such baseline shall not depart to any appreciable
extent from the general configuration of the archipelago." So sa loob ng ating baseline,
dapat magkalapit ang mga islands. Dahil malayo ang Scarborough Shoal, hindi natin
masasabing malapit sila sa atin although we are still allowed by international law to
claim them as our own.
This is called contested islands outside our configuration. We see that our archipelago
is defined by the orange line which [we] call[] archipelagic baseline. Ngayon, tingnan
ninyo ang maliit na circle doon sa itaas, that is Scarborough Shoal, itong malaking circle
sa ibaba, that is Kalayaan Group or the Spratlys. Malayo na sila sa ating archipelago
kaya kung ilihis pa natin ang dating archipelagic baselines para lamang masama itong
dalawang circles, hindi na sila magkalapit at baka hindi na tatanggapin ng United
Nations because of the rule that it should follow the natural configuration of the
archipelago.34 (Emphasis supplied)
Similarly, the length of one baseline that RA 3046 drew exceeded UNCLOS III’s
limits.1avvphi1 The need to shorten this baseline, and in addition, to optimize the
location of basepoints using current maps, became imperative as discussed by
respondents:
[T]he amendment of the baselines law was necessary to enable the Philippines to draw
the outer limits of its maritime zones including the extended continental shelf in the
manner provided by Article 47 of [UNCLOS III]. As defined by R.A. 3046, as amended
by R.A. 5446, the baselines suffer from some technical deficiencies, to wit:
1. The length of the baseline across Moro Gulf (from Middle of 3 Rock Awash
to Tongquil Point) is 140.06 nautical miles x x x. This exceeds the maximum
length allowed under Article 47(2) of the [UNCLOS III], which states that "The
length of such baselines shall not exceed 100 nautical miles, except that up
to 3 per cent of the total number of baselines enclosing any archipelago may
exceed that length, up to a maximum length of 125 nautical miles."
2. The selection of basepoints is not optimal. At least 9 basepoints can be
skipped or deleted from the baselines system. This will enclose an additional
2,195 nautical miles of water.
3. Finally, the basepoints were drawn from maps existing in 1968, and not
established by geodetic survey methods. Accordingly, some of the points,
particularly along the west coasts of Luzon down to Palawan were later found
to be located either inland or on water, not on low-water line and drying reefs
as prescribed by Article 47.35
Hence, far from surrendering the Philippines’ claim over the KIG and the Scarborough
Shoal, Congress’ decision to classify the KIG and the Scarborough Shoal as
"‘Regime[s] of Islands’ under the Republic of the Philippines consistent with Article
121"36 of UNCLOS III manifests the Philippine State’s responsible observance of
its pacta sunt servanda obligation under UNCLOS III. Under Article 121 of UNCLOS III,
any "naturally formed area of land, surrounded by water, which is above water at high
tide," such as portions of the KIG, qualifies under the category of "regime of islands,"
whose islands generate their own applicable maritime zones.37
Statutory Claim Over Sabah under
RA 5446 Retained
Petitioners’ argument for the invalidity of RA 9522 for its failure to textualize the
Philippines’ claim over Sabah in North Borneo is also untenable. Section 2 of RA 5446,
which RA 9522 did not repeal, keeps open the door for drawing the baselines of Sabah:
Section 2. The definition of the baselines of the territorial sea of the Philippine
Archipelago as provided in this Act is without prejudice to the delineation of the
baselines of the territorial sea around the territory of Sabah, situated in North
Borneo, over which the Republic of the Philippines has acquired dominion and
sovereignty. (Emphasis supplied)
UNCLOS III and RA 9522 not
Incompatible with the Constitution’s
Delineation of Internal Waters
As their final argument against the validity of RA 9522, petitioners contend that the law
unconstitutionally "converts" internal waters into archipelagic waters, hence subjecting
these waters to the right of innocent and sea lanes passage under UNCLOS III,
including overflight. Petitioners extrapolate that these passage rights indubitably
expose Philippine internal waters to nuclear and maritime pollution hazards, in violation
of the Constitution.38
Whether referred to as Philippine "internal waters" under Article I of the Constitution 39 or
as "archipelagic waters" under UNCLOS III (Article 49 [1]), the Philippines exercises
sovereignty over the body of water lying landward of the baselines, including the air
space over it and the submarine areas underneath. UNCLOS III affirms this:
Article 49. Legal status of archipelagic waters, of the air space over archipelagic waters
and of their bed and subsoil. –
1. The sovereignty of an archipelagic State extends to the waters
enclosed by the archipelagic baselines drawn in accordance with article
47, described as archipelagic waters, regardless of their depth or distance
from the coast.
2. This sovereignty extends to the air space over the archipelagic
waters, as well as to their bed and subsoil, and the resources contained
therein.
xxxx
4. The regime of archipelagic sea lanes passage established in this Part shall
not in other respects affect the status of the archipelagic
waters, including the sea lanes, or the exercise by the archipelagic State
of its sovereignty over such waters and their air space, bed and subsoil,
and the resources contained therein. (Emphasis supplied)
The fact of sovereignty, however, does not preclude the operation of municipal and
international law norms subjecting the territorial sea or archipelagic waters to
necessary, if not marginal, burdens in the interest of maintaining unimpeded,
expeditious international navigation, consistent with the international law principle of
freedom of navigation. Thus, domestically, the political branches of the Philippine
government, in the competent discharge of their constitutional powers, may pass
legislation designating routes within the archipelagic waters to regulate innocent and
sea lanes passage.40 Indeed, bills drawing nautical highways for sea lanes passage
are now pending in Congress.41
In the absence of municipal legislation, international law norms, now codified in
UNCLOS III, operate to grant innocent passage rights over the territorial sea or
archipelagic waters, subject to the treaty’s limitations and conditions for their
exercise.42 Significantly, the right of innocent passage is a customary international
law,43 thus automatically incorporated in the corpus of Philippine law. 44 No modern
State can validly invoke its sovereignty to absolutely forbid innocent passage that is
exercised in accordance with customary international law without risking retaliatory
measures from the international community.
The fact that for archipelagic States, their archipelagic waters are subject to both the
right of innocent passage and sea lanes passage45 does not place them in lesser
footing vis-à-vis continental coastal States which are subject, in their territorial sea, to
the right of innocent passage and the right of transit passage through international
straits. The imposition of these passage rights through archipelagic waters under
UNCLOS III was a concession by archipelagic States, in exchange for their right to
claim all the waters landward of their baselines, regardless of their depth or distance
from the coast, as archipelagic waters subject to their territorial sovereignty. More
importantly, the recognition of archipelagic States’ archipelago and the waters enclosed
by their baselines as one cohesive entity prevents the treatment of their islands as
separate islands under UNCLOS III.46 Separate islands generate their own maritime
zones, placing the waters between islands separated by more than 24 nautical miles
beyond the States’ territorial sovereignty, subjecting these waters to the rights of other
States under UNCLOS III.47
of choosing this option belongs to Congress, not to this Court. Moreover, the luxury of
choosing this option comes at a very steep price. Absent an UNCLOS III compliant
baselines law, an archipelagic State like the Philippines will find itself devoid of
internationally acceptable baselines from where the breadth of its maritime zones and
continental shelf is measured. This is recipe for a two-fronted disaster: first, it sends an
open invitation to the seafaring powers to freely enter and exploit the resources in the
waters and submarine areas around our archipelago; and second, it weakens the
country’s case in any international dispute over Philippine maritime space. These are
consequences Congress wisely avoided.
The enactment of UNCLOS III compliant baselines law for the Philippine archipelago
and adjacent areas, as embodied in RA 9522, allows an internationally-recognized
delimitation of the breadth of the Philippines’ maritime zones and continental shelf. RA
9522 is therefore a most vital step on the part of the Philippines in safeguarding its
maritime zones, consistent with the Constitution and our national interest.
WHEREFORE, we DISMISS the petition.

Petitioners’ invocation of non-executory constitutional provisions in Article II SO ORDERED.

(Declaration of Principles and State Policies)48 must also fail. Our present state of
jurisprudence considers the provisions in Article II as mere legislative guides, which,
absent enabling legislation, "do not embody judicially enforceable constitutional rights
x x x."49 Article II provisions serve as guides in formulating and interpreting
implementing legislation, as well as in interpreting executory provisions of the
Constitution. Although Oposa v. Factoran50 treated the right to a healthful and balanced
ecology under Section 16 of Article II as an exception, the present petition lacks factual
basis to substantiate the claimed constitutional violation. The other provisions
petitioners cite, relating to the protection of marine wealth (Article XII, Section 2,
paragraph 251 ) and subsistence fishermen (Article XIII, Section 7 52 ), are not violated
by RA 9522.

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

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

RA 9522 and the Philippines’ Maritime Zones

Petitioners hold the view that, based on the permissive text of UNCLOS III, Congress
was not bound to pass RA 9522.54 We have looked at the relevant provision of
UNCLOS III55 and we find petitioners’ reading plausible. Nevertheless, the prerogative
SOUTH CHINA SEA ARBITRATION
(PCA Case Number 2013–19)
Between The Republic of the Philippines and The People’s Republic of China
Before An Arbitral Tribunal Constituted Under Annex VII to the United
Nations Convention on the Law of the Sea 1982
Registry: Permanent Court of Arbitration Date of Award: 12 July
2016
[1]
Preface
The South China Sea has, especially in contemporary times, emerged as a region of
great interest to global players, in terms of strategic and economic interests of the
competing States. As Foreign Policy puts it, “There’s no tenser set of waters in the world
than the South China Sea. For the last few years, China and its neighbors have been
bluffing, threatening, cajoling, and suing for control of its resources.”[2]
To best understand the current situation in the South China Sea from a legal point of
view, it is imperative to refer back to the judgment passed by the Arbitral Tribunal of
the Permanent Court of Arbitration last year, in response to the claims brought by
Philippines against China, primarily regarding maritime rights, entitlements and zones
in the South China Sea, as well as for the protection of the marine life and the
environment of the region, under the United Nations Convention on the Law of the Sea,
1982.
China has always argued for historic rights, as demarcated by the ‘Nine Dash Line’ on
its official maps of the region in question; other stakeholders, however, dispute this
claim, as shown in the arbitral proceedings. As is noted:
… While it was the Philippines which brought the case, it wasn’t the only interested
party in the Asean. Three other members have claims to parts of the South China Sea
or the Spratly Islands or the Paracels that conflict with China’s expansive nine-dash
theory: Brunei, Malaysia, and Vietnam. Indonesia, Asean’s largest economy, has
continuing run-ins with Chinese fishing vessels and occasionally with the Chinese Coast
Guard in its exclusive economic zone.[3]
Now, as the Association of South East Nations (ASEAN) heads towards working on the
enforcement of this arbitration award from last year (2016), and attempting to employ
a code of conduct for the South China Sea, it becomes even more important to look at
the arbitral ruling from an objective vantage point.
Case Brief
The South China Sea Arbitration was conducted between the Republic of the
Philippines and the People’s Republic of China by the Permanent Court of Arbitration
(PCA), under the 1982 United Nations Convention on the Law of the Sea (UNCLOS).
The arbitration is related to disputes between the Parties regarding the legal basis of
maritime rights and entitlements, the status of certain geographic features, and the
lawfulness of certain actions taken by China in the South China Sea; in particular, the
following four issues, as raised by Philippines:
1. To resolve a dispute between the parties regarding the source of maritime rights
and entitlements in the South China Sea;
2. To resolve a dispute between the parties concerning the entitlements to maritime
zones that would be generated under the Convention by Scarborough Shoal and
certain maritime features in the Spratly Islands that are claimed by both the parties;
3. To resolve a series of disputes concerning the lawfulness of China’s actions in the
South China Sea, vis-à-vis interfering with Philippine’s rights, failing to protect and
preserve the marine environment, and inflicting harm on the marine environment
(through land reclamation and construction of artificial islands);
4. To find that China has aggravated and extended the disputes between the Parties
by restricting access to a detachment of Philippines Marines stationed at Second
Thomas Shoal.
While China and Philippines are both parties to the UNCLOS, China specifically made
a declaration in 2006 to exclude maritime boundary delimitation from its acceptance
of compulsory dispute settlement. In addition, China has shown disagreement with
Philippines’ decision to take the matter to arbitration and has decided neither to agree
with the decision of the Tribunal nor to participate in the proceedings.
The Tribunal, on its end, has taken cognizance of these factors and has purported to not
deal with delimiting maritime boundaries. Furthermore, the Tribunal did not bar the
proceedings, on the basis of Article 9 of Annex VII of UNCLOS[4]. In addition, the
Tribunal also noted that despite China’s absence from the proceedings, since it is a party
to the UNCLOS, the decision of the Tribunal would, in fact, be binding upon it, pursuant
to Article 296 (1)[5] and Article 11 of Annex VII[6].
China’s Foreign Ministry, further, stated its position with regard to the proceedings by
publishing a Position Paper in 2014[7]. It claimed that the Tribunal lacks jurisdiction
over the matter because:
1. The essence of the subject-matter of the arbitration is the territorial sovereignty
over the relevant maritime features in the South China Sea;
2. China and the Philippines have agreed, through bilateral instruments and the
Declaration on the Conduct of Parties in the South China Sea, to settle their relevant
disputes through negotiations;
3. Philippines’ disputes would constitute an integral part of maritime delimitation
between the two countries.
The Tribunal considered China’s Position Paper as a plea on jurisdiction, and
conducted a separate hearing on the issue of jurisdiction and admissibility.
Additionally, the Tribunal also declared that it would honour China’s declaration of
2006 and the UNCLOS and would neither delve into issues of maritime boundary
delimitation or questions of sovereignty. The Philippines also stated that it, “does not
seek in this arbitration a determination of which Party enjoys sovereignty over the
islands claimed by both of them. Nor does it request a delimitation of any maritime
boundaries.”[8]
Pursuant to this, the Tribunal issued its Award on Jurisdiction[9] in October 2015, in
which it concluded that it did indeed have jurisdiction in the case, as per Philippines’
Final Submissions[10], and that China’s lack of participation would not prove to be a
bar to its proceedings. It, further, concluded that the treaties China was relying on were
either political in nature and not legally binding[11], or that they did were legally
binding and yet did not bar either Party from alternative means of dispute
resolution[12]. In accordance with Article 283 of the UNCLOS[13], the Tribunal found
that this requirement was met in the diplomatic communications between the Parties
and that Philippines’ initiation of proceedings under the UNCLOS did not constitute an
abuse of of process as claimed by China.
The Tribunal, proceeding with the first two submissions made by the Philippines,
considered the validity of China’s claim to historic rights in the maritime region of the
South China Sea and the ‘Nine-Dash Line’. Through a lengthy analysis of the text and
context of the Convention, in line with the principles set out in the Vienna Convention
on the Law of Treaties, the Tribunal established that the Convention supersedes any
treaties in force before its coming into force. It questioned China’s claim to historical
rights in the region, and established that China’s state practice does not show that China
had been enjoying any historical rights in the South China Sea; rather, it was enjoying
the freedom of the high seas and since it did not create bar to other states’ usage of the
same, it could not be understood as being a historical right. Furthermore, since China’s
publishing of the same in its Notes Verbales in 2009, many states have objected to its
claim as well. “The Tribunal concludes that the Convention superseded any historic
rights or other sovereign rights or jurisdiction in excess of the limits imposed
therein.”[14] However, the Tribunal also concluded that its jurisdiction was limited to
the claims of historic rights on the maritime region and not to the land masses in the
South China Sea, i.e. if it can claim historic rights on any of the islands, then it may also
be able to claim maritime zones (as per the Convention) on the basis of these islands.
Next, the Tribunal looked at Philippines’ submissions 3 to 7, concerning the nature of
the features in the South China Sea. It differentiates between low-tide elevations[15],
high-tide features[16] and rocks[17]. In its Award on Jurisdiction, the Tribunal clarified
that:
This is not a dispute concerning sovereignty over the features, notwithstanding any
possible question concerning whether low-tide elevations may be subjected to a claim
of territorial sovereignty. Nor is this a dispute concerning sea boundary delimitation:
the status of a feature as a “low-tide elevation”, “island”, or a “rock” relates to the
entitlement to maritime zones generated by that feature, not to the delimitation of such
entitlements in the event that they overlap.[18]
The Philippines put forward three categories for classifying low-tide elevations: where
a low-tide elevation is located within 12 miles of a high-tide feature[19], where the low-
tide elevation is beyond 12 miles but within the state’s exclusive economic zone or
continental shelf[20], and where the low-tide elevation is located beyond the areas of
natural jurisdiction[21].
For the purpose of identifying the nature of the features in the South China Sea, the
Tribunal relied upon satellite imagery that had been conducted on the area and direct
surveys that had been carried out, by navies or otherwise, in the area, and relied upon
maps that were sufficiently detailed. They chose a certain tidal height to maintain
uniformity across the features, and decided to rely, in cases where there had been
significant man-made changes, alterations or construction on the features, upon
maps/imagery/surveys that depicted the features as they had been in their original
form.[22]
Again the Tribunal relied upon statements previously made by China to obtain their
stance on the nature of the features, since China had neither submitted any document
to the Tribunal nor had it discussed these in its Position Paper.
The Tribunal concluded that Scarborough Shoal, Cuarteron Reef, Fiery Cross Reef,
Johnson Reef, McKennan Reef and Gaven Reef (North) were all found to be high-tide
features. The Tribunal further noted that for the purposes of Article 121(3), the high-
tide features at Scarborough Shoal and the reefs were rocks that cannot sustain human
human habitation or economic life of their own and so have no exclusive economic zone
or continental shelf. The Tribunal found the same to be true of the Spratly Islands and
so concluded that China, therefore, has no entitlement to any maritime zone in the area
of Mischief Reef or Second Thomas Shoal; they do, however, form part of the exclusive
economic zone and continental shelf of the Philippines as they lie within 200 nautical
miles of the Philippines’ coast and there are no overlapping entitlements in the area
with respect to China.
On the contrary, Hughes Reef, Gaven Reef (South), Subi Reef, Mischief Reef and
Second Thomas Shoal were all found to be low-tide elevations, of which Hughes Reef
lay within 12 miles of McKennan Reef and Sin Cowe Island, Gaven Reef (South) lay
within 12 miles of Gaven Reef (North) and Namyit Island, and Subi Reef lay within 12
miles of the high-tide feature of Sandy Cay on the reefs to the west of Thitu.
In the issue of Chinese interference with the living and non-living resources (primarily
concerned with fishing practices in the South China Sea and oil and gas exploration and
exploitation) of the Philippines, the Tribunal considered diplomatic statements from
China to the Philippines and regulations related to the matter that China had passed
domestically. The Philippines put forward four contentions related to living resources:
China’s prevention of fishing by Philippine vessels at Mischief Reef since 1995, and at
Second Thomas Shoal since 1995, China’s revision of the Hainan Regulation[23] and
China’s moratorium on fishing in the South China Sea in 2012[24]. The Tribunal finds
that China had breached Articles 77[25] and 56[26] of the Convention through the
operation of its marine surveillance vessels (which interfered with Philippines’ oil and
gas exploration) and through its moratorium on fishing which interfered with the
exclusive economic zone of the Philippines, respectively.
The Tribunal also found China in breach of Article 58 (3)[27] of the Convention, due to
its failure to prevent fishing by Chinese flagged ships in the exclusive economic zone of
the Philippines, failing to respect the sovereign rights of the Philippines over its
fisheries in its exclusive economic zone.
Submission 10 of the Philippines related to China’s interference with Philippines’
fishing vessels and practices in the Scarborough Shoal. While both the states had
conflicting views on the situation (China believed that it was Philippines who was
causing the interference) and both claimed historic rights (Philippines distinguished
this by clarifying that it only referred to historic fishing rights) to the region, the
Tribunal opined that China was, in fact, in contravention of the Convention by
interfering with the traditional fishing practice of the Philippines in its exclusive
economic zone through the deployment of its official ships in the region. The Tribunal
also noted that this decision does not depend on the question of sovereignty, and that
the Tribunal once again refrained from commenting on the matter.
Philippines’ successive contention related to China’s activities on the reefs in the South
China Sea, with regards the practices it had adopted for the purpose of large-scale
construction and reclamation at seven locations in the Spratly Islands[28], and its
practices with regards to fishing[29] in the South China Sea. Philippines claimed that
China had been harming and causing damage to the marine environment of the South
China Sea through these practices and despite objections from the surrounding states,
China had not ceased its actions. It was also noted that while some of the fishing ships
were not state-appointed ships and were being manned by non-state actors, the Chinese
government had neither condemned their actions nor made any efforts to stop them
from proceeding. The Tribunal, assisted by three independent experts on coral reef
biology, expert briefs and satellite imagery, found that China was in breach of the
Convention for failing to stop the fishing vessels from engaging in harmful harvesting
practices[30] and also for its island-building activities[31]. The Tribunal further opined
that China’s construction on Mischief Reef, without authorization from Philippines was
in violation of Philippines’ sovereign rights in its exclusive economic zone and
continental shelf and a breach of the Convention[32].
The next consideration before the Tribunal was the demeanour of China’s law
enforcement vessels at Scarborough Shoal[33] and the lawfulness of these actions. The
Philippines also raised the issue under the relevant provisions of the Convention on the
International Regulations for Preventing of Collisions at Sea, 1972 (COLREGS). The
Tribunal found that China, through the actions of its law enforcement vessels,
endangered Philippine vessels and personnel and created a serious risk of collision and
found China in breach of Article 94 of the Convention[34].
The Tribunal, in response to Submission 14 of the Philippines, opined that China had,
in the course of the proceedings of this arbitration, aggravated and extended its
disputes with Philippines, through its actions of dredging, artificial island-building and
construction activities[35].
Lastly, the Tribunal did not find it necessary to make any further declaration, owing to
the fact that both the parties are already parties to the Convention and are already
obliged to comply with it.