G.R. No.
L-114783 December 8, 1994 Petitioners' second and third objections involve Article
ROBERT V. TOBIAS, RAMON M. GUZMAN, TERRY T.
LIM, GREGORIO D. GABRIEL, and ROBERTO R.
TOBIAS, JR. petitioners,
vs.
HON. CITY MAYOR BENJAMIN S. ABALOS, CITY
TREASURER WILLIAM MARCELINO, and THE
SANGGUNIANG PANLUNGSOD, all of the City of
Mandaluyong, Metro Manila, respondents.
Estrella, Bautista & Associates for petitioners.
BIDIN, J.:
Invoking their rights as taxpayers and as residents of
Mandaluyong, herein petitioners assail the
constitutionality of Republic Act No. 7675, otherwise
known as "An Act Converting the Municipality of
Mandaluyong into a Highly Urbanized City to be known
as the City of Mandaluyong."
Prior to the enactment of the assailed statute, the
municipalities of Mandaluyong and San Juan belonged
to only one legislative district. Hon. Ronaldo Zamora, the
incumbent congressional representative of this
legislative district, sponsored the bill which eventually
became R.A. No. 7675. President Ramos signed R.A.
No. 7675 into law on February 9, 1994.
Pursuant to the Local Government Code of 1991, a
plebiscite was held on April 10, 1994. The people of
Mandaluyong were asked whether they approved of the
conversion of the Municipality of Mandaluyong into a
highly urbanized city as provided under R.A. No. 7675.
The turnout at the plebiscite was only 14.41% of the
voting population. Nevertheless, 18,621 voted "yes"
whereas 7,911 voted "no." By virtue of these results,
R.A. No. 7675 was deemed ratified and in effect.
Petitioners now come before this Court, contending that
R.A. No. 7675, specifically Article VIII, Section 49
thereof, is unconstitutional for being violative of three
specific provisions of the Constitution.
Article VIII, Section 49 of R.A. No. 7675 provides:
As a highly-urbanized city, the City of
Mandaluyong shall have its own
legislative district with the first
representative to be elected in the next
national elections after the passage of
this Act. The remainder of the former
legislative district of San
Juan/Mandaluyong shall become the
new legislative district of San Juan with
its first representative to be elected at
the same election.
Petitioner's first objection to the aforequoted provision of
R.A. No. 7675 is that it contravenes the "one subject-one
bill" rule, as enunciated in Article VI, Section 26(1) of the
Constitution, to wit:
Sec. 26(1). Every bill passed by the
Congress shall embrace only one
subject which shall be expressed in the
title thereof.
Petitioners allege that the inclusion of the assailed
Section 49 in the subject law resulted in the latter
embracing two principal subjects, namely: (1) the
conversion of Mandaluyong into a highly urbanized city;
and (2) the division of the congressional district of San
Juan/Mandaluyong into two separate districts.
Petitioners contend that the second aforestated subject
is not germane to the subject matter of R.A. No. 7675
since the said law treats of the conversion of
Mandaluyong into a highly urbanized city, as expressed
in the title of the law. Therefore, since Section 49 treats
of a subject distinct from that stated in the title of the law,
the "one subject-one bill" rule has not been complied
with.
1
VI, Sections 5(1) and (4) of the Constitution, which
provide, to wit:
Sec. 5(1). The House of
Representatives shall be composed of
not more than two hundred and fifty
members, unless otherwise fixed by law,
who shall be elected from legislative
districts apportioned among the
provinces, cities, and the Metropolitan
Manila area in accordance with the
number of their respective inhabitants,
and on the basis of a uniform and
progressive ratio, and those who, as
provided by law, shall be elected
through a party list system of registered
national, regional and sectoral parties or
organizations.
Sec. 5(4). Within three years following
the return of every census, the
Congress shall make a reapportionment
of legislative districts based on the
standard provided in this section.
Petitioners argue that the division of San Juan and
Mandaluyong into separate congressional districts under
Section 49 of the assailed law has resulted in an
increase in the composition of the House of
Representatives beyond that provided in Article VI, Sec.
5(1) of the Constitution. Furthermore, petitioners contend
that said division was not made pursuant to any census
showing that the subject municipalities have attained the
minimum population requirements. And finally,
petitioners assert that Section 49 has the effect of
preempting the right of Congress to reapportion
legislative districts pursuant to Sec. 5(4) as aforecited.
The contentions are devoid of merit.
Anent the first issue, we agree with the observation of
the Solicitor General that the statutory conversion of
Mandaluyong into a highly urbanized city with a
population of not less than two hundred fifty thousand
indubitably ordains compliance with the "one city-one
representative" proviso in the Constitution:
. . . Each city with a population of at
least two hundred fifty thousand, or each
province, shall have at least one
representative" (Article VI, Section 5(3),
Constitution).
Hence, it is in compliance with the aforestated
constitutional mandate that the creation of a separate
congressional district for the City of Mandaluyong is
decreed under Article VIII, Section 49 of R.A. No. 7675.
Contrary to petitioners' assertion, the creation of a
separate congressional district for Mandaluyong is not a
subject separate and distinct from the subject of its
conversion into a highly urbanized city but is a natural
and logical consequence of its conversion into a highly
urbanized city. Verily, the title of R.A. No. 7675, "An Act
Converting the Municipality of Mandaluyong Into a Highly
Urbanized City of Mandaluyong" necessarily includes
and contemplates the subject treated under Section 49
regarding the creation of a separate congressional
district for Mandaluyong.
Moreover, a liberal construction of the "one title-one
subject" rule has been invariably adopted by this court
so as not to cripple or impede legislation. Thus,
in Sumulong v. Comelec (73 Phil. 288 [1941]), we ruled
that the constitutional requirement as now expressed in
Article VI, Section 26(1) "should be given a practical
rather than a technical construction. It should be
sufficient compliance with such requirement if the title
expresses the general subject and all the provisions are
germane to that general subject."
The liberal construction of the "one title-one subject" rule
had been further elucidated in Lidasan v. Comelec (21
SCRA 496 [1967]), to wit:
Of course, the Constitution does not
require Congress to employ in the title of
an enactment, language of such
precision as to mirror, fully index or
catalogue all the contents and the
minute details therein. It suffices if the
title should serve the purpose of the
constitutional demand that it inform the
legislators, the persons interested in the
subject of the bill and the public, of the
nature, scope and consequences of the
proposed law and its operation"
(emphasis supplied).
Proceeding now to the other constitutional issues raised
by petitioners to the effect that there is no mention in the
assailed law of any census to show that Mandaluyong
and San Juan had each attained the minimum
requirement of 250,000 inhabitants to justify their
separation into two legislative districts, the same does
not suffice to strike down the validity of R.A. No. 7675.
The said Act enjoys the presumption of having passed
through the regular congressional processes, including
due consideration by the members of Congress of the
minimum requirements for the establishment of separate
legislative districts. At any rate, it is not required that all
laws emanating from the legislature must contain all
relevant data considered by Congress in the enactment
of said laws.
As to the contention that the assailed law violates the
present limit on the number of representatives as set
forth in the Constitution, a reading of the applicable
provision, Article VI, Section 5(1), as aforequoted, shows
that the present limit of 250 members is not absolute.
The Constitution clearly provides that the House of
Representatives shall be composed of not more than
250 members, "unless otherwise provided by law." The
inescapable import of the latter clause is that the present
composition of Congress may be increased, if Congress
itself so mandates through a legislative enactment.
Therefore, the increase in congressional representation
mandated by R.A. No. 7675 is not unconstitutional.
Thus, in the absence of proof that Mandaluyong and San
Juan do not qualify to have separate legislative districts,
the assailed Section 49 of R.A.
No. 7675 must be allowed to stand.
As to the contention that Section 49 of R.A. No. 7675 in
effect preempts the right of Congress to reapportion
legislative districts, the said argument borders on the
absurd since petitioners overlook the glaring fact that it
was Congress itself which drafted, deliberated upon and
enacted the assailed law, including Section 49 thereof.
Congress cannot possibly preempt itself on a right which
pertains to itself.
Aside from the constitutional objections to R.A. No.
7675, petitioners present further arguments against the
validity thereof.
Petitioners contend that the people of San Juan should
have been made to participate in the plebiscite on R.A.
No. 7675 as the same involved a change in their
legislative district. The contention is bereft of merit since
the principal subject involved in the plebiscite was the
conversion of Mandaluyong into a highly urbanized city.
The matter of separate district representation was only
ancillary thereto. Thus, the inhabitants of San Juan were
properly excluded from the said plebiscite as they had
nothing to do with the change of status of neighboring
Mandaluyong.
Similarly, petitioners' additional argument that the subject
law has resulted in "gerrymandering," which is the
practice of creating legislative districts to favor a
2
particular candidate or party, is not worthy of credence.
As correctly observed by the Solicitor General, it should
be noted that Rep. Ronaldo Zamora, the author of the
assailed law, is the incumbent representative of the
former San Juan/Mandaluyong district, having
consistently won in both localities. By dividing San
Juan/Mandaluyong, Rep. Zamora's constituency has in
fact been diminished, which development could hardly
be considered as favorable to him.
WHEREFORE, the petition is hereby DISMISSED for
lack of merit.
SO ORDERED.
Tobias vs Abalos, G.R. No. L-114783 case brief
summary
December 8, 1994
Facts: Complainants, invoking their right as taxpayers
and as residents of Mandaluyong, filed a petition
questioning the constitutionality of Republic Act No.
7675, otherwise known as "An Act Converting the
Municipality of Mandaluyong into a Highly Urbanized City
to be known as the City of Mandaluyong." Before the
enactment of the law, Mandaluyong and San Juan
belonged to the same legislative district.
The petitioners contended that the act is unconstitutional
for violation of three provisions of the constitution. First, it
violates the one subject one bill rule. The bill provides for
the conversion of Mandaluyong to HUC as well as the
division of congressional district of San Juan and
Mandaluyong into two separate district. Second, it also
violate Section 5 of Article VI of the Constitution, which
provides that the House of Representatives shall be
composed of not more than two hundred and fifty
members, unless otherwise fixed by law. The division of
San Juan and Mandaluyong into separate congressional
districts increased the members of the House of
Representative beyond that provided by the
Constitution. Third, Section 5 of Article VI also provides
that within three years following the return of every
census, the Congress shall make a reapportionment of
legislative districts based on the standard provided in
Section 5. Petitioners stated that the division was not
made pursuant to any census showing that the minimum
population requirement was attained.
Issue:
(1) Does RA 7675 violate the one subject one bill rule?
(2) Does it violate Section 5(1) of Article VI of the
Constitution on the limit of number of rep?
Rulings: The Supreme Court ruled that the contentions
are devoid of merit. With regards to the first contention of
one subject one bill rule, the creation of a separate
congressional district for Mandaluyong is not a separate
and distinct subject from its conversion into a HUC but is
a natural and logical consequence. In addition, a liberal
construction of the "one title-one subject" rule has been
invariably adopted by this court so as not to cripple or
impede legislation.
The second contention that the law violates the present
limit of the number of representatives, the provision of
the section itself show that the 250 limit is not absolute.
The Constitution clearly provides that the House of
Representatives shall be composed of not more than
250 members, "unless otherwise provided by law”.
Therefore, the increase in congressional representation
mandated by R.A. No. 7675 is not unconstitutional.
With regards, to the third contention that there is no
mention in the assailed law of any census to show that
Mandaluyong and San Juan had each attained the
minimum requirement of 250,000 inhabitants to justify
their separation into two legislative districts, unless
otherwise proved that the requirements were not met,
the said Act enjoys the presumption of having passed
through the regular congressional processes, including
due consideration by the members of Congress of the
minimum requirements for the establishment of separate
legislative district
The petition was dismissed for lack of merit.
G.R. No. 177597 July 16, 2008
BAI SANDRA S. A. SEMA, Petitioner,
vs.
COMMISSION ON ELECTIONS and DIDAGEN P.
DILANGALEN, Respondents.
x - - - - - - - - - - - - - - - - - - - - - - -x
G.R. No. 178628
PERFECTO F. MARQUEZ, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondent.
DECISION
CARPIO, J.:
The Case
These consolidated petitions1 seek to annul Resolution
No. 7902, dated 10 May 2007, of the Commission on
Elections (COMELEC) treating Cotabato City as part of
the legislative district of the Province of Shariff
Kabunsuan.2
The Facts
The Ordinance appended to the 1987 Constitution
apportioned two legislative districts for the Province of
Maguindanao. The first legislative district consists of
Cotabato City and eight municipalities.3 Maguindanao
forms part of the Autonomous Region in Muslim
Mindanao (ARMM), created under its Organic Act,
Republic Act No. 6734 (RA 6734), as amended by
Republic Act No. 9054 (RA 9054).4 Although under the
Ordinance, Cotabato City forms part of Maguindanao’s
first legislative district, it is not part of the ARMM but of
Region XII, having voted against its inclusion in the
ARMM in the plebiscite held in November 1989.
On 28 August 2006, the ARMM’s legislature, the ARMM
Regional Assembly, exercising its power to create
provinces under Section 19, Article VI of RA
9054,5 enacted Muslim Mindanao Autonomy Act No. 201
(MMA Act 201) creating the Province of Shariff
Kabunsuan composed of the eight municipalities in the
first district of Maguindanao. MMA Act 201 provides:
Section 1. The Municipalities of Barira, Buldon, Datu
Odin Sinsuat, Kabuntalan, Matanog, Parang, Sultan
Kudarat, Sultan Mastura, and Upi are hereby separated
from the Province of Maguindanao and constituted into a
distinct and independent province, which is hereby
created, to be known as the Province of Shariff
Kabunsuan.
xxxx
Sec. 5. The corporate existence of this province shall
commence upon the appointment by the Regional
Governor or election of the governor and majority of the
regular members of the Sangguniang Panlalawigan.
The incumbent elective provincial officials of the
Province of Maguindanao shall continue to serve their
unexpired terms in the province that they will choose or
where they are residents: Provided, that where an
elective position in both provinces becomes vacant as a
consequence of the creation of the Province of Shariff
Kabunsuan, all incumbent elective provincial officials
shall have preference for appointment to a higher
elective vacant position and for the time being be
appointed by the Regional Governor, and shall hold
office until their successors shall have been elected and
qualified in the next local elections; Provided, further,
that they shall continue to receive the salaries they are
receiving at the time of the approval of this Act until the
3
new readjustment of salaries in accordance with law.
Provided, furthermore, that there shall be no diminution
in the number of the members of the Sangguniang
Panlalawigan of the mother province.
Except as may be provided by national law, the existing
legislative district, which includes Cotabato as a part
thereof, shall remain.
Later, three new municipalities6 were carved out of the
original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities to
11. Thus, what was left of Maguindanao were the
municipalities constituting its second legislative district.
Cotabato City, although part of Maguindanao’s first
legislative district, is not part of the Province of
Maguindanao.
The voters of Maguindanao ratified Shariff Kabunsuan’s
creation in a plebiscite held on 29 October 2006.
On 6 February 2007, the Sangguniang Panlungsod of
Cotabato City passed Resolution No. 3999 requesting
the COMELEC to "clarify the status of Cotabato City in
view of the conversion of the First District of
Maguindanao into a regular province" under MMA Act
201.
In answer to Cotabato City’s query, the COMELEC
issued Resolution No. 07-0407 on 6 March 2007
"maintaining the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of
Maguindanao." Resolution No. 07-0407, which adopted
the recommendation of the COMELEC’s Law
Department under a Memorandum dated 27 February
2007,7 provides in pertinent parts:
Considering the foregoing, the Commission RESOLVED,
as it hereby resolves, to adopt the recommendation of
the Law Department that pending the enactment of the
appropriate law by Congress, to maintain the status
quo with Cotabato City as part of Shariff Kabunsuan in
the First Legislative District of Maguindanao. (Emphasis
supplied)
However, in preparation for the 14 May 2007 elections,
the COMELEC promulgated on 29 March 2007
Resolution No. 7845 stating that Maguindanao’s first
legislative district is composed only of Cotabato City
because of the enactment of MMA Act 201.8
On 10 May 2007, the COMELEC issued Resolution No.
7902, subject of these petitions, amending Resolution
No. 07-0407 by renaming the legislative district in
question as "Shariff Kabunsuan Province with Cotabato
City (formerly First District of Maguindanao with
Cotabato City)."91avvphi1
In G.R. No. 177597, Sema, who was a candidate in the
14 May 2007 elections for Representative of "Shariff
Kabunsuan with Cotabato City," prayed for the
nullification of COMELEC Resolution No. 7902 and the
exclusion from canvassing of the votes cast in Cotabato
City for that office. Sema contended that Shariff
Kabunsuan is entitled to one representative in Congress
under Section 5 (3), Article VI of the Constitution 10 and
Section 3 of the Ordinance appended to the
Constitution.11 Thus, Sema asserted that the COMELEC
acted without or in excess of its jurisdiction in issuing
Resolution No. 7902 which maintained the status quo in
Maguindanao’s first legislative district despite the
COMELEC’s earlier directive in Resolution No. 7845
designating Cotabato City as the lone component of
Maguindanao’s reapportioned first legislative
district.12 Sema further claimed that in issuing Resolution
No. 7902, the COMELEC usurped Congress’ power to
create or reapportion legislative districts.
In its Comment, the COMELEC, through the Office of the
Solicitor General (OSG), chose not to reach the merits of
the case and merely contended that (1) Sema wrongly
availed of the writ of certiorari to nullify COMELEC
Resolution No. 7902 because the COMELEC issued the
same in the exercise of its administrative, not quasi-
judicial, power and (2) Sema’s prayer for the writ of
prohibition in G.R. No. 177597 became moot with the
proclamation of respondent Didagen P. Dilangalen
(respondent Dilangalen) on 1 June 2007 as
representative of the legislative district of Shariff
Kabunsuan Province with Cotabato City.
In his Comment, respondent Dilangalen countered that
Sema is estopped from questioning COMELEC
Resolution No. 7902 because in her certificate of
candidacy filed on 29 March 2007, Sema indicated that
she was seeking election as representative of "Shariff
Kabunsuan including Cotabato City." Respondent
Dilangalen added that COMELEC Resolution No. 7902
is constitutional because it did not apportion a legislative
district for Shariff Kabunsuan or reapportion the
legislative districts in Maguindanao but merely renamed
Maguindanao’s first legislative district. Respondent
Dilangalen further claimed that the COMELEC could not
reapportion Maguindanao’s first legislative district to
make Cotabato City its sole component unit as the
power to reapportion legislative districts lies exclusively
with Congress, not to mention that Cotabato City does
not meet the minimum population requirement under
Section 5 (3), Article VI of the Constitution for the
creation of a legislative district within a city. 13
Sema filed a Consolidated Reply controverting the
matters raised in respondents’ Comments and reiterating
her claim that the COMELEC acted ultra vires in issuing
Resolution No. 7902.
In the Resolution of 4 September 2007, the Court
required the parties in G.R. No. 177597 to comment on
the issue of whether a province created by the ARMM
Regional Assembly under Section 19, Article VI of RA
9054 is entitled to one representative in the House of
Representatives without need of a national law creating
a legislative district for such new province. The parties
submitted their compliance as follows:
(1) Sema answered the issue in the affirmative
on the following grounds: (a) the Court in Felwa
v. Salas14stated that "when a province is created
by statute, the corresponding representative
district comes into existence neither by authority
of that statute — which cannot provide otherwise
— nor by apportionment, but by operation of the
Constitution, without a reapportionment"; (b)
Section 462 of Republic Act No. 7160 (RA 7160)
"affirms" the apportionment of a legislative
district incident to the creation of a province; and
(c) Section 5 (3), Article VI of the Constitution
and Section 3 of the Ordinance appended to the
Constitution mandate the apportionment of a
legislative district in newly created provinces.
(2) The COMELEC, again represented by the
OSG, apparently abandoned its earlier stance
on the propriety of issuing Resolution Nos. 07-
0407 and 7902 and joined causes with Sema,
contending that Section 5 (3), Article VI of the
Constitution is "self-executing." Thus, every new
province created by the ARMM Regional
Assembly is ipso facto entitled to one
representative in the House of Representatives
even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue
in the negative on the following grounds: (a) the
"province" contemplated in Section 5 (3), Article
VI of the Constitution is one that is created by an
act of Congress taking into account the
provisions in RA 7160 on the creation of
provinces; (b) Section 3, Article IV of RA 9054
withheld from the ARMM Regional Assembly the
power to enact measures relating to national
elections, which encompasses the
apportionment of legislative districts for
4
members of the House of Representatives; (c)
recognizing a legislative district in every province
the ARMM Regional Assembly creates will lead
to the disproportionate representation of the
ARMM in the House of Representatives as the
Regional Assembly can create provinces without
regard to the requirements in Section 461 of RA
7160; and (d) Cotabato City, which has a
population of less than 250,000, is not entitled to
a representative in the House of
Representatives.
On 27 November 2007, the Court heard the parties in
G.R. No. 177597 in oral arguments on the following
issues: (1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to
create provinces, is constitutional; and (2) if in the
affirmative, whether a province created under Section
19, Article VI of RA 9054 is entitled to one representative
in the House of Representatives without need of a
national law creating a legislative district for such new
province.15
In compliance with the Resolution dated 27 November
2007, the parties in G.R. No. 177597 filed their
respective Memoranda on the issues raised in the oral
arguments.16 On the question of the constitutionality of
Section 19, Article VI of RA 9054, the parties in G.R. No.
177597 adopted the following positions:
(1) Sema contended that Section 19, Article VI of
RA 9054 is constitutional (a) as a valid
delegation by Congress to the ARMM of the
power to create provinces under Section 20 (9),
Article X of the Constitution granting to the
autonomous regions, through their organic acts,
legislative powers over "other matters as may be
authorized by law for the promotion of the
general welfare of the people of the region" and
(b) as an amendment to Section 6 of RA
7160.17 However, Sema concedes that, if taken
literally, the grant in Section 19, Article VI of RA
9054 to the ARMM Regional Assembly of the
power to "prescribe standards lower than those
mandated" in RA 7160 in the creation of
provinces contravenes Section 10, Article X of
the Constitution.18 Thus, Sema proposed that
Section 19 "should be construed as prohibiting
the Regional Assembly from prescribing
standards x x x that do not comply with the
minimum criteria" under RA 7160.19
(2) Respondent Dilangalen contended that
Section 19, Article VI of RA 9054 is
unconstitutional on the following grounds: (a) the
power to create provinces was not among those
granted to the autonomous regions under
Section 20, Article X of the Constitution and (b)
the grant under Section 19, Article VI of RA 9054
to the ARMM Regional Assembly of the power to
prescribe standards lower than those mandated
in Section 461 of RA 7160 on the creation of
provinces contravenes Section 10, Article X of
the Constitution and the Equal Protection
Clause; and
(3) The COMELEC, through the OSG, joined
causes with respondent Dilangalen (thus
effectively abandoning the position the
COMELEC adopted in its Compliance with the
Resolution of 4 September 2007) and contended
that Section 19, Article VI of RA 9054 is
unconstitutional because (a) it contravenes
Section 10 and Section 6,20 Article X of the
Constitution and (b) the power to create
provinces was withheld from the autonomous
regions under Section 20, Article X of the
Constitution.
On the question of whether a province created under
Section 19, Article VI of RA 9054 is entitled to one
representative in the House of Representatives without
need of a national law creating a legislative district for
such new province, Sema and respondent Dilangalen
reiterated in their Memoranda the positions they adopted
in their Compliance with the Resolution of 4 September
2007. The COMELEC deemed it unnecessary to submit
its position on this issue considering its stance that
Section 19, Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was
disclosed during the oral arguments on 27 November
2007. Thus, in the Resolution of 19 February 2008, the
Court ordered G.R. No. 178628 consolidated with G.R.
No. 177597. The petition in G.R. No. 178628 echoed
Sema's contention that the COMELEC acted ultra vires
in issuing Resolution No. 7902 depriving the voters of
Cotabato City of a representative in the House of
Representatives. In its Comment to the petition in G.R.
No. 178628, the COMELEC, through the OSG,
maintained the validity of COMELEC Resolution No.
7902 as a temporary measure pending the enactment by
Congress of the "appropriate law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari,
Prohibition, and Mandamus are proper
to test the constitutionality of COMELEC
Resolution No. 7902; and
(2) whether the proclamation of
respondent Dilangalen as representative
of Shariff Kabunsuan Province with
Cotabato City mooted the petition in
G.R. No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA
9054, delegating to the ARMM Regional
Assembly the power to create provinces,
cities, municipalities and barangays, is
constitutional; and
(2) if in the affirmative, whether a
province created by the ARMM Regional
Assembly under MMA Act 201 pursuant
to Section 19, Article VI of RA 9054 is
entitled to one representative in the
House of Representatives without need
of a national law creating a legislative
district for such province.
II. In G.R No. 177597 and G.R No. 178628,
whether COMELEC Resolution No. 7902 is valid
for maintaining the status quo in the first
legislative district of Maguindanao (as "Shariff
Kabunsuan Province with Cotabato City
[formerly First District of Maguindanao with
Cotabato City]"), despite the creation of the
Province of Shariff Kabunsuan out of such
district (excluding Cotabato City).
The Ruling of the Court
The petitions have no merit. We rule that (1)
Section 19, Article VI of RA 9054 is
unconstitutional insofar as it grants to the ARMM
Regional Assembly the power to create
provinces and cities; (2) MMA Act 201 creating
the Province of Shariff Kabunsuan is void; and
(3) COMELEC Resolution No. 7902 is valid.
On the Preliminary Matters
The Writ of Prohibition is Appropriate
to Test the Constitutionality of
Election Laws, Rules and Regulations
5
The purpose of the writ of Certiorari is to correct grave
abuse of discretion by "any tribunal, board, or officer
exercising judicial or quasi-judicial functions."21 On the
other hand, the writ of Mandamus will issue to compel a
tribunal, corporation, board, officer, or person to perform
an act "which the law specifically enjoins as a
duty."22 True, the COMELEC did not issue Resolution
No. 7902 in the exercise of its judicial or quasi-judicial
functions.23 Nor is there a law which specifically enjoins
the COMELEC to exclude from canvassing the votes
cast in Cotabato City for representative of "Shariff
Kabunsuan Province with Cotabato City." These,
however, do not justify the outright dismissal of the
petition in G.R. No. 177597 because Sema also prayed
for the issuance of the writ of Prohibition and we have
long recognized this writ as proper for testing the
constitutionality of election laws, rules, and regulations. 24
Respondent Dilangalen’s Proclamation
Does Not Moot the Petition
There is also no merit in the claim that respondent
Dilangalen’s proclamation as winner in the 14 May 2007
elections for representative of "Shariff Kabunsuan
Province with Cotabato City" mooted this petition. This
case does not concern respondent Dilangalen’s election.
Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the
constitutionality of MMA Act 201 and Section 19, Article
VI of RA 9054. Admittedly, the outcome of this petition,
one way or another, determines whether the votes cast
in Cotabato City for representative of the district of
"Shariff Kabunsuan Province with Cotabato City" will be
included in the canvassing of ballots. However, this
incidental consequence is no reason for us not to
proceed with the resolution of the novel issues raised
here. The Court’s ruling in these petitions affects not only
the recently concluded elections but also all the other
succeeding elections for the office in question, as well as
the power of the ARMM Regional Assembly to create in
the future additional provinces.
On the Main Issues
Whether the ARMM Regional Assembly
Can Create the Province of Shariff Kabunsuan
The creation of local government units is governed by
Section 10, Article X of the Constitution, which provides:
Sec. 10. No province, city, municipality, or barangay may
be created, divided, merged, abolished or its boundary
substantially altered except in accordance with the
criteria established in the local government code and
subject to approval by a majority of the votes cast in a
plebiscite in the political units directly affected.
Thus, the creation of any of the four local government
units – province, city, municipality or barangay – must
comply with three conditions. First, the creation of a local
government unit must follow the criteria fixed in the Local
Government Code. Second, such creation must not
conflict with any provision of the Constitution. Third,
there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an express
grant of authority in the Constitution for Congress to
delegate to regional or local legislative bodies the power
to create local government units. However, under its
plenary legislative powers, Congress can delegate to
local legislative bodies the power to create local
government units, subject to reasonable standards and
provided no conflict arises with any provision of the
Constitution. In fact, Congress has delegated to
provincial boards, and city and municipal councils, the
power to create barangays within their
jurisdiction,25 subject to compliance with the criteria
established in the Local Government Code, and the
plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government
Code, "only x x x an Act of Congress" can create
provinces, cities or municipalities.261avvphi1
Under Section 19, Article VI of RA 9054, Congress
delegated to the ARMM Regional Assembly the power to
create provinces, cities, municipalities and barangays
within the ARMM. Congress made the delegation under
its plenary legislative powers because the power to
create local government units is not one of the express
legislative powers granted by the Constitution to regional
legislative bodies.27 In the present case, the question
arises whether the delegation to the ARMM Regional
Assembly of the power to create provinces, cities,
municipalities and barangays conflicts with any provision
of the Constitution.
There is no provision in the Constitution that conflicts
with the delegation to regional legislative bodies of the
power to create municipalities and barangays, provided
Section 10, Article X of the Constitution is followed.
However, the creation of provinces and cities is another
matter. Section 5 (3), Article VI of the Constitution
provides, "Each city with a population of at least two
hundred fifty thousand, or each province, shall have at
least one representative" in the House of
Representatives. Similarly, Section 3 of the Ordinance
appended to the Constitution provides, "Any province
that may hereafter be created, or any city whose
population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the
immediately following election to at least one Member x
x x."
Clearly, a province cannot be created without a
legislative district because it will violate Section 5 (3),
Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same
reason, a city with a population of 250,000 or more
cannot also be created without a legislative district.
Thus, the power to create a province, or a city with a
population of 250,000 or more, requires also the power
to create a legislative district. Even the creation of a city
with a population of less than 250,000 involves the
power to create a legislative district because once the
city’s population reaches 250,000, the city automatically
becomes entitled to one representative under Section 5
(3), Article VI of the Constitution and Section 3 of the
Ordinance appended to the Constitution. Thus, the
power to create a province or city inherently involves the
power to create a legislative district.
For Congress to delegate validly the power to create a
province or city, it must also validly delegate at the same
time the power to create a legislative district. The
threshold issue then is, can Congress validly delegate to
the ARMM Regional Assembly the power to create
legislative districts for the House of Representatives?
The answer is in the negative.
Legislative Districts are Created or Reapportioned
Only by an Act of Congress
Under the present Constitution, as well as in
past28 Constitutions, the power to increase the allowable
membership in the House of Representatives, and to
reapportion legislative districts, is vested exclusively in
Congress. Section 5, Article VI of the Constitution
provides:
SECTION 5. (1) The House of Representatives shall be
composed of not more than two hundred and fifty
members, unless otherwise fixed by law, who shall be
elected from legislative districts apportioned among the
provinces, cities, and the Metropolitan Manila area in
accordance with the number of their respective
inhabitants, and on the basis of a uniform and
progressive ratio, and those who, as provided by law,
shall be elected through a party-list system of registered
national, regional, and sectoral parties or organizations.
xxxx
6
(3) Each legislative district shall comprise, as far
as practicable, contiguous, compact, and
adjacent territory. Each city with a population of
at least two hundred fifty thousand, or each
province, shall have at least one representative.
(4) Within three years following the return of
every census, the Congress shall make a
reapportionment of legislative districts based on
the standards provided in this section.
(Emphasis supplied)
Section 5 (1), Article VI of the Constitution vests in
Congress the power to increase, through a law, the
allowable membership in the House of Representatives.
Section 5 (4) empowers Congress to reapportion
legislative districts. The power to reapportion legislative
districts necessarily includes the power to create
legislative districts out of existing ones. Congress
exercises these powers through a law that Congress
itself enacts, and not through a law that regional or local
legislative bodies enact. The allowable membership of
the House of Representatives can be increased, and
new legislative districts of Congress can be created, only
through a national law passed by Congress. In Montejo
v. COMELEC,29 we held that the "power of redistricting x
x x is traditionally regarded as part of the power (of
Congress) to make laws," and thus is vested exclusively
in Congress.
This textual commitment to Congress of the exclusive
power to create or reapportion legislative districts is
logical. Congress is a national legislature and any
increase in its allowable membership or in its incumbent
membership through the creation of legislative districts
must be embodied in a national law. Only Congress can
enact such a law. It would be anomalous for regional or
local legislative bodies to create or reapportion
legislative districts for a national legislature like
Congress. An inferior legislative body, created by a
superior legislative body, cannot change the membership
of the superior legislative body.
The creation of the ARMM, and the grant of legislative
powers to its Regional Assembly under its organic act,
did not divest Congress of its exclusive authority to
create legislative districts. This is clear from the
Constitution and the ARMM Organic Act, as amended.
Thus, Section 20, Article X of the Constitution provides:
SECTION 20. Within its territorial jurisdiction and subject
to the provisions of this Constitution and national laws,
the organic act of autonomous regions shall provide for
legislative powers over:
(1) Administrative organization;
(2) Creation of sources of revenues;
(3) Ancestral domain and natural resources;
(4) Personal, family, and property relations;
(5) Regional urban and rural planning
development;
(6) Economic, social, and tourism development;
(7) Educational policies;
(8) Preservation and development of the cultural
heritage; and
(9) Such other matters as may be authorized by
law for the promotion of the general welfare of
the people of the region.
Nothing in Section 20, Article X of the Constitution
authorizes autonomous regions, expressly or
impliedly, to create or reapportion legislative
districts for Congress.
On the other hand, Section 3, Article IV of RA 9054
amending the ARMM Organic Act, provides, "The
Regional Assembly may exercise legislative power x
x x except on the following matters: x x x (k) National
elections. x x x." Since the ARMM Regional Assembly
has no legislative power to enact laws relating to national
elections, it cannot create a legislative district whose
representative is elected in national elections. Whenever
Congress enacts a law creating a legislative district, the
first representative is always elected in the "next national
elections" from the effectivity of the law.30
Indeed, the office of a legislative district representative to
Congress is a national office, and its occupant, a
Member of the House of Representatives, is a national
official.31 It would be incongruous for a regional
legislative body like the ARMM Regional Assembly to
create a national office when its legislative powers
extend only to its regional territory. The office of a district
representative is maintained by national funds and the
salary of its occupant is paid out of national funds. It is a
self-evident inherent limitation on the legislative powers
of every local or regional legislative body that it can only
create local or regional offices, respectively, and it can
never create a national office.
To allow the ARMM Regional Assembly to create a
national office is to allow its legislative powers to operate
outside the ARMM’s territorial jurisdiction. This violates
Section 20, Article X of the Constitution which expressly
limits the coverage of the Regional Assembly’s
legislative powers "[w]ithin its territorial jurisdiction x x x."
The ARMM Regional Assembly itself, in creating Shariff
Kabunsuan, recognized the exclusive nature of
Congress’ power to create or reapportion legislative
districts by abstaining from creating a legislative district
for Shariff Kabunsuan. Section 5 of MMA Act 201
provides that:
Except as may be provided by national law, the existing
legislative district, which includes Cotabato City as a part
thereof, shall remain. (Emphasis supplied)
However, a province cannot legally be created without a
legislative district because the Constitution mandates
that "each province shall have at least one
representative." Thus, the creation of the Province of
Shariff Kabunsuan without a legislative district is
unconstitutional.
Sema, petitioner in G.R. No. 177597, contends that
Section 5 (3), Article VI of the Constitution, which
provides:
Each legislative district shall comprise, as far as
practicable, contiguous, compact, and adjacent territory.
Each city with a population of at least two hundred fifty
thousand, or each province, shall have at least one
representative. (Emphasis supplied)
and Section 3 of the Ordinance appended to the
Constitution, which states:
Any province that may hereafter be created, or any
city whose population may hereafter increase to more
than two hundred fifty thousand shall be entitled in the
immediately following election to at least one
Member or such number of Members as it may be
entitled to on the basis of the number of its
inhabitants and according to the standards set forth
in paragraph (3), Section 5 of Article VI of the
Constitution. The number of Members apportioned to
the province out of which such new province was
created or where the city, whose population has so
increased, is geographically located shall be
correspondingly adjusted by the Commission on
Elections but such adjustment shall not be made within
one hundred and twenty days before the election.
(Emphasis supplied)
serve as bases for the conclusion that the Province of
Shariff Kabunsuan, created on 29 October 2006, is
automatically entitled to one member in the House of
Representatives in the 14 May 2007 elections. As further
support for her stance, petitioner invokes the statement
in Felwa that "when a province is created by statute, the
corresponding representative district comes into
7
existence neither by authority of that statute — which
cannot provide otherwise — nor by apportionment, but
by operation of the Constitution, without a
reapportionment."
The contention has no merit.
First. The issue in Felwa, among others, was whether
Republic Act No. 4695 (RA 4695), creating the provinces
of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao and providing for congressional representation
in the old and new provinces, was unconstitutional for
"creati[ng] congressional districts without the
apportionment provided in the Constitution." The Court
answered in the negative, thus:
The Constitution ordains:
"The House of Representatives shall be composed of
not more than one hundred and twenty Members who
shall be apportioned among the several provinces as
nearly as may be according to the number of their
respective inhabitants, but each province shall have at
least one Member. The Congress shall by law make an
apportionment within three years after the return of every
enumeration, and not otherwise. Until such
apportionment shall have been made, the House of
Representatives shall have the same number of
Members as that fixed by law for the National Assembly,
who shall be elected by the qualified electors from the
present Assembly districts. Each representative district
shall comprise as far as practicable, contiguous and
compact territory."
Pursuant to this Section, a representative district
may come into existence: (a) indirectly, through the
creation of a province — for "each province shall
have at least one member" in the House of
Representatives; or (b) by direct creation of several
representative districts within a province. The
requirements concerning the apportionment of
representative districts and the territory thereof refer only
to the second method of creation of representative
districts, and do not apply to those incidental to the
creation of provinces, under the first method. This is
deducible, not only from the general tenor of the
provision above quoted, but, also, from the fact that the
apportionment therein alluded to refers to that which is
made by an Act of Congress. Indeed, when a province is
created by statute, the corresponding representative
district, comes into existence neither by authority of that
statute — which cannot provide otherwise — nor by
apportionment, but by operation of the Constitution,
without a reapportionment.
There is no constitutional limitation as to the time when,
territory of, or other conditions under which a province
may be created, except, perhaps, if the consequence
thereof were to exceed the maximum of 120
representative districts prescribed in the Constitution,
which is not the effect of the legislation under
consideration. As a matter of fact, provinces have been
created or subdivided into other provinces, with the
consequent creation of additional representative districts,
without complying with the aforementioned
requirements.32 (Emphasis supplied)
Thus, the Court sustained the constitutionality of RA
4695 because (1) it validly created legislative districts
"indirectly" through a special law enacted by
Congress creating a province and (2) the creation of the
legislative districts will not result in breaching the
maximum number of legislative districts provided under
the 1935 Constitution. Felwa does not apply to the
present case because in Felwa the new provinces were
created by a national law enacted by Congress itself.
Here, the new province was created merely by
a regional law enacted by the ARMM Regional
Assembly.
What Felwa teaches is that the creation of a legislative
district by Congress does not emanate alone from
Congress’ power to reapportion legislative districts, but
also from Congress’ power to create provinces which
cannot be created without a legislative district. Thus,
when a province is created, a legislative district is
created by operation of the Constitution because the
Constitution provides that "each province shall have at
least one representative" in the House of
Representatives. This does not detract from the
constitutional principle that the power to create
legislative districts belongs exclusively to Congress. It
merely prevents any other legislative body, except
Congress, from creating provinces because for a
legislative body to create a province such legislative
body must have the power to create legislative districts.
In short, only an act of Congress can trigger the creation
of a legislative district by operation of the Constitution.
Thus, only Congress has the power to create, or trigger
the creation of, a legislative district.
Moreover, if as Sema claims MMA Act 201 apportioned a
legislative district to Shariff Kabunsuan upon its creation,
this will leave Cotabato City as the lone component of
the first legislative district of Maguindanao. However,
Cotabato City cannot constitute a legislative district by
itself because as of the census taken in 2000, it had a
population of only 163,849. To constitute Cotabato City
alone as the surviving first legislative district of
Maguindanao will violate Section 5 (3), Article VI of the
Constitution which requires that "[E]ach city with a
population of at least two hundred fifty thousand x x x,
shall have at least one representative."
Second. Sema’s theory also undermines the composition
and independence of the House of Representatives.
Under Section 19,33 Article VI of RA 9054, the ARMM
Regional Assembly can create provinces and cities
within the ARMM with or without regard to the criteria
fixed in Section 461 of RA 7160, namely: minimum
annual income of ₱20,000,000, and minimum contiguous
territory of 2,000 square kilometers or minimum
population of 250,000.34The following scenarios thus
become distinct possibilities:
(1) An inferior legislative body like the ARMM
Regional Assembly can create 100 or more
provinces and thus increase the membership of
a superior legislative body, the House of
Representatives, beyond the maximum limit of
250 fixed in the Constitution (unless a national
law provides otherwise);
(2) The proportional representation in the House
of Representatives based on one representative
for at least every 250,000 residents will be
negated because the ARMM Regional Assembly
need not comply with the requirement in Section
461(a)(ii) of RA 7160 that every province created
must have a population of at least 250,000; and
(3) Representatives from the ARMM provinces
can become the majority in the House of
Representatives through the ARMM Regional
Assembly’s continuous creation of provinces or
cities within the ARMM.
The following exchange during the oral arguments of the
petition in G.R. No. 177597 highlights the absurdity of
Sema’s position that the ARMM Regional Assembly can
create provinces:
Justice Carpio:
So, you mean to say [a] Local Government can create
legislative district[s] and pack Congress with their own
representatives [?]
Atty. Vistan II:35
Yes, Your Honor, because the Constitution allows that.
Justice Carpio:
8
So, [the] Regional Assembly of [the] ARMM can create
and create x x x provinces x x x and, therefore, they can
have thirty-five (35) new representatives in the House of
Representatives without Congress agreeing to it, is that
what you are saying? That can be done, under your
theory[?]
Atty. Vistan II:
Yes, Your Honor, under the correct factual
circumstances.
Justice Carpio:
Under your theory, the ARMM legislature can create
thirty-five (35) new provinces, there may be x x x [only]
one hundred thousand (100,000) [population], x x x, and
they will each have one representative x x x to Congress
without any national law, is that what you are saying?
Atty. Vistan II:
Without law passed by Congress, yes, Your Honor, that
is what we are saying.
xxxx
Justice Carpio:
So, they can also create one thousand (1000) new
provinces, sen[d] one thousand (1000) representatives
to the House of Representatives without a national law[,]
that is legally possible, correct?
Atty. Vistan II:
Yes, Your Honor.36 (Emphasis supplied)
Neither the framers of the 1987 Constitution in adopting
the provisions in Article X on regional autonomy, 37 nor
Congress in enacting RA 9054, envisioned or intended
these disastrous consequences that certainly would
wreck the tri-branch system of government under our
Constitution. Clearly, the power to create or reapportion
legislative districts cannot be delegated by Congress but
must be exercised by Congress itself. Even the ARMM
Regional Assembly recognizes this.
The Constitution empowered Congress to create or
reapportion legislative districts, not the regional
assemblies. Section 3 of the Ordinance to the
Constitution which states, "[A]ny province that may
hereafter be created x x x shall be entitled in the
immediately following election to at least one Member,"
refers to a province created by Congress itself through a
national law. The reason is that the creation of a
province increases the actual membership of the House
of Representatives, an increase that only Congress can
decide. Incidentally, in the present 14th Congress, there
are 21938 district representatives out of the maximum
250 seats in the House of Representatives. Since party-
list members shall constitute 20 percent of total
membership of the House, there should at least be 50
party-list seats available in every election in case 50
party-list candidates are proclaimed winners. This leaves
only 200 seats for district representatives, much less
than the 219 incumbent district representatives. Thus,
there is a need now for Congress to increase by law the
allowable membership of the House, even before
Congress can create new provinces.
It is axiomatic that organic acts of autonomous regions
cannot prevail over the Constitution. Section 20, Article X
of the Constitution expressly provides that the legislative
powers of regional assemblies are limited "[w]ithin its
territorial jurisdiction and subject to the provisions
of the Constitution and national laws, x x x." The
Preamble of the ARMM Organic Act (RA 9054) itself
states that the ARMM Government is established "within
the framework of the Constitution." This follows Section
15, Article X of the Constitution which mandates that the
ARMM "shall be created x x x within the framework of
this Constitution and the national sovereignty as
well as territorial integrity of the Republic of the
Philippines."
The present case involves the creation of a local
government unit that necessarily involves also the
creation of a legislative district. The Court will not pass
upon the constitutionality of the creation of municipalities
and barangays that does not comply with the criteria
established in Section 461 of RA 7160, as mandated in
Section 10, Article X of the Constitution, because the
creation of such municipalities and barangays does not
involve the creation of legislative districts. We leave the
resolution of this issue to an appropriate case.
In summary, we rule that Section 19, Article VI of RA
9054, insofar as it grants to the ARMM Regional
Assembly the power to create provinces and cities, is
void for being contrary to Section 5 of Article VI and
Section 20 of Article X of the Constitution, as well as
Section 3 of the Ordinance appended to the Constitution.
Only Congress can create provinces and cities because
the creation of provinces and cities necessarily includes
the creation of legislative districts, a power only
Congress can exercise under Section 5, Article VI of the
Constitution and Section 3 of the Ordinance appended to
the Constitution. The ARMM Regional Assembly cannot
create a province without a legislative district because
the Constitution mandates that every province shall have
a legislative district. Moreover, the ARMM Regional
Assembly cannot enact a law creating a national office
like the office of a district representative of Congress
because the legislative powers of the ARMM Regional
Assembly operate only within its territorial jurisdiction as
provided in Section 20, Article X of the Constitution.
Thus, we rule that MMA Act 201, enacted by the ARMM
Regional Assembly and creating the Province of Shariff
Kabunsuan, is void.
Resolution No. 7902 Complies with the Constitution
Consequently, we hold that COMELEC Resolution No.
7902, preserving the geographic and legislative district of
the First District of Maguindanao with Cotabato City, is
valid as it merely complies with Section 5 of Article VI
and Section 20 of Article X of the Constitution, as well as
Section 1 of the Ordinance appended to the Constitution.
WHEREFORE, we declare Section 19, Article VI of
Republic Act No. 9054 UNCONSTITUTIONAL insofar as
it grants to the Regional Assembly of the Autonomous
Region in Muslim Mindanao the power to create
provinces and cities. Thus, we declare VOID Muslim
Mindanao Autonomy Act No. 201 creating the Province
of Shariff Kabunsuan. Consequently, we rule that
COMELEC Resolution No. 7902 is VALID.
Let a copy of this ruling be served on the President of
the Senate and the Speaker of the House of
Representatives.
SO ORDERED.
Bai Sandra Sema v Comelec July 16, 2008
Bai Sandra Sema v Comelec July 16, 2008
http://sc.judiciary.gov.ph/jurisprudence/2008/july2008/17
7597.htm
Facts:
On 28 August 2006, the ARMM’s legislature, the
ARMM Regional Assembly, exercising its power to
create provinces under Section 19, Article VI of RA 9054,
enacted Muslim Mindanao Autonomy Act No. 201 (MMA
Act 201) creating the Province of Shariff Kabunsuan
composed of the eight municipalities in the first district of
Maguindanao. MMA Act 201 provides:
Later, three new municipalities were carved out of the
original nine municipalities constituting Shariff
Kabunsuan, bringing its total number of municipalities to
11. Thus, what was left of Maguindanao were the
9
municipalities constituting its second legislative district.
Cotabato City, although part of Maguindanao’s first
legislative district, is not part of the Province of
Maguindanao.
On 6 February 2007, the Sangguniang Panlungsod of
Cotabato City passed Resolution No. 3999 requesting
the COMELEC to “clarify the status of Cotabato City in
view of the conversion of the First District of
Maguindanao into a regular province” under MMA Act
201.
Resolution No. 07-0407, which adopted the
recommendation of the COMELEC’s Law Department
under a Memorandum dated 27 February 2007, provides
in pertinent parts:
Considering the foregoing, the Commission
RESOLVED, as it hereby resolves, to adopt the
recommendation of the Law Department that pending
the enactment of the appropriate law by Congress, to
maintain the status quo with Cotabato City as part of
Shariff Kabunsuan in the First Legislative District of
Maguindanao.
On 10 May 2007, the COMELEC issued Resolution
No. 7902, subject of these petitions, amending
Resolution No. 07-0407 by renaming the legislative
district in question as “Shariff Kabunsuan Province with
Cotabato City (formerly First District of Maguindanao
with Cotabato City).”
Issue:
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and
Mandamus are proper to test the constitutionality of
COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent
Dilangalen as representative of Shariff Kabunsuan
Province with Cotabato City mooted the petition in G.R.
No. 177597.
(B) On the merits –
(1) whether Section 19, Article VI of RA 9054,
delegating to the ARMM Regional Assembly the power to
create provinces, cities, municipalities and barangays, is
constitutional; and
(2) if in the affirmative, whether a province
created by the ARMM Regional Assembly under MMA
Act 201 pursuant to Section 19, Article VI of RA 9054 is
entitled to one representative in the House of
Representatives without need of a national law creating
a legislative district for such province.
II. In G.R No. 177597 and G.R No. 178628, whether
COMELEC Resolution No. 7902 is valid for maintaining
the status quo in the first legislative district of
Maguindanao (as “Shariff Kabunsuan Province with
Cotabato City [formerly First District of Maguindanao
with Cotabato City]”), despite the creation of the
Province of Shariff Kabunsuan out of such district
(excluding Cotabato City).
Held:
WHEREFORE, we declare Section 19, Article VI of
Republic Act No. 9054 UNCONSTITUTIONAL insofar as
it grants to the Regional Assembly of the Autonomous
Region in Muslim Mindanao the power to create
provinces and cities. Thus, we declare VOID Muslim
Mindanao Autonomy Act No. 201 creating the Province
of Shariff Kabunsuan. Consequently, we rule that
COMELEC Resolution No. 7902 is VALID.
Ratio:
 The creation of any of the four local government
units – province, city, municipality or barangay – must
comply with three conditions. First, the creation of a local
government unit must follow the criteria fixed in the Local
Government Code. Second, such creation must not
conflict with any provision of the Constitution. Third,
there must be a plebiscite in the political units affected.
There is neither an express prohibition nor an
express grant of authority in the Constitution for
Congress to delegate to regional or local legislative
bodies the power to create local government units.
However, under its plenary legislative powers, Congress
can delegate to local legislative bodies the power to
create local government units, subject to reasonable
standards and provided no conflict arises with any
provision of the Constitution. In fact, Congress has
delegated to provincial boards, and city and municipal
councils, the power to create barangays within their
jurisdiction, subject to compliance with the criteria
established in the Local Government Code, and the
plebiscite requirement in Section 10, Article X of the
Constitution. However, under the Local Government
Code, “only x x x an Act of Congress” can create
provinces, cities or municipalities.
However, the creation of provinces and cities is
another matter. Section 5 (3), Article VI of the
Constitution provides, “Each city with a population of at
least two hundred fifty thousand, or each province, shall
have at least one representative” in the House of
Representatives. Similarly, Section 3 of the Ordinance
appended to the Constitution provides, “Any province
that may hereafter be created, or any city whose
population may hereafter increase to more than two
hundred fifty thousand shall be entitled in the
immediately following election to at least one Member x
x x.”
Clearly, a province cannot be created without a
legislative district because it will violate Section 5 (3),
Article VI of the Constitution as well as Section 3 of the
Ordinance appended to the Constitution. For the same
reason, a city with a population of 250,000 or more
cannot also be created without a legislative district.
This textual commitment to Congress of the exclusive
power to create or reapportion legislative districts is
logical. Congress is a national legislature and any
increase in its allowable membership or in its incumbent
membership through the creation of legislative districts
must be embodied in a national law. Only Congress can
enact such a law. It would be anomalous for regional or
local legislative bodies to create or reapportion
legislative districts for a national legislature like
Congress. An inferior legislative body, created by a
superior legislative body, cannot change the membership
of the superior legislative body.
In view of certiorari and mandamus
The purpose of the writ of Certiorari is to correct
grave abuse of discretion by “any tribunal, board, or
officer exercising judicial or quasi-judicial functions.” On
the other hand, the writ of Mandamus will issue to
compel a tribunal, corporation, board, officer, or person
to perform an act “which the law specifically enjoins as a
duty.”
In view of mootness
There is also no merit in the claim that respondent
Dilangalen’s proclamation as winner in the 14 May 2007
elections for representative of “Shariff Kabunsuan
Province with Cotabato City” mooted this petition. This
case does not concern respondent Dilangalen’s election.
Rather, it involves an inquiry into the validity of
COMELEC Resolution No. 7902, as well as the
constitutionality of MMA Act 201 and Section 19, Article
10
VI of RA 9054. Admittedly, the outcome of this petition,
one way or another, determines whether the votes cast
in Cotabato City for representative of the district of
“Shariff Kabunsuan Province with Cotabato City” will be
included in the canvassing of ballots. However, this
incidental consequence is no reason for us not to
proceed with the resolution of the novel issues raised
here. The Court’s ruling in these petitions affects not
only the recently concluded elections but also all the
other succeeding elections for the office in question, as
well as the power of the ARMM Regional Assembly to
create in the future additional provinces.
In view of the Felwa case
As further support for her stance, petitioner invokes the
statement in Felwa that “when a province is created by
statute, the corresponding representative district comes
into existence neither by authority of that statute —
which cannot provide otherwise — nor by apportionment,
but by operation of the Constitution, without a
reapportionment.”
First. The issue in Felwa, among others, was whether
Republic Act No. 4695 (RA 4695), creating the provinces
of Benguet, Mountain Province, Ifugao, and Kalinga-
Apayao and providing for congressional representation
in the old and new provinces, was unconstitutional for
“creating congressional districts without the
apportionment provided in the Constitution.”
Thus, the Court sustained the constitutionality of RA
4695 because (1) it validly created legislative districts
“indirectly” through a special law enacted by Congress
creating a province and (2) the creation of the legislative
districts will not result in breaching the maximum number
of legislative districts provided under the 1935
Constitution. Felwa does not apply to the present case
because in Felwa the new provinces were created by a
national law enacted by Congress itself. Here, the new
province was created merely by a regional law enacted
by the ARMM Regional Assembly.
What Felwa teaches is that the creation of a
legislative district by Congress does not emanate alone
from Congress’ power to reapportion legislative districts,
but also from Congress’ power to create provinces which
cannot be created without a legislative district. Thus,
when a province is created, a legislative district is
created by operation of the Constitution because the
Constitution provides that “each province shall have at
least one representative” in the House of
Representatives.
Moreover, if as Sema claims MMA Act 201
apportioned a legislative district to Shariff Kabunsuan
upon its creation, this will leave Cotabato City as the
lone component of the first legislative district of
Maguindanao. However, Cotabato City cannot constitute
a legislative district by itself because as of the census
taken in 2000, it had a population of only 163,849.
Second. Sema’s theory also undermines the
composition and independence of the House of
Representatives. Under Section 19, Article VI of RA
9054, the ARMM Regional Assembly can create
provinces and cities within the ARMM with or without
regard to the criteria fixed in Section 461 of RA 7160,
namely: minimum annual income of P20,000,000, and
minimum contiguous territory of 2,000 square kilometers
or minimum population of 250,000. The following
scenarios thus become distinct possibilities:
It is axiomatic that organic acts of autonomous
regions cannot prevail over the Constitution. Section 20,
Article X of the Constitution expressly provides that the
legislative powers of regional assemblies are limited
“[w]ithin its territorial jurisdiction and subject to the
provisions of the Constitution and national laws, x x x.”
The Preamble of the ARMM Organic Act (RA 9054) itself
states that the ARMM Government is established “within
the framework of the Constitution.” This follows Section
15, Article X of the Constitution which mandates that the
ARMM “shall be created x x x within the framework of
this Constitution and the national sovereignty as well as
territorial integrity of the Republic of the Philippines.”
REPUBLIC ACT No. 7941
AN ACT PROVIDING FOR THE ELECTION OF PARTY-
LIST REPRESENTATIVES THROUGH THE PARTY-
LIST SYSTEM, AND APPROPRIATING FUNDS
THEREFOR
Section 1. Title. This Act shall be known as the "Party-
List System Act."
Section 2. Declaration of part y. The State shall promote
proportional representation in the election of
representatives to the House of Representatives through
a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to
marginalized and under-represented sectors,
organizations and parties, and who lack well-defined
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that
will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the
State shall develop and guarantee a full, free and open
party system in order to attain the broadcast possible
representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to
compete for and win seats in the legislature, and shall
provide the simplest scheme possible.
Section 3. Definition of Terms. (a) The party-list system
is a mechanism of proportional representation in the
election of representatives to the House of
Representatives from national, regional and sectoral
parties or organizations or coalitions thereof registered
with the Commission on Elections (COMELEC).
Component parties or organizations of a coalition may
participate independently provided the coalition of which
they form part does not participate in the party-list
system.
(b) A party means either a political party or a
sectoral party or a coalition of parties.
(c) A political party refers to an organized group
of citizens advocating an ideology or platform,
principles and policies for the general conduct of
government and which, as the most immediate
means of securing their adoption, regularly
nominates and supports certain of its leaders
and members as candidates for public office.
It is a national party when its constituency is
spread over the geographical territory of at least
a majority of the regions. It is a regional party
when its constituency is spread over the
geographical territory of at least a majority of the
cities and provinces comprising the region.
(d) A sectoral party refers to an organized group
of citizens belonging to any of the sectors
enumerated in Section 5 hereof whose principal
advocacy pertains to the special interest and
concerns of their sector,
(e) A sectoral organization refers to a group of
citizens or a coalition of groups of citizens who
share similar physical attributes or
characteristics, employment, interests or
concerns.
(f) A coalition refers to an aggrupation of duly
registered national, regional, sectoral parties or
11
organizations for political and/or election
purposes.
Section 4. Manifestation to Participate in the Party-List
System. Any party, organization, or coalition already
registered with the Commission need not register anew.
However, such party, organization, or coalition shall file
with the Commission, not later than ninety (90) days
before the election, a manifestation of its desire to
participate in the party-list system.
Section 5. Registration. Any organized group of persons
may register as a party, organization or coalition for
purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the
election a petition verified by its president or secretary
stating its desire to participate in the party-list system as
a national, regional or sectoral party or organization or a
coalition of such parties or organizations, attaching
thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and
other relevant information as the COMELEC may
require: Provided, That the sectors shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals.
The COMELEC shall publish the petition in at least two
(2) national newspapers of general circulation.
The COMELEC shall, after due notice and hearing,
resolve the petition within fifteen (15) days from the date
it was submitted for decision but in no case not later than
sixty (60) days before election.
Section 6. Refusal and/or Cancellation of
Registration. The COMELEC may, motu propio or upon
verified complaint of any interested party, refuse or
cancel, after due notice and hearing, the registration of
any national, regional or sectoral party, organization or
coalition on any of the following grounds:
(1) It is a religious sect or denomination,
organization or association, organized for
religious purposes;
(2) It advocates violence or unlawful means to
seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or through any of
its officers or members or indirectly through third
parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules
or regulations relating to elections;
(6) It declares untruthful statements in its
petition;
(7) It has ceased to exist for at least one (1)
year; or
(8) It fails to participate in the last two (2)
preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the
party-list system in the two (2) preceding
elections for the constituency in which it has
registered.
Section 7. Certified List of Registered Parties. The
COMELEC shall, not later than sixty (60) days before
election, prepare a certified list of national, regional, or
sectoral parties, organizations or coalitions which have
applied or who have manifested their desire to
participate under the party-list system and distribute
copies thereof to all precincts for posting in the polling
places on election day. The names of the part y-list
nominees shall not be shown on the certified list.
Section 8. Nomination of Party-List
Representatives. Each registered party, organization or
coalition shall submit to the COMELEC not later than
forty-five (45) days before the election a list of names,
not less than five (5), from which party-list
representatives shall be chosen in case it obtains the
required number of votes.
A person may be nominated in one (1) list only. Only
persons who have given their consent in writing may be
named in the list. The list shall not include any candidate
for any elective office or a person who has lost his bid for
an elective office in the immediately preceding election.
No change of names or alteration of the order of
nominees shall be allowed after the same shall have
been submitted to the COMELEC except in cases where
the nominee dies, or withdraws in writing his nomination,
becomes incapacitated in which case the name of the
substitute nominee shall be placed last in the list.
Incumbent sectoral representatives in the House of
Representatives who are nominated in the party-list
system shall not be considered resigned.
Section 9. Qualifications of Party-List Nominees. No
person shall be nominated as party-list representative
unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period
of not less than one (1)year immediately preceding the
day of the election, able to read and write, a bona fide
member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day
of the election, and is at least twenty-five (25) years of
age on the day of the election.
In case of a nominee of the youth sector, he must at
least be twenty-five (25) but not more than thirty (30)
years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until
the expiration of his term.
Section 10. Manner of Voting. Every voter shall be
entitled to two (2) votes: the first is a vote for candidate
for member of the House of Representatives in his
legislative district, and the second, a vote for the party,
organizations, or coalition he wants represented in the
house of Representatives: Provided, That a vote cast for
a party, sectoral organization, or coalition not entitled to
be voted for shall not be counted: Provided, finally, That
the first election under the party-list system shall be held
in May 1998.
The COMELEC shall undertake the necessary
information campaign for purposes of educating the
electorate on the matter of the party-list system.
Section 11. Number of Party-List Representatives. The
party-list representatives shall constitute twenty per
centum (20%) of the total number of the members of the
House of Representatives including those under the
party-list.
For purposes of the May 1998 elections, the first five (5)
major political parties on the basis of party
representation in the House of Representatives at the
start of the Tenth Congress of the Philippines shall not
be entitled to participate in the party-list system.
In determining the allocation of seats for the second
vote, the following procedure shall be observed:
(a) The parties, organizations, and coalitions
shall be ranked from the highest to the lowest
based on the number of votes they garnered
during the elections.
(b) The parties, organizations, and coalitions
receiving at least two percent (2%) of the total
votes cast for the party-list system shall be
entitled to one seat each: Provided, That those
garnering more than two percent (2%) of the
votes shall be entitled to additional seats in
proportion to their total number of votes :
Provided, finally, That each party, organization,
or coalition shall be entitled to not more than
three (3) seats.
12
Section 12. Procedure in Allocating Seats for Party-List
Representatives. The COMELEC shall tally all the votes
for the parties, organizations, or coalitions on a
nationwide basis, rank them according to the number of
votes received and allocate party-list representatives
proportionately according to the percentage of votes
obtained by each party, organization, or coalition as
against the total nationwide votes cast for the party-list
system.
Section 13. How Party-List Representatives are
Chosen. Party-list representatives shall be proclaimed
by the COMELEC based on the list of names submitted
by the respective parties, organizations, or coalitions to
the COMELEC according to their ranking in said list.
Section 14. Term of Office. Party-list representatives
shall be elected for a term of three (3) years which shall
begin, unless otherwise provided by law, at noon on the
thirtieth day of June next following their election. No
party-list representatives shall serve for more than three
(3) consecutive terms. Voluntary renunciation of the
office for any length of time shall not be considered as
an interruption in the continuity his service for the full
term for which he was elected.
Section 15. Change of Affiliation; Effect. Any elected
party-list representative who changes his political party
or sectoral affiliation during his term of office shall forfeit
his seat: Provided, That if he changes his political party
or sectoral affiliation within six (6) months before an
election, he shall not be eligible for nomination as party-
list representative under his new party or organization.
Section 16. Vacancy. In case of vacancy in the seats
reserved for party-list representatives, the vacancy shall
be automatically filled by the next representative from
the list of nominees in the order submitted to the
COMELEC by the same party, organization, or coalition,
who shall serve for the unexpired term. If the list is
exhausted, the party, organization coalition concerned
shall submit additional nominees.
Section 17. Rights of Party-List Representatives. Party-
List Representatives shall be entitled to the same
salaries and emoluments as regular members of the
House of Representatives.
Section 18. Rules and Regulations. The COMELEC
shall promulgate the necessary rules and regulations as
may be necessary to carry out the purposes of this Act.
Section 19. Appropriations. The amount necessary for
the implementation of this Act shall be provided in the
regular appropriations for the Commission on Elections
starting fiscal year 1996 under the General
Appropriations Act.
Starting 1995, the COMELEC is hereby authorized to
utilize savings and other available funds for purposes of
its information campaign on the party-list system.
Section 20. Separability Clause. If any part of this Act is
held invalid or unconstitutional, the other parts or
provisions thereof shall remain valid and effective.
Section 21. Repealing Clause. All laws, decrees,
executive orders, rules and regulations, or parts thereof,
inconsistent with the provisions of this Act are hereby
repealed.
Section 22. Effectivity. This Act shall take effect fifteen
(15) days after its publication in a newspaper of general
circulation.
G.R. No. 147589 June 26, 2001
ANG BAGONG BAYANI-OFW LABOR PARTY (under
the acronym OFW), represented herein by its secretary-
general, MOHAMMAD OMAR FAJARDO, petitioner,
vs.
ANG BAGONG BAYANI-OFW LABOR PARTY GO!
GO! PHILIPPINES; THE TRUE MARCOS LOYALIST
ASSOCIATION OF THE PHILIPPINES; PHILIPPINE
LOCAL AUTONOMY; CITIZENS MOVEMENT FOR
JUSTICE, ECONOMY, ENVIRONMENT AND PEACE;
CHAMBER OF REAL ESTATE BUILDERS
ASSOCIATION; SPORTS & HEALTH ADVANCEMENT
FOUNDATION, INC.; ANG LAKAS NG OVERSEAS
CONTRACT WORKERS (OCW); BAGONG BAYANI
ORGANIZATION and others under
"Organizations/Coalitions" of Omnibus Resolution
No. 3785; PARTIDO NG MASANG PILIPINO; LAKAS
NUCD-UMDP; NATIONALIST PEOPLE'S COALITION;
LABAN NG DEMOKRATIKONG PILIPINO; AKSYON
DEMOKRATIKO; PDP-LABAN; LIBERAL PARTY;
NACIONALISTA PARTY; ANG BUHAY HAYAANG
YUMABONG; and others under "Political Parties" of
Omnibus Resolution No. 3785. respondents.
x---------------------------------------------------------x
G.R. No. 147613 June 26, 2001
BAYAN MUNA, petitioner,
vs.
COMMISSION ON ELECTIONS; NATIONALIST
PEOPLE'S COALITION (NPC); LABAN NG
DEMOKRATIKONG PILIPINO (LDP); PARTIDO NG
MASANG PILIPINO (PMP); LAKAS-NUCD-UMDP;
LIBERAL PARTY; MAMAMAYANG AYAW SA DROGA;
CREBA; NATIONAL FEDERATION OF SUGARCANE
PLANTERS; JEEP; and BAGONG BAYANI
ORGANIZATION, respondents.
PANGANIBAN, J.:
The party-list system is a social justice tool designed not
only to give more law to the great masses of our people
who have less in life, but also to enable them to become
veritable lawmakers themselves, empowered to
participate directly in the enactment of laws designed to
benefit them. It intends to make the marginalized and the
underrepresented not merely passive recipients of the
State's benevolence, but active participants in the
mainstream of representative democracy. Thus, allowing
all individuals and groups, including those which now
dominate district elections, to have the same opportunity
to participate in party-list elections would desecrate this
lofty objective and mongrelize the social justice
mechanism into an atrocious veneer for traditional
politics.
The Case
Before us are two Petitions under Rule 65 of the Rules of
Court, challenging Omnibus Resolution No.
3785 1 issued by the Commission on Elections
(Comelec) on March 26, 2001. This Resolution approved
the participation of 154 organizations and parties,
including those herein impleaded, in the 2001 party-list
elections. Petitioners seek the disqualification of private
respondents, arguing mainly that the party-list system
was intended to benefit the marginalized and
underrepresented; not the mainstream political parties,
the non-marginalized or overrepresented.
The Factual Antecedents
With the onset of the 2001 elections, the Comelec
received several Petitions for registration filed by
sectoral parties, organizations and political parties.
According to the Comelec, "[v]erifications were made as
to the status and capacity of these parties and
organizations and hearings were scheduled day and
night until the last party w[as] heard. With the number of
these petitions and the observance of the legal and
procedural requirements, review of these petitions as
well as deliberations takes a longer process in order to
arrive at a decision and as a result the two (2) divisions
promulgated a separate Omnibus Resolution and
individual resolution on political parties. These numerous
petitions and processes observed in the disposition of
these petition[s] hinder the early release of the Omnibus
Resolutions of the Divisions which were promulgated
only on 10 February 2001." 2
13
Thereafter, before the February 12, 2001 deadline
prescribed under Comelec Resolution No. 3426 dated
December 22, 2000, the registered parties and
organizations filed their respective Manifestations,
stating their intention to participate in the party-list
elections. Other sectoral and political parties and
organizations whose registrations were denied also filed
Motions for Reconsideration, together with
Manifestations of their intent to participate in the party-
list elections. Still other registered parties filed their
Manifestations beyond the deadline.
The Comelec gave due course or approved the
Manifestations (or accreditations) of 154 parties and
organizations, but denied those of several others in its
assailed March 26, 2001 Omnibus Resolution No. 3785,
which we quote:
"We carefully deliberated the foregoing matters, having
in mind that this system of proportional representation
scheme will encourage multi-partisan [sic] and enhance
the inability of small, new or sectoral parties or
organization to directly participate in this electoral
window.
"It will be noted that as defined, the 'party-list system' is
a 'mechanism of proportional representation' in the
election of representatives to the House of
Representatives from national, regional, and sectoral
parties or organizations or coalitions thereof registered
with the Commission on Elections.
"However, in the course of our review of the matters at
bar, we must recognize the fact that there is a need to
keep the number of sectoral parties, organizations and
coalitions, down to a manageable level, keeping only
those who substantially comply with the rules and
regulations and more importantly the sufficiency of the
Manifestations or evidence on the Motions for
Reconsiderations or Oppositions." 3
On April 10, 2001, Akbayan Citizens Action Party filed
before the Comelec a Petition praying that "the names of
[some of herein respondents] be deleted from the
'Certified List of Political Parties/Sectoral
Parties/Organizations/Coalitions Participating in the
Party List System for the May 14, 2001 Elections' and
that said certified list be accordingly amended." It also
asked, as an alternative, that the votes cast for the said
respondents not be counted or canvassed, and that the
latter's nominees not be proclaimed. 4 On April 11, 2001,
Bayan Muna and Bayan Muna-Youth also filed a Petition
for Cancellation of Registration and Nomination against
some of herein respondents. 5
On April 18, 2001, the Comelec required the
respondents in the two disqualification cases to file
Comments within three days from notice. It also set the
date for hearing on April 26, 2001, 6 but subsequently
reset it to May 3, 2001.7 During the hearing, however,
Commissioner Ralph C. Lantion merely directed the
parties to submit their respective memoranda. 8
Meanwhile, dissatisfied with the pace of the Comelec,
Ang Bagong Bayani-OFW Labor Party filed a
Petition 9 before this Court on April 16, 2001. This
Petition, docketed as GR No. 147589, assailed Comelec
Omnibus Resolution No. 3785. In its Resolution dated
April 17, 2001, 10 the Court directed respondents to
comment on the Petition within a non-extendible period
of five days from notice. 11
On April 17, 2001, Petitioner Bayan Muna also filed
before this Court a Petition, 12 docketed as GR No.
147613, also challenging Comelec Omnibus Resolution
No. 3785. In its Resolution dated May 9, 2001, 13 the
Court ordered the consolidation of the two Petitions
before it; directed respondents named in the second
Petition to file their respective Comments on or before
noon of May 15, 2001; and called the parties to an Oral
Argument on May 17, 2001. It added that the Comelec
may proceed with the counting and canvassing of votes
cast for the party-list elections, but barred the
proclamation of any winner therein, until further orders of
the Court.
Thereafter, Comments 14 on the second Petition were
received by the Court and, on May 17, 2001, the Oral
Argument was conducted as scheduled. In an Order
given in open court, the parties were directed to submit
their respective Memoranda simultaneously within a non-
extendible period of five days. 15
Issues:
During the hearing on May 17, 2001, the Court directed
the parties to address the following issues:
"1. Whether or not recourse under Rule 65 is
proper under the premises. More specifically, is
there no other plain, speedy or adequate remedy
in the ordinary course of law?
"2. Whether or not political parties may
participate in the party-list elections.
"3. Whether or not the party-list system is
exclusive to 'marginalized and
underrepresented' sectors and organizations.
"4. Whether or not the Comelec committed
grave abuse of discretion in promulgating
Omnibus Resolution No. 3785." 16
The Court's Ruling
The Petitions are partly meritorious. These cases should
be remanded to the Comelec which will determine, after
summary evidentiary hearings, whether the 154 parties
and organizations enumerated in the assailed Omnibus
Resolution satisfy the requirements of the Constitution
and RA 7941, as specified in this Decision.
First Issue:
Recourse Under Rule 65
Respondents contend that the recourse of both
petitioners under Rule 65 is improper because there are
other plain, speedy and adequate remedies in the
ordinary course of law. 17 The Office of the Solicitor
General argues that petitioners should have filed before
the Comelec a petition either for disqualification or for
cancellation of registration, pursuant to Sections 19, 20,
21 and 22 of Comelec Resolution No. 3307-A 18 dated
November 9, 2000.19
We disagree. At bottom, petitioners attack the validity of
Comelec Omnibus Resolution 3785 for having been
issued with grave abuse of discretion, insofar as it
allowed respondents to participate in the party-list
elections of 2001. Indeed, under both the
Constitution 20 and the Rules of Court, such challenge
may be brought before this Court in a verified petition for
certiorari under Rule 65.
Moreover, the assailed Omnibus Resolution was
promulgated by Respondent Commission en banc;
hence, no motion for reconsideration was possible, it
being a prohibited pleading under Section 1 (d), Rule 13
of the Comelec Rules of Procedure. 21
The Court also notes that Petitioner Bayan Muna had
filed before the Comelec a Petition for Cancellation of
Registration and Nomination against some of herein
respondents. 22 The Comelec, however, did not act on
that Petition. In view of the pendency of the elections,
Petitioner Bayan Muna sought succor from this Court, for
there was no other adequate recourse at the time.
Subsequent events have proven the urgency of
petitioner's action; to this date, the Comelec has not yet
formally resolved the Petition before it. But a resolution
may just be a formality because the Comelec, through
the Office of the Solicitor General, has made its position
on the matter quite clear.
In any event, this case presents an exception to the rule
that certiorari shall lie only in the absence of any other
14
plain, speedy and adequate remedy. 23 It has been held
that certiorari is available, notwithstanding the presence
of other remedies, "where the issue raised is one purely
of law, where public interest is involved, and in case of
urgency." 24 Indeed, the instant case is indubitably
imbued with public interest and with extreme urgency, for
it potentially involves the composition of 20 percent of
the House of Representatives.
Moreover, this case raises transcendental constitutional
issues on the party-list system, which this Court must
urgently resolve, consistent with its duty to "formulate
guiding and controlling constitutional principles,
precepts, doctrines, or rules." 25
Finally, procedural requirements "may be glossed over to
prevent a miscarriage of justice, when the issue involves
the principle of social justice x x x when the decision
sought to be set aside is a nullity, or when the need for
relief is extremely urgent and certiorari is the only
adequate and speedy remedy available." 26
Second Issue:
Participation of Political Parties
In its Petition, Ang Bagong Bayani-OFW Labor Party
contends that "the inclusion of political parties in the
party-list system is the most objectionable portion of the
questioned Resolution." 27 For its part, Petitioner Bayan
Muna objects to the participation of "major political
parties." 28 On the other hand, the Office of the Solicitor
General, like the impleaded political parties, submits that
the Constitution and RA No. 7941 allow political parties
to participate in the party-list elections. It argues that the
party-list system is, in fact, open to all "registered
national, regional and sectoral parties or
organizations." 29
We now rule on this issue. Under the Constitution and
RA 7941, private respondents cannot be disqualified
from the party-list elections, merely on the ground that
they are political parties. Section 5, Article VI of the
Constitution provides that members of the House of
Representatives may "be elected through a party-list
system of registered national, regional, and sectoral
parties or organizations."
Furthermore, under Sections 7 and 8, Article IX (C) of
the Constitution, political parties may be registered under
the party-list system.
"Sec. 7. No votes cast in favor of a political party,
organization, or coalition shall be valid, except
for those registered under the party-list system
as provided in this Constitution.
"Sec. 8. Political parties, or organizations or
coalitions registered under the party-list system,
shall not be represented in the voters'
registration boards, boards of election
inspectors, boards of canvassers, or other
similar bodies. However, they shall be entitled to
appoint poll watchers in accordance with law." 30
During the deliberations in the Constitutional
Commission, Comm. Christian S. Monsod pointed out
that the participants in the party-list system may "be a
regional party, a sectoral party, a national party,
UNIDO, 31Magsasaka, or a regional party in
Mindanao." 32 This was also clear from the following
exchange between Comms. Jaime Tadeo and Blas
Ople: 33
"MR. TADEO. Naniniwala ba kayo na ang party list ay
pwedeng paghati-hatian ng UNIDO, PDP-Laban, PNP,
Liberal at Nacionalista?
MR. OPLE. Maaari yan sapagkat bukas ang party list
system sa lahat ng mga partido."
Indeed, Commissioner Monsod stated that the purpose
of the party-list provision was to open up the system, in
order to give a chance to parties that consistently place
third or fourth in congressional district elections to win a
seat in Congress. 34 He explained: "The purpose of this is
to open the system. In the past elections, we found out
that there were certain groups or parties that, if we count
their votes nationwide, have about 1,000,000 or
1,500,000 votes. But they were always third or fourth
place in each of the districts. So, they have no voice in
the Assembly. But this way, they would have five or six
representatives in the Assembly even if they would not
win individually in legislative districts. So, that is
essentially the mechanics, the purpose and objectives of
the party-list system."
For its part, Section 2 of RA 7941 also provides for "a
party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof, x x
x." Section 3 expressly states that a "party" is "either a
political party or a sectoral party or a coalition of parties."
More to the point, the law defines "political party" as "an
organized group of citizens advocating an ideology or
platform, principles and policies for the general conduct
of government and which, as the most immediate means
of securing their adoption, regularly nominates and
supports certain of its leaders and members as
candidates for public office."
Furthermore, Section 11 of RA 7941 leaves no doubt as
to the participation of political parties in the party-list
system. We quote the pertinent provision below:
"x x x
"For purposes of the May 1998 elections, the first five (5)
major political parties on the basis of party
representation in the House of Representatives at the
start of the Tenth Congress of the Philippines shall not
be entitled to participate in the party-list system.
x x x"
Indubitably, therefore, political parties – even the major
ones -- may participate in the party-list elections.
Third Issue:
Marginalized and Underrepresented
That political parties may participate in the party-list
elections does not mean, however, that any political
party -- or any organization or group for that matter --
may do so. The requisite character of these parties or
organizations must be consistent with the purpose of the
party-list system, as laid down in the Constitution and RA
7941. Section 5, Article VI of the Constitution, provides
as follows:
"(1) The House of Representatives shall be
composed of not more than two hundred and
fifty members, unless otherwise fixed by law,
who shall be elected from legislative districts
apportioned among the provinces, cities, and the
Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on
the basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected
through a party-list system of registered national,
regional, and sectoral parties or organizations.
(2) The party-list representatives shall constitute
twenty per centum of the total number of
representatives including those under the party
list. For three consecutive terms after the
ratification of this Constitution, one-half of the
seats allocated to party-list representatives shall
be filled, as provided by law, by selection or
election from the labor, peasant, urban poor,
indigenous cultural communities, women, youth,
and such other sectors as may be provided by
law, except the religious sector." (Emphasis
supplied.)
Notwithstanding the sparse language of the provision, a
distinguished member of the Constitutional Commission
declared that the purpose of the party-list provision was
to give "genuine power to our people" in Congress.
15
Hence, when the provision was discussed, he exultantly
announced: "On this first day of August 1986, we shall,
hopefully, usher in a new chapter to our national history,
by giving genuine power to our people in the
legislature." 35
The foregoing provision on the party-list system is not
self-executory. It is, in fact, interspersed with phrases like
"in accordance with law" or "as may be provided by law";
it was thus up to Congress to sculpt in granite the lofty
objective of the Constitution. Hence, RA 7941 was
enacted. It laid out the statutory policy in this wise:
"SEC. 2. Declaration of Policy. -- The State shall promote
proportional representation in the election of
representatives to the House of Representatives through
a party-list system of registered national, regional and
sectoral parties or organizations or coalitions thereof,
which will enable Filipino citizens belonging to
marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that
will benefit the nation as a whole, to become members of
the House of Representatives. Towards this end, the
State shall develop and guarantee a full, free and open
party system in order to attain the broadest possible
representation of party, sectoral or group interests in the
House of Representatives by enhancing their chances to
compete for and win seats in the legislature, and shall
provide the simplest scheme possible."
The Marginalized and Underrepresented to Become
Lawmakers Themselves
The foregoing provision mandates a state policy of
promoting proportional representation by means of the
Filipino-style party-list system, which will "enable" the
election to the House of Representatives of Filipino
citizens,
1. who belong to marginalized and
underrepresented sectors, organizations and
parties; and
2. who lack well-defined constituencies; but
3. who could contribute to the formulation and
enactment of appropriate legislation that will
benefit the nation as a whole.
The key words in this policy are "proportional
representation," "marginalized and underrepresented,"
and "lack ofwell-defined constituencies."
"Proportional representation" here does not refer to the
number of people in a particular district, because the
party-list election is national in scope. Neither does it
allude to numerical strength in a distressed or oppressed
group. Rather, it refers to the representation of the
"marginalized and underrepresented" as exemplified by
the enumeration in Section 5 of the law; namely, "labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals."
However, it is not enough for the candidate to claim
representation of the marginalized and
underrepresented, because representation is easy to
claim and to feign. The party-list organization or party
must factually and truly represent the marginalized and
underrepresented constituencies mentioned in Section
5. 36 Concurrently, the persons nominated by the party-
list candidate-organization must be "Filipino citizens
belonging to marginalized and underrepresented
sectors, organizations and parties."
Finally, "lack of well-defined constituenc[y] " refers to the
absence of a traditionally identifiable electoral group, like
voters of a congressional district or territorial unit of
government. Rather, it points again to those with
disparate interests identified with the "marginalized or
underrepresented."
In the end, the role of the Comelec is to see to it that
only those Filipinos who are "marginalized and
underrepresented" become members of Congress under
the party-list system, Filipino-style.
The intent of the Constitution is clear: to give genuine
power to the people, not only by giving more law to those
who have less in life, but more so by enabling them to
become veritable lawmakers themselves. Consistent
with this intent, the policy of the implementing law, we
repeat, is likewise clear: "to enable Filipino citizens
belonging to marginalized and underrepresented
sectors, organizations and parties, x x x, to become
members of the House of Representatives." Where the
language of the law is clear, it must be applied according
to its express terms. 37
The marginalized and underrepresented sectors to be
represented under the party-list system are enumerated
in Section 5 of RA 7941, which states:
"SEC. 5. Registration. -- Any organized group of persons
may register as a party, organization or coalition for
purposes of the party-list system by filing with the
COMELEC not later than ninety (90) days before the
election a petition verified by its president or secretary
stating its desire to participate in the party-list system as
a national, regional or sectoral party or organization or a
coalition of such parties or organizations, attaching
thereto its constitution, by-laws, platform or program of
government, list of officers, coalition agreement and
other relevant information as the COMELEC may
require: Provided, that the sector shall include labor,
peasant, fisherfolk, urban poor, indigenous cultural
communities, elderly, handicapped, women, youth,
veterans, overseas workers, and professionals."
While the enumeration of marginalized and
underrepresented sectors is not exclusive, it
demonstrates the clear intent of the law that not all
sectors can be represented under the party-list system. It
is a fundamental principle of statutory construction that
words employed in a statute are interpreted in
connection with, and their meaning is ascertained by
reference to, the words and the phrases with which they
are associated or related. Thus, the meaning of a term in
a statute may be limited, qualified or specialized by
those in immediate association. 38
The Party-List System Desecrated by the OSG
Contentions
Notwithstanding the unmistakable statutory policy, the
Office of the Solicitor General submits that RA No. 7941
"does not limit the participation in the party-list system to
the marginalized and underrepresented sectors of
society."39 In fact, it contends that any party or group that
is not disqualified under Section 6 40 of RA 7941 may
participate in the elections. Hence, it admitted during the
Oral Argument that even an organization representing
the super rich of Forbes Park or Dasmariñas Village
could participate in the party-list elections. 41
The declared policy of RA 7941 contravenes the position
of the Office of the Solicitor General (OSG). We stress
that the party-list system seeks to enable certain Filipino
citizens – specifically those belonging to marginalized
and underrepresented sectors, organizations and parties
– to be elected to the House of Representatives. The
assertion of the OSG that the party-list system is not
exclusive to the marginalized and underrepresented
disregards the clear statutory policy. Its claim that even
the super-rich and overrepresented can participate
desecrates the spirit of the party-list system.
Indeed, the law crafted to address the peculiar
disadvantages of Payatas hovel dwellers cannot be
appropriated by the mansion owners of Forbes Park.
The interests of these two sectors are manifestly
disparate; hence, the OSG's position to treat them
similarly defies reason and common sense. In contrast,
16
and with admirable candor, Atty. Lorna Patajo-
Kapunan 42 admitted during the Oral Argument that a
group of bankers, industrialists and sugar planters could
not join the party-list system as representatives of their
respective sectors. 43
While the business moguls and the mega-rich are,
numerically speaking, a tiny minority, they are neither
marginalized nor underrepresented, for the stark reality
is that their economic clout engenders political power
more awesome than their numerical limitation.
Traditionally, political power does not necessarily
emanate from the size of one's constituency; indeed, it is
likely to arise more directly from the number and amount
of one's bank accounts.
It is ironic, therefore, that the marginalized and
underrepresented in our midst are the majority who
wallow in poverty, destitution and infirmity. It was for
them that the party-list system was enacted -- to give
them not only genuine hope, but genuine power; to give
them the opportunity to be elected and to represent the
specific concerns of their constituencies; and simply to
give them a direct voice in Congress and in the larger
affairs of the State. In its noblest sense, the party-list
system truly empowers the masses and ushers a new
hope for genuine change. Verily, it invites those
marginalized and underrepresented in the past – the
farm hands, the fisher folk, the urban poor, even those in
the underground movement – to come out and
participate, as indeed many of them came out and
participated during the last elections. The State cannot
now disappoint and frustrate them by disabling and
desecrating this social justice vehicle.
Because the marginalized and underrepresented had not
been able to win in the congressional district elections
normally dominated by traditional politicians and vested
groups, 20 percent of the seats in the House of
Representatives were set aside for the party-list system.
In arguing that even those sectors who normally
controlled 80 percent of the seats in the House could
participate in the party-list elections for the remaining 20
percent, the OSG and the Comelec disregard the
fundamental difference between the congressional
district elections and the party-list elections.
As earlier noted, the purpose of the party-list provision
was to open up the system, 44 in order to enhance the
chance of sectoral groups and organizations to gain
representation in the House of Representatives through
the simplest scheme possible. 45 Logic shows that the
system has been opened to those who have never
gotten a foothold within it -- those who cannot otherwise
win in regular elections and who therefore need the
"simplest scheme possible" to do so. Conversely, it
would be illogical to open the system to those who have
long been within it -- those privileged sectors that have
long dominated the congressional district elections.
The import of the open party-list system may be more
vividly understood when compared to a student
dormitory "open house," which by its nature allows
outsiders to enter the facilities. Obviously, the "open
house" is for the benefit of outsiders only, not the
dormers themselves who can enter the dormitory even
without such special privilege. In the same vein, the
open party-list system is only for the "outsiders" who
cannot get elected through regular elections otherwise; it
is not for the non-marginalized or overrepresented who
already fill the ranks of Congress.
Verily, allowing the non-marginalized and
overrepresented to vie for the remaining seats under the
party-list system would not only dilute, but also prejudice
the chance of the marginalized and underrepresented,
contrary to the intention of the law to enhance it. The
party-list system is a tool for the benefit of the
underprivileged; the law could not have given the same
tool to others, to the prejudice of the intended
beneficiaries.
This Court, therefore, cannot allow the party-list system
to be sullied and prostituted by those who are neither
marginalized nor underrepresented. It cannot let that
flicker of hope be snuffed out. The clear state policy
must permeate every discussion of the qualification of
political parties and other organizations under the party-
list system.
Refutation of the Separate Opinions
The Separate Opinions of our distinguished colleagues,
Justices Jose C. Vitug and Vicente V. Mendoza, are
anchored mainly on the supposed intent of the framers
of the Constitution as culled from their deliberations.
The fundamental principle in constitutional construction,
however, is that the primary source from which to
ascertain constitutional intent or purpose is the language
of the provision itself. The presumption is that the words
in which the constitutional provisions are couched
express the objective sought to be attained. 46 In other
words, verba legis still prevails. Only when the meaning
of the words used is unclear and equivocal should resort
be made to extraneous aids of construction and
interpretation, such as the proceedings of the
Constitutional Commission or Convention, in order to
shed light on and ascertain the true intent or purpose of
the provision being construed. 47
Indeed, as cited in the Separate Opinion of Justice
Mendoza, this Court stated in Civil Liberties Union v.
Executive Secretary 48 that "the debates and proceedings
of the constitutional convention [may be consulted] in
order to arrive at the reason and purpose of the resulting
Constitution x x x only when other guides fail as said
proceedings are powerless to vary the terms of the
Constitution when the meaning is clear. Debates in the
constitutional convention 'are of value as showing the
views of the individual members, and as indicating the
reason for their votes, but they give us no light as to the
views of the large majority who did not talk, much less of
the mass or our fellow citizens whose votes at the polls
gave that instrument the force of fundamental law. We
think it safer to construe the constitution from what
appears upon its face.' The proper interpretation
therefore depends more on how it was understood by
the people adopting it than in the framers' understanding
thereof."
Section 5, Article VI of the Constitution, relative to the
party-list system, is couched in clear terms: the
mechanics of the system shall be provided by law.
Pursuant thereto, Congress enacted RA 7941. In
understanding and implementing party-list
representation, we should therefore look at the law first.
Only when we find its provisions ambiguous should the
use of extraneous aids of construction be resorted to.
But, as discussed earlier, the intent of the law is obvious
and clear from its plain words. Section 2 thereof
unequivocally states that the party-list system of electing
congressional representatives was designed to "enable
underrepresented sectors, organizations and parties,
and who lack well-defined political constituencies but
who could contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole x x x." The criteria for participation is well defined.
Thus, there is no need for recourse to constitutional
deliberations, not even to the proceedings of Congress.
In any event, the framers' deliberations merely express
their individual opinions and are, at best, only persuasive
in construing the meaning and purpose of the
constitution or statute.
Be it remembered that the constitutionality or validity of
Sections 2 and 5 of RA 7941 is not an issue here.
Hence, they remain parts of the law, which must be
applied plainly and simply.
17
Fourth Issue:
Grave Abuse of Discretion
From its assailed Omnibus Resolution, it is manifest that
the Comelec failed to appreciate fully the clear policy of
the law and the Constitution. On the contrary, it seems to
have ignored the facet of the party-list system discussed
above. The OSG as its counsel admitted before the
Court that any group, even the non-marginalized and
overrepresented, could field candidates in the party-list
elections.
When a lower court, or a quasi-judicial agency like the
Commission on Elections, violates or ignores the
Constitution or the law, its action can be struck down by
this Court on the ground of grave abuse of
discretion. 49 Indeed, the function of all judicial and quasi-
judicial instrumentalities is to apply the law as they find it,
not to reinvent or second-guess it. 50
In its Memorandum, Petitioner Bayan Muna passionately
pleads for the outright disqualification of the major
political parties – Respondents Lakas-NUCD, LDP, NPC,
LP and PMP – on the ground that under Comelec
Resolution No. 4073, they have been accredited as the
five (six, including PDP-Laban) major political parties in
the May 14, 2001 elections. It argues that because of
this, they have the "advantage of getting official Comelec
Election Returns, Certificates of Canvass, preferred poll
watchers x x x." We note, however, that this accreditation
does not refer to the party-list election, but, inter alia, to
the election of district representatives for the purpose of
determining which parties would be entitled to watchers
under Section 26 of Republic Act No. 7166.
What is needed under the present circumstances,
however, is a factual determination of whether
respondents herein and, for that matter, all the 154
previously approved groups, have the necessary
qualifications to participate in the party-list elections,
pursuant to the Constitution and the law.
Bayan Muna also urges us to immediately rule out
Respondent Mamamayan Ayaw sa Droga (MAD),
because "it is a government entity using government
resources and privileges." This Court, however, is not a
trier of facts. 51 It is not equipped to receive evidence and
determine the truth of such factual allegations.
Basic rudiments of due process require that respondents
should first be given an opportunity to show that they
qualify under the guidelines promulgated in this
Decision, before they can be deprived of their right to
participate in and be elected under the party-list system.
Guidelines for Screening Party-List Participants
The Court, therefore, deems it proper to remand the
case to the Comelec for the latter to determine, after
summary evidentiary hearings, whether the 154 parties
and organizations allowed to participate in the party-list
elections comply with the requirements of the law. In this
light, the Court finds it appropriate to lay down the
following guidelines, culled from the law and the
Constitution, to assist the Comelec in its work.
First, the political party, sector, organization or coalition
must represent the marginalized and underrepresented
groups identified in Section 5 of RA 7941. In other words,
it must show -- through its constitution, articles of
incorporation, bylaws, history, platform of government
and track record -- that it represents and seeks to uplift
marginalized and underrepresented sectors. Verily,
majority of its membership should belong to the
marginalized and underrepresented. And it must
demonstrate that in a conflict of interests, it has chosen
or is likely to choose the interest of such sectors.
Second, while even major political parties are expressly
allowed by RA 7941 and the Constitution to participate in
the party-list system, they must comply with the declared
statutory policy of enabling "Filipino citizens belonging to
marginalized and underrepresented sectors x x x to be
elected to the House of Representatives." In other
words, while they are not disqualified merely on the
ground that they are political parties, they must show,
however, that they represent the interests of the
marginalized and underrepresented. The counsel of
Aksyon Demokratiko and other similarly situated political
parties admitted as much during the Oral Argument, as
the following quote shows:
"JUSTICE PANGANIBAN: I am not disputing that in my
question. All I am saying is, the political party must claim
to represent the marginalized and underrepresented
sectors?
ATTY. KAPUNAN: Yes, Your Honor, the answer is yes."52
Third, in view of the objections53 directed against the
registration of Ang Buhay Hayaang Yumabong, which is
allegedly a religious group, the Court notes the express
constitutional provision that the religious sector may not
be represented in the party-list system. The extent of the
constitutional proscription is demonstrated by the
following discussion during the deliberations of the
Constitutional Commission:
"MR. OPLE. x x x
In the event that a certain religious sect with nationwide
and even international networks of members and
supporters, in order to circumvent this prohibition,
decides to form its own political party in emulation of
those parties I had mentioned earlier as deriving their
inspiration and philosophies from well-established
religious faiths, will that also not fall within this
prohibition?
MR. MONSOD. If the evidence shows that the intention
is to go around the prohibition, then certainly the
Comelec can pierce through the legal fiction."54
The following discussion is also pertinent:
"MR. VILLACORTA. When the Commissioner proposed
"EXCEPT RELIGIOUS GROUPS," he is not, of course,
prohibiting priests, imams or pastors who may be elected
by, say, the indigenous community sector to represent
their group.
REV. RIGOS. Not at all, but I am objecting to anybody
who represents the Iglesia ni Kristo, the Catholic Church,
the Protestant Church et cetera."55
Furthermore, the Constitution provides that "religious
denominations and sects shall not be registered." 56 The
prohibition was explained by a member57 of the
Constitutional Commission in this wise: "[T] he
prohibition is on any religious organization registering as
a political party. I do not see any prohibition here against
a priest running as a candidate. That is not prohibited
here; it is the registration of a religious sect as a political
party."58
Fourth, a party or an organization must not be
disqualified under Section 6 of RA 7941, which
enumerates the grounds for disqualification as follows:
"(1) It is a religious sect or denomination,
organization or association organized for
religious purposes;
(2) It advocates violence or unlawful means to
seek its goal;
(3) It is a foreign party or organization;
(4) It is receiving support from any foreign
government, foreign political party, foundation,
organization, whether directly or through any of
its officers or members or indirectly through third
parties for partisan election purposes;
(5) It violates or fails to comply with laws, rules
or regulations relating to elections;
(6) It declares untruthful statements in its
petition;
(7) It has ceased to exist for at least one (1)
year; or
18
(8) It fails to participate in the last two (2)
preceding elections or fails to obtain at least two
per centum (2%) of the votes cast under the
party-list system in the two (2) preceding
elections for the constituency in which it has
registered."59
Note should be taken of paragraph 5, which disqualifies
a party or group for violation of or failure to comply with
election laws and regulations. These laws include
Section 2 of RA 7941, which states that the party-list
system seeks to "enable Filipino citizens belonging to
marginalized and underrepresented sectors,
organizations and parties x x x to become members of
the House of Representatives." A party or an
organization, therefore, that does not comply with this
policy must be disqualified.
Fifth, the party or organization must not be an adjunct of,
or a project organized or an entity funded or assisted by,
the government. By the very nature of the party-list
system, the party or organization must be a group of
citizens, organized by citizens and operated by citizens.
It must be independent of the government. The
participation of the government or its officials in the
affairs of a party-list candidate is not only illegal60 and
unfair to other parties, but also deleterious to the
objective of the law: to enable citizens belonging to
marginalized and underrepresented sectors and
organizations to be elected to the House of
Representatives.
Sixth, the party must not only comply with the
requirements of the law; its nominees must likewise do
so. Section 9 of RA 7941 reads as follows:
"SEC. 9. Qualifications of Party-List Nominees. – No
person shall be nominated as party-list representative
unless he is a natural-born citizen of the Philippines, a
registered voter, a resident of the Philippines for a period
of not less than one (1) year immediately preceding the
day of the election, able to read and write, a bona fide
member of the party or organization which he seeks to
represent for at least ninety (90) days preceding the day
of the election, and is at least twenty-five (25) years of
age on the day of the election.
In case of a nominee of the youth sector, he must at
least be twenty-five (25) but not more than thirty (30)
years of age on the day of the election. Any youth
sectoral representative who attains the age of thirty (30)
during his term shall be allowed to continue in office until
the expiration of his term."
Seventh, not only the candidate party or organization
must represent marginalized and underrepresented
sectors; so also must its nominees. To repeat, under
Section 2 of RA 7941, the nominees must be Filipino
citizens "who belong to marginalized and
underrepresented sectors, organizations and parties."
Surely, the interests of the youth cannot be fully
represented by a retiree; neither can those of the urban
poor or the working class, by an industrialist. To allow
otherwise is to betray the State policy to give genuine
representation to the marginalized and
underrepresented.
Eighth, as previously discussed, while lacking a well-
defined political constituency, the nominee must likewise
be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a
whole. Senator Jose Lina explained during the bicameral
committee proceedings that "the nominee of a party,
national or regional, is not going to represent a particular
district x x x."61
Epilogue
The linchpin of this case is the clear and plain policy of
the law: "to enable Filipino citizens belonging to
marginalized and underrepresented sectors,
organizations and parties, and who lack well-defined
political constituencies but who could contribute to the
formulation and enactment of appropriate legislation that
will benefit the nation as a whole, to become members of
the House of Representatives."
Crucial to the resolution of this case is the fundamental
social justice principle that those who have less in life
should have more in law. The party-list system is one
such tool intended to benefit those who have less in life.
It gives the great masses of our people genuine hope
and genuine power. It is a message to the destitute and
the prejudiced, and even to those in the underground,
that change is possible. It is an invitation for them to
come out of their limbo and seize the opportunity.
Clearly, therefore, the Court cannot accept the
submissions of the Comelec and the other respondents
that the party-list system is, without any qualification,
open to all. Such position does not only weaken the
electoral chances of the marginalized and
underrepresented; it also prejudices them. It would gut
the substance of the party-list system. Instead of
generating hope, it would create a mirage. Instead of
enabling the marginalized, it would further weaken them
and aggravate their marginalization.
In effect, the Comelec would have us believe that the
party-list provisions of the Constitution and RA 7941 are
nothing more than a play on dubious words, a mockery
of noble intentions, and an empty offering on the altar of
people empowerment. Surely, this could not have been
the intention of the framers of the Constitution and the
makers of RA 7941.
WHEREFORE, this case is REMANDED to the
Comelec, which is hereby DIRECTED to immediately
conduct summary evidentiary hearings on the
qualifications of the party-list participants in the light of
the guidelines enunciated in this Decision. Considering
the extreme urgency of determining the winners in the
last party-list elections, the Comelec is directed to begin
its hearings for the parties and organizations that appear
to have garnered such number of votes as to qualify for
seats in the House of Representatives. The Comelec is
further DIRECTED to submit to this Court its compliance
report within 30 days from notice hereof.1âwphi1.nêt
The Resolution of this Court dated May 9, 2001,
directing the Comelec "to refrain from proclaiming any
winner" during the last party-list election, shall remain in
force until after the Comelec itself will have complied and
reported its compliance with the foregoing disposition.
This Decision is immediately executory upon the
Commission on Elections' receipt thereof. No
pronouncement as to costs.
SO ORDERED.
G.R. No. 147589 June 26, 2001
ANG BAGONG BAYANI vs. Comelec
x---------------------------------------------------------x
G.R. No. 147613 June 26, 2001
BAYAN MUNA vs. Comelec
Facts
Petitioners challenged the Comelec’s Omnibus
Resolution No. 3785, which approved the participation of
154 organizations and parties, including those herein
impleaded, in the 2001 party-list elections. Petitioners
sought the disqualification of private respondents,
arguing mainly that the party-list system was intended to
benefit the marginalized and underrepresented; not the
mainstream political parties, the non-marginalized or
overrepresented. Unsatisfied with the pace by which
Comelec acted on their petition, petitioners elevated the
issue to the Supreme Court.
Issue:
1. Whether or not petitioner’s recourse to the Court
was proper.
19
2. Whether or not political parties may participate in
the party list elections.
3. Whether or not the Comelec committed grave
abuse of discretion in promulgating Omnibus Resolution
No. 3785.
RULING:
1. The Court may take cognizance of an issue
notwithstanding the availability of other remedies "where
the issue raised is one purely of law, where public
interest is involved, and in case of urgency." The facts
attendant to the case rendered it justiciable.
2. Political Parties -- even the major ones -- may
participate in the party-list elections subject to the
requirements laid down in the Constitution and RA 7941,
which is the statutory law pertinent to the Party List
System.
Under the Constitution and RA 7941, private
respondents cannot be disqualified from the party-list
elections, merely on the ground that they are political
parties. Section 5, Article VI of the Constitution provides
that members of the House of Representative may “be
elected through a party-list system of registered national,
regional, and sectoral parties or organizations”. It is
however, incumbent upon the COMELEC to determine
proportional representation of the marginalized and
underrepresented”, the criteria for participation in relation
to the cause of the party lsit applicants so as to avoid
desecration of the noble purpose of the party-list system.
3. The Court acknowledged that to determine the
propriety of the inclusion of respondents in the Omnibus
Resolution No. 3785, a study of the factual allegations
was necessary which was beyond the pale of the Court.
The Court not being a trier of facts.
However, seeing that the Comelec failed to
appreciate fully the clear policy of the law and the
Consitution, the Court decided to set some guidelines
culled from the law and the Consitution, to assist the
Comelec in its work. The Court ordered that the petition
be remanded in the Comelec to determine compliance
by the party lists.
[G.R. Nos. 132875-76. February 3, 2000
PEOPLE OF THE PHILIPPINES, Plaintiff-
Appellee, v. ROMEO G. JALOSJOS, Accused-
Appellant.
RESOLUTION
YNARES-SANTIAGO, J.:
The accused-appellant, Romeo G. Jalosjos is a
full-fledged member of Congress who is now
confined at the national penitentiary while his
conviction for statutory rape on two counts and
acts of lasciviousness on six counts1 is pending
appeal. The accused-appellant filed this motion
asking that he be allowed to fully discharge the
duties of a Congressman, including attendance at
legislative sessions and committee meetings
despite his having been convicted in the first
instance of a non-bailable offense.
The issue raised is one of first impression.
Does membership in Congress exempt an
accused from statutes and rules which apply to
validly incarcerated persons in general? In
answering the query, we are called upon to
balance relevant and conflicting factors in the
judicial interpretation of legislative privilege in
the context of penal law.
The accused-appellants "Motion To Be Allowed To
Discharge Mandate As Member of House of
Representatives" was filed on the grounds that
1. Accused-appellants reelection being an
expression of popular will cannot be rendered
inutile by any ruling, giving priority to any right
or interest not even the police power of the
State.
2. To deprive the electorate of their elected
representative amounts to taxation without
representation.
3. To bar accused-appellant from performing his
duties amounts to his suspension/removal and
mocks the renewed mandate entrusted to him by
the people.
4. The electorate of the First District of
Zamboanga del Norte wants their voice to be
heard.
5. A precedent-setting U.S. ruling allowed a
detained lawmaker to attend sessions of the U.S.
Congress.
6. The House treats accused-appellant as a bona
fide member thereof and urges a co-equal branch
of government to respect its mandate.
7. The concept of temporary detention does not
necessarily curtail the duty of accused-appellant
to discharge his mandate.
8. Accused-appellant has always complied with
the conditions/restrictions when allowed to leave
jail.
The primary argument of the movant is the
"mandate of sovereign will." He states that the
sovereign electorate of the First District of
Zamboanga del Norte chose him as their
representative in Congress. Having been re-
elected by his constituents, he has the duty to
perform the functions of a Congressman. He calls
this a covenant with his constituents made
possible by the intervention of the State. He adds
that it cannot be defeated by insuperable
procedural restraints arising from pending
criminal cases.
True, election is the expression of the sovereign
power of the people. In the exercise of suffrage,
a free people expects to achieve the continuity of
government and the perpetuation of its benefits.
However, inspite of its importance, the privileges
and rights arising from having been elected may
be enlarged or restricted by law. Our first task is
to ascertain the applicable law.
We start with the incontestable proposition that
all top officials of Government-executive,
legislative, and judicial are subject to the majesty
of law. There is an unfortunate misimpression in
the public mind that election or appointment to
high government office, by itself, frees the official
from the common restraints of general law.
Privilege has to be granted by law, not inferred
from the duties of a position. In fact, the higher
the rank, the greater is the requirement of
obedience rather than exemption.
The immunity from arrest or detention of
Senators and members of the House of
Representatives, the latter customarily addressed
as Congressmen, arises from a provision of the
Constitution. The history of the provision shows
that the privilege has always been granted in a
restrictive sense. The provision granting an
20
exemption as a special privilege cannot be
extended beyond the ordinary meaning of its
terms. It may not be extended by intendment,
implication or equitable considerations.
The 1935 Constitution provided in its Article VI
on the Legislative Department:
Sec. 15. The Senators and Members of the House
of Representatives shall in all cases except
treason, felony, and breach of the peace be
privileged from arrest during their attendance at
the sessions of Congress, and in going to and
returning from the same; xxx.
Because of the broad coverage of felony and
breach of the peace, the exemption applied only
to civil arrests. A congressman like the accused-
appellant, convicted under Title Eleven of the
Revised Penal Code could not claim parliamentary
immunity from arrest. He was subject to the
same general laws governing all persons still to
be tried or whose convictions were pending
appeal.
The 1973 Constitution broadened the privilege of
immunity as follows:
Article VIII, Sec. 9. A Member of the Batasang
Pambansa shall, in all offenses punishable by not
more than six years imprisonment, be privileged
from arrest during his attendance at its sessions
and in going to and returning from the same.
For offenses punishable by more than six years
imprisonment, there was no immunity from
arrest. The restrictive interpretation of immunity
and the intent to confine it within carefully
defined parameters is illustrated by the
concluding portion of the provision, to wit:
xxx but the Batasang Pambansa shall surrender
the member involved to the custody of the law
within twenty four hours after its adjournment for
a recess or for its next session, otherwise such
privilege shall cease upon its failure to do so.
The present Constitution adheres to the same
restrictive rule minus the obligation of Congress
to surrender the subject Congressman to the
custody of the law. The requirement that he
should be attending sessions or committee
meetings has also been removed. For relatively
minor offenses, it is enough that Congress is in
session.
The accused-appellant argues that a member of
Congress function to attend sessions is
underscored by Section 16 (2), Article VI of the
Constitution which states that
(2) A majority of each House shall constitute a
quorum to do business, but a smaller number
may adjourn from day to day and may compel
the attendance of absent Members in such
manner, and under such penalties, as such House
may provide.
However, the accused-appellant has not given
any reason why he should be exempted from the
operation of Section 11, Article VI of the
Constitution. The members of Congress cannot
compel absent members to attend sessions if the
reason for the absence is a legitimate one. The
confinement of a Congressman charged with a
crime punishable by imprisonment of more than
six months is not merely authorized by law, it has
constitutional foundations.
Accused-appellants reliance on the ruling
in Aguinaldo v. Santos2 , which states, inter alia,
that
The Court should never remove a public officer
for acts done prior to his present term of office.
To do otherwise would be to deprive the people
of their right to elect their officers. When a
people have elected a man to office, it must be
assumed that they did this with the knowledge of
his life and character, and that they disregarded
or forgave his fault or misconduct, if he had been
guilty of any. It is not for the Court, by reason of
such fault or misconduct, to practically overrule
the will of the people.
will not extricate him from his predicament. It
can be readily seen in the above-quoted ruling
that the Aguinaldo case involves the
administrative removal of a public officer for acts
done prior to his present term of office. It does
not apply to imprisonment arising from the
enforcement of criminal law. Moreover, in the
same way that preventive suspension is not
removal, confinement pending appeal is not
removal. He remains a congressman unless
expelled by Congress or, otherwise, disqualified.
One rationale behind confinement, whether
pending appeal or after final conviction, is public
self-defense. Society must protect itself. It also
serves as an example and warning to others.
A person charged with crime is taken into
custody for purposes of the administration of
justice. As stated in United States v. Gustilo,3 it is
the injury to the public which State action in
criminal law seeks to redress. It is not the injury
to the complainant. After conviction in the
Regional Trial Court, the accused may be denied
bail and thus subjected to incarceration if there is
risk of his absconding.4cräläwvirtualibräry
The accused-appellant states that the plea of the
electorate which voted him into office cannot be
supplanted by unfounded fears that he might
escape eventual punishment if permitted to
perform congressional duties outside his regular
place of confinement.
It will be recalled that when a warrant for
accused-appellants arrest was issued, he fled and
evaded capture despite a call from his colleagues
in the House of Representatives for him to attend
the sessions and to surrender voluntarily to the
authorities. Ironically, it is now the same body
whose call he initially spurned which accused-
appellant is invoking to justify his present
motion. This can not be countenanced because,
to reiterate, aside from its being contrary to well-
defined Constitutional restrains, it would be a
mockery of the aims of the States penal system.
Accused-appellant argues that on several
occasions, the Regional Trial Court of Makati
granted several motions to temporarily leave his
cell at the Makati City Jail, for official or
medieasons, to wit:
a) to attend hearings of the House Committee on
Ethics held at the Batasan Complex, Quezon City,
on the issue of whether to expel/suspend him
from the House of Representatives;
b) to undergo dental examination and treatment
at the clinic of his dentist in Makati City;
c) to undergo a thorough medical check-up at the
Makati Medical Center, Makati City;
21
d) to register as a voter at his hometown in
Dapitan City. In this case, accused-appellant
commuted by chartered plane and private
vehicle.
He also calls attention to various instances, after
his transfer at the New Bilibid Prison in
Muntinlupa City, when he was likewise
allowed/permitted to leave the prison premises,
to wit:
a) to join "living-out" prisoners on "work-
volunteer program" for the purpose of 1)
establishing a mahogany seedling bank and 2)
planting mahogany trees, at the NBP reservation.
For this purpose, he was assigned one guard and
allowed to use his own vehicle and driver in going
to and from the project area and his place of
confinement.
b) to continue with his dental treatment at the
clinic of his dentist in Makati City.
c) to be confined at the Makati Medical Center in
Makati City for his heart condition.
There is no showing that the above privileges are
peculiar to him or to a member of Congress.
Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders.
What the accused-appellant seeks is not of an
emergency nature. Allowing accused-appellant to
attend congressional sessions and committee
meetings for five (5) days or more in a week will
virtually make him a free man with all the
privileges appurtenant to his position. Such an
aberrant situation not only elevates accused-
appellants status to that of a special class, it also
would be a mockery of the purposes of the
correction system. Of particular relevance in this
regard are the following observations of the Court
in Martinez v. Morfe:5cräläwvirtualibräry
The above conclusion reached by this Court is
bolstered and fortified by policy considerations.
There is, to be sure, a full recognition of the
necessity to have members of Congress, and
likewise delegates to the Constitutional
Convention, entitled to the utmost freedom to
enable them to discharge their vital
responsibilities, bowing to no other force except
the dictates of their conscience. Necessarily the
utmost latitude in free speech should be accorded
them. When it comes to freedom from arrest,
however, it would amount to the creation of a
privileged class, without justification in reason, if
notwithstanding their liability for a criminal
offense, they would be considered immune during
their attendance in Congress and in going to and
returning from the same. There is likely to be no
dissent from the proposition that a legislator or a
delegate can perform his functions efficiently and
well, without the need for any transgression of
the criminal law. Should such an unfortunate
event come to pass, he is to be treated like any
other citizen considering that there is a strong
public interest in seeing to it that crime should
not go unpunished. To the fear that may be
expressed that the prosecuting arm of the
government might unjustly go after legislators
belonging to the minority, it suffices to answer
that precisely all the safeguards thrown around
an accused by the Constitution, solicitous of the
rights of an individual, would constitute an
obstacle to such an attempt at abuse of power.
The presumption of course is that the judiciary
would remain independent. It is trite to say that
in each and every manifestation of judicial
endeavor, such a virtue is of the essence.
The accused-appellant avers that his constituents
in the First District of Zamboanga del Norte want
their voices to be heard and that since he is
treated as bona fide member of the House of
Representatives, the latter urges a co-equal
branch of government to respect his mandate. He
also claims that the concept of temporary
detention does not necessarily curtail his duty to
discharge his mandate and that he has always
complied with the conditions/restrictions when he
is allowed to leave jail.
We remain unpersuaded.
No less than accused-appellant himself admits
that like any other member of the House of
Representatives "[h]e is provided with a
congressional office situated at Room N-214,
North Wing Building, House of Representatives
Complex, Batasan Hills, Quezon City, manned by
a full complement of staff paid for by Congress.
Through [an] inter-department coordination, he
is also provided with an office at the
Administration Building, New Bilibid Prison,
Muntinlupa City, where he attends to his
constituents." Accused-appellant further admits
that while under detention, he has filed several
bills and resolutions. It also appears that he has
been receiving his salaries and other monetary
benefits. Succinctly stated, accused-appellant has
been discharging his mandate as a member of
the House of Representative consistent with the
restraints upon one who is presently under
detention. Being a detainee, accused-appellant
should not even have been allowed by the prison
authorities at the National Pentientiary to
perform these acts.
When the voters of his district elected the
accused-appellant to Congress, they did so with
full awareness of the limitations on his freedom
of action. They did so with the knowledge that he
could achieve only such legislative results which
he could accomplish within the confines of prison.
To give a more drastic illustration, if voters elect
a person with full knowledge that he is suffering
from a terminal illness, they do so knowing that
at any time, he may no longer serve his full term
in office.
In the ultimate analysis, the issue before us boils
down to a question of constitutional equal
protection.
The Constitution guarantees: "x x x nor shall any
person be denied the equal protection of
laws."6 This simply means that all persons
similarly situated shall be treated alike both in
rights enjoyed and responsibilities imposed.7 The
organs of government may not show any undue
favoritism or hostility to any person. Neither
partiality nor prejudice shall be displayed.
Does being an elective official result in a
substantial distinction that allows different
treatment? Is being a Congressman a substantial
differentiation which removes the accused-
appellant as a prisoner from the same class as all
persons validly confined under law?
22
The performance of legitimate and even essential
duties by public officers has never been an
excuse to free a person validly in prison. The
duties imposed by the "mandate of the people"
are multifarious. The accused-appellant asserts
that the duty to legislate ranks highest in the
hierarchy of government. The accused-appellant
is only one of 250 members of the House of
Representatives, not to mention the 24 members
of the Senate, charged with the duties of
legislation. Congress continues to function well in
the physical absence of one or a few of its
members. Depending on the exigency of
Government that has to be addressed, the
President or the Supreme Court can also be
deemed the highest for that particular duty. The
importance of a function depends on the need for
its exercise. The duty of a mother to nurse her
infant is most compelling under the law of nature.
A doctor with unique skills has the duty to save
the lives of those with a particular affliction. An
elective governor has to serve provincial
constituents. A police officer must maintain peace
and order. Never has the call of a particular duty
lifted a prisoner into a different classification from
those others who are validly restrained by law.
A strict scrutiny of classifications is essential lest
wittingly or otherwise, insidious discriminations
are made in favor of or against groups or types of
individuals.8cräläwvirtualibräry
The Court cannot validate badges of inequality.
The necessities imposed by public welfare may
justify exercise of government authority to
regulate even if thereby certain groups may
plausibly assert that their interests are
disregarded.9cräläwvirtualibräry
We, therefore, find that election to the position of
Congressman is not a reasonable classification in
criminal law enforcement. The functions and
duties of the office are not substantial distinctions
which lift him from the class of prisoners
interrupted in their freedom and restricted in
liberty of movement. Lawful arrest and
confinement are germane to the purposes of the
law and apply to all those belonging to the same
class.10cräläwvirtualibräry
Imprisonment is the restraint of a mans personal
liberty; coercion exercised upon a person to
prevent the free exercise of his power of
locomotion.11cräläwvirtualibräry
More explicitly, "imprisonment" in its general
sense, is the restraint of ones liberty. As a
punishment, it is restraint by judgment of a court
or lawful tribunal, and is personal to the
accused.12 The term refers to the restraint on the
personal liberty of another; any prevention of his
movements from place to place, or of his free
action according to his own pleasure and
will.13 Imprisonment is the detention of another
against his will depriving him of his power of
locomotion14 and it "[is] something more than
mere loss of freedom. It includes the notion
of restraint within limits defined by wall or any
exterior barrier."15cräläwvirtualibräry
It can be seen from the foregoing that
incarceration, by its nature, changes an
individuals status in society.16 Prison officials
have the difficult and often thankless job of
preserving the security in a potentially explosive
setting, as well as of attempting to provide
rehabilitation that prepares inmates for re-entry
into the social mainstream. Necessarily, both
these demands require the curtailment and
elimination of certain rights.17cräläwvirtualibräry
Premises considered, we are constrained to rule
against the accused-appellants claim that re-
election to public office gives priority to any other
right or interest, including the police power of the
State.
WHEREFORE , the instant motion is hereby
DENIED.
SO ORDERED.
PEOPLE V JALOSJOS
Feb. 3, 2000
Facts: The accused-appellant, Romeo Jalosjos, is a full-
fledged member of Congress who is confined at the
national penitentiary while his conviction for statutory
rape and acts of lasciviousness is pending appeal. The
accused-appellant filed a motion asking that he be
allowed to fully discharge the duties of a Congressman,
including attendance at legislative sessions and
committee meetings despite his having been convicted in
the first instance of a non-bailable offense on the basis of
popular sovereignty and the need for his constituents to
be represented
Issue: Whether or not accused-appellant should be
allowed to discharge mandate as member of House of
Representatives
Held: Election is the expression of the sovereign power
of the people. However, inspite of its importance, the
privileges and rights arising from having been elected
may be enlarged or restricted by law.
The immunity from arrest or detention of Senators and
members of the House of Representatives arises from a
provision of the Constitution. The privilege has always
been granted in a restrictive sense. The provision
granting an exemption as a special privilege cannot be
extended beyond the ordinary meaning of its terms. It
may not be extended by intendment, implication or
equitable considerations.
The accused-appellant has not given any reason why he
should be exempted from the operation of Sec. 11, Art. VI
of the Constitution. The members of Congress cannot
compel absent members to attend sessions if the reason
for the absence is a legitimate one. The confinement of a
Congressman charged with a crime punishable by
imprisonment of more than six years is not merely
authorized by law, it has constitutional foundations. To
allow accused-appellant to attend congressional sessions
and committee meetings for 5 days or more in a week
will virtually make him a free man with all the privileges
appurtenant to his position. Such an aberrant situation
not only elevates accused-appellant’s status to that of a
special class, it also would be a mockery of the purposes
of the correction system.
G.R. No. 179817 June 27, 2008
ANTONIO F. TRILLANES IV, petitioner,
vs.
HON. OSCAR PIMENTEL, SR., IN HIS CAPACITY AS
PRESIDING JUDGE, REGIONAL TRIAL COURT-
BRANCH 148, MAKATI CITY; GEN. HERMOGENES
ESPERON, VICE ADM. ROGELIO I. CALUNSAG,
MGEN. BENJAMIN DOLORFINO, AND LT. COL.
LUCIARDO OBEÑA, respondents.
DECISION
CARPIO MORALES, J.:
23
At the wee hours of July 27, 2003, a group of more than
300 heavily armed soldiers led by junior officers of the
Armed Forces of the Philippines (AFP) stormed into the
Oakwood Premier Apartments in Makati City and publicly
demanded the resignation of the President and key
national officials.
Later in the day, President Gloria Macapagal Arroyo
issued Proclamation No. 427 and General Order No. 4
declaring a state of rebellion and calling out the Armed
Forces to suppress the rebellion.1 A series of
negotiations quelled the teeming tension and eventually
resolved the impasse with the surrender of the militant
soldiers that evening.
In the aftermath of this eventful episode dubbed as the
"Oakwood Incident," petitioner Antonio F. Trillanes IV
was charged, along with his comrades, with coup
d’etat defined under Article 134-A of the Revised Penal
Code before the Regional Trial Court (RTC) of Makati.
The case was docketed as Criminal Case No. 03-2784,
"People v. Capt. Milo D. Maestrecampo, et al."
Close to four years later, petitioner, who has remained in
detention,2 threw his hat in the political arena and won a
seat in the Senate with a six-year term commencing at
noon on June 30, 2007.3
Before the commencement of his term or on June 22,
2007, petitioner filed with the RTC, Makati City, Branch
148, an "Omnibus Motion for Leave of Court to be
Allowed to Attend Senate Sessions and Related
Requests"4 (Omnibus Motion). Among his requests were:
(a) To be allowed to go to the Senate to attend
all official functions of the Senate (whether at the
Senate or elsewhere) particularly when the
Senate is in session, and to attend the regular
and plenary sessions of the Senate, committee
hearings, committee meetings, consultations,
investigations and hearings in aid of legislation,
caucuses, staff meetings, etc., which are
normally held at the Senate of the Philippines
located at the GSIS Financial Center, Pasay City
(usually from Mondays to Thursdays from 8:00
a.m. to 7:00 p.m.);
(b) To be allowed to set up a working area at his
place of detention at the Marine Brig, Marine
Barracks Manila, Fort Bonifacio, Taguig City,
with a personal desktop computer and the
appropriate communications equipment (i.e., a
telephone line and internet access) in order that
he may be able to work there when there are no
sessions, meetings or hearings at the Senate or
when the Senate is not in session. The costs of
setting up the said working area and the related
equipment and utility costs can be charged
against the budget/allocation of the Office of the
accused from the Senate;
(c) To be allowed to receive members of his staff
at the said working area at his place of detention
at the Marine Brig, Marine Barracks Manila, Fort
Bonifacio, Taguig City, at reasonable times of the
day particularly during working days for
purposes of meetings, briefings, consultations
and/or coordination, so that the latter may be
able to assists (sic) him in the performance and
discharge of his duties as a Senator of the
Republic;
(d) To be allowed to give interviews and to air his
comments, reactions and/or opinions to the
press or the media regarding the important
issues affecting the country and the public while
at the Senate or elsewhere in the performance
of his duties as Senator to help shape public
policy and in the light of the important role of the
Senate in maintaining the system of checks and
 balance between the three (3) co-equal UNLIKE IN THIS CASE, THE
branches of Government; ACCUSED IN THE JALOSJOS CASE
(e) With prior notice to the Honorable Court and WAS ALREADY CONVICTED AT THE
to the accused and his custodians, to be TIME HE FILED HIS MOTION. IN THE
allowed to receive, on Tuesdays and INSTANT CASE,
Fridays, reporters and other members of the ACCUSED/PETITIONER HAS NOT
media who may wish to interview him and/or to BEEN CONVICTED AND,
get his comments, reactions and/or opinion at THEREFORE, STILL ENJOYS THE
his place of confinement at the Marine Brig, PRESUMPTION OF INNOCENCE;
Marine Barracks Manila, Fort Bonifacio, Taguig B.
City, particularly when there are no sessions, THE ACCUSED IN THE JALOJOS (SIC)
meetings or hearings at the Senate or when the CASE WAS CHARGED WITH TWO (2)
Senate is not in session; and COUNTS OF STATUTORY RAPE AND
(f) To be allowed to attend the organizational SIX (6) COUNTS OF ACTS OF
meeting and election of officers of the Senate LASCIVIOUSNESS, CRIMES
and related activities scheduled in the morning INVOLVING MORAL TURPITUDE.
(9:00 or 10:00 a.m.) of 23 July 2007 at the HEREIN ACCUSED/PETITIONER IS
Senate of the Philippines located at the GSIS CHARGED WITH THE OFFENSE OF
Financial Center, Pasay City.5 "COUP D’ETAT", A CHARGE WHICH IS
By Order of July 25, 2007,6 the trial court denied all the COMMONLY REGARDED AS A
requests in the Omnibus Motion. Petitioner moved for POLITICAL OFFENSE;
reconsideration in which he waived his requests in C.
paragraphs (b), (c) and (f) to thus trim them down to THE ACCUSED IN THE JALOSJOS
three.7 The trial court just the same denied the motion by CASE ATTEMPTED TO FLEE PRIOR
Order of September 18, 2007.8 TO BEING ARRESTED. THE
Hence, the present petition for certiorari to set aside the ACCUSED/ PETITIONER
two Orders of the trial court, and VOLUNTARILY SURRENDERED TO
for prohibition and mandamus to (i) enjoin respondents THE AUTHORITIES AND AGREED TO
from banning the Senate staff, resource persons and TAKE RESPONSIBILITY FOR HIS
guests from meeting with him or transacting business ACTS AT OAKWOOD;
with him in his capacity as Senator; and (ii) direct II.
respondents to allow him access to the Senate staff, GEN. ESPERON DID NOT OVERRULE THE
resource persons and guests and permit him to attend all RECOMMENDATION OF THE MARINE BRIG’S
sessions and official functions of the Senate. Petitioner COMMANDING OFFICER TO ALLOW
preliminarily prayed for the maintenance of the status PETITIONER TO ATTEND THE SENATE
quo ante of having been able hitherto to convene his SESSIONS;
staff, resource persons and guests9 at the Marine Brig.
III.
Impleaded as co-respondents of Judge Oscar Pimentel,
Sr. are AFP Chief of Staff, Gen. Hermogenes Esperon ACCUSED/PETITIONER SUBMITS THAT THE
(Esperon); Philippine Navy’s Flag Officer-in-Command, FACT THAT THE PEOPLE, IN THEIR
Vice Admiral Rogelio Calunsag; Philippine Marines’ SOVEREIGN CAPACITY, ELECTED HIM TO
Commandant, Major Gen. Benjamin Dolorfino; and THE POSITION OF SENATOR OF THE
Marine Barracks Manila Commanding Officer, Lt. Col. REPUBLIC PROVIDES THE PROPER LEGAL
Luciardo Obeña (Obeña). JUSTIFICATION TO ALLOW HIM TO WORK
AND SERVE HIS MANDATE AS A SENATOR;
Petitioner later manifested, in his Reply of February 26,
2008, that he has, since November 30, 2007, been in the - AND -
custody of the Philippine National Police (PNP) Custodial IV.
Center following the foiled take-over of the Manila MOREOVER, THERE ARE ENOUGH
Peninsula Hotel10 the day before or on November 29, PRECEDENTS TO ALLOW LIBERAL
2007. TREATMENT OF DETENTION PRISONERS
Such change in circumstances thus dictates the WHO ARE HELD WITHOUT BAIL AS IN THE
discontinuation of the action as against the above- CASE OF FORMER PRESIDENT JOSEPH
named military officers-respondents. The issues raised "ERAP" ESTRADA AND FORMER ARMM GOV.
in relation to them had ceased to present a justiciable NUR MISUARI.13
controversy, so that a determination thereof would be The petition is bereft of merit.
without practical value and use. Meanwhile, against In attempting to strike a distinction between his case and
those not made parties to the case, petitioner cannot ask that of Jalosjos, petitioner chiefly points out that former
for reliefs from this Court.11 Petitioner did not, by way of Rep. Romeo Jalosjos (Jalosjos) was already convicted,
substitution, implead the police officers currently albeit his conviction was pending appeal, when he filed a
exercising custodial responsibility over him; and he did motion similar to petitioner’s Omnibus Motion, whereas
not satisfactorily show that they have adopted or he (petitioner) is a mere detention prisoner. He asserts
continued the assailed actions of the former that he continues to enjoy civil and political rights since
custodians.12 the presumption of innocence is still in his favor.
Petitioner reiterates the following grounds which mirror Further, petitioner illustrates that Jalosjos was charged
those previously raised in his Motion for Reconsideration with crimes involving moral turpitude, i.e., two counts of
filed with the trial court: statutory rape and six counts of acts of lasciviousness,
I. whereas he is indicted for coup d’etat which is regarded
THE JURISPRUDENCE CITED BY THE as a "political offense."
HONORABLE COURT A QUO IS CLEARLY Furthermore, petitioner justifies in his favor the presence
INAPPLICABLE TO THE INSTANT CASE of noble causes in expressing legitimate grievances
BECAUSE OF THE FOLLOWING REASONS: against the rampant and institutionalized practice of graft
A. and corruption in the AFP.

24
In sum, petitioner’s first ground posits that there is a
world of difference between his case and that of Jalosjos
respecting the type of offense involved, the stage of filing
of the motion, and other circumstances which
demonstrate the inapplicability of Jalosjos.14
A plain reading of. Jalosjos suggests otherwise,
however.
The distinctions cited by petitioner were not elemental in
the pronouncement in Jalosjos that election to Congress
is not a reasonable classification in criminal law
enforcement as the functions and duties of the office are
not substantial distinctions which lift one from the class
of prisoners interrupted in their freedom and restricted in
liberty of movement.15
It cannot be gainsaid that a person charged with a crime
is taken into custody for purposes of the administration
of justice. No less than the Constitution provides:
All persons, except those charged with offenses
punishable by reclusion perpetua when evidence
of guilt is strong, shall, before conviction, be
bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The
right to bail shall not be impaired even when the
privilege of the writ of habeas corpus is
suspended. Excessive bail shall not be
required.16 (Underscoring supplied)
The Rules also state that no person charged with a
capital offense,17 or an offense punishable by reclusion
perpetua or life imprisonment, shall be admitted to bail
when evidence of guilt is strong, regardless of the stage
of the criminal action.18
That the cited provisions apply equally to rape and coup
d’etat cases, both being punishable by reclusion
perpetua,19 is beyond cavil. Within the class of offenses
covered by the stated range of imposable penalties,
there is clearly no distinction as to the political
complexion of or moral turpitude involved in the crime
charged.
In the present case, it is uncontroverted that petitioner’s
application for bail and for release on recognizance was
denied.20 The determination that the evidence of guilt is
strong, whether ascertained in a hearing of an
application for bail21 or imported from a trial court’s
judgment of conviction,22 justifies the detention of an
accused as a valid curtailment of his right to provisional
liberty. This accentuates the proviso that the denial of the
right to bail in such cases is "regardless of the stage of
the criminal action." Such justification for confinement
with its underlying rationale of public self-
defense23 applies equally to detention prisoners like
petitioner or convicted prisoners-appellants like Jalosjos.
As the Court observed in Alejano v. Cabuay,24 it is
impractical to draw a line between convicted prisoners
and pre-trial detainees for the purpose of maintaining jail
security; and while pre-trial detainees do not forfeit their
constitutional rights upon confinement, the fact of their
detention makes their rights more limited than those of
the public.
The Court was more emphatic in People v. Hon.
Maceda:25
As a matter of law, when a person indicted for an
offense is arrested, he is deemed placed under
the custody of the law. He is placed in actual
restraint of liberty in jail so that he may be bound
to answer for the commission of the offense. He
must be detained in jail during the pendency of
the case against him, unless he is authorized by
the court to be released on bail or on
recognizance. Let it be stressed that all
prisoners whether under preventive detention or
serving final sentence can not practice their
profession nor engage in any business or
occupation, or hold office, elective or appointive,
25
while in detention. This is a necessary
consequence of arrest and
detention.26 (Underscoring supplied)
These inherent limitations, however, must be taken into
account only to the extent that confinement restrains the
power of locomotion or actual physical movement. It
bears noting that in Jalosjos, which was decided en
banc one month after Maceda, the Court recognized that
the accused could somehow accomplish legislative
results.27
The trial court thus correctly concluded that the
presumption of innocence does not carry with it the full
enjoyment of civil and political rights.
Petitioner is similarly situated with Jalosjos with respect
to the application of the presumption of innocence during
the period material to the resolution of their respective
motions. The Court in Jalosjos did not mention that the
presumption of innocence no longer operates in favor of
the accused pending the review on appeal of the
judgment of conviction. The rule stands that until a
promulgation of final conviction is made, the
constitutional mandate ofpresumption of innocence
prevails.28
In addition to the inherent restraints, the Court notes that
petitioner neither denied nor disputed his agreeing to a
consensus with the prosecution that media access to
him should cease after his proclamation by the
Commission on Elections.29
Petitioner goes on to allege that unlike Jalosjos who
attempted to evade trial, he is not a flight risk since he
voluntarily surrendered to the proper authorities and
such can be proven by the numerous times he was
allowed to travel outside his place of detention.
Subsequent events reveal the contrary, however. The
assailed Orders augured well when on November 29,
2007 petitioner went past security detail for some reason
and proceeded from the courtroom to a posh hotel to
issue certain statements. The account, dubbed this time
as the "Manila Pen Incident,"30 proves that petitioner’s
argument bites the dust. The risk that he would escape
ceased to be neither remote nor nil as, in fact, the cause
for foreboding became real.
Moreover, circumstances indicating probability of flight
find relevance as a factor in ascertaining the reasonable
amount of bail and in canceling a discretionary grant of
bail.31 In cases involving non-bailable offenses, what is
controlling is the determination of whether the evidence
of guilt is strong. Once it is established that it is so, bail
shall be denied as it is neither a matter of right nor of
discretion.32
Petitioner cannot find solace in Montano v. Ocampo33 to
buttress his plea for leeway because unlike petitioner,
the therein petitioner, then Senator Justiniano Montano,
who was charged with multiple murder and multiple
frustrated murder,34 was able to rebut the strong
evidence for the prosecution. Notatu dignum is this
Court’s pronouncement therein that "if denial of bail is
authorized in capital cases, it is only on the theory
that the proof being strong, the defendant would flee, if
he has the opportunity, rather than face the verdict of the
jury."35 At the time Montano was indicted, when only
capital offenses were non-bailable where evidence of
guilt is strong,36 the Court noted the obvious reason that
"one who faces a probable death sentence has a
particularly strong temptation to flee." 37Petitioner’s
petition for bail having earlier been denied, he cannot
rely on Montano to reiterate his requests which are akin
to bailing him out.
Second, petitioner posits that, contrary to the trial court’s
findings, Esperon did not overrule Obeña’s
recommendation to allow him to attend Senate sessions.
Petitioner cites the Comment38 of Obeña that he
interposed no objection to such request but
recommended that he be transported by the Senate
Sergeant-at-Arms with adequate Senate security. And
petitioner faults the trial court for deeming that Esperon,
despite professing non-obstruction to the performance of
petitioner’s duties, flatly rejected all his requests, when
what Esperon only disallowed was the setting up of a
political office inside a military installation owing to AFP’s
apolitical nature.39
The effective management of the detention facility has
been recognized as a valid objective that may justify the
imposition of conditions and restrictions of pre-trial
detention.40 The officer with custodial responsibility over
a detainee may undertake such reasonable measures as
may be necessary to secure the safety and prevent the
escape of the detainee.41 Nevertheless, while the
comments of the detention officers provide guidance on
security concerns, they are not binding on the trial court
in the same manner that pleadings are not impositions
upon a court.
Third, petitioner posits that his election provides the legal
justification to allow him to serve his mandate, after the
people, in their sovereign capacity, elected him as
Senator. He argues that denying his Omnibus Motion is
tantamount to removing him from office, depriving the
people of proper representation, denying the people’s
will, repudiating the people’s choice, and overruling the
mandate of the people.
Petitioner’s contention hinges on the doctrine in
administrative law that "a public official can not be
removed for administrative misconduct committed
during a prior term, since his re-election to office
operates as a condonation of the officer’s previous
misconduct to the extent of cutting off the right to remove
him therefor."42
The assertion is unavailing. The case against petitioner
is not administrative in nature. And there is no "prior
term" to speak of. In a plethora of cases,43 the Court
categorically held that the doctrine of condonation does
not apply to criminal cases. Election, or more precisely,
re-election to office, does not obliterate a criminal
charge. Petitioner’s electoral victory only signifies
pertinently that when the voters elected him to the
Senate, "they did so with full awareness of the limitations
on his freedom of action [and] x x x with the knowledge
that he could achieve only such legislative results which
he could accomplish within the confines of prison." 44
In once more debunking the disenfranchisement
argument,45 it is opportune to wipe out the lingering
misimpression that the call of duty conferred by the voice
of the people is louder than the litany of lawful restraints
articulated in the Constitution and echoed by
jurisprudence. The apparent discord may be harmonized
by the overarching tenet that the mandate of the people
yields to the Constitution which the people themselves
ordained to govern all under the rule of law.
The performance of legitimate and even
essential duties by public officers has never
been an excuse to free a person validly in
prison. The duties imposed by the "mandate of
the people" are multifarious. The accused-
appellant asserts that the duty to legislate ranks
highest in the hierarchy of government. The
accused-appellant is only one of 250 members
of the House of Representatives, not to mention
the 24 members of the Senate, charged with the
duties of legislation. Congress continues to
function well in the physical absence of one or a
few of its members. x x x Never has the call of a
particular duty lifted a prisoner into a different
classification from those others who are validly
restrained by law.46 (Underscoring supplied)
Lastly, petitioner pleads for the same liberal treatment
accorded certain detention prisoners who have also
26
been charged with non-bailable offenses, like former
President Joseph Estrada and former Governor Nur
Misuari who were allowed to attend "social functions."
Finding no rhyme and reason in the denial of the more
serious request to perform the duties of a Senator,
petitioner harps on an alleged violation of the equal
protection clause.
In arguing against maintaining double standards in the
treatment of detention prisoners, petitioner expressly
admits that he intentionally did not seek preferential
treatment in the form of being placed under Senate
custody or house arrest,47 yet he at the same time,
gripes about the granting of house arrest to others.
Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders.48 That
this discretion was gravely abused, petitioner failed to
establish. In fact, the trial court previously allowed
petitioner to register as a voter in December 2006, file
his certificate of candidacy in February 2007, cast his
vote on May 14, 2007, be proclaimed as senator-elect,
and take his oath of office49 on June 29, 2007. In a
seeming attempt to bind or twist the hands of the trial
court lest it be accused of taking a complete turn-
around,50 petitioner largely banks on these prior grants to
him and insists on unending concessions and blanket
authorizations.
Petitioner’s position fails. On the generality and
permanence of his requests alone, petitioner’s case fails
to compare with the species of allowable
leaves. Jaloslos succinctly expounds:
x x x Allowing accused-appellant to attend
congressional sessions and committee meetings
for five (5) days or more in a week will virtually
make him a free man with all the privileges
appurtenant to his position. Such an aberrant
situation not only elevates accused-appellant’s
status to that of a special class, it also would be
a mockery of the purposes of the correction
system.51
WHEREFORE, the petition is DISMISSED.
SO ORDERED.
A. F. TRILLANES IV v . HON. O. PIMENTEL, SR., IN
HIS CAPACITY AS PRESIDING JUDGE, REGIONAL
TRIAL COURT- BRANCH 148, MAKATI CITY, et al .
556 SCRA 471 (2008)
All persons, except those charged with offenses punishable by
reclusion perpetua when evidence of guilt is strong, shall,
before conviction, be bailable by sufficient sureties, or be
released on recognizance as may be provided by law.
On July 27, 2003, more than 300 heavily armed soldiers led by
junior officers of the Armed Forces of the Philippines (AFP)
stormed into the Oakwood Premier Apartments in Makati City
and publicly demanded the resignation of the President and
key national officials. After a series of negotiations, military
soldiers surrendered that evening. In the aftermath of such
event dubbed as the Oakwood Incident, petitioner Antonio F.
Trillanes IV was charged with coup d’état before the Regional
Trial Court of Makati. Four years later, Trillanes remained in
detention and won a seat in the Senate. Before starting his
term, Trillanes filed with RTC an Omnibus Motion for Leave
of Court to be Allowed to Attend Senate Sessions and Related
Requests. Trillanes requested to be allowed to attend senate
sessions and fulfill his functions as senator. The RTC however
denied his motion. Thus, he filed Petition for Certiorari with
the Supreme Court to set aside orders of the RTC.
ISSUES:
1. Whether or not Trillanes‘ case is different from that of the
Jalosjos case
2. Whether or not Trillanes‘ election as senator provides legal
justification to allow him to work and serve his mandate as
senator
3. Whether or not there are enough precedents that allows for a
liberal treatment of detention prisoners who are held without
bail
HELD:
No distinction between Trillanes’ case and that of Jalosjos
case
The distinctions cited by petitioner were not elemental in
the pronouncement in Jalosjos that election to Congress
is not a reasonable classification in criminal law
enforcement as the functions and duties of the office are
not substantial distinctions which lift one from the class
of prisoners interrupted in their freedom and restricted
in liberty of movement.
The Constitution provides: All persons, except those
charged with offenses punishable by reclusion perpetua
when evidence of guilt is strong, shall, before conviction,
be bailable by sufficient sureties, or be released on
recognizance as may be provided by law. The Rules also
state that no person charged with a capital offense, or an
offense punishable by reclusion perpetua or life
imprisonment, shall be admitted to bail when evidence
of guilt is strong, regardless of the stage of the criminal
action. That the cited provisions apply equally to rape
and coup d’état cases, both being punishable by
reclusion perpetua, is beyond cavil. Within the class of
offenses covered by the stated range of imposable
penalties, there is clearly no distinction as to the
political complexion of or moral turpitude involved in
the crime charged. In the present case, it is
uncontroverted that petitioner’s application for bail and
for release on recognizance was denied. The
determination that the evidence of guilt is strong,
whether ascertained in a hearing of an application for
bail or imported from a trial court’s judgment of
conviction, justifies the detention of an accused as a valid
curtailment of his right to provisional liberty. This
accentuates the proviso that the denial of the right to bail
in such cases is “regardless of the stage of the criminal
action.”
Such justification for confinement with its underlying
rationale of public self-defense applies equally to
detention prisoners like Trillanes or convicted prisoners-
appellants like Jalosjos. The Court in People v. Hon.
Maceda said that all prisoners whether under preventive
detention or serving final sentence can not practice their
profession nor engage in any business or occupation, or
hold office, elective or appointive, while in detention.
This is a necessary consequence of arrest and detention.
The case against Trillanes is not administrative in
nature. And there is no “prior term” to speak of. In a
plethora of cases, the Court categorically held that the
doctrine of condonation does not apply to criminal
cases. Election, or more precisely, re-election to office,
does not obliterate a criminal charge. Petitioner’s
electoral victory only signifies pertinently that when the
voters elected him to the Senate, “they did so with full
awareness of the limitations on his freedom of action
with the knowledge that he could achieve only such
legislative results which he could accomplish within the
confines of prison.
It is opportune to wipe out the lingering mis impression
that the call of duty conferred by the voice of the people
is louder than the litany of lawful restraints articulated in
the Constitution and echoed by jurisprudence. The
apparent discord may be harmonized by the overarching
tenet that the mandate of the people yields to the
Constitution which the people themselves ordained to
govern all under the rule of law. The performance of
legitimate and even essential duties by public officers has
never been an excuse to free a person validly in prison.
The duties imposed by the “mandate of the people” are
multifarious. The accused-appellant asserts that the duty
to legislate ranks highest in the hierarchy of government.
The accused-appellant is only one of 250 members of the
House of Representatives, not to mention the 24
27
members of the Senate, charged with the duties of
legislation. Congress continues to function well in the
physical absence of one or a few of its members. x x x
Never has the call of a particular duty lifted a prisoner
into a different classificationfrom those others who are
validly restrained by law.
Trillanes’ case fails to compare with the species
of allowable leaves
Emergency or compelling temporary leaves from
imprisonment are allowed to all prisoners, at the
discretion of the authorities or upon court orders. That
this discretion was gravely abused, petitioner failed to
establish. In fact, the trial court previously allowed
petitioner to register as a voter in December 2006, filehis
certificate of candidacy in February 2007, cast his vote
on May 14, 2007, be proclaimed as senator-elect, and
take his oath of office on June 29, 2007. In a seeming
attempt to bind or twist the hands of the trial court lest it
be accused of taking a complete turn-around, petitioner
largely banks on these prior grants to him and insists on
unending concessions and blanket authorizations.
G.R. No. L-68159 March 18, 1985
HOMOBONO ADAZA, petitioner,
vs.
FERNANDO PACANA, JR., respondent
ESCOLIN, J.:
The issues posed for determination in this petition for
prohibition with prayer for a writ of preliminary injunction
and/or restraining order are: [1] whether or not a
provincial governor who was elected and had qualified
as a Mambabatas Pambansa [MP] can exercise and
discharge the functions of both offices simultaneously;
and [2] whether or not a vice-governor who ran for the
position of Mambabatas Pambansa, but lost, can
continue serving as vice-governor and subsequently
succeed to the office of governor if the said office is
vacated.
The factual background of the present controversy is as
follows:
Petitioner Homobono A. Adaza was elected governor of
the province of Misamis Oriental in the January 30, 1980
elections. He took his oath of office and started
discharging his duties as provincial governor on March 3,
1980. Elected vice-governor for said province in the
same elections was respondent Fernando Pacana, Jr.,
who likewise qualified for and assumed said office on
March 3, 1980. Under the law, their respective terms of
office would expire on March 3, 1986.
On March 27, 1984, respondent Pacana filed his
certificate of candidacy for the May 14, 1984 Batasan
Pambansa elections; petitioner Adaza followed suit on
April 27, 1984. In the ensuing elections, petitioner won
by placing first among the candidates, while respondent
lost.
Petitioner took his oath of office as Mambabatas
Pambansa on July 19, 1984 1 and since then he has
discharged the functions of said office.
On July 23, 1984, respondent took his oath of office as
governor of Misamis Oriental before President Ferdinand
E. Marcos, 2 and started to perform the duties of
governor on July 25, 1984.
Claiming to be the lawful occupant of the governor's
office, petitioner has brought this petition to exclude
respondent therefrom. He argues that he was elected to
said office for a term of six years, that he remains to be
the governor of the province until his term expires on
March 3, 1986 as provided by law, and that within the
context of the parliamentary system, as in France, Great
Britain and New Zealand, a local elective official can hold
the position to which he had been elected and
simultaneously be an elected member of Parliament.
Petitioner further contends that respondent Pacana
should be considered to have abandoned or resigned
from the position of vice-governor when he filed his
certificate of candidacy for the 1984 Batas Pambansa
elections; and since respondent had reverted to the
status of a mere private citizen after he lost in the Batas
Pambansa elections, he could no longer continue to
serve as vice-governor, much less assume the office of
governor.
1. The constitutional prohibition against a member of the
Batasan Pambansa from holding any other office or
employment in the government during his tenure is clear
and unambiguous. Section 10, Article VIII of the 1973
Constitution provides as follows:
Section 10 A member of the National
Assembly [now Batasan Pambansa
shall not hold any other office or
employment in the government or any
subdivision, agency or instrumentality
thereof, including government owned or
controlled corporations, during his
tenure, except that of prime minister or
member of the cabinet. ...
The language used in the above-cited section is plain,
certain and free from ambiguity. The only exceptions
mentioned therein are the offices of prime minister and
cabinet member. The wisdom or expediency of the said
provision is a matter which is not within the province of
the Court to determine.
A public office is a public trust. 3 It is created for the
interest and the benefit of the people. As such, a holder
thereof "is subject to such regulations and conditions as
the law may impose" and "he cannot complain of any
restrictions which public policy may dictate on his holding
of more than one office." 4 It is therefore of no avail to
petitioner that the system of government in other states
allows a local elective official to act as an elected
member of the parliament at the same time. The dictate
of the people in whom legal sovereignty lies is explicit. It
provides no exceptions save the two offices specifically
cited in the above-quoted constitutional provision. Thus,
while it may be said that within the purely parliamentary
system of government no incompatibility exists in the
nature of the two offices under consideration, as
incompatibility is understood in common law, the
incompatibility herein present is one created by no less
than the constitution itself. In the case at bar, there is no
question that petitioner has taken his oath of office as an
elected Mambabatas Pambansa and has been
discharging his duties as such. In the light of the oft-
mentioned constitutional provision, this fact operated to
vacate his former post and he cannot now continue to
occupy the same, nor attempt to discharge its functions.
2. The second proposition advanced by petitioner is that
respondent Pacana, as a mere private citizen, had no
right to assume the governorship left vacant by
petitioner's election to the Batasan Pambansa. He
maintains that respondent should be considered as
having abandoned or resigned from the vice-
governorship when he filed his certificate of candidacy
for the Batas Pambansa elections. The point pressed
runs afoul of Batas Pambansa Blg. 697, the law
governing the election of members of the Batasan
Pambansa on May 14, 1984, Section 13[2] of which
specifically provides that "governors, mayors, members
of the various sangguniang or barangay officials shall,
upon filing a certificate of candidacy, be considered on
forced leave of absence from office." Indubitably,
respondent falls within the coverage of this provision,
considering that at the time he filed his certificate of
candidacy for the 1984 Batasan Pambansa election he
was a member of the Sangguniang Panlalawigan as
provided in Sections 204 and 205 of Batas Pambansa
Blg. 337, 5 otherwise known as the Local Government
Code. The reason the position of vice-governor was not
included in Section 13[2] of BP Blg. 697 is explained by
28
the following interchange between Assemblymen San
Juan and Davide during the deliberations on said
legislation:
MR. DAVIDE. If I was able to get
correctly the proposed amendment it
would cover only governors and
members of the different sanggunians?
Mayor, governors?
MR. SAN JUAN. Governors, mayors,
members of the various sanggunian or
barangay officials. A vice-governor is a
member of the Sanggunian
Panlalawigan.
MR. DAVIDE. All. Why don't we instead
use the word, "Local officials?
MR. SAN JUAN. Well, Mr. Speaker, your
humble representation ...
MR. DAVIDE. And, secondly, why don't
we include the vice-governor, the vice-
mayors?
MR. SAN JUAN. Because they are
members of the Sanggunians, Mr.
Speaker. They are covered by the
provision on members of sanggunian.
[Record of Proceedings, February 20,
1984, p. 92, Rollo]
Thus, when respondent reassumed the position of vice-
governor after the Batas Pambansa elections, he was
acting within the law. His succession to the governorship
was equally legal and valid, the same being in
accordance with Section 204[2] [a] of the same Local
Government Code, which reads as follows:
SECTION 204. Powers, Duties and
Privileges:
1] x x x
2] He shall:
a] Assume the office of the governor for
the unexpired term of the latter in the
cases provided for in Section 48,
paragraph 16 of this Code;
WHEREFORE, the instant petition is hereby dismissed.
No costs.
SO ORDERED.
Adaza v. Pazana
HOMOBONO ADAZA v. FERNANDO PACANA JR (D)
135 SCRA 431 March 18, 1985
FACTS:
 Homobono A. Adaza was elected governor of
the province of Misamis Oriental. He took his oath of
office and started discharging his duties as provincial
governor on March 3, 1980.
 Elected vice-governor for said province was
respondent Fernando Pacana, Jr., who likewise qualified
for and assumed said office on March 3, 1980. Under the
law, their respective terms of office would expire on
March 3, 1986.
 March 27, 1984, respondent Pacana filed his
certificate of candidacy for the May 14, 1984 Batasang
Pambansa elections; petitioner Adaza followed suit on
April 27, 1984. In the ensuing elections, petitioner won
by placing first among the candidates, while respondent
lost.
 July 19, 1984, petitioner took his oath of office
as Mambabatas Pambansa and since then he has
discharged the functions of said office.
 July 23, 1984, respondent took his oath of office
as governor of Misamis Oriental before President
Ferdinand E. Marcos, and started to perform the duties
of governor on July 25, 1984.
 Claiming to be the lawful occupant of the
governor's office, petitioner has brought this petition to
exclude respondent therefrom. He argues that he was
elected to said office for a term of six years, that he
remains to be the governor of the province until his term
expires on March 3, 1986 as provided by law, and that
within the context of the parliamentary system.
 Petitioner further contends that respondent
Pacana should be considered to have abandoned or
resigned from the position of vice-governor when he filed
his certificate of candidacy for the 1984 Batas Pambansa
elections; and since respondent had reverted to the
status of a mere private citizen after he lost in the Batas
Pambansa elections, he could no longer continue to
serve as vice-governor, much less assume the office of
governor.
ISSUES:
 Whether or not a provincial governor who was
elected and had qualified as a Mambabatas Pambansa
[MP] can exercise and discharge the functions of both
offices simultaneously.
 Whether or not a vice-governor who ran for the
position of Mambabatas Pambansa, but lost, can
continue serving as vice-governor and subsequently
succeed to the office of governor if the said office is
vacated.
HELD:
 No, a provincial governor who was elected and
had qualified as a Mambabatas Pambansa [MP] cannot
exercise and discharge the functions of both offices
simultaneously.
 The constitutional prohibition against a member
of the Batasan Pambansa from holding any other office
or employment in the government during his tenure is
clear and unambiguous. Section 10, Article VIII of the
1973 Constitution provides as follows: Sec 10. “A
member of the National Assembly [Batasan Pambansa]
shall not hold any other office or employment in the
government or any subdivision, agency or instrumentality
thereof, including government-owned or controlled
corporations, during his tenure, except that of prime
minister or member of the cabinet . . .”
 The language used in the above-cited section is
plain, certain and free from ambiguity. The only
exceptions mentioned therein are the offices of prime
minister and cabinet member. The wisdom or
expediency of the said provision is a matter which is not
within the province of the Court to determine.
 Yes, a vice-governor who ran for the position of
Mambabatas Pambansa, but lost, can continue serving
as vice-governor and subsequently succeed to the office
of governor if the said office is vacated.
 The law governing the election of members of
the Batasan Pambansa on May 14, 1984, Section 13[2]
of which specifically provides that "governors, mayors,
members of the various sangguniang or barangay
officials shall, upon filing a certificate of candidacy, be
considered on forced leave of absence from office."
Indubitably, respondent falls within the coverage of this
provision, considering that at the time he filed his
certificate of candidacy for the 1984 Batasan Pambansa
election he was a member of the Sangguniang
Panlalawigan.
G.R. No. L-15905 August 3, 1966
NICANOR T. JIMENEZ, ET AL., plaintiffs and
appellants,
29
vs.
BARTOLOME CABANGBANG, defendant and
appellee.
Liwag and Vivo and S. Artiaga, Jr. for plaintiffs and
appellants.
Jose S. Zafra and Associates and V. M. Fortich Zerda for
defendant and appellee.
CONCEPCION, C.J.:
This is an ordinary civil action, originally instituted in the
Court of First Instance of Rizal, for the recovery, by
plaintiffs Nicanor T. Jimenez, Carlos J. Albert and Jose L.
Lukban, of several sums of money, by way of damages
for the publication of an allegedly libelous letter of
defendant Bartolome Cabangbang. Upon being
summoned, the latter moved to dismiss the complaint
upon the ground that the letter in question is not libelous,
and that, even if were, said letter is a privileged
communication. This motion having been granted by the
lower court, plaintiffs interposed the present appeal from
the corresponding order of dismissal.
The issues before us are: (1) whether the publication in
question is a privileged communication; and, if not, (2)
whether it is libelous or not.
The first issue stems from the fact that, at the time of
said publication, defendant was a member of the House
of Representatives and Chairman of its Committee on
National Defense, and that pursuant to the Constitution:
The Senators and Members of the House of
Representatives shall in all cases except
treason, felony, and breach of the peace, be
privileged from arrest during their attendance at
the sessions of the Congress, and in going to
and returning from the same; and for any speech
or debate therein, they shall not be questioned in
any other place. (Article VI, Section 15.)
The determination of the first issue depends on whether
or not the aforementioned publication falls within the
purview of the phrase "speech or debate therein" — that
is to say, in Congress — used in this provision.
Said expression refers to utterances made by
Congressmen in the performance of their official
functions, such as speeches delivered, statements
made, or votes cast in the halls of Congress, while the
same is in session, as well as bills introduced in
Congress, whether the same is in session or not, and
other acts performed by Congressmen, either in
Congress or outside the premises housing its offices, in
the official discharge of their duties as members of
Congress and of Congressional Committees duly
authorized to perform its functions as such, at the time of
the performance of the acts in question.1
The publication involved in this case does not belong to
this category. According to the complaint herein, it was
an open letter to the President of the Philippines, dated
November 14, 1958, when Congress presumably
was not in session, and defendant caused said letter to
be published in several newspapers of general
circulation in the Philippines, on or about said date. It is
obvious that, in thus causing the communication to be so
published, he was not performing his official duty, either
as a member of Congress or as officer or any Committee
thereof. Hence, contrary to the finding made by His
Honor, the trial Judge, said communication is not
absolutely privileged.
Was it libelous, insofar as the plaintiffs herein are
concerned? Addressed to the President, the
communication began with the following paragraph:
In the light of the recent developments which
however unfortunate had nevertheless involved
the Armed Forces of the Philippines and the
unfair attacks against the duly elected members
of Congress of engaging in intriguing and rumor-
mongering, allow me, Your Excellency, to
 address this open letter to focus public attention
to certain vital information which, under the
present circumstances, I feel it my solemn duty
to our people to expose.1äwphï1.ñët
It has come to my attention that there have been
allegedly three operational plans under serious
study by some ambitious AFP officers, with the
aid of some civilian political strategists.
Then, it describes the "allegedly three (3) operational
plans" referred to in the second paragraph. The first plan
is said to be "an insidious plan or a massive political
build-up" of then Secretary of National Defense, Jesus
Vargas, by propagandizing and glamorizing him in such
a way as to "be prepared to become a candidate for
President in 1961". To this end, the "planners" are said to
"have adopted the sales-talk that Secretary Vargas is
'Communists' Public Enemy No. 1 in the Philippines."
Moreover, the P4,000,000.00 "intelligence and
psychological warfare funds" of the Department of
National Defense, and the "Peace and Amelioration
Fund" — the letter says — are "available to adequately
finance a political campaign". It further adds:
It is reported that the "Planners" have under their
control the following: (1) Col. Nicanor Jimenez of
NICA, (2) Lt. Col. Jose Lukban of NBI, (3) Capt.
Carlos Albert (PN) of G-2 AFP, (4) Col. Fidel
Llamas of MIS (5) Lt. Col. Jose Regala of the
Psychological Warfare Office, DND, and (6)
Major Jose Reyna of the Public information
Office, DND. To insure this control, the
"Planners" purportedly sent Lt. Col. Job Mayo,
Chief of MIS to Europe to study and while Mayo
was in Europe, he was relieved by Col. Fidel
Llamas. They also sent Lt. Col. Deogracias
Caballero, Chief of Psychological Warfare Office,
DND, to USA to study and while Caballero was
in USA, he was relieved by Lt. Col. Jose Regala.
The "Planners" wanted to relieve Lt. Col. Ramon
Galvezon, Chief of CIS (PC) but failed. Hence,
Galvezon is considered a missing link in the
intelligence network. It is, of course, possible
that the offices mentioned above are unwitting
tools of the plan of which they may have
absolutely no knowledge. (Emphasis ours.)
Among the means said to be used to carry out the plan
the letter lists, under the heading "other operational
technique the following:
(a) Continuous speaking engagements all over
the Philippines for Secretary Vargas to talk on
"Communism" and Apologetics on civilian
supremacy over the military;
(b) Articles in magazines, news releases, and
hundreds of letters — "typed in two (2)
typewriters only" — to Editors of magazines and
newspapers, extolling Secretary Vargas as the
"hero of democracy in 1951, 1953, 1955 and
1957 elections";
(c) Radio announcements extolling Vargas and
criticizing the administration;
(d) Virtual assumption by Vargas of the functions
of the Chief of Staff and an attempt to pack key
positions in several branches of the Armed
Forces with men belonging to his clique;
(e) Insidious propaganda and rumors spread in
such a way as to give the impression that they
reflect the feeling of the people or the opposition
parties, to undermine the administration.
Plan No. II is said to be a "coup d'etat", in connection
with which the "planners" had gone no further than the
planning stage, although the plan "seems to be held in
abeyance and subject to future developments".
Plan No. III is characterized as a modification of Plan No.
I, by trying to assuage the President and the public with
30
a loyalty parade, in connection with which Gen. Arellano
delivered a speech challenging the authority and integrity
of Congress, in an effort to rally the officers and men of
the AFP behind him, and gain popular and civilian
support.
The letter in question recommended.: (1) that Secretary
Vargas be asked to resign; (2) that the Armed Forces be
divorced absolutely from politics; (3) that the Secretary of
National Defense be a civilian, not a professional military
man; (4) that no Congressman be appointed to said
office; (5) that Gen. Arellano be asked to resign or retire;
(6) that the present chiefs of the various intelligence
agencies in the Armed Forces including the chiefs of the
NICA, NBI, and other intelligence agencies mentioned
elsewhere in the letter, be reassigned, considering that
"they were handpicked by Secretary Vargas and Gen.
Arellano", and that, "most probably, they belong to the
Vargas-Arellano clique"; (7) that all military personnel
now serving civilian offices be returned to the AFP,
except those holding positions by provision of law; (8)
that the Regular Division of the AFP stationed in Laur,
Nueva Ecija, be dispersed by batallion strength to the
various stand-by or training divisions throughout the
country; and (9) that Vargas and Arellano should
disqualify themselves from holding or undertaking an
investigation of the planned coup d'etat".
We are satisfied that the letter in question is not
sufficient to support plaintiffs' action for damages.
Although the letter says that plaintiffs are under the
control of the unnamed persons therein alluded to as
"planners", and that, having been handpicked by
Secretary Vargas and Gen. Arellano, plaintiffs "probably
belong to the Vargas-Arellano clique", it should be noted
that defendant, likewise, added that "it is of course
possible" that plaintiffs "are unwitting tools of the plan
of which they may have absolutely no knowledge". In
other words, the very document upon which plaintiffs'
action is based explicitly indicates that they might
be absolutely unaware of the alleged operational plans,
and that they may be merely unwitting tools of the
planners. We do not think that this statement is
derogatory to the plaintiffs, to the point of entitling them
to recover damages, considering that they are officers of
our Armed Forces, that as such they are by law, under
the control of the Secretary of National Defense and the
Chief of Staff, and that the letter in question seems to
suggest that the group therein described as "planners"
include these two (2) high ranking officers.
It is true that the complaint alleges that the open letter in
question was written by the defendant, knowing that it is
false and with the intent to impeach plaintiffs' reputation,
to expose them to public hatred, contempt, dishonor and
ridicule, and to alienate them from their associates, but
these allegations are mere conclusions which are
inconsistent with the contents of said letter and can not
prevail over the same, it being the very basis of the
complaint. Then too, when plaintiffs allege in their
complaint that said communication is false, they could
not have possibly meant that they were aware of the
alleged plan to stage a coup d'etat or that they were
knowingly tools of the "planners". Again, the
aforementioned passage in the defendant's letter clearly
implies that plaintiffs were not among the "planners" of
said coup d'etat, for, otherwise, they could not be "tools",
much less, unwittingly on their part, of said "planners".
Wherefore, the order appealed from is hereby affirmed. It
is so ordered.
Jimenez vs Cabangbang (G.R. No. L-15905)
Posted: July 25, 2011 in Case Digests
Freedom of Speech & Debate
Facts: Cabangbang was a member of the House of while the same is in session as well as bills introduced in

Representatives and Chairman of its Committee on Congress, whether the same is in session or not, and

National Defense. On 14 Nov 1958, Cabangbang caused other acts performed by Congressmen, either in

the publication of an open letter addressed to the Congress or outside the premises housing its offices, in

Philippines. Said letter alleged that there have been the official discharge of their duties as members of

allegedly three operational plans under serious study by Congress and of Congressional Committees duly

some ambitious AFP officers, with the aid of some authorized to perform its functions as such at the time of

civilian political strategists. That such strategists have the performance of the acts in question. Congress was

had collusions with communists and that the Secretary not in session when the letter was published and at the

of Defense, Jesus Vargas, was planning a coup d’état to same time he, himself, caused the publication of the said

place him as the president. The “planners” allegedly letter. It is obvious that, in thus causing the

have Nicanor Jimenez, among others, under their guise communication to be so published, he was not

and that Jimenez et al may or may not be aware that performing his official duty, either as a member of

they are being used as a tool to meet such an end. The Congress or as officer of any Committee thereof. Hence,

letter was said to have been published in newspapers of contrary to the finding made by the lower court the said

general circulation. Jimenez then filed a case against communication is not absolutely privileged.

Cabangbang to collect a sum of damages against

Cabangbang alleging that Cabangbang’s statement is The SC is satisfied that the letter in question is not

libelous. Cabangbang petitioned for the case to be sufficient to support Jimenez’ action for damages.

dismissed because he said that as a member of the HOR Although the letter says that plaintiffs are under the

he is immune from suit and that he is covered by the control of the persons unnamed therein alluded to as

privileged communication rule and that the said letter is “planners”, and that, having been handpicked by Vargas,

not even libelous. it should be noted that defendant, likewise, added that

“it is of course possible” that plaintiffs “are unwitting

ISSUE: Whether or not the open letter is covered by tools of the plan of which they may have absolutely no

privilege communication endowed to members of knowledge”. In other words, the very document upon

Congress. Whether or not the said letter is libelous. which plaintiffs’ action is based explicitly indicates that

they might be absolutely unaware of the alleged

HELD: Article VI, Section 15 of the Constitution provides operational plans, and that they may be merely

“The Senators and Members of the House of unwitting tools of the planners. The SC does not think

Representatives shall in all cases except treason, felony, that this statement is derogatory to Jimenez to the point

and breach of the peace. Be privileged from arrest of entitling them to recover damages, considering that

during their attendance at the sessions of the Congress, they are officers of our Armed Forces, that as such they

and in going to and returning from the same; and for are by law, under the control of the Secretary of

any speech or debate therein, they shall not be National Defense and the Chief of Staff, and that the

questioned in any other place.” The publication of the letter in question seems to suggest that the group

said letter is not covered by said expression which refers therein described as “planners” include these two (2)

to utterances made by Congressmen in the performance high ranking officers.Petition is dismissed.

of their official functions, such as speeches delivered,

G.R. No. 128096 January 20, 1999
statements made, or votes cast in the halls of Congress,

31
PANFILO M. LACSON, petitioner,
vs.
THE EXECUTIVE SECRETARY, THE
SANDIGANBAYAN, OFFICE OF THE SPECIAL
PROSECUTOR, THE DEPARTMENT OF JUSTICE,
MYRNA ABALORA, NENITA ALAP-AP, IMELDA
PANCHO MONTERO, and THE PEOPLE OF THE
PHILIPPINES, respondent.
ROMEO M. ACOP AND FRANCISCO G. ZUBIA,
JR., petitioner-intervenors.
MARTINEZ, J.:
The constitutionality of Sections 4 and 7 of Republic Act
No. 8249 — an act which further defines the jurisdiction
of the Sandiganbayan — is being challenged in this
petition for prohibition and mandamus. Petitioner Panfilo
Lacson, joined by petitioners-intervenors Romeo Acop
and Francisco Zubia, Jr., also seeks to prevent the
Sandiganbayan from proceedings with the trial of
Criminal Cases Nos. 23047-23057 (for multiple murder)
against them on the ground of lack of jurisdiction.
The antecedents of this case, as gathered from the
parties' pleadings and documentary proofs, are as
follows:
In the early morning of May 18, 1995, eleven (11)
persons believed to be members of the Kuratong
Baleleng gang, reportedly an organized crime syndicate
which had been involved in a spate of bank robberies in
Metro Manila, where slain along Commonwealth Avenue
in Quezon City by elements of the Anti-Bank Robbery
and Intelligence Task Group (ABRITG) headed by Chieff
Superintendent Jewel Canson of the Philippine National
Police (PNP). The ABRITG was composed of police
officers from the Traffic Management Command (TMC)
led by petitioner-intervenor Senior Superintendent
Francisco Zubia, Jr.; Presidential Anti-Crime Commission
— Task Force Habagat (PACC-TFH) headed by
petitioner Chief Superintendent Panfilo M. Lacson;
Central Police District Command (CPDC) led by Chief
Superintendent Ricardo de Leon; and the Criminal
Investigation Command (CIC) headed by petitioner-
intervenor Chief Superintendent Romeo Acop.
Acting on a media expose of SPO2 Eduardo delos
Reyes, a member of the CIC, that what actually
transpired at dawn of May 18, 1995 was a summary
execution (or a rub out) and not a shoot-out between the
Kuratong Baleleng gang members and the ABRITG,
Ombudsman Aniano Desierto formed a panel of
investigators headed by the Deputy Ombudsman for
Military Affairs, Bienvenido Blancaflor, to investigate the
incident. This panel later absolved from any criminal
liability all the PNP officers and personal allegedly
involved in May 18, 1995 incident, with a finding that the
said incident was a legitimate police operation.1
However, a review board led by Overall Deputy
Ombudsman Francisco Villa modified modified the
Blancaflor panel's finding and recommended the
indictment for multiple murder against twenty-six (26)
respondents, including herein petitioner and intervenors.
The recommendation was approved by the Ombudsman
except for the withdrawal of the charges against Chief
Supt. Ricardo de Leon.
Thus, on November 2, 1995, petitioner Panfilo Lacson
was among those charged as principal in eleven (11)
information for murder2 before the Sandiganbayan's
Second Division, while intervenors Romeo Acop and
Francisco Zubia, Jr. were among those charged in the
same informations as accessories after-in-the-fact.
Upon motion by all the accused in the 11
information,3 the Sandiganbayan allowed them to file a
motion for reconsideration of the Ombudsman's action. 4
32
After conducting a reinvestigation, the Ombudsman filed
on March 1, 1996 eleven (11) amended
informations5before the Sandiganbayan, wherein
petitioner was charged only as an accessory, together
with Romeo Acop and Francisco Zubia, Jr. and other.
One of the accused6 was dropped from the case.
On March 5-6, 1996, all the accused filed separate
motions questioning the jurisdiction of the
Sandiganbayan, asserting that under the amended
informations, the cases fall within the jurisdiction of the
Regional Trial Court pursuant to Section 2 (paragraphs a
and c) of Republic Act No. 7975.7 They contend that the
said law limited the jurisdiction of the Sandiganbayan to
cases where one or more of the "principal accused" are
government officials with Salary Grade (SG) 27 or
higher, or PNP officials with the rank of Chief
Superintendent (Brigadier General) or higher. The
highest ranking principal accused in the amended
informations has the rank of only a Chief Inspector, and
none has the equivalent of at least SG 27.
Thereafter, in a Resolution 8 dated May 8, 1996
(promulgated on May 9, 1996), penned by Justice
Demetriou, with Justices Lagman and de Leon
concurring, and Justices Balajadia and Garchitorena
dissenting,9 the Sandiganbayan admitted the amended
information and ordered the cases transferred to the
Quezon City Regional Trial Court which has original and
exclusive jurisdiction under R.A. 7975, as none of the
principal accused has the rank of Chief Superintendent
or higher.
On May 17, 1996, the Office of the Special Prosecutor
moved for a reconsideration, insisting that the cases
should remain with the Sandiganbayan. This was
opposed by petitioner and some of the accused.
While these motions for reconsideration were pending
resolution, and even before the issue of jurisdiction
cropped up with the filing of the amended informations
on March 1, 1996, House Bill No. 229910 and No.
109411 (sponsored by Representatives Edcel C. Lagman
and Lagman and Neptali M. Gonzales II, respectively),
as well as Senate Bill No. 84412 (sponsored by Senator
Neptali Gonzales), were introduced in Congress,
defining expanding the jurisdiction of the
Sandiganbayan. Specifically, the said bills sought,
among others, to amend the jurisdiction of the
Sandiganbayan by deleting the word "principal" from the
phrase "principal accused" in Section 2 (paragraphs a
and c) of R.A. No. 7975.
These bills were consolidated and later approved into
law as R.A. No. 824913 by the President of the
Philippines on February 5, 1997.
Subsequently, on March 5, 1997, the Sandiganbayan
promulgated a Resolution14 denying the motion for
reconsideration of the Special Prosecutor, ruling that it
"stands pat in its resolution dated May 8, 1996."
On the same day15 the Sandiganbayan issued and
ADDENDUM to its March 5, 1997 Resolution, the
pertinent portion of which reads:
After Justice Lagman wrote the
Resolution and Justice Demetriou
concurred in it, but before Justice de
Leon. Jr. rendered his concurring and
dissenting opinion, the legislature
enacted Republic Act 8249 and the
President of the Philippines approved it
on February 5, 1997. Considering the
pertinent provisions of the new law,
Justices Lagman and Demetriou are
now in favor of granting, as they are now
granting, the Special Prosecutor's
motion for reconsideration. Justice de
Leon has already done so in his
concurring and dissenting opinion.
 xxx xxx xxx
Considering that three of the accused in
each of these cases are PNP Chief
Superintendents: namely, Jewel T.
Canson, Romeo M. Acop and Panfilo M.
Lacson, and that trial has not yet begun
in all these cases — in fact, no order of
arrest has been issued — this court has
competence to take cognizance of these
cases.
To recapitulate, the net result of all the
foregoing is that by the vote of 3 of 2,
the court admitted the Amended
Informations in these cases by the
unanimous vote of 4 with 1 neither
concurring not dissenting, retained
jurisdiction to try and decide the
cases16 (Empahasis supplied)
Petitioner now questions the constitutionality of Section 4
of R.A. No. 8249, including Section 7 thereof which
provides that the said law "shall apply to all cases
pending in any court over which trial has not begun as to
the approval hereof." Petitioner argues that:
a) The questioned provisions of the
statute were introduced by the authors
thereof in bad faith as it was made to
precisely suit the situation in which
petitioner's cases were in at the
Sandiganbayan by restoring jurisdiction
thereof to it, thereby violating his right to
procedural due process and the equal
protection clause of the Constitution.
Further, from the way the
Sandiganbayan has foot-dragged for
nine (9) months the resolution of a
pending incident involving the transfer of
the cases to the Regional Trial Court,
the passage of the law may have been
timed to overtake such resolution to
render the issue therein moot, and
frustrate the exercise of petitioner's
vested rights under the old
Sandiganbayan law (RA 7975)
b) Retroactive application of the law is
plan from the fact that it was again made
to suit the peculiar circumstances in
which petitioner's cases were under,
namely, that the trial had not yet
commenced, as provided in Section 7,
to make certain that those cases will no
longer be remanded to the Quezon City
Regional Trial Court, as the
Sandiganbayan alone should try them,
thus making it an ex post factolegislation
and a denial of the right of petitioner as
an accused in Criminal Case Nos.
23047-23057 to procedural due process.
c) The title of the law is misleading in
that it contains the aforesaid
"innocuous" provisions in Sections 4 and
7 which actually expands rather than
defines the old Sandiganbayan law (RA
7975), thereby violating the one-title
one-subject requirement for the passage
of statutes under Section 26 (1), Article
VI of the Constitution.17
For their part, the intervenors, in their petition-in-
intervention, add that "while Republic Act No. 8249
innocuously appears to have merely expanded the
jurisdiction of the Sandiganbayan, the introduction of
Section 4 and 7 in said statute impressed upon it the
character of a class legislation and an ex-post
facto statute intended to apply specifically to the accused
33
in the Kuratong Baleleng case pending before the
Sandiganbayan.18 They further argued that if their case
is tried before the Sandiganbayan their right to
procedural due process would be violated as they could
no longer avail of the two-tiered appeal to the
Sandiganbayan, which they acquired under R.A. 7975,
before recourse to the Supreme Court.
Both the Office of the Ombudsman and the Solicitor-
General filed separate pleadings in support of the
constitutionality of the challenged provisions of the law in
question and praying that both the petition and the
petition-in-intervention be dismissed.
This Court then issued a Resolution19 requiring the
parties to file simultaneously within a nonextendible
period of ten (10) days from notice thereof additional
memoranda on the question of whether the subject
amended informations filed a Criminal Case Nos. 23047-
23057 sufficiently allege the commission by the accused
therein of the crime charged within the meaning Section
4 b of Republic Act No. 8249, so as to bring the said
cases within the exclusive original jurisdiction of the
Sandiganbayan.
The parties, except for the Solicitor General who is
representing the People of the Philippines, filed the
required supplemental memorandum within the
nonextendible reglementary period.
The established rule is that every law has in its favor the
presumption of constitutionality, and to justify its
nullification there must be a clear and unequivocal
breach of the Constitution, not a doubtful and
argumentative one. 20 The burden of proving the
invalidity of the law lies with those who challenge it. That
burden, we regret to say, was not convincingly
discharged in the present case.
The creation of the Sandiganbayn was mandated in
Section 5, Article XIII of the 1973 Constitution, which
provides:
Sec. 5. The Batasang Pambansa shall
create a special court, to be known as
Sandiganbayan, which shall have
jurisdiction over criminal and civil cases
involving graft and corrupt practices and
such other offenses committed by public
officers and employees including those
in government-owned or controlled
corporations, in relation to their office as
may be determined by law.
The said special court is retained in the new (1987)
Constitution under the following provisions in Article XI,
Section 4:
Sec. 4. The present anti-graft court
known as the Sandiganbayan shall
continue to function and exercise its
jurisdiction as now or hereafter may be
provided by law.
Pursuant to the constitutional mandate, Presidential
Decree No. 148621 created the Sandiganbayan.
Thereafter, the following laws on the Sandiganbayan, in
chronological order, were enacted: P.D. No.
1606,22 Section 20 of Batas Pambansa Blg. 123,23 P.D.
No. 1860,24 P.D. No. 1861,25 R.A. No. 7975, 26 and R.A.
No. 8249.27 Under the latest amendments introduced by
Section 4 of R.A. No. 8249, the Sandiganbayan has
jurisdiction over the following cases:
Sec 4. Section 4 of the same decree
[P.D. No. 1606, as amended] is hereby
further amended to read as follows:
Sec. 4. Jurisdiction — The
Sandiganbayan shall exercise exclusive
original jurisdiction in all cases involving:
a. Violations of Republic Act No. 3019,
as amended, otherwise known as the
 Anti-Graft and Corrupt Practices Act, prejudice to the provisions of the
Republic Act No. 1379, and Chapter II, Constitution;
Section 2, Titile VII, Book II of the (5) All other national and local officials
Revised Penal Code, where one or classified as Grade "27" or higher under
more of the accused are officials the Compensation and Position
occupying the following positions in the Classification Act of 1989.
government, whether in a permanent, b. Other offenses or felonies whether
acting or interim capacity, at the time of simple or complexed with other crimes
the commission of the offense: committed by the public officials and
(1) Officials of the executive branch employees mentioned in Subsection a of
occupying the positions of regional this section in relation to their office.
director and higher, otherwise classified c. Civil and criminal cases filed pursuant
as Grade "27" and higher, of the to and connection with Executive Orders
Compensation and Position Nos. 1,2, 14 and 14-A, issued in 1986.
Classification Act of 1989 (Republic Act
No. 6758), specifically including: In cases where none of the accused are
occupying positions corresponding to
(a) Provincial salary Grade "27" or higher, as
governors, vice- prescribed in the said Republic Act
governors, members of 6758, or military and PNP officers
the sangguniang mentioned above, exclusive original
panlalawigan, and jurisdiction thereof shall be vested in the
provincial treasurers, proper regional trial court, metropolitan
assessors, engineers, trial court, municipal trial court, and
and other provincial municipal circuit trial court, as the case
department heads; may be, pursuant to their jurisdictions as
(b) City mayors, vice- privided in Batas Pambansa Blg. 129, as
mayors, members of the amended.
sangguniang The Sandiganbayan shall exercise
panlungsod, city exclusive appellate jurisdiction over final
treasurers, assessors, judgments, resolutions or orders of
engineers, and other regional trial courts whether in the
city department heads; exercise of their own original jurisdiction
(c) Officials of the or of their appellate jurisdiction as herein
diplomatic service provided.
occupying the position The Sandiganbayan shall have
of consul and higher; exclusive original jurisdiction over
(d) Philippine Army and petitions of the issuance of the writs of
air force colonels, naval mandamus, prohibition, certiorari,
captains, and all officers habeas corpus, injunctions, and other
of higher rank; ancillary writs and processes in aid of its
(e) Officers of the appellate jurisdiction and over petitions
Philippines National of similar nature, including quo warranto,
Police while occupying arising or that may arise in cases filed or
the position of provincial which may be filed under Executive
director and those Order Nos. 1, 2, 14 and 14-A, issued in
holding the rank 1986: Provided, That the jurisdiction
of senior superintendent over these petitions shall not be
or higher. exclusive of the Supreme Court.
(f) City of provincial The procedure prescribed in Batas
prosecutors and their Pambansa Blg. 129, as well as the
assistants, and officials implementing rules that the Supreme
and prosecutors in the Court has promulgated and may
Office of the hereafter promulgate, relative to
Ombudsman and appeals/petitions for review to the Court
special prosecutor; of Appeals, shall apply to appeals and
(g) Presidents, directors petitions for review filed with the
or trustees or managers Sandiganbayan. In all cases elevated to
of government-owned the Sandiganbayan and from the
or controlled Sandiganbayan to the Supreme Court,
corporations, state the Office of the Ombudsman, through
universities or its special prosecutor, shall represent
educational institutions the People of the Philippines, except in
or foundations; cases filed pursuant to Executive Order
(2) Members of Congress or officials Nos. 1, 2, 14, and 4-A, issued in 1986.
thereof classified as-Grade "27" and up In case private individuals are charged
under the Compensation and Position as co-principals, accomplices or
Classification Act of 1989; accessories with the public officers or
(3) Members of the judiciary without employee, including those employed in
prejudice to the provisions of the government-owned or controlled
Constitution; corporations, they shall be tried jointly
with said public officers and employees
(4) Chairman and members of the in the proper courts which shall exercise
Constitutional Commissions, without exclusive jurisdiction over them.

34
 xxx xxx xxx (Emphasis supplied) government-owned or
Sec. 7 of R.A. No. 8249 states: controlled corporations,
Sec. 7. Transitory provision — This act state universities or
shall apply to all cases pending in any educational institutions
court over which trial has not begun as or foundations;
of the approval hereof. (Emphasis (2) Members of Congress or officials
supplied) thereof classified as Grade "27" and up
The Sandiganbayan law prior to R.A. 8249 was R.A. under the Compensation and Position
7975. Section 2 of R.A. 7975 provides: Classification Act of 1989;
Sec. 2. Section 4 of the same decree (3) Members of the judiciary without
[Presidential Decree No. 1606, as prejudice to the provisions of the
amended) is hereby further amended to Constitution;
read as follows: (4) Chairman and members of the
Sec 4. Jurisdiction — The Constitutional Commissions, without
Sandiganbayan shall exercise exclusive prejudice to the provisions of the
original jurisdiction in all cases involving: Constitution;
a. Violations of Republic Act No. 3019, (5) All other national and local officials
as amended, otherwise known as the classified as Grade "27" or higher under
Anti-Graft and Corrupt Practices Act, the Compensation and Position
Republic Act No. 1379, and Chapter II, Classification Act of 1989.
Section 2, Title VII, Book II of the b. Other offenses or felonies committed
Revised Penal Code, where one or by the public officials and employees
more of the pricipal accused are afficials mentioned in Subsection a of this
occupying the following positions in the section in relation to their office.
government, whether in a permanent, c. Civil and criminal cases files pursuant
acting or interim capacity, at the time of to and in connection with Executive
the commission of the offense: Order Nos. 1, 2, 14, and 4-A.
(1) Officials of the executive branch In cases where none of the principal
occupying the positions of regional accused are occupying positions
director and higher, otherwise classified corresponding to salary Grade "27" or
as Grade "27" and higher, of the higher, as presribed in the said Republic
Compensation and Position Act 6758, or PNP officers occupying the
Classification Act of 1989 (Republic Act rank of superintendent or higher, or their
No. 6758), specifically including: equivalent, exclusive jurisdiction thereof
(a) Provincial shall be vested in the proper regional
governors, vice- trial court, metropolitan trial court,
governors, members of municipal trial court, and municipal
the sangguniang circuit trial court, as the case may be,
panlalawigan, and pursuant to their respective jurisdictions
provincial treasurers, as provided in Batas Pambansa Blg.
assessors, engineer, 129.
and other provincial The Sandiganbayan shall exercise
department heads; exclusive appellate jurisdiction on
(b) City mayors, vice- appelas from the final judgment,
mayors, members of the resolutions or orders of regular court
sangguniang where all the accused are occupying
panlungsod, city positions lower than grade "27," or not
treasurers, assessors, otherwise covered by the preceding
engineers, and other enumeration.
city department heads; xxx xxx xxx
(c) Officials of the In case private individuals are charged
diplomatic service as co-principals, accomplices or
occupying the position accessories with the public officers or
of consul and higher; employees, including those employed in
(d) Philippine Army and government-owned or controlled
air force colonels, naval corporations, they shall be tried jointly
captains, and all officers with said public officers and employees
of higher rank; in the proper courts which shall have
(e) PNP chief exclusive jurisdiction over them.
superintendent and xxx xxx xxx (Emphasis supplied)
PNP officers of higher Sec. 7 of R.A. No. 7975 reads:
rank; Sec. 7. Upon the effectivity of this Act,
(f) City and provincial all criminal cases in which trial has not
prosecutors and their begun in the Sandiganbayan shall be
assistants, and officials referred to the proper courts.
and prosecutors in the Under paragraphs a and c, Section 4 of R.A. 8249, the
Office of the word "principal" before the word "accused" appearing in
Ombudsman and the above-quoted Section 2 (paragraphs a and c) of R.A.
special prosecutor; 7975, was deleted. It is due to this deletion of the word
(g) Presidents, directors "principal" that the parties herein are at loggerheads over
or trustees, or the jurisdiction of the Sandiganbayan. Petitioner and
managers of intervenors, relying on R.A. 7975, argue that the

35
Regional Trial Court, not the Sandiganbayan, has
jurisdiction over the subject criminal cases since none of
the principal accused under the amended information
has the rank of Superintendent28 or higher. On the other
hand, the Office of the Ombudsman, through the Special
Prosecutor who is tasked to represent the People before
the Supreme Court except in certain cases,29 contends
that the Sandiganbayan has jurisdiction pursuant to R.A.
8249.
A perusal of the aforequoted Section 4 of R.A. 8249
reveals that to fall under the exclusive original jurisdiction
of the Sandiganbayan, the following requisites must
concur: (1) the offense committed is a violation of (a)
R.A. 3019, as amended (the Anti-Graft and Corrupt
Practices Act), (b) R.A. 1379 (the law on ill-gotten
wealth), (c) Chapter II, Section 2, Title VII, Book II of the
Revised Penal Code (the law on bribery),30 (d) Executive
Order Nos. 1, 2, 14, and 14-A, issued in 1986
(sequestration cases),31 or (e) other offenses or felonies
whether simple or complexed with other crimes; (2) the
offender comitting the offenses in items (a), (b), (c) and
(e) is a public official or employee32holding any of the
positions enumerated in paragraph a of Section 4; and
(3) the offense committed is in relation to the office.
Considering that herein petitioner and intervenors are
being charged with murder which is a felony punishable
under Title VIII of the Revised Penal Code, the governing
on the jurisdictional offense is not paragraph a but
paragraph b, Section 4 of R.A. 8249. This paragraph b
pertains to "other offenses or felonies whether simple or
complexed with other crimes committed by the public
officials and employees mentioned in subsection a of
(Section 4, R.A. 8249) in relation to their office. "The
phrase" other offenses or felonies" is too broad as to
include the crime of murder, provided it was committed in
relation to the accused's officials functions. Thus, under
said paragraph b, what determines the Sandiganbayan's
jurisdiction is the official position or rank of the offender
— that is, whether he is one of those public officers or
employees enumerated in paragraph a of Section 4. The
offenses mentioned in pargraphs a, b and c of the same
Section 4 do not make any reference to the criminal
participation of the accused public officer as to whether
he is charged as a principal, accomplice or accessory. In
enacting R.A. 8249, the Congress simply restored the
original provisions of P.D. 1606 which does not mention
the criminal participation of the public officer as a
requisite to determine the jurisdiction of the
Sandiganbayan.
Petitioner and entervenors' posture that Section 4 and 7
of R.A. 8249 violate their right to equal protection of the
law33 because its enactment was particularly directed
only to the Kuratong Baleleng cases in the
Sandiganbayan, is a contention too shallow to deserve
merit. No concrete evidence and convincing argument
were presented to warrant a declaration of an act of the
entire Congress and signed into law by the highest
officer of the co-equal executive department as
unconstitutional. Every classification made by law is
presumed reasonable. Thus, the party who challenges
the law must present proof of arbitrariness.34
It is an established precept in constitutional law that the
guaranty of the equal protection of the laws is not
violated by a legislation based on reasonable
classification. The classification is reasonable and not
arbitrary when there is concurrence of four elements,
namely:
(1) it must rest on substantial distinction;
(2) it must be germane to the purpose of
the law;
(3) must not be limited to existing
conditions only, and
36
(4) must apply equaly to all members of
the same class,35
all of which are present in this case.
The challengers of Sections 4 and 7 of R.A. 8249 failed
to rebut the presumption of constitutionality and
reasonables of the questioned provisions. The
classification between those pending cases involving the
concerned public officials whose trial has not yet
commence and whose cases could have been affected
by the amendments of the Sandiganbayan jurisdiction
under R.A. 8249, as against those cases where trial had
already started as of the approval of the law, rests on
substantial distinction that makes real differences. 36 In
the first instance, evidence against them were not yet
presented, whereas in the latter the parties had already
submitted their respective proofs, examined witnesses
and presented documents. Since it is within the power of
Congress to define the jurisdiction of courts subject to
the constitutional limitations,37 it can be reasonably
anticipated that an alteration of that jurisdiction would
necessarily affect pending cases, which is why it has to
privide for a remedy in the form of a transitory provision.
Thus, petitioner and intervenors cannot now claim that
Sections 4 and 7 placed them under a different category
from those similarly situated as them. Precisely,
paragraph a of Section 4 provides that it shall apply to
"all case involving" certain public officials and, under the
transitory provision in Section 7, to "all cases pending in
any court." Contrary to petitioner and intervenors'
argument, the law is not particularly directed only to the
Kuratong Baleleng cases. The transitory provision does
not only cover cases which are in the Sandiganbayan
but also in "any court." It just happened that Kuratong
Baleleng cases are one of those affected by the law.
Moreover, those cases where trial had already begun are
not affected by the transitory provision under Section 7
of the new law (R.A. 8249).
In their futile attempt to have said sections nullified,
heavy reliance is premised on what is perceived as bad
faith on the part of a Senator and two Justices of the
Sandiganbaya38 for their participation in the passage of
the said provisions. In particular, it is stressed that the
Senator had expressed strong sentiments against those
officials involved in the Kuratong Baleleng cases during
the hearings conducted on the matter by the committee
headed by the Senator. Petitioner further contends that
the legislature is biased against him as he claims to have
been selected from among the 67 million other Filipinos
as the object of the deletion of the word "principal" in
paragraph a, Section 4 of P.D. 1606, as amended, and of
the transitory provision of R.A. 8249.39 R.A 8249, while
still a bill, was acted, deliberated, considered by 23 other
Senators and by about 250 Representatives, and was
separately approved by the Senate and House of
Representatives and, finally, by the President of the
Philippines.
On the perceived bias that the Sandiganbayan Justices
allegedly had against petitioner during the committe
hearings, the same would not constitute sufficient
justification to nullify an otherwise valid law. Their
presence and participation in the legislative hearings
was deemed necessary by Congress since the matter
before the committee involves the graft court of which
one is the head of the Sandiganbayan and the other a
member thereof. The Congress, in its plenary legislative
powers, is particularly empowered by the Constitution to
invite persons to appear before it whenever it decides to
conduct inquiries in aid of legislation.40
Petitioner and entervenors further further argued that the
retroactive application of R.A. 8249 to the Kuratong
Baleleng cases constitutes an ex post facto law41 for they
are deprived of their right to procedural due process as
they can no longer avail of the two-tiered appeal which
they had allegedly acquired under R.A. 7975.
Again, this contention is erroneous. There is nothing ex procedure provided for in the statutory right of appeal is
post facto in R.A. 8249. In Calder v. Bull,42 an ex post not included in the prohibition against ex post
factolaw is one — facto laws.51 R.A. 8249 pertains only to matters of
(a) which makes an act procedure, and being merely an amendatory statute it
done criminal before the does not partake the nature of an ex post facto law. It
passing of the law and does not mete out a penalty and, therefore, does not
which was innocent come within the prohibition.52 Moreover, the law did not
when committed, and alter the rules of evidence or the mode of trial.53 It has
punishes such action; or been ruled that adjective statutes may be made
(b) which aggravates a applicable to actions pending and unresolved at the time
crime or makes it of their passage.54
greater than when it In any case; R.A. 8249 has preserved the accused's
was committed; or right to appeal to the Supreme Court to review questions
(c) which changes the of law.55 On the removal of the intermediate review of
punishment and inflicts facts, the Supreme Court still has the power of review to
a greater punishment determine if he presumption of innocence has been
than the law annexed to convincing overcome.56
the crime when it was Another point. The challenged law does not violate the
committed. one-title-one-subject provision of the Constitution. Much
(d) which alters the emphasis is placed on the wording in the title of the law
legal rules of evidence that it "defines" the Sandiganbayan jurisdiction when
and recieves less or what it allegedly does is to "expand" its jurisdiction. The
different testimony that expantion in the jurisdiction of the Sandiganbayan, if it
the law required at the can be considered as such, does not have to be
time of the commission expressly stated in the title of the law because such is
of the offense on order the necessary consequence of the amendments. The
to convict the requirement that every bill must only have one subject
defendant.43 expressed in the title57is satisfied if the title is
comprehensive enough, as in this case, to include
(e) Every law which, in subjects related to the general purpose which the statute
relation to the offense or seeks to achieve.58 Such rule is liberally interpreted and
its consequences, alters should be given a practical rather than a technical
the situation of a person construction. There is here sufficient compliance with
to his disadvantage.44 such requirement, since the title of R.A. 8249 expresses
This Court added two more to the list, namely: the general subject (involving the jurisdiction of the
(f) that which assumes Sandiganbayan and the amendment of P.D. 1606, as
to regulate civil rights amended) and all the provisions of the law are germane
and remedies only but to that general subject.59 The Congress, in employing the
in effect imposes a word "define" in the title of the law, acted within its power
penalty or deprivation of since Section 2, Article VIII of the Constitution itself
a right which when done empowers the legislative body to "define, prescribe, and
was lawful; apportion the jurisdiction of various courts.60
(g) deprives a person There being no unconstitutional infirmity in both the
accussed of crime of subject amendatory provision of Section 4 and the
some lawful protection retroactive procedural application of the law as provided
to which he has become in Section 7 of R.A. No. 8249, we shall now determine
entitled, such as the whether under the allegations in the Informations, it is
protection of a former the Sandiganbayan or Regional Trial Court which has
conviction or acquittal, jurisdictions over the multiple murder case against herein
or a proclamation of a petitioner and entervenors.
amnesty.45 The jurisdiction of a court is defined by the Constitution
Ex post facto law, generally, prohibits retrospectivity of or statute. The elements of that definition must appear in
penal laws.46 R.A. 8249 is not penal law. It is a the complaint or information so as to ascertain which
substantive law on jurisdiction which is not penal in court has jurisdiction over a case. Hence the elementary
character. Penal laws are those acts of the Legislature rule that the jurisdiction of a court is determined by the
which prohibit certain acts and establish penalties for allegations in the complaint or informations,61 and not by
their violations;47 or those that define crimes, treat of the evidence presented by the parties at the trial. 62
their nature, and provide dor their punishment.48 R.A As stated earlier, the multiple murder charge against
7975, which amended P.D. 1606 as regards the petitioner and intervenors falls under Section 4
Sandiganbayan's jurisdiction, its mode of appeal and [paragraph b] of R.A. 8249. Section 4 requires that the
other procedural matters, has been declared by the offense charged must be committed by the offender in
Court as not a penal law, but clearly a procedural relation to his office in order for the Sandiganbayan to
statute, i.e. one which prescribes rules of procedure by have jurisdiction over it.63 This jurisdictional requirement
which courts applying laws of all kinds can properly is in accordance with Section 5, Article XIII of the 1973
administer justice.49 Not being a penal law, the Constitution which mandated that the Sandiganbayan
retroactive application of R.A. 8249 cannot be shall have jurisdiction over criminal cases committed by
challenged as unconstitutional. the public officers and employees, including those in
Petitioner's and entervenors' contention that their right to goverment-owned or controlled corporations, "in relation
a two-tiered appeal which they acquired under R.A. 7975 to their office as may be determined by law." This
has been diluted by the enactment of R.A. 8249, is constitutional mandate was reiterated in the new (1987)
incorrect. The same contention has already been Constitution when it declared in Section 4 thereof that
rejected by the court several times50 considering that the the Sandiganbayan shall continue to function and
right to appeal is not a natural right but statutory in exercise its jurisdiction as now or hereafter may be
nature that can be regulated by law. The mode of provided by law.

37
The remaining question to be resolved then is whether
the offense of multiple murder was committed in relation
to the office of the accussed PNP officers.
In People vs. Montejo,64 we held that an offense is said
to have been committed in relation to the office if it (the
offense) is "intimately connected" with the office of the
offender and perpetrated while he was in the
performance of his official functions.65 This intimate
relation between the offense charged and the discharge
of official duties "must be alleged in the informations." 66
As to how the offense charged be stated in the
informations, Section 9, Rule 110 of the Revised Rules
of Court mandates:
Sec. 9 Couse of accusation — The acts
or omissions complied of as constituting
the offense must be stated in ordinary
and concise language without
repetition not necessarily in the terms of
the statute defining the offense, but in
such from as is sufficient to enable a
person of common understanding to
know what offense is intended to be
charged, and enable the court to
pronounce proper judgment. (Emphasis
supplied)
As early as 1954 we pronounced that "the factor that
characterizes the charge is the actual recital of the
facts."67The real nature of the criminal charge is
determined not from the caption or preamble of the
informations nor from the specification of the provision of
law alleged to have been violated, they being
conclusions of law, but by the actual recital of facts in the
complaint or information.68
The noble object or written accusations cannot be
overemphasized. This was explained in U.S. v. Karelsen:
69
The object of this written accusations
was — First; To furnish the accused with
such a descretion of the charge against
him as will enable him to make his
defense and second to avail himself of
his conviction or acquittal for protection
against a further prosecution for the
same cause and third, to inform the
court of the facts alleged so that it may
decide whether they are sufficient in law
to support a conviction if one should be
had. In order that the requirement may
be satisfied, facts must be stated, not
conclusions of law. Every crime is made
up of certain acts and intent these must
be set forth in the complaint with
reasonable
particularly of time, place, names (plainti
ff and defendant) and circumstances. In
short, the complaint must
contain a specific allegation of every
fact and circumstance necessary to
constitute the crime charged. (Emphasis
supplied)
It is essential, therefore, that the accused be informed of
the facts that are imputed to him as "he is presumed to
have no indefendent knowledge of the facts that
constitute the offense."70
Applying these legal principles and doctrines to the
present case, we find the amended informations for
murder against herein petitioner and intervenors wanting
of specific factual averments to show the intimate
relation/connection between the offense charged and the
discharge of official function of the offenders.
In the present case, one of the eleven (11) amended
informations71 for murder reads:
AMENDED INFORMATIONS
The undersigned Special Prosecution
Officer III. Office of the Ombudsman
hereby accuses CHIEF INSP. MICHAEL
RAY AQUINO, CHIEF INSP. ERWIN T.
VILLACORTE, SENIOR INSP.
JOSELITO T. ESQUIVEL, INSP.
RICARDO G. DANDAN, SPO4
VICENTE P. ARNADO, SPO4
ROBERTO F. LANGCAUON, SPO2
VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, SPO1
OSMUNDO B. CARINO, CHIEF SUPT.
JEWEL F. CANSON, CHIEF SUPT.
ROMEO M. ACOP, CHIEF SUPT.
PANFILO M. LACSON, SENIOR SUPT.
FRANCISCO G. ZUBIA JR., SUPT.
ALMARIO A. HILARIO, CHIEF INSP.
CESAR O. MANCAO III, CHIEF INSP.
GIL L. MENESES, SENIOR INSP.
GLENN DUMLAO, SENIOR INSP.
ROLANDO ANDUYAN, INSP. CEASAR
TANNAGAN, SPO3 WILLY NUAS,
SPO3 CICERO S. BACOLOD, SPO2
NORBERTO LASAGA, PO2
LEONARDO GLORIA, and PO2
ALEJANDRO G. LIWANAG of the crime
of Murder as defined and penalize under
Article 248 of the Revised Penal Code
committed as follows
That on or about May 18, 1995 in
Mariano Marcos Avenue, Quezon City
Philippines and within the jurisdiction of
his Honorable Court, the accused
CHIEF INSP. MICHAEL RAY AQUINO,
CHIEF INSP. ERWIN T. VILLACORTE,
SENIOR INSP. JOSELITO T.
ESQUIVEL, INSP. RICARDO G.
DANDAN, SPO4 VICENTE ARNADO,
SPO4 ROBERTO F. LANGCAUON,
SPO2 VIRGILIO V. PARAGAS, SPO2
ROLANDO R. JIMENEZ, SPO1
WILFREDO C. CUARTERO, SPO1
ROBERTO O. AGBALOG, and SPO1
OSMUNDO B. CARINO, all taking
advantage of their public and official
positions as officers and members of the
Philippine National Police and
committing the acts herein alleged in
relation to their public office, conspiring
with intent to kill and using firearms with
treachery evident premeditation and
taking advantage of their superior
strenghts did then and there willfully
unlawfully and feloniously shoot JOEL
AMORA, thereby inflicting upon the
latter mortal wounds which caused his
instantaneous death to the damage and
prejudice of the heirs of the said victim.
That accused CHIEF SUPT. JEWEL F.
CANSON, CHIEF SUPT. ROMOE M.
ACOP, CHIEF SUPT. PANFILO M.
LACSON, SENIOR SUPT. FRANCISCO
G. ZUBIAM JR., SUPT. ALMARIO A.
HILARIO, CHIEF INSP. CESAR O.
MANCAO II, CHIEF INSP. GIL L.
MENESES, SENIOR INSP. GLENN
DUMLAO, SENIOR INSP. ROLANDO
ANDUYAN, INSP. CEASAR
TANNAGAN, SPO3 WILLY NUAS,
SPO3 CICERO S. BACOLOD, PO2
ALEJANDRO G. LIWANAG committing
the acts in relation to office as officers

38
 and members of the Philippine National
Police are charged herein as
accessories after-the-fact for concealing
the crime herein above alleged by
among others falsely representing that
there where no arrest made during
the read conducted by the accused
herein at Superville Subdivision,
Paranaque, Metro Manila on or about
the early dawn of May 18, 1995.
CONTRARY LAW.
While the above-quoted information states that the
above-named principal accused committed the crime of
murder "in relation to thier public office, there is,
however, no specific allegation of facts that the shooting
of the victim by the said principal accused was intimately
related to the discharge of their official duties as police
officers. Likewise, the amended information does not
indicate that the said accused arrested and investigated
the victim and then killed the latter while in their custody.
Even the allegations concerning the criminal participation
of herein petitioner and intevenors as among the
accessories after-the-facts, the amended information is
vague on this. It is alleged therein that the said
accessories concelead "the crime herein-above alleged
by, among others, falsely representing that there were no
arrests made during the raid conducted by the accused
herein at Superville Subdivision, Paranaque Metro
Manila, on or about the early dawn of May 18, 1995."
The sudden mention of the "arrests made during the raid
conducted by the accused" surprises the reader. There is
no indication in the amended information that the victim
was one of those arrested by the accused during the
"raid." Worse, the raid and arrests were allegedly
conducted "at Superville Subdivision, Paranaque, Metro
Manila" but, as alleged in the immediately preceding
paragraph of the amended information, the shooting of
the victim by the principal accused occurred in Mariano
Marcos Avenue, Quezon City." How the raid, arrests and
shooting happened in the two places far away from each
other is puzzling. Again, while there is the allegation in
the amended information that the said accessories
committed the offense "in relation to office as officers
and members of the (PNP)," we, however, do not see
the intimate connection between the offense charged
and the accused's official functions, which, as earlier
discussed, is an essential element in determining the
jurisdiction of the Sandiganbayan.
The stringent requirement that the charge be set forth
with such particularly as will reasonably indicate the
exact offense which the accused is alleged to have
committed in relation to his office was, sad to say, not
satisfied. We believe that the mere allegation in the
amended information that the offense was committed by
the accused public officer in relation to his office is not
sufficient. That phrase is merely a conclusion between of
law, not a factual avernment that would show the close
intimacy between the offense charged and the discharge
of the accused's official duties.
In People vs. Magallanes, 72 where the jurisdiction
between the Regional Trial Court and the
Sandiganbayan was at issue, we ruled:
It is an elementary rule that jurisdiction
is determined by the allegations in the
complaint or information and not by the
result of evidence after trial.
In (People vs) Montejo (108 Phil 613
(1960), where the amended information
alleged
Leroy S. Brown City
Mayor of Basilan City,
as such, has organized
groups of police patrol
39
and civilian
commandoes consisting
of regular policeman
and . . . special
policemen appointed
and provided by him
with pistols and higher
power guns and then
established a camp . . .
at Tipo-tipo which is
under his command . . .
supervision and control
where his co-
defendants were
stationed entertained
criminal complaints and
conducted the
corresponding
investigations as well as
assumed the authority
to arrest and detain
person without due
process of law and
without bringing them to
the proper court, and
that in line with this set-
up established by said
Mayor of Basilan City as
such, and acting upon
his orders his co-
defendants arrested
and maltreated Awalin
Tebag who denied in
consequence thereof.
we held that the offense charged was
committed in relation to the office of the
accused because it was perpetreated
while they were in the performance,
though improper or irregular of their
official functions and would not have
been committed had they not held their
office, besides, the accused had no
personal motive in committing the crime
thus, there was an intimate connection
between the offense and the office of the
accused.
Unlike in Montejo the informations in
Criminal Cases Nos. 15562 and 15563
in the court below do not indicate that
the accused arrested and investigated
the victims and then killed the latter in
the course of the investigation. The
informations merely allege that the
accused for the purpose of extracting or
extortin the sum of P353,000.00
abducted, kidnapped and detained the
two victims, and failing in their common
purpose they shot; and killed the said
victims. For the purpose of determining
jurisdiction, it is these allegations that
shall control, and not the evidence
presented by the prosecution at the trial.
In the aforecited case of People vs. Montejo, it is
noteworthy that the phrase committed in relation to
public office "does not appear in the information, which
only signifies that the said phrase is not what determines
the jurisdiction of the Sandiganbayan. What is controlling
is the specific factual allegations in the information that
would indicate the close intimacy between the discharge
of the accused's official duties and the commission of the
offense charged, in order to qualify the crime as having
been committed in relation to public office.
Consequently, for failure to show in the amended
informations that the charge of murder was intimately
connected with the discharge of official functions of the jurisdiction of the Sandiganbayan by deleting the
accused PNP officers, the offense charged in the subject
criminal cases is plain murder and, therefore, within the word “principal” from the phrase “principal
exclusive original jurisdiction of the Regional Trial accused” in Section 2 of R.A. 7975.
Court,73 not the Sandiganbayan.
WHEREFORE, the constitutionality of Sections 4 and 7
of R.A. 8249 is hereby sustained. The Addendum to the Petitioner questions the constitutionality of
March 5, 1997 Resolution of the Sandiganbayan is Section 4 of R.A. 8249, including Section 7 which
REVERSED. The Sandiganbayan is hereby directed to provides that the said law shall apply to all cases
transfer Criminal Cases Nos. 23047 to 23057 (for
multiple murder) to the Regional Trial Court of Quezon pending in any court over which trial has not
City which has exclusive original jurisdiction over the begun as of the approval hereof.
said cases.1âwphi1.nêt
SO ORDERED.
Issues:
301 SCRA 298; G.R. NO. 12809620 JAN 1999
LACSON VS. EXECUTIVE SECRETARY
(1) Whether or not Sections 4 and 7 of R.A. 8249
violate the petitioners’ right to due process and
Facts: the equal protection clause of the Constitution as
Eleven persons believed to be members of the the provisions seemed to have been introduced
Kuratong Baleleng gang, an organized crime for the Sandiganbayan to continue to acquire
syndicate involved in bank robberies, were slain jurisdiction over the Kuratong Baleleng case.
by elements of the Anti-Bank Robbery
andIntelligence Task Group (ABRITG). Among (2) Whether or not said statute may be
those included in the ABRITG were petitioners considered as an ex-post facto statute.
and petitioner-intervenors.
(3) Whether or not the multiple murder of the
Acting on a media expose of SPO2 Eduardo delos alleged members of the Kuratong Baleleng was
Reyes, a member of the Criminal Investigation committed in relation to the office of the
Command, that what actually transpired was a accused PNP officers which is essential to the
summary execution and not a shoot-out between determination whether the case falls within the
the Kuratong Baleleng gang members and the Sandiganbayan’s or Regional Trial Court’s
ABRITG, Ombudsman Aniano Desiertoformed a jurisdiction.
panel of investigators to investigate the said
incident. Said panel found the incident as a RULING:
legitimate police operation. However, a review Petitioner and intervenors’ posture that Sections
board modified the panel’s finding and 4 and 7 of R.A. 8249 violate their right to equal
recommended the indictment for multiple murder protection of the law is too shallow to deserve
against twenty-six respondents including herein merit. No concrete evidence and convincing
petitioner, charged as principal, and herein argument were presented to warrant such a
petitioner-intervenors, charged as accessories. declaration. Every classification made by the law
After a reinvestigation, the Ombudsman filed is presumed reasonable and the party who
amended informations before the Sandiganbayan, challenges the law must present proof of
where petitioner was charged only as an arbitrariness. The classification is reasonable and
accessory. not arbitrary when the following concur: (1) it
must rest on substantial distinction; (2) it must be
The accused filed separate motions questioning germane to the purpose of the law; (3) must not
the jurisdiction of the Sandiganbayan, asserting be limited to existing conditions only, and (4)
that under the amended informations, the cases must apply equally to all members of the same
fall within the jurisdiction of the Regional Trial class; all of which are present in this case.
Court pursuant to Section 2 of R.A. 7975. They
contend that the said law limited the jurisdiction Paragraph a of Section 4 provides that it shall
of the Sandiganbayan to cases where one or ore apply “to all cases involving” certain public
of the “principal accused” are government officals officials and under the transitory provision in
with Salary Grade 27 or higher, or PNP officials Section 7, to “all cases pending in any court.”
with rank of Chief Superintendent or higher. Thus, Contrary to petitioner and intervenors’ argument,
they did not qualify under said requisites. the law is not particularly directed only to the
However, pending resolution of their motions, Kuratong Baleleng cases. The
R.A. 8249 was approved amending the transitory provision does not only cover cases

40
which are in the Sandiganbayan but also in “any
court.”
There is nothing ex post facto in R.A. 8249. Ex
post facto law, generally, provides retroactive
effect of penal laws. R.A. 8249 is not apenal law.
It is a substantive law on jurisdiction which is not
penal in character. Penal laws are those acts of
the Legislature which prohibit certain acts and
establish penalties for their violations or those
that define crimes and provide for their
punishment. R.A. 7975, as regards the
Sandiganbayan’s jurisdiction, its mode of appeal
and other procedural matters, has been declared
by the Court as not a penal law, but clearly a
procedural statute, one which prescribes rules of
procedure by which courts applying laws of all
kinds can properly administer justice. Not being
a penal law, the retroactive application of R.A.
8249 cannot be challenged as unconstitutional.
In People vs. Montejo, it was held that an offense
is said to have been committed in relation to the
office if it is intimately connected with the office
of the offender and perpetrated while he was in
the performance of his official functions. Such
intimate relation must be alleged in the
information which is essential in determining the
jurisdiction of the Sandiganbayan. However,
upon examination of the amended information,
there was no specific allegation of facts that the
shooting of the victim by the said principal
accused was intimately related to the discharge
of their official duties as police officers. Likewise,
the amended information does not indicate that
the said accused arrested and investigated the
victim and then killed the latter while in their
custody. The stringent requirement that the
charge set forth with such particularity as will
reasonably indicate the exact offense which the
accused is alleged to have committed in relation
to his office was not established.
Consequently, for failure to show in the amended
informations that the charge of murder was
intimately connected with the discharge of official
functions of the accused PNP officers, the offense
charged in the subject criminal cases is plain
murder and, therefore, within the exclusive
original jurisdiction of the Regional Trial Court and
not the Sandiganbayan.
G.R. No. 147387 December 10, 2003
RODOLFO C. FARIÑAS, MANUEL M. GARCIA,
FRANCIS G. ESCUDERO, and AGAPITO A. AQUINO,
AS MEMBERS OF THE HOUSE OF
REPRESENTATIVES AND ALSO AS TAXPAYERS, IN
41
THEIR OWN BEHALF AND IN REPRESENTATION OF
THE MEMBERS OF THE MINORITY IN THE HOUSE
OF REPRESENTATIVES,petitioners,
vs.
THE EXECUTIVE SECRETARY, COMMISSION ON
ELECTIONS, HON. FELICIANO R. BELMONTE, JR.,
SECRETARY OF THE INTERIOR AND LOCAL
GOVERNMENT, SECRETARY OF THE SENATE, AND
SECRETARY GENERAL OF THE HOUSE OF
REPRESENTATIVES, respondents.
x-----------------------x
G.R. No. 152161
CONG. GERRY A. SALAPUDDIN, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
CALLEJO, SR., J.:
Before the Court are two Petitions under Rule 65 of the
Rules of Court, as amended, seeking to declare as
unconstitutional Section 14 of Republic Act No. 9006
(The Fair Election Act), insofar as it expressly repeals
Section 67 of Batas Pambansa Blg. 881 (The Omnibus
Election Code) which provides:
SEC. 67. Candidates holding elective office. – Any
elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
The petition for certiorari and prohibition in G.R. No.
147387 was filed by Rodolfo C. Fariñas, Manuel M.
Garcia, Francis G. Escudero and Agapito A. Aquino. At
the time of filing of the petition, the petitioners were
members of the minority bloc in the House of
Representatives. Impleaded as respondents are: the
Executive Secretary, then Speaker of the House of
Representatives Feliciano R. Belmonte, Jr., the
Commission on Elections, the Secretary of the
Department of the Interior and Local Government
(DILG), the Secretary of the Senate and the Secretary
General of the House of Representatives.
The petition for prohibition in G.R. No. 152161 was filed
by Gerry A. Salapuddin, then also a member of the
House of Representatives. Impleaded as respondent is
the COMELEC.
Legislative History of Republic Act No. 9006
Rep. Act No. 9006, entitled "An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices," is a
consolidation of the following bills originating from the
House of Representatives and the Senate, respectively:
House Bill (HB) No. 9000 entitled "AN ACT ALLOWING
THE USE OF MASS MEDIA FOR ELECTION
PROPAGANDA, AMENDING FOR THE PURPOSE
BATAS PAMBANSA BILANG 881, OTHERWISE
KNOWN AS THE ‘OMNIBUS ELECTION CODE,’ AS
AMENDED, AND FOR OTHER PURPOSES;"1
…
Senate Bill (SB) No. 1742 entitled "AN ACT TO
ENHANCE THE HOLDING OF FREE, ORDERLY,
HONEST, PEACEFUL, AND CREDIBLE ELECTIONS
THROUGH FAIR ELECTION PRACTICES."2
A Bicameral Conference Committee, composed of eight
members of the Senate3 and sixteen (16) members of
the House of Representatives,4 was formed to reconcile
the conflicting provisions of the House and Senate
versions of the bill.
On November 29, 2000, the Bicameral Conference
Committee submitted its Report,5 signed by its members,
recommending the approval of the bill as reconciled and
approved by the conferees.
During the plenary session of the House of
Representatives on February 5, 2001, Rep. Jacinto V.
Paras proposed an amendment to the Bicameral
Conference Committee Report. Rep. Didagen P.
Dilangalen raised a point of order commenting that the
House could no longer submit an amendment thereto.
Rep. Sergio A.F. Apostol thereupon moved that the
House return the report to the Bicameral Conference
Committee in view of the proposed amendment thereto.
Rep. Dilangalen expressed his objection to the proposal.
However, upon viva voce voting, the majority of the
House approved the return of the report to the Bicameral
Conference Committee for proper action.6
In view of the proposed amendment, the House of
Representatives elected anew its conferees7 to the
Bicameral Conference Committee.8 Then again, for
unclear reasons, upon the motion of Rep. Ignacio R.
Bunye, the House elected another set of conferees9 to
the Bicameral Conference Committee.10
On February 7, 2001, during the plenary session of the
House of Representatives, Rep. Bunye moved that the
House consider the Bicameral Conference Committee
Report on the contrasting provisions of HB No. 9000 and
SB No. 1742. Rep. Dilangalen observed that the report
had been recommitted to the Bicameral Conference
Committee. The Chair responded that the Bicameral
Conference Report was a new one, and was a result of
the reconvening of a new Bicameral Conference
Committee. Rep. Dilangalen then asked that he be given
time to examine the new report. Upon motion of Rep.
Apostol, the House deferred the approval of the report
until the other members were given a copy thereof. 11
After taking up other pending matters, the House
proceeded to vote on the Bicameral Conference
Committee Report on the disagreeing provisions of HB
No. 9000 and SB No. 1742. The House approved the
report with 125 affirmative votes, 3 negative votes and
no abstention. In explaining their negative votes, Reps.
Fariñas and Garcia expressed their belief that Section 14
thereof was a rider. Even Rep. Escudero, who voted in
the affirmative, expressed his doubts on the
constitutionality of Section 14. Prior to casting his vote,
Rep. Dilangalen observed that no senator signed the
Bicameral Conference Committee Report and asked if
this procedure was regular.12
On the same day, the Senate likewise approved the
Bicameral Conference Committee Report on the
contrasting provisions of SB No. 1742 and HB No. 9000.
Thereafter, Rep. Act No. 9006 was duly signed by then
Senate President Aquilino Pimentel, Jr. and then
Speaker of the House of Representatives Feliciano R.
Belmonte, Jr. and was duly certified by the Secretary of
the Senate Lutgardo B. Barbo and the Secretary General
of the House of Representatives Robert P. Nazareno as
"the consolidation of House Bill No. 9000 and Senate Bill
No. 1742," and "finally passed by both Houses on
February 7, 2001."
President Gloria Macapagal-Arroyo signed Rep. Act No.
9006 into law on February 12, 2001.
The Petitioners’ Case
The petitioners now come to the Court alleging in the
main that Section 14 of Rep. Act No. 9006, insofar as it
repeals Section 67 of the Omnibus Election Code, is
unconstitutional for being in violation of Section 26(1),
Article VI of the Constitution, requiring every law to have
only one subject which should be expressed in its title.
According to the petitioners, the inclusion of Section 14
repealing Section 67 of the Omnibus Election Code in
Rep. Act No. 9006 constitutes a proscribed rider. They
point out the dissimilarity in the subject matter of Rep.
Act No. 9006, on the one hand, and Section 67 of the
Omnibus Election Code, on the other. Rep. Act No. 9006
primarily deals with the lifting of the ban on the use of
42
media for election propaganda and the elimination of
unfair election practices, while Section 67 of the
Omnibus Election Code imposes a limitation on elective
officials who run for an office other than the one they are
holding in a permanent capacity by considering them as
ipso facto resigned therefrom upon filing of the certificate
of candidacy. The repeal of Section 67 of the Omnibus
Election Code is thus not embraced in the title, nor
germane to the subject matter of Rep. Act No. 9006.
The petitioners also assert that Section 14 of Rep. Act
No. 9006 violates the equal protection clause of the
Constitution because it repeals Section 67 only of the
Omnibus Election Code, leaving intact Section 66
thereof which imposes a similar limitation to appointive
officials, thus:
SEC. 66. Candidates holding appointive office or
position. – Any person holding a public appointive office
or position, including active members of the Armed
Forces of the Philippines, and officers and employees in
government-owned or controlled corporations, shall be
considered ipso facto resigned from his office upon the
filing of his certificate of candidacy.
They contend that Section 14 of Rep. Act No. 9006
discriminates against appointive officials. By the repeal
of Section 67, an elective official who runs for office
other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his
certificate of candidacy. Elective officials continue in
public office even as they campaign for reelection or
election for another elective position. On the other hand,
Section 66 has been retained; thus, the limitation on
appointive officials remains - they are still considered
ipso facto resigned from their offices upon the filing of
their certificates of candidacy.
The petitioners assert that Rep. Act No. 9006 is null and
void in its entirety as irregularities attended its enactment
into law. The law, not only Section 14 thereof, should be
declared null and void. Even Section 16 of the law which
provides that "[t]his Act shall take effect upon its
approval" is a violation of the due process clause of the
Constitution, as well as jurisprudence, which require
publication of the law before it becomes effective.
Finally, the petitioners maintain that Section 67 of the
Omnibus Election Code is a good law; hence, should not
have been repealed. The petitioners cited the ruling of
the Court in Dimaporo v. Mitra, Jr.,13 that Section 67 of
the Omnibus Election Code is based on the
constitutional mandate on the "Accountability of Public
Officers:"14
Sec. 1. Public office is a public trust. Public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty and efficiency, act with patriotism and justice, and
lead modest lives.
Consequently, the respondents Speaker and Secretary
General of the House of Representatives acted with
grave abuse of discretion amounting to excess or lack of
jurisdiction for not considering those members of the
House who ran for a seat in the Senate during the May
14, 2001 elections as ipso facto resigned therefrom,
upon the filing of their respective certificates of
candidacy.
The Respondents’ Arguments
For their part, the respondents, through the Office of the
Solicitor General, urge this Court to dismiss the petitions
contending, preliminarily, that the petitioners have no
legal standing to institute the present suit. Except for the
fact that their negative votes were overruled by the
majority of the members of the House of
Representatives, the petitioners have not shown that
they have suffered harm as a result of the passage of
Rep. Act No. 9006. Neither do petitioners have any
interest as taxpayers since the assailed statute does not
involve the exercise by Congress of its taxing or
spending power.
Invoking the "enrolled bill" doctrine, the respondents
refute the petitioners’ allegations that "irregularities"
attended the enactment of Rep. Act No. 9006. The
signatures of the Senate President and the Speaker of
the House, appearing on the bill and the certification
signed by the respective Secretaries of both houses of
Congress, constitute proof beyond cavil that the bill was
duly enacted into law.
The respondents contend that Section 14 of Rep. Act
No. 9006, as it repeals Section 67 of the Omnibus
Election Code, is not a proscribed rider nor does it
violate Section 26(1) of Article VI of the Constitution. The
title of Rep. Act No. 9006, "An Act to Enhance the
Holding of Free, Orderly, Honest, Peaceful and Credible
Elections through Fair Election Practices," is so broad
that it encompasses all the processes involved in an
election exercise, including the filing of certificates of
candidacy by elective officials.
They argue that the repeal of Section 67 is germane to
the general subject of Rep. Act No. 9006 as expressed in
its title as it eliminates the effect of prematurely
terminating the term of an elective official by his filing of
a certificate of candidacy for an office other than the one
which he is permanently holding, such that he is no
longer considered ipso facto resigned therefrom. The
legislature, by including the repeal of Section 67 of the
Omnibus Election Code in Rep. Act No. 9006, has
deemed it fit to remove the "unfairness" of considering
an elective official ipso facto resigned from his office
upon the filing of his certificate of candidacy for another
elective office. With the repeal of Section 67, all elective
officials are now placed on equal footing as they are
allowed to finish their respective terms even if they run
for any office, whether the presidency, vice-presidency or
other elective positions, other than the one they are
holding in a permanent capacity.
The respondents assert that the repeal of Section 67 of
the Omnibus Election Code need not be expressly stated
in the title of Rep. Act No. 9006 as the legislature is not
required to make the title of the act a complete index of
its contents. It must be deemed sufficient that the title be
comprehensive enough reasonably to include the
general subject which the statute seeks to effect without
expressing each and every means necessary for its
accomplishment. Section 26(1) of Article VI of the
Constitution merely calls for all the parts of an act
relating to its subject to find expression in its title. Mere
details need not be set forth.
According to the respondents, Section 14 of Rep. Act
No. 9006, insofar as it repeals Section 67, leaving
Section 66 of the Omnibus Election Code intact and
effective, does not violate the equal protection clause of
the Constitution. Section 67 pertains to elective officials
while Section 66 pertains to appointive officials. A
substantial distinction exists between these two sets of
officials; elective officials occupy their office by virtue of
their mandate based upon the popular will, while the
appointive officials are not elected by popular will. The
latter cannot, therefore, be similarly treated as the
former. Equal protection simply requires that all persons
or things similarly situated are treated alike, both as to
rights conferred and responsibilities imposed.
Further, Section 16, or the "Effectivity" clause, of Rep.
Act No. 9006 does not run afoul of the due process
clause of the Constitution as it does not entail any
arbitrary deprivation of life, liberty and property.
Specifically, the section providing for penalties in cases
of violations thereof presume that the formalities of the
law would be observed, i.e., charges would first be filed,
and the accused would be entitled to a hearing before
judgment is rendered by a court having jurisdiction. In
any case, the issue about lack of due process is
43
premature as no one has, as yet, been charged with
violation of Rep. Act No. 9006.
Finally, the respondents submit that the respondents
Speaker and Secretary General of the House of
Representatives did not commit grave abuse of
discretion in not excluding from the Rolls those members
thereof who ran for the Senate during the May 14, 2001
elections. These respondents merely complied with Rep.
Act No. 9006, which enjoys the presumption of validity
until declared otherwise by the Court.
The Court’s Ruling
Before resolving the petitions on their merits, the Court
shall first rule on the procedural issue raised by the
respondents, i.e., whether the petitioners have the legal
standing or locus standi to file the petitions at bar.
The petitions were filed by the petitioners in their
capacities as members of the House of Representatives,
and as taxpayers and registered voters.
Generally, a party who impugns the validity of a statute
must have a personal and substantial interest in the case
such that he has sustained, or will sustain, direct injury
as a result of its enforcement.15 The rationale for
requiring a party who challenges the constitutionality of a
statute to allege such a personal stake in the outcome of
the controversy is "to assure that concrete adverseness
which sharpens the presentation of issues upon which
the court so largely depends for illumination of difficult
constitutional questions."16
However, being merely a matter of procedure, this Court,
in several cases involving issues of "overarching
significance to our society,"17 had adopted a liberal
stance on standing. Thus, in Tatad v. Secretary of the
Department of Energy,18 this Court brushed aside the
procedural requirement of standing, took cognizance of,
and subsequently granted, the petitions separately filed
by then Senator Francisco Tatad and several members
of the House of Representatives assailing the
constitutionality of Rep. Act No. 8180 (An Act
Deregulating the Downstream Oil Industry and For Other
Purposes).
The Court likewise took cognizance of the petition filed
by then members of the House of Representatives which
impugned as unconstitutional the validity of a provision
of Rep. Act No. 6734 (Organic Act for the Autonomous
Region in Muslim Mindanao) in Chiongbian v.
Orbos.19 Similarly, the Court took cognizance of the
petition filed by then members of the Senate, joined by
other petitioners, which challenged the validity of Rep.
Act No. 7716 (Expanded Value Added Tax Law) in
Tolentino v. Secretary of Finance.20
Members of Congress, such as the petitioners, were
likewise allowed by this Court to challenge the validity of
acts, decisions, rulings, or orders of various government
agencies or instrumentalities in Del Mar v. Philippine
Amusement and Gaming Corporation,21 Kilosbayan, Inc.
v. Guingona, Jr.,22 Philippine Constitution Association v.
Enriquez,23 Albano v. Reyes,24 and Bagatsing v.
Committee on Privatization.25
Certainly, the principal issue posed by the petitions, i.e.,
whether Section 67 of the Omnibus Election Code, which
this Court had declared in Dimaporo26 as deriving its
existence from the constitutional provision on
accountability of public officers, has been validly
repealed by Section 14 of Rep. Act No. 9006, is one of
"overarching significance" that justifies this Court’s
adoption of a liberal stance vis-à-vis the procedural
matter on standing. Moreover, with the national elections
barely seven months away, it behooves the Court to
confront the issue now and resolve the same forthrightly.
The following pronouncement of the Court is quite
apropos:
... All await the decision of this Court on the constitutional
question. Considering, therefore, the importance which
the instant case has assumed and to prevent multiplicity
of suits, strong reasons of public policy demand that [its]
constitutionality . . . be now resolved. It may likewise be
added that the exceptional character of the situation that
confronts us, the paramount public interest, and the
undeniable necessity for a ruling, the national elections
beings barely six months away, reinforce our stand.27
Every statute is presumed valid.28 The presumption is
that the legislature intended to enact a valid, sensible
and just law and one which operates no further than may
be necessary to effectuate the specific purpose of the
law.29
It is equally well-established, however, that the courts, as
guardians of the Constitution, have the inherent authority
to determine whether a statute enacted by the legislature
transcends the limit imposed by the fundamental
law.30 And where the acts of the other branches of
government run afoul of the Constitution, it is the
judiciary’s solemn and sacred duty to nullify the same.31
Proceeding from these guideposts, the Court shall now
resolve the substantial issues raised by the petitions.
Section 14 of Rep. Act No. 9006 Is Not a Rider 32
At the core of the controversy is Section 14, the
repealing clause of Rep. Act No. 9006, which provides:
Sec. 14. Sections 67 and 85 of the Omnibus Election
Code (Batas Pambansa Blg. 881) and Sections 10 and
11 of Republic Act No. 6646 are hereby repealed. As a
consequence, the first proviso in the third paragraph of
Section 11 of Republic Act No. 8436 is rendered
ineffective. All laws, presidential decrees, executive
orders, rules and regulations, or any part thereof
inconsistent with the provisions of this Act are hereby
repealed or modified or amended accordingly.
The repealed provision, Section 67 of the Omnibus
Election Code, quoted earlier, reads:
SEC. 67. Candidates holding elective office. – Any
elective official, whether national or local, running for any
office other than the one which he is holding in a
permanent capacity, except for President and Vice-
President, shall be considered ipso facto resigned from
his office upon the filing of his certificate of candidacy.
Section 26(1), Article VI of the Constitution provides:
SEC. 26 (1). Every bill passed by the Congress shall
embrace only one subject which shall be expressed in
the title thereof.
The proscription is aimed against the evils of the so-
called omnibus bills and log-rolling legislation as well as
surreptitious and/or unconsidered encroaches. The
provision merely calls for all parts of an act relating to its
subject finding expression in its title.33
To determine whether there has been compliance with
the constitutional requirement that the subject of an act
shall be expressed in its title, the Court laid down the
rule that –
Constitutional provisions relating to the subject matter
and titles of statutes should not be so narrowly construed
as to cripple or impede the power of legislation. The
requirement that the subject of an act shall be expressed
in its title should receive a reasonable and not a
technical construction. It is sufficient if the title be
comprehensive enough reasonably to include the
general object which a statute seeks to effect, without
expressing each and every end and means necessary or
convenient for the accomplishing of that object. Mere
details need not be set forth. The title need not be an
abstract or index of the Act.34
The title of Rep. Act No. 9006 reads: "An Act to Enhance
the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices."
Section 2 of the law provides not only the declaration of
principles but also the objectives thereof:
44
Sec. 2. Declaration of Principles. – The State shall,
during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for
the operation of media of communication or information
to guarantee or ensure equal opportunity for public
service, including access to media time and space, and
the equitable right to reply, for public information
campaigns and fora among candidates and assure free,
orderly, honest, peaceful and credible elections.
The State shall ensure that bona fide candidates for any
public office shall be free from any form of harassment
and discrimination.35
The Court is convinced that the title and the objectives of
Rep. Act No. 9006 are comprehensive enough to include
the repeal of Section 67 of the Omnibus Election Code
within its contemplation. To require that the said repeal of
Section 67 of the Code be expressed in the title is to
insist that the title be a complete index of its content. 36
The purported dissimilarity of Section 67 of the Omnibus
Election Code, which imposes a limitation on elective
officials who run for an office other than the one they are
holding, to the other provisions of Rep. Act No. 9006,
which deal with the lifting of the ban on the use of media
for election propaganda, does not violate the "one
subject-one title" rule. This Court has held that an act
having a single general subject, indicated in the title,
may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be
considered in furtherance of such subject by providing
for the method and means of carrying out the general
subject.37
The deliberations of the Bicameral Conference
Committee on the particular matter are particularly
instructive:
SEN. LEGARDA-LEVISTE:
Yes, Mr. Chairman, I just wanted to clarify.
So all we’re looking for now is an appropriate title to
make it broader so that it would cover this provision
[referring to the repeal of Section 67 of the Omnibus
Election Code], is that correct? That’s all. Because I
believe ...
THE CHAIRMAN (REP. SYJUCO):
We are looking for an appropriate coverage which will
result in the nomenclature or title.
SEN. LEGARDA-LEVISTE:
Because I really do not believe that it is out of place. I
think that even with the term "fair election practice," it
really covers it, because as expressed by Senator Roco,
those conditions inserted earlier seemed unfair and it is
an election practice and, therefore, I think, I’m very
comfortable with the title "Fair Election Practice" so that
we can get over with these things so that we don’t come
back again until we find the title. I mean, it’s one
provision which I think is fair for everybody. It may seem
like a limitation but this limitation actually provides for
fairness in election practices as the title implies.
THE CHAIRMAN (REP. SYJUCO):
Yes.
SEN. LEGARDA-LEVISTE:
So I would want to beg the House contingent, let’s get it
over with. To me, ha, it’s not a very touchy issue. For me,
it’s even a very correct provision. I feel very comfortable
with it and it was voted in the Senate, at least, so I would
like to appeal to the ... para matapos na, then we come
back as a Bicam just for the title Is that what you’re ...?
THE CHAIRMAN (REP. SYJUCO):
It’s not the title per se, it’s the coverage. So if you will
just kindly bear with us. I’m happy that there is already
one comfortable senator there among ... several of us
were also comfortable with it. But it would be well that
when we rise from this Bicam that we’re all comfortable
with it.
THE CHAIRMAN (SEN. ROCO):
Yes. Anyway, let’s listen to Congressman Marcos.
REP. MARCOS:
Mr. Chairman, may I just make the observation
that although it is true that the bulk of provisions deals
with the area of propaganda and political advertising, the
complete title is actually one that indulge full coverage. It
says "An Act to enhance the holding of free, orderly,
honest ... elections through fair election practices." But
as you said, we will put that aside to discuss later one.
Secondly, I think the Declaration of Principles contained
in Section 2, paragraph 2 is perfectly adequate in that it
says that it shall ensure candidates for public office that
may be free from any form of harassment and
discrimination.
Surely this provision in Section 67 of the old Election
Code of the existing Omnibus Election Code is a form of
harassment or discrimination. And so I think that in the
effort at leveling the playing field, we can cover this and
it should not be considered a rider.
SEN. LEGARDA-LEVISTE:
I agree, Mr. Chairman. I think the Congresswoman from
Ilocos had very clearly put it, that it is covered in the
Declaration of Principles and in the objective of this bill.
And therefore, I hope that the House contingent would
agree to this so that we can finish it now. And it expressly
provides for fair election practices because ...
THE CHAIRMAN (SEN. ROCO):
Yeah, I think what is on the table is that we are not
disputing this, but we are looking for a title that is more
generic so that then we have less of an objection on
constitutionality. I think that’s the theory. So, there is
acceptance of this.
Maybe we should not call it na limitation on elected
officials. Maybe we should say the special provision on
elected officials. So how is that? Alam mo ito ...
REP. MARCOS:
I think we just change the Section 1, the short title.
THE CHAIRMAN (SEN. ROCO):
Also, Then we say - - on the short title of the Act, we
say ...
REP. MARCOS:
What if we say fair election practices? Maybe that should
be changed...
THE CHAIRMAN (SEN. ROCO):
O, sige, fine, fine. Let’s a brainstorm. Equal...
REP. PADILLA:
Mr. Chairman, why don’t we use "An Act rationalizing the
holding of free, orderly, honest, peaceful and credible
elections, amending for the purpose Batasang
Pambansa known as the Omnibus Election Code?"
THE CHAIRMAN (SEN. ROCO):
Why don’t we remove "fair" and then this shall be cited
as Election Practices Act?"
REP. PICHAY:
That’s not an election practice. That’s a limitation.
THE CHAIRMAN (SEN. ROCO):
Ah - - - ayaw mo iyong practice. O, give me another
noun.
REP. MARCOS:
The Fair Election.
THE CHAIRMAN (SEN. ROCO):
O, Fair Election Act.
REP. MACARAMBON:
Nagbi-brainstorm tayo dito, eh. How about if we change
the title to enhance the holding of free, orderly, honest,
45
peaceful and ensure equal opportunity for public service
through fair election practices?
REP. PICHAY:
Fair election practices?
REP. MACARAMBON:
Yeah. To ensure equal opportunity for public service
through fair ...
THE CHAIRMAN (SEN. ROCO):
Wala nang practices nga.
REP. PICHAY:
Wala nang practices.
THE CHAIRMAN (SEN. ROCO):
It shall be cited as Fair Election Act.
(Informal discussions)
REP. PICHAY:
Approve na iyan.
THE CHAIRMAN (SEN. ROCO):
Done. So, okay na iyon. The title will be "Fair Election
Act."
The rest wala nang problema ano?
VOICES:
Wala na.
REP. MACARAMBON:
Wala na iyong practices?
THE CHAIRMAN (SEN. ROCO):
Wala na, wala na. Mahina tayo sa practice, eh.
O, wala na? We will clean up.
REP. MARCOS:
Title?
THE CHAIRMAN (SEN. ROCO):
The short title, "This Act ..."
THE CHAIRMAN (REP. SYJUCO):
You’re back to your No. 21 already.
REP. MARCOS:
The full title, the same?
THE CHAIRMAN (SEN. ROCO):
Iyon na nga. The full title is "An Act to enhance the
holding ..." That’s the House version, eh, dahil pareho,
hindi ba? Then the short title "This Act shall be known as
the Fair Election Act."38
The legislators considered Section 67 of the Omnibus
Election Code as a form of harassment or discrimination
that had to be done away with and repealed. The
executive department found cause with Congress when
the President of the Philippines signed the measure into
law. For sure, some sectors of society and in
government may believe that the repeal of Section 67 is
bad policy as it would encourage political adventurism.
But policy matters are not the concern of the Court.
Government policy is within the exclusive dominion of
the political branches of the government.39 It is not for
this Court to look into the wisdom or propriety of
legislative determination. Indeed, whether an enactment
is wise or unwise, whether it is based on sound
economic theory, whether it is the best means to achieve
the desired results, whether, in short, the legislative
discretion within its prescribed limits should be exercised
in a particular manner are matters for the judgment of
the legislature, and the serious conflict of opinions does
not suffice to bring them within the range of judicial
cognizance.40 Congress is not precluded from repealing
Section 67 by the ruling of the Court in Dimaporo v.
Mitra41 upholding the validity of the provision and by its
pronouncement in the same case that the provision has
a laudable purpose. Over time, Congress may find it
imperative to repeal the law on its belief that the election
process is thereby enhanced and the paramount
objective of election laws – the fair, honest and orderly
election of truly deserving members of Congress – is
achieved.
Moreover, the avowed purpose of the constitutional
directive that the subject of a bill should be embraced in
its title is to apprise the legislators of the purposes, the
nature and scope of its provisions, and prevent the
enactment into law of matters which have not received
the notice, action and study of the legislators and the
public.42 In this case, it cannot be claimed that the
legislators were not apprised of the repeal of Section 67
of the Omnibus Election Code as the same was amply
and comprehensively deliberated upon by the members
of the House. In fact, the petitioners, as members of the
House of Representatives, expressed their reservations
regarding its validity prior to casting their votes.
Undoubtedly, the legislators were aware of the existence
of the provision repealing Section 67 of the Omnibus
Election Code.
Section 14 of Rep. Act No. 9006
Is Not Violative of the Equal
Protection Clause of the Constitution43
The petitioners’ contention, that the repeal of Section 67
of the Omnibus Election Code pertaining to elective
officials gives undue benefit to such officials as against
the appointive ones and violates the equal protection
clause of the constitution, is tenuous.
The equal protection of the law clause in the Constitution
is not absolute, but is subject to reasonable
classification. If the groupings are characterized by
substantial distinctions that make real differences, one
class may be treated and regulated differently from the
other.44 The Court has explained the nature of the equal
protection guarantee in this manner:
The equal protection of the law clause is against undue
favor and individual or class privilege, as well as hostile
discrimination or the oppression of inequality. It is not
intended to prohibit legislation which is limited either in
the object to which it is directed or by territory within
which it is to operate. It does not demand absolute
equality among residents; it merely requires that all
persons shall be treated alike, under like circumstances
and conditions both as to privileges conferred and
liabilities enforced. The equal protection clause is not
infringed by legislation which applies only to those
persons falling within a specified class, if it applies alike
to all persons within such class, and reasonable grounds
exist for making a distinction between those who fall
within such class and those who do not.45
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions.46 On
the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of
tenure47 while others serve at the pleasure of the
appointing authority.48
Another substantial distinction between the two sets of
officials is that under Section 55, Chapter 8, Title I,
Subsection A. Civil Service Commission, Book V of the
Administrative Code of 1987 (Executive Order No. 292),
appointive officials, as officers and employees in the civil
service, are strictly prohibited from engaging in any
partisan political activity or take part in any election
except to vote. Under the same provision, elective
officials, or officers or employees holding political offices,
are obviously expressly allowed to take part in political
and electoral activities.49
By repealing Section 67 but retaining Section 66 of the
Omnibus Election Code, the legislators deemed it proper
to treat these two classes of officials differently with
46
respect to the effect on their tenure in the office of the
filing of the certificates of candidacy for any position
other than those occupied by them. Again, it is not within
the power of the Court to pass upon or look into the
wisdom of this classification.
Since the classification justifying Section 14 of Rep. Act
No. 9006, i.e., elected officials vis-a-vis appointive
officials, is anchored upon material and significant
distinctions and all the persons belonging under the
same classification are similarly treated, the equal
protection clause of the Constitution is, thus, not
infringed.
The Enrolled Bill Doctrine
Is Applicable In this Case
Not content with their plea for the nullification of Section
14 of Rep. Act No. 9006, the petitioners insist that the
entire law should be nullified. They contend that
irregularities attended the passage of the said law
particularly in the House of Representatives catalogued
thus:
a. Creation of two (2) sets of BCC (Bicameral
Conference Committee) members by the House
during its session on February 5, 2001;
b. No communication from the Senate for a
conference on the compromise bill submitted by
the BCC on November 29, 2000;
c. The new Report submitted by the 2nd/3rd
BCC was presented for approval on the floor
without copies thereof being furnished the
members;
d. The 2nd/3rd BCC has no record of its
proceedings, and the Report submitted by it was
not signed by the Chairman (Sen. Roco) thereof
as well as its senator-members at the time it was
presented to and rammed for approval by the
House;
e. There was no meeting actually conducted by
the 2nd/3rd BCC and that its alleged Report was
instantly made and passed around for the
signature of the BCC members;
f. The Senate has no record of the creation of a
2nd BCC but only of the first one that convened
on November 23, 2000;
g. The "Effectivity" clauses of SB No. 1741 and
HB No. 9000, as well as that of the compromise
bill submitted by the BCC that convened on
November 20, 2000, were couched in terms that
comply with the publication required by the Civil
Code and jurisprudence, to wit:
...
However, it was surreptitiously replaced in its final form
as it appears in § 16, R.A. No. 9006, with the provision
that "This Act shall take effect immediately upon its
approval;"
h. The copy of the compromise bill submitted by
the 2nd/3rd BCC that was furnished the
members during its consideration on February 7,
2001, did not have the same § 16 as it now
appears in RA No. 9006, but § 16 of the
compromise bill, HB 9000 and SB 1742, reasons
for which no objection thereto was made;
i. The alleged BCC Report presented to the
House on February 7, 2001, did not "contain a
detailed, sufficiently explicit statement of the
changes in or amendments to the subject
measure;" and
j. The disappearance of the "Cayetano
amendment," which is Section 12 of the
compromise bill submitted by the BCC. In fact,
this was the subject of the purported proposed
amendment to the compromise bill of Member
 Paras as stated in paragraph 7 hereof. The said
provision states, thusly:
Sec. 12. Limitation on Elected Officials. – Any elected
official who runs for president and vice-president shall be
considered ipso facto resigned from his office upon the
filing of the certificate of candidacy. 50
The petitioners, thus, urge the Court to go behind the
enrolled copy of the bill. The Court is not persuaded.
Under the "enrolled bill doctrine," the signing of a bill by
the Speaker of the House and the Senate President and
the certification of the Secretaries of both Houses of
Congress that it was passed are conclusive of its due
enactment. A review of cases51 reveals the Court’s
consistent adherence to the rule. The Court finds no
reason to deviate from the salutary rule in this case
where the irregularities alleged by the petitioners mostly
involved the internal rules of Congress, e.g., creation of
the 2nd or 3rd Bicameral Conference Committee by the
House. This Court is not the proper forum for the
enforcement of these internal rules of Congress, whether
House or Senate. Parliamentary rules are merely
procedural and with their observance the courts have no
concern.52 Whatever doubts there may be as to the
formal validity of Rep. Act No. 9006 must be resolved in
its favor. The Court reiterates its ruling in Arroyo v. De
Venecia,53 viz.:
But the cases, both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the rights of private
individuals. In Osmeña v. Pendatun, it was held: "At any
rate, courts have declared that ‘the rules adopted by
deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.’ And it has been said that ‘Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body.’ Consequently, ‘mere
failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.’"
The Effectivity Clause
Is Defective
Finally, the "Effectivity" clause (Section 16) of Rep. Act
No. 9006 which provides that it "shall take effect
immediately upon its approval," is defective. However,
the same does not render the entire law invalid. In
Tañada v. Tuvera,54 this Court laid down the rule:
... the clause "unless it is otherwise provided" refers to
the date of effectivity and not to the requirement of
publication itself, which cannot in any event be omitted.
This clause does not mean that the legislator may make
the law effective immediately upon approval, or on any
other date without its previous publication.
Publication is indispensable in every case, but the
legislature may in its discretion provide that the usual
fifteen-period shall be shortened or extended….55
Following Article 2 of the Civil Code56 and the doctrine
enunciated in Tañada, Rep. Act No. 9006,
notwithstanding its express statement, took effect fifteen
days after its publication in the Official Gazette or a
newspaper of general circulation.
In conclusion, it bears reiterating that one of the firmly
entrenched principles in constitutional law is that the
courts do not involve themselves with nor delve into the
policy or wisdom of a statute. That is the exclusive
concern of the legislative branch of the government.
When the validity of a statute is challenged on
constitutional grounds, the sole function of the court is to
determine whether it transcends constitutional limitations
47
or the limits of legislative power. 57 No such transgression
has been shown in this case.
WHEREFORE, the petitions are DISMISSED. No
pronouncement as to costs.
SO ORDERED.
RODOLFO FARINAS VS EXECUTIVE SECRETARY
[G.R. No. 147387. December 10, 2003]
NATURE OF THE CASE:
Petitions under Rule 65 of the Rules of Court, as
amended, seeking to declare as unconstitutional Section
14 of Republic Act No. 9006 (The Fair Election Act),
insofar as it expressly repeals Section 67 of Batas
Pambansa Blg. 881 (The Omnibus Election Code) which
provides:
SEC. 67. Candidates holding elective  office. – Any elective
official, whether national or local, running for any office other
than   the   one   which   he   is   holding   in   a   permanent   capacity,
except   for   President   and   Vice­President,   shall   be
considered ipso facto resigned from his office upon the filing
of his certificate of candidacy.
FACTS:
The petitioners now come to the Court alleging in the
main that Section 14 of Rep. Act No. 9006, insofar as it
repeals Section 67 of the Omnibus Election Code, is
unconstitutional for being in violation of Section 26(1),
Article VI of the Constitution, requiring every law to have
only one subject which should be expressed in its title.
According to the petitioners, the inclusion of Section 14
repealing Section 67 of the Omnibus Election Code in
Rep. Act No. 9006 constitutes a proscribed rider.
They point out the dissimilarity in the subject matter of
Rep. Act No. 9006, on the one hand, and Section 67 of
the Omnibus Election Code, on the other. Rep. Act No.
9006 primarily deals with the lifting of the ban on the use
of media for election propaganda and the elimination of
unfair election practices, while Section 67 of the
Omnibus Election Code imposes a limitation on elective
officials who run for an office other than the one they are
holding in a permanent capacity by considering them
as ipso facto resigned therefrom upon filing of the
certificate of candidacy. The repeal of Section 67 of the
Omnibus Election Code is thus not embraced in the title,
nor germane to the subject matter of Rep. Act No. 9006.
The petitioners also assert that Section 14 of Rep. Act
No. 9006 violates the equal protection clause of the
Constitution because it repeals Section 67 only of the
Omnibus Election Code, leaving intact Section 66
thereof which imposes a similar limitation to appointive
officials, thus:
SEC. 66. Candidates holding appointive office or position. –
Any   person   holding   a   public   appointive   office   or   position,
including   active   members   of   the   Armed   Forces   of   the
Philippines, and officers and employees in government­owned
or   controlled   corporations,   shall   be   considered ipso
facto resigned from his office upon the filing of his certificate
of candidacy.
They contend that Section 14 of Rep. Act No. 9006
discriminates against appointive officials. By the repeal
of Section 67, an elective official who runs for office
other than the one which he is holding is no longer
considered ipso facto resigned therefrom upon filing his
certificate of candidacy. Elective officials continue in
public office even as they campaign for reelection or
election for another elective position. On the other hand,
Section 66 has been retained; thus, the limitation on
appointive officials remains - they are still
considered ipso facto resigned from their offices upon
the filing of their certificates of candidacy.
The petitioners assert that Rep. Act No. 9006 is null and
void in its entirety as irregularities attended its enactment
into law. The law, not only Section 14 thereof, should be
declared null and void. Even Section 16 of the law which
provides that “[t]his Act shall take effect upon its
approval” is a violation of the due process clause of the
Constitution, as well as jurisprudence, which require
publication of the law before it becomes effective.
Finally, the petitioners maintain that Section 67 of the
Omnibus Election Code is a good law; hence, should not
have been repealed. The petitioners cited the ruling of
the Court in Dimaporo v. Mitra, Jr.,[13] that Section 67 of
the Omnibus Election Code is based on the
constitutional mandate on the “Accountability of Public
Officers:”
Sec. 1.     Public office is a public trust. Public officers and
employees   must   at   all   times   be   accountable   to   the   people,
serve them with utmost responsibility, integrity, loyalty and
efficiency,  act   with patriotism   and  justice,  and  lead  modest
lives.
Consequently, the respondents Speaker and Secretary
General of the House of Representatives acted with
grave abuse of discretion amounting to excess or lack of
jurisdiction for not considering those members of the
House who ran for a seat in the Senate during the May
14, 2001 elections as ipso facto resigned therefrom,
upon the filing of their respective certificates of
candidacy.
ISSUES:
W/N Section 14 of Rep. Act No. 9006 Is a Rider.
W/N Section 14 of Rep. Act No. 9006 Is Violative of the
Equal Protection Clause of the Constitution.
W/N Section 16 of the law which provides that “[t]his Act
shall take effect upon its approval” is a violation of the
due process clause of the Constitution, as well as
jurisprudence, which require publication of the law before
it becomes effective.
HELD:
To determine whether there has been compliance with
the constitutional requirement that the subject of an act
shall be expressed in its title, the Court laid down the
rule that –
Constitutional provisions relating to the subject matter
and titles of statutes should not be so narrowly construed
as to cripple or impede the power of legislation. The
requirement that the subject of an act shall be expressed
in its title should receive a reasonable and not a
technical construction. It is sufficient if the title be
comprehensive enough reasonably to include the
general object which a statute seeks to effect, without
expressing each and every end and means necessary or
48
convenient for the accomplishing of that object. Mere
details need not be set forth. The title need not be an
abstract or index of the Act.
The title of Rep. Act No. 9006 reads: “An Act to Enhance
the Holding of Free, Orderly, Honest, Peaceful and
Credible Elections through Fair Election Practices.”
The Court is convinced that the title and the objectives of
Rep. Act No. 9006 are comprehensive enough to include
the repeal of Section 67 of the Omnibus Election Code
within its contemplation. To require that the said repeal of
Section 67 of the Code be expressed in the title is to
insist that the title be a complete index of its content.
The purported dissimilarity of Section 67 of the Omnibus
Election Code, which imposes a limitation on elective
officials who run for an office other than the one they are
holding, to the other provisions of Rep. Act No. 9006,
which deal with the lifting of the ban on the use of media
for election propaganda, does not violate the “one
subject-one title” rule. This Court has held that an act
having a single general subject, indicated in the title,
may contain any number of provisions, no matter how
diverse they may be, so long as they are not inconsistent
with or foreign to the general subject, and may be
considered in furtherance of such subject by providing
for the method and means of carrying out the general
subject.
The legislators considered Section 67 of the Omnibus
Election Code as a form of harassment or discrimination
that had to be done away with and repealed. The
executive department found cause with Congress when
the President of the Philippines signed the measure into
law. For sure, some sectors of society and in
government may believe that the repeal of Section 67 is
bad policy as it would encourage political adventurism.
But policy matters are not the concern of the Court.
Government policy is within the exclusive dominion of
the political branches of the government. It is not for this
Court to look into the wisdom or propriety of legislative
determination. Indeed, whether an enactment is wise or
unwise, whether it is based on sound economic theory,
whether it is the best means to achieve the desired
results, whether, in short, the legislative discretion within
its prescribed limits should be exercised in a particular
manner are matters for the judgment of the legislature,
and the serious conflict of opinions does not suffice to
bring them within the range of judicial
cognizance. Congress is not precluded from repealing
Section 67 by the ruling of the Court in Dimaporo v.
Mitra upholding the validity of the provision and by its
pronouncement in the same case that the provision has
a laudable purpose. Over time, Congress may find it
imperative to repeal the law on its belief that the election
process is thereby enhanced and the paramount
objective of election laws – the fair, honest and orderly
election of truly deserving members of Congress – is
achieved.
Substantial distinctions clearly exist between elective
officials and appointive officials. The former occupy their
office by virtue of the mandate of the electorate. They
are elected to an office for a definite term and may be
removed therefrom only upon stringent conditions. On
the other hand, appointive officials hold their office by
virtue of their designation thereto by an appointing
authority. Some appointive officials hold their office in a
permanent capacity and are entitled to security of
tenure while others serve at the pleasure of the
appointing authority.
Finally, the “Effectivity” clause (Section 16) of Rep. Act
No. 9006 which provides that it “shall take effect
immediately upon its approval,” is defective. However,
the same does not render the entire law invalid.
In Tañada v. Tuvera, this Court laid down the rule:
... the clause “unless it is otherwise provided” refers to the date
of effectivity and not to the requirement of publication itself,
which cannot in any event be omitted. This clause does not
mean   that   the   legislator   may   make   the   law   effective
immediately upon approval, or on any other date without its
previous publication.
Publication is indispensable in every case, but the
legislature may in its discretion provide that the usual
fifteen-period shall be shortened or extended….
Following Article 2 of the Civil Code and the doctrine
enunciated in Tañada, Rep. Act No. 9006,
notwithstanding its express statement, took effect fifteen
days after its publication in the Official Gazette or a
newspaper of general circulation.
In conclusion, it bears reiterating that one of the firmly
entrenched principles in constitutional law is that the
courts do not involve themselves with nor delve into the
policy or wisdom of a statute. That is the exclusive
concern of the legislative branch of the government.
When the validity of a statute is challenged on
constitutional grounds, the sole function of the court is to
determine whether it transcends constitutional limitations
or the limits of legislative power. No such transgression
has been shown in this case.
G.R. No. L-23475 April 30, 1974
HERMINIO A. ASTORGA, in his capacity as Vice-
Mayor of Manila, petitioner,
vs.
ANTONIO J. VILLEGAS, in his capacity as Mayor of
Manila, THE HON., THE EXECUTIVE SECRETARY,
ABELARDO SUBIDO, in his capacity as
Commissioner of Civil Service, EDUARDO QUINTOS,
in his capacity as Chief of Police of Manila, MANUEL
CUDIAMAT, in his capacity as City Treasurer of
Manila, CITY OF MANILA, JOSE SEMBRANO,
FRANCISCO GATMAITAN, MARTIN ISIDRO, CESAR
LUCERO, PADERES TINOCO, LEONARDO FUGOSO,
FRANCIS YUSECO, APOLONIO GENER, AMBROCIO
LORENZO, JR., ALFONSO MENDOZA, JR., SERGIO
LOYOLA, GERINO TOLENTINO, MARIANO
MAGSALIN, EDUARDO QUINTOS, JR., AVELINO
VILLACORTA, PABLO OCAMPO, FELICISIMO
CABIGAO, JOSE BRILLANTES, JOSE VILLANUEVA
and MARINA FRANCISCO, in their capacities as
members of the Municipal Board, respondents.
Artemio V. Panganiban and Renito V. Saguisag and
Crispin D. Baizas and Associates for petitioner.
Paredes Poblador, Cruz and Nazareno and Antonio
Barredo for respondent Mayor of Manila.
Romeo L. Kahayon for respondents City Treasurer of
Manila, etc., et al.
Office of the Solicitor General Arturo A. Alafriz, Assistant
Solicitor General Pacifico P. de Castro, Solicitor Jorge R.
Coquia and Solicitor Ricardo L. Pronove, Jr. for
respondents The Executive Secretary and
Commissioner of Civil Service.
Fortunato de Leon and Antonio V. Raquiza as amici
curiae.
MAKALINTAL, C.J.:p
The present controversy revolves around the passage of
House Bill No. 9266, which became Republic Act 4065,
"An Act Defining the Powers, Rights and Duties of the
Vice-Mayor of the City of Manila, Further Amending for
49
the Purpose Sections Ten and Eleven of Republic Act
Numbered Four Hundred Nine, as Amended, Otherwise
Known as the Revised Charter of the City of Manila."
The facts as set forth in the pleadings appear
undisputed:
On March 30, 1964 House Bill No. 9266, a bill of local
application, was filed in the House of Representatives. It
was there passed on third reading without amendments
on April 21, 1964. Forthwith the bill was sent to the
Senate for its concurrence. It was referred to the Senate
Committee on Provinces and Municipal Governments
and Cities headed by Senator Gerardo M. Roxas. The
committee favorably recommended approval with a
minor amendment, suggested by Senator Roxas, that
instead of the City Engineer it be the President
Protempore of the Municipal Board who should succeed
the Vice-Mayor in case of the latter's incapacity to act as
Mayor.
When the bill was discussed on the floor of the Senate
on second reading on May 20, 1964, substantial
amendments to Section 11 were introduced by Senator
Arturo Tolentino. Those amendments were approved in
toto by the Senate. The amendment recommended by
Senator Roxas does not appear in the journal of the
Senate proceedings as having been acted upon.
On May 21, 1964 the Secretary of the Senate sent a
letter to the House of Representatives that House Bill
No. 9266 had been passed by the Senate on May 20,
1964 "with amendments." Attached to the letter was a
certification of the amendment, which was the one
recommended by Senator Roxas and not the Tolentino
amendments which were the ones actually approved by
the Senate. The House of Representatives thereafter
signified its approval of House Bill No. 9266 as sent back
to it, and copies thereof were caused to be printed. The
printed copies were then certified and attested by the
Secretary of the House of Representatives, the Speaker
of the House of Representatives, the Secretary of the
Senate and the Senate President. On June 16, 1964 the
Secretary of the House transmitted four printed copies of
the bill to the President of the Philippines, who affixed his
signatures thereto by way of approval on June 18, 1964.
The bill thereupon became Republic Act No. 4065.
The furor over the Act which ensued as a result of the
public denunciation mounted by respondent City Mayor
drew immediate reaction from Senator Tolentino, who on
July 5, 1964 issued a press statement that the enrolled
copy of House Bill No. 9266 signed into law by the
President of the Philippines was a wrong version of the
bill actually passed by the Senate because it did not
embody the amendments introduced by him and
approved on the Senate floor. As a consequence the
Senate President, through the Secretary of the Senate,
addressed a letter dated July 11, 1964 to the President
of the Philippines, explaining that the enrolled copy of
House Bill No. 9266 signed by the secretaries of both
Houses as well as by the presiding officers thereof was
not the bill duly approved by Congress and that he
considered his signature on the enrolled bill as invalid
and of no effect. A subsequent letter dated July 21, 1964
made the further clarification that the invalidation by the
Senate President of his signature meant that the bill on
which his signature appeared had never been approved
by the Senate and therefore the fact that he and the
Senate Secretary had signed it did not make the bill a
valid enactment.
On July 31, 1964 the President of the Philippines sent a
message to the presiding officers of both Houses of
Congress informing them that in view of the
circumstances he was officially withdrawing his signature
on House Bill No. 9266 (which had been returned to the
Senate the previous July 3), adding that "it would be
untenable and against public policy to convert into law
what was not actually approved by the two Houses of
Congress."
Upon the foregoing facts the Mayor of Manila, Antonio
Villegas, issued circulars to the department heads and
chiefs of offices of the city government as well as to the
owners, operators and/or managers of business
establishments in Manila to disregard the provisions of
Republic Act 4065. He likewise issued an order to the
Chief of Police to recall five members of the city police
force who had been assigned to the Vice-Mayor
presumably under authority of Republic Act 4065.
Reacting to these steps taken by Mayor Villegas, the
then Vice-Mayor, Herminio A. Astorga, filed a petition
with this Court on September 7, 1964 for "Mandamus,
Injunction and/or Prohibition with Preliminary Mandatory
and Prohibitory Injunction" to compel respondents Mayor
of Manila, the Executive Secretary, the Commissioner of
Civil Service, the Manila Chief of Police, the Manila City
Treasurer and the members of the municipal board to
comply with the provisions of Republic Act 4065.
Respondents' position is that the so-called Republic Act
4065 never became law since it was not the bill actually
passed by the Senate, and that the entries in the journal
of that body and not the enrolled bill itself should be
decisive in the resolution of the issue.
On April 28, 1965, upon motion of respondent Mayor,
who was then going abroad on an official trip, this Court
issued a restraining order, without bond, "enjoining the
petitioner Vice-Mayor Herminio Astorga from exercising
any of the powers of an Acting Mayor purportedly
conferred upon the Vice-Mayor of Manila under the so-
called Republic Act 4065 and not otherwise conferred
upon said Vice-Mayor under any other law until further
orders from this Court."
The original petitioner, Herminio A. Astorga, has since
been succeeded by others as Vice-Mayor of Manila.
Attorneys Fortunato de Leon and Antonio Raquiza, with
previous leave of this Court, appeared as amici curiae,
and have filed extensive and highly enlightening
memoranda on the issues raised by the parties.
Lengthy arguments, supported by copious citations of
authorities, principally decisions of United States Federal
and State Courts, have been submitted on the question
of whether the "enrolled bill" doctrine or the "journal
entry" rule should be adhered to in this jurisdiction. A
similar question came up before this Court and elicited
differing opinions in the case of Mabanag, et al. vs.
Lopez Vito, et al. (March 5, 1947), 78 Phil. Reports 1.
While the majority of the Court in that case applied the
"enrolled bill" doctrine, it cannot be truly said that the
question has been laid to rest and that the decision
therein constitutes a binding precedent.
The issue in that case was whether or not a resolution of
both Houses of Congress proposing an amendment to
the (1935) Constitution to be appended as an ordinance
thereto (the so-called parity rights provision) had been
passed by "a vote of three-fourths of all the members of
the Senate and of the House of Representatives"
pursuant to Article XV of the Constitution.
The main opinion, delivered by Justice Pedro Tuason
and concurred in by Justices Manuel V. Moran,
Guillermo F. Pablo and Jose M. Hontiveros, held that the
case involved a political question which was not within
the province of the judiciary in view of the principle of
separation of powers in our government. The "enrolled
bill" theory was relied upon merely to bolster the ruling
on the jurisdictional question, the reasoning being that "if
a political question conclusively binds the judges out of
respect to the political departments, a duly certified law
or resolution also binds the judges under the "enrolled
bill rule" born of that respect."
Justice Cesar Bengzon wrote a separate opinion,
concurred in by Justice Sabino Padilla, holding that the
50
Court had jurisdiction to resolve the question presented,
and affirming categorically that "the enrolled copy of the
resolution and the legislative journals are conclusive
upon us," specifically in view of Section 313 of Act 190,
as amended by Act No. 2210. This provision in the Rules
of Evidence in the old Code of Civil Procedure appears
indeed to be the only statutory basis on which the
"enrolled bill" theory rests. It reads:
The proceedings of the Philippine
Commission, or of any legislative body
that may be provided for in the
Philippine Islands, or of Congress (may
be proved) by the journals of those
bodies or of either house thereof, or by
published statutes or resolutions, or by
copies certified by the clerk or secretary,
printed by their order; provided, that in
the case of acts of the Philippine
Commission or the Philippine
Legislature, when there is in existence a
copy signed by the presiding officers
and secretaries of said bodies, it shall
be conclusive proof of the provisions of
such acts and of the due enactment
thereof.
Congress devised its own system of authenticating bills
duly approved by both Houses, namely, by the
signatures of their respective presiding officers and
secretaries on the printed copy of the approved bill. 2 It
has been held that this procedure is merely a mode of
authentication,3 to signify to the Chief Executive that the
bill being presented to him has been duly approved by
Congress and is ready for his approval or rejection.4 The
function of an attestation is therefore not of approval,
because a bill is considered approved after it has passed
both Houses. Even where such attestation is provided
for in the Constitution authorities are divided as to
whether or not the signatures are mandatory such that
their absence would render the statute invalid. 5 The
affirmative view, it is pointed out, would be in effect
giving the presiding officers the power of veto, which in
itself is a strong argument to the contrary 6 There is less
reason to make the attestation a requisite for the validity
of a bill where the Constitution does not even provide
that the presiding officers should sign the bill before it is
submitted to the President.
In one case in the United States, where the
(State)Constitution required the presiding officers to sign
a bill and this provision was deemed mandatory, the duly
authenticated enrolled bill was considered as conclusive
proof of its due enactment.7 Another case however,
under the same circumstances, held that the enrolled bill
was not conclusive evidence.8 But in the case of Field
vs. Clark,9 the U.S. Supreme Court held that the
signatures of the presiding officers on a bill, although not
required by the Constitution, is conclusive evidence of its
passage. The authorities in the United States are thus
not unanimous on this point.
The rationale of the enrolled bill theory is set forth in the
said case of Field vs. Clark as follows:
The signing by the Speaker of the
House of Representatives, and, by the
President of the Senate, in open
session, of an enrolled bill, is an official
attestation by the two houses of such bill
as one that has passed Congress. It is a
declaration by the two houses, through
their presiding officers, to the President,
that a bill, thus attested, has received, in
due form, the sanction of the legislative
branch of the government, and that it is
delivered to him in obedience to the
constitutional requirement that all bills
which pass Congress shall be presented
 to him. And when a bill, thus attested,
receives his approval, and is deposited
in the public archives, its authentication
as a bill that has passed Congress
should be deemed complete and
unimpeachable. As the President has no
authority to approve a bill not passed by
Congress, an enrolled Act in the custody
of the Secretary of State, and having the
official attestations of the Speaker of the
House of Representatives, of the
President of the Senate, and of the
President of the United States, carries,
on its face, a solemn assurance by the
legislative and executive departments of
the government, charged, respectively,
with the duty of enacting and executing
the laws, that it was passed by
Congress. The respect due to coequal
and independent departments requires
the judicial department to act upon that
assurance, and to accept, as having
passed Congress, all bills authenticated
in the manner stated; leaving the courts
to determine, when the question
properly arises, whether the Act, so
authenticated, is in conformity with the
Constitution.
It may be noted that the enrolled bill theory is based
mainly on "the respect due to coequal and independent
departments," which requires the judicial department "to
accept, as having passed Congress, all
bills authenticated in the manner stated." Thus it has
also been stated in other cases that if the attestation is
absent and the same is not required for the validity of a
statute, the courts may resort to the journals and other
records of Congress for proof of its due enactment. This
was the logical conclusion reached in a number of
decisions, 10 although they are silent as to whether the
journals may still be resorted to if the attestation of the
presiding officers is present.
The (1935) Constitution is silent as to what shall
constitute proof of due enactment of a bill. It does not
require the presiding officers to certify to the same. But
the said Constitution does contain the following
provisions:
Sec. 10 (4). "Each House shall keep a
Journal of its proceedings, and from
time to time publish the same, excepting
such parts as may in its judgment
require secrecy; and the yeas and nays
on any question shall, at the request of
one-fifth of the Members present, be
entered in the Journal."
Sec. 21 (2). "No bill shall be passed by
either House unless it shall have been
printed and copies thereof in its final
form furnished its Members at least
three calendar days prior to its passage,
except when the President shall have
certified to the necessity of its immediate
enactment. Upon the last reading of a
bill no amendment thereof shall be
allowed, and the question upon its
passage shall be taken immediately
thereafter, and
the yeas and nays entered on the
Journal."
Petitioner's argument that the attestation of the presiding
officers of Congress is conclusive proof of a bill's due
enactment, required, it is said, by the respect due to a
co-equal department of the government, 11 is neutralized
in this case by the fact that the Senate President
declared his signature on the bill to be invalid and issued
51
a subsequent clarification that the invalidation of his
signature meant that the bill he had signed had never
been approved by the Senate. Obviously this declaration
should be accorded even greater respect than the
attestation it invalidated, which it did for a reason that is
undisputed in fact and indisputable in logic.
As far as Congress itself is concerned, there is nothing
sacrosanct in the certification made by the presiding
officers. It is merely a mode of authentication. The
lawmaking process in Congress ends when the bill is
approved by both Houses, and the certification does not
add to the validity of the bill or cure any defect already
present upon its passage. In other words it is the
approval by Congress and not the signatures of the
presiding officers that is essential. Thus the (1935)
Constitution says that "[e] very bill passed by the
Congress shall, before it becomes law, be presented to
the President. 12 In Brown vs. Morris, supra, the
Supreme Court of Missouri, interpreting a similar
provision in the State Constitution, said that the same
"makes it clear that the indispensable step is the final
passage and it follows that if a bill, otherwise fully
enacted as a law, is not attested by the presiding officer,
of the proof that it has "passed both houses" will satisfy
the constitutional requirement."
Petitioner agrees that the attestation in the bill is not
mandatory but argues that the disclaimer thereof by the
Senate President, granting it to have been validly made,
would only mean that there was no attestation at all, but
would not affect the validity of the statute. Hence, it is
pointed out, Republic Act No. 4065 would remain valid
and binding. This argument begs the issue. It would limit
the court's inquiry to the presence or absence of the
attestation and to the effect of its absence upon the
validity of the statute. The inquiry, however, goes farther.
Absent such attestation as a result of the disclaimer, and
consequently there being no enrolled bill to speak of,
what evidence is there to determine whether or not the
bill had been duly enacted? In such a case the entries in
the journal should be consulted.
The journal of the proceedings of each House of
Congress is no ordinary record. The Constitution
requires it. While it is true that the journal is not
authenticated and is subject to the risks of misprinting
and other errors, the point is irrelevant in this case. This
Court is merely asked to inquire whether the text of
House Bill No. 9266 signed by the Chief Executive was
the same text passed by both Houses of Congress.
Under the specific facts and circumstances of this case,
this Court can do this and resort to the Senate journal for
the purpose. The journal discloses that substantial and
lengthy amendments were introduced on the floor and
approved by the Senate but were not incorporated in the
printed text sent to the President and signed by him. This
Court is not asked to incorporate such amendments into
the alleged law, which admittedly is a risky
undertaking, 13 but to declare that the bill was not duly
enacted and therefore did not become law. This We do,
as indeed both the President of the Senate and the Chief
Executive did, when they withdrew their signatures
therein. In the face of the manifest error committed and
subsequently rectified by the President of the Senate
and by the Chief Executive, for this Court to perpetuate
that error by disregarding such rectification and holding
that the erroneous bill has become law would be to
sacrifice truth to fiction and bring about mischievous
consequences not intended by the law-making body.
In view of the foregoing considerations, the petition is
denied and the so-called Republic Act No. 4065 entitled
"AN ACT DEFINING THE POWERS, RIGHTS AND
DUTIES OF THE VICE-MAYOR OF THE CITY OF
MANILA, FURTHER AMENDING FOR THE PURPOSE
SECTIONS TEN AND ELEVEN OF REPUBLIC ACT
NUMBERED FOUR HUNDRED NINE, AS AMENDED,
OTHERWISE KNOWN AS THE REVISED CHARTER
OF THE CITY OF MANILA" is declared not to have been manner stated. If the attestation is absent
duly enacted and therefore did not become law. The
temporary restraining order dated April 28, 1965 is and the same is not required for the validity
hereby made permanent. No pronouncement as to
costs. of a statute, the courts may resort to the
ASTORGA vs. VILLEGAS
journals and other records of Congress for
February 16, 2017 § Leave a comment proof of its due enactment.

That attestation of the presiding officers of

FACTS: RA 4065 was passed which amended Congress is conclusive proof of due

the Revised Charter of the of the City of enactment of the law cannot apply in this

Manila and provided for the case because the Senate President himself

power, duties and rights of the vice-mayor had already declared his signature on the bill

of the city. It tumns out that the to be invalid. Thus, the enrolled bill doctrine

bill which was signed into law cannot apply.

contained amendments different form those CERTIFICATION OF BILLS

approved by the Senate, The President As far as Congress itself is concerned, there

of the Philippines after learning of such, had is nothing sacrosanct in the certification

already withdrawn his signature therefrom. made by the presiding officers. It is merely a

This being the case, the Mayor of Manila mode of authentication.The lawmaking

issued circulars to the process in Congress ends when the bill is

various departments of the local govemnment approved by both Houses, and the

unit to disregard the provisions ofthe certification does not add to the validity of

said law. thus, the petitioner, then vice-mayor the bill or cure any defect already present

of Manila filed a petition for Mandamus, upon its passage. In other words it is the

lnjunction and/or Prohibition with Preliminary approval by Congress and not the signatures

Mandatory and Prohibitory Injunction of the presiding officers that is essential.

to compel the necessary parties LEGISLATIVE JOURNALS

to comply with the law. Respondents alleged, While it is true that the journal is not

hovever, that the bill never became a law as authenticated and is subject to the risks of

it was not the bill approved by Senate, and in misprinting and other errors, the point is

such a case, the entries in the journal, irrelevant in this case. The Court is merely

and not the enrolled bill itself should be the asked to inquire whether the text of House

basis for the decision of the Court. Bill No. 9266 signed by the chief Executive

RULING: was the same text passed by both Houses of

ENROLLED BILL DOCTRINE Congress. Under the specific facts and

The enrolled bill theory is based mainly on circumstances of this case, this Court can do

“the respect due to coequal and independent this and resort to the Senate journal for the

departments. which requires the judicial purpose.

G.R. No. 127255 August 14, 1997
department to accept, as having passed
JOKER P. ARROYO, EDCEL C. LAGMAN, JOHN
Congress, all bills authenticated in the HENRY R. OSMEÑA, WIGBERTO E. TAÑADA, AND

52
RONALDO B. ZAMORA, petitioner,
vs.
JOSE DE VENECIA, RAUL DAZA, RODOLFO
ALBANO, THE EXECUTIVE SECRETARY, THE
SECRETARY OF FINANCE, AND THE
COMMISSIONER OF INTERNAL
REVENUE, respondents.
MENDOZA, J.:
This is a petition for certiorari and/or prohibition
challenging the validity of Republic Act No. 8240, which
amends certain provisions of the National Internal
Revenue Code by imposing so-called "sin taxes"
(actually specific taxes) on the manufacture and sale of
beer and cigarettes.
Petitioners are members of the House of
Representatives. They brought this suit against
respondents Jose de Venecia, Speaker of the House of
Representatives, Deputy Speaker Raul Daza, Majority
Leader Rodolfo Albano, the Executive Secretary, the
Secretary of Finance, and the Commissioner of Internal
Revenue, charging violation of the rules of the House
which petitioners claim are "constitutionally mandated"
so that their violation is tantamount to a violation of the
Constitution.
The law originated in the House of Representatives as
H. No. 7198. This bill was approved on third reading on
September 12, 1996 and transmitted on September 16,
1996 to the Senate which approved it with certain
amendments on third reading on November 17, 1996. A
bicameral conference committee was formed to
reconcile the disagreeing provisions of the House and
Senate versions of the bill.
The bicameral conference committee submitted its report
to the House at 8 a.m. on November 21, 1996. At 11:48
a.m., after a recess, Rep. Exequiel Javier, chairman of
the Committee on Ways and Means, proceeded to
deliver his sponsorship speech, after which he was
interpellate. Rep. Rogelio Sarmiento was first to
interpellate. He was interrupted when Rep. Arroyo
moved to adjourn for lack of quorum. Rep. Antonio
Cuenco objected to the motion and asked for a head
count. After a roll call, the Chair (Deputy Speaker Raul
Daza) declared the presence of a quorum.1 Rep. Arroyo
appealed the ruling of the Chair, but his motion was
defeated when put to a vote. The interpellation of the
sponsor thereafter proceeded.
Petitioner Rep. Joker Arroyo registered to interpellate.
He was fourth in the order, following Rep. Rogelio
Sarmiento, Rep. Edcel C. Lagman and Rep. Enrique
Garcia. In the course of his interpellation, Rep. Arroyo
announced that he was going to raise a question on the
quorum, although until the end of his interpellation he
never did. What happened thereafter is shown in the
following transcript of the session on November 21, 1996
of the House of Representatives, as published by
Congress in the newspaper issues of December 5 and 6,
1996:
MR. ALBANO. MR. Speaker, I move that we now
approved and ratify the conference committee
report.
THE DEPUTY SPEAKER (Mr. Daza). Any
objection to the motion?
MR. ARROYO. What is that, Mr. Speaker?
THE DEPUTY SPEAKER (Mr. Daza). There
being none, approved.
(Gavel)
MR. ARROYO. No, no, no, wait a minute, Mr.
Speaker, I stood up. I want to know what is the
question that the Chair asked the distinguished
sponsor.
53
THE DEPUTY SPEAKER (Mr. Daza). The
session is suspended for one minute.
(It was 3:01 p.m.)
(3:40 p.m., the session was resumed)
THE DEPUTY SPEAKER (Mr. Daza). The
session is resumed.
MR. ALBANO. Mr. Speaker, I move to adjourn
until four o'clock, Wednesday, next week.
THE DEPUTY SPEAKER (Mr. Daza). The
session is adjourned until four o'clock,
Wednesday, next week.
(It was 3:40 p.m.)
On the same day, the bill was signed by the Speaker of
the House of Representatives and the President of the
Senate and certified by the respective secretaries of both
Houses of Congress as having been finally passed by
the House of Representatives and by the Senate on
November 21, 1996. The enrolled bill was signed into
law by President Fidel V. Ramos on November 22, 1996.
Petitioners claim that there are actually four different
version of the transcript of this portion of Rep. Arroyo's
interpellation: (1) the transcript of audio-sound recording
of the proceedings in the session hall immediately after
the session adjourned at 3:40 p.m. on November 21,
1996, which petitioner Rep. Edcel C. Lagman obtained
from he operators of the sound system; (2) the transcript
of the proceedings from 3:00 p.m. to 3:40 p.m. of
November 21, 1996, as certified by the Chief of the
Transcription Division on November 21, 1996, also
obtained by Rep. Lagman; (3) the transcript of the
proceedings from 3:00 p.m. to 3:40 p.m. of November
21, 1996 as certified by the Chief of the Transcription
Division on November 28, 1996, also obtained by Rep.
Lagman; and (4) the published version abovequoted.
According to petitioners, the four versions differ on three
points, to wit: (1) in the audio-sound recording the word
"approved," which appears on line 13 in the three other
versions, cannot be heard; (2) in the transcript certified
on November 21, 1996 the world "no" on line 17 appears
only once, while in the other versions it is repeated three
times; and (3) the published version does not contain the
sentence "(Y)ou better prepare for a quorum because I
will raise the question of the quorum," which appears in
the other versions.
Petitioners' allegations are vehemently denied by
respondents. However, there is no need to discuss this
point as petitioners have announced that, in order to
expedite the resolution of this petition, they admit,
without conceding, the correctness of the transcripts
relied upon by the respondents. Petitioners agree that for
purposes of this proceeding the word "approved"
appears in the transcripts.
Only the proceedings of the House of Representatives
on the conference committee report on H. No. 7198 are
in question. Petitioners' principal argument is that R.A.
No. 8240 is null and void because it was passed in
violation of the rules of the House; that these rules
embody the "constitutional mandate" in Art. VI, §16(3)
that "each House may determine the rules of its
proceedings" and that, consequently, violation of the
House rules is a violation of the Constitution itself. They
contend that the certification of Speaker De Venecia that
the law was properly passed is false and spurious.
More specifically, petitioners charge that (1) in violation
of Rule VIII, §35 and Rule XVII, §103 of the rules of the
House, 2 the Chair, in submitting the conference
committee report to the House, did not call for the
years or nays,but simply asked for its approval by motion
in order to prevent petitioner Arroyo from questioning the
presence of a quorum; (2) in violation of Rule XIX,
§112, 3 the Chair deliberately ignored Rep. Arroyo's
question, "What is that . . . Mr. Speaker?" and did not
repeat Rep. Albano's motion to approve or ratify; (3) in
violation of Rule XVI, §97,4 the Chair refused to
recognize Rep. Arroyo and instead proceeded to act on
Rep. Albano's motion and afterward declared the report
approved; and (4) in violation of Rule XX, §§121-122,
Rule XXI, §123, and Rule XVIII, §109, 5the Chair
suspended the session without first ruling on Rep.
Arroyo's question which, it is alleged, is a point of order
or a privileged motion. It is argued that Rep. Arroyo's
query should have been resolved upon the resumption of
the session on November 28, 1996, because the
parliamentary situation at the time of the adjournment
remained upon the resumption of the session.
Petitioners also charge that the session was hastily
adjourned at 3:40 p.m. on November 21, 1996 and the
bill certified by Speaker Jose De Venecia to prevent
petitioner Rep. Arroyo from formally challenging the
existence of a quorum and asking for a reconsideration.
Petitioners urge the Court not to feel bound by the
certification of the Speaker of the House that the law had
been properly passed, considering the Court's power
under Art. VIII, §1 to pass on claims of grave abuse of
discretion by the other departments of the government,
and they ask for a reexamination of Tolentino
v. Secretary of Finance, 6which affirmed the
conclusiveness of an enrolled bill, in view of the changed
membership of the Court.
The Solicitor General filed a comment in behalf of all
respondents. In addition, respondent De Venecia filed a
supplemental comment. Respondents' defense is
anchored on the principle of separation of powers and
the enrolled bill doctrine. They argue that the Court is not
the proper forum for the enforcement of the rules of the
House and that there is no justification for reconsidering
the enrolled bill doctrine. Although the Constitution
provides in Art. VI, §16(3) for the adoption by each
House of its rules of proceedings, enforcement of the
rules cannot be sought in the courts except insofar as
they implement constitutional requirements such as that
relating to three readings on separate days before a bill
may be passed. At all events, respondents contend that,
in passing the bill which became R.A. No. 8240, the
rules of the House, as well as parliamentary precedents
for approval of conference committee reports on mere
motion, were faithfully observed.
In his supplemental comment, respondent De Venecia
denies that his certification of H. No. 7198 is false and
spurious and contends that under the journal entry rule,
the judicial inquiry sought by the petitioners is barred.
Indeed, Journal No. 39 of the House of Representatives,
covering the sessions of November 20 and 21, 1996,
shows that "On Motion of Mr. Albano, there being no
objection, the Body approved the Conference Committee
Report on House Bill No. 7198." 7 This Journal was
approved on December 2, 1996 over the lone objection
of petitioner Rep. Lagman. 8
After considering the arguments of the parties, the Court
finds no ground for holding that Congress committed a
grave abuse of discretion in enacting R.A. No. 8240.
This case is therefore dismissed.
First. It is clear from the foregoing facts that what is
alleged to have been violated in the enactment of R.A.
No. 8240 are merely internal rules of procedure of the
House rather than constitutional requirements for the
enactment of a law, i.e., Art. VI, §§26-27. Petitioners do
not claim that there was no quorum but only that, by
some maneuver allegedly in violation of the rules of the
House, Rep. Arroyo was effectively prevented from
questioning the presence of a quorum.
Petitioners contend that the House rules were adopted
pursuant to the constitutional provision that "each House
may determine the rules of its proceedings" 9 and that for
this reason they are judicially enforceable. To begin with,
this contention stands the principle on its head. In the
54
decided cases, 10 the constitutional provision that "each
House may determine the rules of its proceedings" was
invoked by parties, although not successfully, precisely
to support claims of autonomy of the legislative branch to
conduct its business free from interference by courts.
Here petitioners cite the provision for the opposite
purpose of invoking judicial review.
But the cases, both here and abroad, in varying forms of
expression, all deny to the courts the power to inquire
into allegations that, in enacting a law, a House of
Congress failed to comply with its own rules, in the
absence of showing that there was a violation of a
constitutional provision or the rights of private
individuals. In Osmeña v.Pendatun, 11 it was held: "At
any rate, courts have declared that 'the rules adopted by
deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.' And it has been said that 'Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body.' Consequently, 'mere
failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.'"
In United States v. Ballin, Joseph & Co., 12 the rules was
stated thus: "The Constitution empowers each house to
determine its rules of proceedings. It may not by its rules
ignore constitutional restraints or violate fundamental
rights, and there should be a reasonable relation
between the mode or method of proceeding established
by the rule and the result which is sought to be attained.
But within these limitations all matters of method are
open to the determination of the House, and it is no
impeachment of the rule to say that some other way
would be better, more accurate, or even more just. It is
no objection to the validity of a rule that a different one
has been prescribed and in force for a length of
time. The power to make rules is not one which once
exercised is exhausted. It is a continuous power, always
subject to be exercised by the House, and within the
limitations suggested, absolute and beyond the
challenge of any other body or tribunal."
In Crawford v. Gilchrist, 13 it was held: "The provision that
each House shall determine the rules of its proceedings
does not restrict the power given to a mere formulation
of standing rules, or to the proceedings of the body in
ordinary legislative matters; but in the absence of
constitutional restraints, and when exercised by a
majority of a constitutional quorum, such authority
extends to a determination of the propriety and effect of
any action as it is taken by the body as it proceeds in the
exercise of any power, in the transaction of any
business, or in the performance of any duty conferred
upon it by the Constitution."
In State ex rel. City Loan & Savings Co. v. Moore, 14 the
Supreme Court of Ohio stated: "The provision for
reconsideration is no part of the Constitution and is
therefore entirely within the control of the General
Assembly. Having made the rule, it should be regarded,
but a failure to regard it is not the subject-matter of
judicial inquiry. It has been decided by the courts of last
resort of many states, and also by the United States
Supreme Court, that a legislative act will not be declared
invalid for noncompliance with rules."
In State v. Savings Bank, 15 the Supreme Court of Errors
of Connecticut declared itself as follows: "The
Constitution declares that each house shall determine
the rules of its own proceedings and shall have all
powers necessary for a branch of the Legislature of a
free and independent state. Rules of proceedings are the
servants of the House and subject to its authority. This
authority may be abused, but when the House has acted
in a matter clearly within its power, it would be an
unwarranted invasion of the independence of the
legislative department for the court to set aside such
action as void because it may think that the House has
misconstrued or departed from its own rules of
procedure."
In McDonald v. State, 16 the Wisconsin Supreme Court
held: "When it appears that an act was so passed, no
inquiry will be permitted to ascertain whether the two
houses have or have not complied strictly with their own
rules in their procedure upon the bill, intermediate its
introduction and final passage. The presumption is
conclusive that they have done so. We think no court
has ever declared an act of the legislature void for non-
compliance with the rules of procedure made by itself ,
or the respective branches thereof, and which it or they
may change or suspend at will. If there are any such
adjudications, we decline to follow them."
Schweizer v. Territory 17 is illustrative of the rule in these
cases. The 1893 Statutes of Oklahoma provided for
three readings on separate days before a bill may be
passed by each house of the legislature, with the proviso
that in case of an emergency the house concerned may,
by two-thirds vote, suspend the operation of the rule.
Plaintiff was convicted in the district court of violation of a
law punishing gambling. He appealed contending that
the gambling statute was not properly passed by the
legislature because the suspension of the rule on three
readings had not been approved by the requisite two-
thirds vote. Dismissing this contention, the State
Supreme Court of Oklahoma held:
We have no constitutional provision requiring
that the legislature should read a bill in any
particular manner. It may, then, read or
deliberate upon a bill as it sees fit. either in
accordance with its own rules, or in violation
thereof, or without making any rules. The
provision of section 17 referred to is merely a
statutory provision for the direction of the
legislature in its action upon proposed
measures. It receives its entire force from
legislative sanction, and it exists only at
legislative pleasure. The failure of the legislature
to properly weigh and consider an act, its
passage through the legislature in a hasty
manner, might be reasons for the governor
withholding his signature thereto; but this alone,
even though it is shown to be a violation of a rule
which the legislature had made to govern its own
proceedings, could be no reason for the court's
refusing its enforcement after it was actually
passed by a majority of each branch of the
legislature, and duly signed by the
governor. The courts cannot declare an act of
the legislature void on account of
noncompliance with rules of procedure made by
itself to govern its deliberations. McDonald v.
State, 80 Wis. 407, 50 N.W. 185; In re Ryan, 80
Wis. 414, 50 N.W. 187; State v. Brown, 33 S.C.
151, 11 S.E. 641; Railway Co. v. Gill, 54 Ark.
101, 15 S.W. 18.
We conclude this survey with the useful summary of the
rulings by former Chief Justice Fernando, commenting
on the power of each House of Congress to determine
its rules of proceedings. He wrote:
Rules are hardly permanent in character. The
prevailing view is that they are subject to
revocation, modification or waiver at the
pleasure of the body adopting them as they are
primarily procedural. Courts ordinary have no
concern with their observance. They may be
waived or disregarded by the legislative body.
Consequently, mere failure to conform to them
does not have the effect of nullifying the act
taken if the requisite number of members have
55
agreed to a particular measure. The above
principle is subject, however, to this qualification.
Where the construction to be given to a rule
affects person other than members of the
legislative body the question presented is
necessarily judicial in character. Even its validity
is open to question in a case where private
rights are involved. 18
In this case no rights of private individuals are involved
but only those of a member who, instead of seeking
redress in the House, chose to transfer the dispute to
this Court. We have no more power to look into the
internal proceedings of a House than members of that
House have to look over our shoulders, as long as no
violation of constitutional provisions is shown.
Petitioners must realize that each of the three
departments of our government has its separate sphere
which the others may not invade without upsetting the
delicate balance on which our constitutional order rests.
Due regard for the working of our system of government,
more than mere comity, compels reluctance on our part
to enter upon an inquiry into an alleged violation of the
rules of the House. We must accordingly decline the
invitation to exercise our power.
Second. Petitioners, quoting former Chief Justice
Roberto Concepcion's sponsorship in the Constitutional
Commission, contend that under Art. VIII, §1, "nothing
involving abuse of discretion [by the other branches of
the government] amounting to lack or excess of
jurisdiction is beyond judicial review." 19 Implicit in this
statement of the former Chief Justice, however, is an
acknowledgment that the jurisdiction of this Court is
subject to the case and controversy requirement of Art.
VIII. §5 and, therefore, to the requirement of a justiciable
controversy before courts can adjudicate constitutional
questions such as those which arise in the field of
foreign relations. For while Art. VIII, §1 has broadened
the scope of judicial inquiry into areas normally left to the
political departments to decide, such as those relating to
national security, 20 it has not altogether done away with
political questions such as those which arise in the field
of foreign relations. As we have already held, under Art.
VIII, §1, this Court's function
is merely [to] check whether or not the
governmental branch or agency has gone
beyond the constitutional limits of its
jurisdiction, not that it erred or has a different
view. In the absence of a showing . . . [of] grave
abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to
exercise its corrective power. . . . It has no power
to look into what it thinks is apparent error. 21
If, then, the established rule is that courts cannot declare
an act of the legislature void on account merely of
noncompliance with rules of procedure made by itself, it
follows that such a case does not present a situation in
which a branch of the government has "gone beyond the
constitutional limits of its jurisdiction" so as to call for the
exercise of our Art. VIII. §1 power.
Third. Petitioners claim that the passage of the law in the
House was "railroaded." They claim that Rep. Arroyo
was still making a query to the Chair when the latter
declared Rep. Albano's motion approved.
What happened is that, after Rep. Arroyo's interpellation
of the sponsor of the committee report, Majority Leader
Rodolfo Albano moved for the approval and ratification of
the conference committee report. The Chair called out
for objections to the motion. Then the Chair declared:
"There being none, approved." At the same time the
Chair was saying this, however, Rep. Arroyo was asking,
"What is that . . . Mr. Speaker?" The Chair and Rep.
Arroyo were talking simultaneously. Thus, although Rep.
Arroyo subsequently objected to the Majority Leader's
motion, the approval of the conference committee report
had by then already been declared by the Chair,
symbolized by its banging of the gavel.
Petitioners argue that, in accordance with the rules of the
House, Rep. Albano's motion for the approval of the
conference committee report should have been stated by
the Chair and later the individual votes of the members
should have been taken. They say that the method used
in this case is a legislator's nightmare because it
suggests unanimity when the fact was that one or some
legislators opposed the report.
No rule of the House of Representative has been cited
which specifically requires that in case such as this
involving approval of a conference committee report, the
Chair must restate the motion and conduct a viva voce
or nominal voting. On the other hand, as the Solicitor
General has pointed out, the manner in which the
conference committee report on H. No. 7198 was
approval was by no means a unique one. It has basis in
legislative practice. It was the way the conference
committee report on the bills which became the Local
Government Code of 1991 and the conference
committee report on the bills amending the Tariff and
Customs Code were approved.
In 1957, the practice was questioned as being contrary
to the rules of the House. The point was answered by
Majority Leader Arturo M. Tolentino and his answer
became the ruling of the Chair Mr. Tolentino said:
Mr. TOLENTINO. The fact that nobody objects
means a unanimous action of the House. Insofar
as the matter of procedure is concerned, this
has been a precedent since I came here seven
years ago, and it has been the procedure in this
House that if somebody objects, then a debate
follows and after the debate, then the voting
comes in.
xxx xxx xxx
Mr. Speaker, a point of order was raised by the
gentleman from Leyte, and I wonder what his
attitude is nor on his point of order. I should just
like to state that I believe that we have had a
substantial compliance with the Rules. The Rule
invoked is not one that refers to statutory or
constitutional requirement, and a substantial
compliance, to my mind, is sufficient. When the
Chair announces the vote by saying "Is there
any objection?" and nobody objects, then the
Chair announces "The bill is approved on
second reading." If there was any doubt as to
the vote, any motion to divide would have been
proper. So, if that motion is not presented, we
assume that the House approves the measure.
So I believe there is substantial compliance
here, and if anybody wants a division of the
House he can always ask for it, and the Chair
can announce how many are in favor and how
many are against. 22
Indeed, it is no impeachment of the method to say that
some other way would be better, more accurate and
even more just. 23 The advantages or disadvantages, the
wisdom or folly of a method do not present any matter
for judicial consideration. 24 In the words of the U.S.
Circuit Court of Appeals, "this Court cannot provide a
second opinion on what is the best procedure.
Notwithstanding the deference and esteem that is
properly tendered to individual congressional actors, our
deference and esteem for the institution as a whole and
for the constitutional command that the institution be
allowed to manage its own affairs precludes us from
even attempting a diagnosis of the problem." 25
Nor does the Constitution require that the yeas and
the nays of
the Members be taken every time a House has to vote,
56
except only in the following instances; upon the last and
third readings of a bill, 26 at the request of one-fifth of the
Members present, 27 and in repassing a bill over the veto
of the President. 28 Indeed, considering the fact that in
the approval of the original bill the votes of the members
byyeas and nays had already been taken, it would have
been sheer tedium to repeat the process.
Petitioners claim that they were prevented from seeking
reconsideration allegedly as a result of the precipitate
suspension and subsequent adjournment of the
session. 29 It would appear, however, that the session
was suspended to allow the parties to settle the problem,
because when it resumed at 3:40 p.m. on that day Rep.
Arroyo did not say anything anymore. While it is true that
the Majority Leader moved for adjournment until 4 p.m.
of Wednesday of the following week, Rep. Arroyo could
at least have objected if there was anything he wanted to
say. The fact, however, is that he did not. The Journal of
November 21, 1996 of the House shows.
ADJOURNMENT OF SESSION
On motion of Mr. Albano, there being no
objection, the Chair declared the session
adjourned until four o'clock in the afternoon of
Wednesday, November 27, 1996.
It was 3:40 p.m. Thursday, November 21, 1996.
(emphasis added)
This Journal was approved on December 3, 1996. Again,
no one objected to its approval except Rep. Lagman.
It is thus apparent that petitioners' predicament was
largely of their own making. Instead of submitting the
proper motions for the House to act upon, petitioners
insisted on the pendency of Rep. Arroyo's question as an
obstacle to the passage of the bill. But Rep. Arroyo's
question was not, in form or substance, a point of order
or a question of privilege entitled to precedence. 30 And
even if Rep. Arroyo's question were so, Rep. Albano's
motion to adjourn would have precedence and would
have put an end to any further consideration of the
question. 31
Given this fact, it is difficult to see how it can plausibly be
contended that in signing the bill which became R.A. No.
8240, respondent Speaker of the House be acted with
grave abuse of his discretion. Indeed, the phrase "grave
abuse of discretion amounting to lack or excess of
jurisdiction" has a settled meaning in the jurisprudence
of procedure. It means such capricious and whimsical
exercise of judgment by a tribunal exercising judicial or
quasi judicial power as to amount to lack of power. As
Chief Justice Concepcion himself said in explaining this
provision, the power granted to the courts by Art. VIII. §1
extends to cases where "a branch of the government or
any of its officials has acted without jurisdiction or in
excess of jurisdiction, or so capriciously as to constitute
an abuse of discretion amounting to excess of
jurisdiction." 32
Here, the matter complained of concerns a matter of
internal procedure of the House with which the Court
should not he concerned. To repeat, the claim is not that
there was no quorum but only that Rep. Arroyo was
effectively prevented from questioning the presence of a
quorum. Rep. Arroyo's earlier motion to adjourn for lack
of quorum had already been defeated, as the roll call
established the existence of a quorum. The question of
quorum cannot be raised repeatedly — especially when
the quorum is obviously present — for the purpose of
delaying the business of the House. 33 Rep. Arroyo
waived his objection by his continued interpellation of the
sponsor for in so doing he in effect acknowledged the
presence of a quorum. 34
At any rate it is noteworthy that of the 111 members of
the House earlier found to be present on November 21,
1996, only the five, i.e., petitioners in this case, are
questioning the manner by which the conference
committee report on H. No. 7198 was approved on that
day. No one, except Rep. Arroyo, appears to have
objected to the manner by which the report was
approved. Rep. John Henry Osmeña did not participate
in the bicameral conference committee
proceedings. 35 Rep. Lagman and Rep. Zamora objected
to the report 36 but not to the manner it was approved;
while it is said that, if voting had been conducted. Rep.
Tañada would have voted in favor of the conference
committee report.37
Fourth. Under the enrolled bill doctrine, the signing of H.
No. 7198 by the Speaker of the House and the President
of the Senate and the certification by the secretaries of
both Houses of Congress that it was passed on
November 21, 1996 are conclusive of its due enactment.
Much energy and learning is devoted in the separate
opinion of Justice Puno, joined by Justice Davide, to
disputing this doctrine. To be sure, there is no claim
either here or in the decision in the EVAT cases
[Tolentino v. Secretary of Finance] that the enrolled bill
embodies a conclusive presumption. In one case 38 we
"went behind" an enrolled bill and consulted the Journal
to determine whether certain provisions of a statute had
been approved by the Senate.
But, where as here there is no evidence to the contrary,
this Court will respect the certification of the presiding
officers of both Houses that a bill has been duly passed.
Under this rule, this Court has refused to determine
claims that the three-fourths vote needed to pass a
proposed amendment to the Constitution had not been
obtained, because "a duly authenticated bill or resolution
imports absolute verify and is binding on the
courts." 39 This Court quoted from Wigmore on
Evidence the following excerpt which embodies good, if
old-fashioned, democratic theory:
The truth is that many have been carried away
with the righteous desire to check at any cost the
misdoings of Legislatures. They have set such
store by the Judiciary for this purpose that they
have almost made them a second and higher
Legislature. But they aim in the wrong direction.
Instead of trusting a faithful Judiciary to check an
inefficient Legislature, they should turn to
improve the Legislature. The sensible solution is
not to patch and mend casual errors by asking
the Judiciary to violate legal principle and to do
impossibilities with the Constitution; but to
represent ourselves with competent, careful, and
honest legislators, the work of whose hands on
the statute-roll may come to reflect credit upon
the name of popular government. 40
This Court has refused to even look into allegations that
the enrolled bill sent to the President contained
provisions which had been "surreptitiously" inserted in
the conference committee:
[W]here allegations that the constitutional
procedures for the passage of bills have not
been observed have no more basis than another
allegation that the Conference Committee
"surreptitiously" inserted provisions into a bill
which it had prepared, we should decline the
invitation to go behind the enrolled copy of the
bill. To disregard the "enrolled bill" rule in such
cases would be to disregard the respect due the
other two departments of our government. 41
It has refused to look into charges that an amendment
was made upon the last reading of a bill in violation of
Art. VI. §26(2) of the Constitution that "upon the last
reading of a bill, no amendment shall be allowed." 42
In other cases, 43 this Court has denied claims that the
tenor of a bill was otherwise than as certified by the
presiding officers of both Houses of Congress.
57
The enrolled bill doctrine, as a rule of evidence, is well
established. It is cited with approval by text writers here
and abroad. 44 The enrolled bill rule rests on the following
considerations:
. . . As the President has no authority to approve
a bill not passed by Congress, an enrolled Act in
the custody of the Secretary of State, and having
the official attestations of the Speaker of the
House of Representatives, of the President of
the Senate, and of the President of the United
States, carries, on its face, a solemn assurance
by the legislative and executive departments of
the government, charged, respectively, with the
duty of enacting and executing the laws, that it
was passed by Congress. The respect due to
coequal and independent departments requires
the judicial department to act upon that
assurance, and to accept, as having passed
Congress, all bills authenticated in the manner
stated; leaving the court to determine, when the
question properly arises, whether the Act, so
authenticated, is in conformity with the
Constitution. 45
To overrule the doctrine now, as the dissent urges, is to
repudiate the massive teaching of our cases and
overthrow an established rule of evidence.
Indeed, petitioners have advanced no argument to
warrant a departure from the rule, except to say that,
with a change in the membership of the Court, the three
new members may be assumed to have an open mind
on the question of the enrolled bill rule Actually, not three
but four (Cruz, Feliciano, Bidin, and Quiason, JJ.) have
departed from the Court since our decision in the EVAT
cases and their places have since been taken by four
new members (Francisco, Hermosisima, Panganiban,
and Torres, JJ.) Petitioners are thus simply banking on
the change in the membership of the Court.
Moreover, as already noted, the due enactment of the
law in question is confirmed by the Journal of the House
of November 21, 1996 which shows that the conference
committee report on H. No. 7198, which became R.A.
No. 8740, was approved on that day. The keeping of the
Journal is required by the Constitution, Art. VI, §16(4)
provides:
Each House shall keep a Journal of its
proceedings, and from time to time publish the
same, excepting such parts as may, in its
judgment, affect national security; and
the yeas and nays on any question shall, at the
request of one-fifth of the Members present, be
entered in the Journal.
Each House shall also keep a Record of its
proceedings.
The Journal is regarded as conclusive with respect to
matters that are required by the Constitution to be
recorded therein. 46 With respect to other matters, in the
absence of evidence to the contrary, the Journals have
also been accorded conclusive effect. Thus, in United
States v. Pons, 47 this Court spoke of the imperatives of
public policy for regarding the Journals as "public
memorials of the most permanent character," thus: "They
should be public, because all are required to conform to
them; they should be permanent, that rights acquired
today upon the faith of what has been declared to be law
shall not be destroyed tomorrow, or at some remote
period of time, by facts resting only in the memory of
individuals." As already noted, the bill which became
R.A. No. 8240 is shown in the Journal. Hence its due
enactment has been duly proven.
It would be an unwarranted invasion of the prerogative of
a coequal department for this Court either to set aside a
legislative action as void because the Court thinks the
House has disregarded its own rules of procedure, or to
allow those defeated in the political arena to seek a
rematch in the judicial forum when petitioners can find
their remedy in that department itself. The Court has not
been invested with a roving commission to inquire into
complaints, real or imagined, of legislative skullduggery.
It would be acting in excess of its power and would itself
be guilty of grave abuse of its discretion were it to do so.
The suggestion made in a case 48 may instead
appropriately be made here: petitioners can seek the
enactment of a new law or the repeal or amendment of
R.A. No. 8240. In the absence of anything to the
contrary, the Court must assume that Congress or any
House thereof acted in the good faith belief that its
conduct was permitted by its rules, and deference rather
than disrespect is due the judgment of that body. 49
WHEREFORE, the petition for certiorari and prohibition
is DISMISSED.
SO ORDERED.
Arroyo v De Venecia G.R. No. 127255. August 14, 1997.
7/24/2010
0 Comments
Facts: Petitioners are members of the House of
Representatives. They brought this suit against
respondents charging violation of the rules of the House
which petitioners claim are "constitutionally mandated"
so that their violation is tantamount to a violation of the
Constitution.
In the course of his interpellation, Rep. Arroyo
announced that he was going to raise a question on the
quorum, although until the end of his interpellation he
never did.
On the same day, the bill was signed by the Speaker of
the House of Representatives and the President of the
Senate and certified by the respective secretaries of both
Houses of Congress as having been finally passed by
the House of Representatives and by the Senate on
November 21, 1996. The enrolled bill was signed into
law by President Fidel V. Ramos on November 22, 1996.
Issue: Whether R.A. No. 8240 is null and void because it
was passed in violation of the rules of the House;
Whether the certification of Speaker De Venecia that the
law was properly passed is false and spurious;
Whether the Chair, in the process of submitting and
certifying the law violated House Rules; and
Whether a certiorari/prohibition will be granted.
Held: After considering the arguments of the parties, the
Court finds no ground for holding that Congress
committed a grave abuse of discretion in enacting R.A.
No. 8240. This case is therefore dismissed.
Ratio: To disregard the "enrolled bill" rule in such cases
would be to disregard the respect due the other two
departments of our government. It would be an
unwarranted invasion of the prerogative of a coequal
department for this Court either to set aside a legislative
action as void because the Court thinks the House has
disregarded its own rules of procedure, or to allow those
defeated in the political arena to seek a rematch in the
judicial forum when petitioners can find their remedy in
that department itself. The Court has not been invested
with a roving commission to inquire into complaints, real
or imagined, of legislative skullduggery. It would be
acting in excess of its power and would itself be guilty of
grave abuse of its discretion were it to do so. The
suggestion made in a case may instead appropriately be
made here: petitioners can seek the enactment of a new
58
law or the repeal or amendment of R.A. No. 8240. In the
absence of anything to the contrary, the Court must
assume that Congress or any House thereof acted in the
good faith belief that its conduct was permitted by its
rules, and deference rather than disrespect is due the
judgment of that body.
In view of what is essential
Merely internal rules of procedure of the House rather
than constitutional requirements for the enactment of a
law, i.e., Art. VI, §§26-27 are VIOLATED.
First, in Osmeña v. Pendatun, it was held: "At any rate,
courts have declared that 'the rules adopted by
deliberative bodies are subject to revocation,
modification or waiver at the pleasure of the body
adopting them.' And it has been said that 'Parliamentary
rules are merely procedural, and with their observance,
the courts have no concern. They may be waived or
disregarded by the legislative body.' Consequently,
'mere failure to conform to parliamentary usage will not
invalidate the action (taken by a deliberative body) when
the requisite number of members have agreed to a
particular measure.'"
Rules are hardly permanent in character. The prevailing
view is that they are subject to revocation, modification
or waiver at the pleasure of the body adopting them as
they are primarily procedural. Courts ordinarily have no
concern with their observance. They may be waived or
disregarded by the legislative body. Consequently, mere
failure to conform to them does not have the effect
of nullifying the act taken if the requisite number of
members have agreed to a particular measure.
In view of the Courts jurisdiction
This Court's function is merely to check whether or not
the governmental branch or agency has gone beyond
the constitutional limits of its jurisdiction, not that it erred
or has a different view. In the absence of a showing . . .
of grave abuse of discretion amounting to lack of
jurisdiction, there is no occasion for the Court to exercise
its corrective power. . . . It has no power to look into what
it thinks is apparent error. If, then, the established rule is
that courts cannot declare an act of the legislature void
on account merely of noncompliance with rules of
procedure made by itself, it follows that such a case
does not present a situation in which a branch of the
government has "gone beyond the constitutional
limits of its jurisdiction".
In view of House Rules
No rule of the House of Representatives has been cited
which specifically requires that in cases such as this
involving approval of a conference committee report, the
Chair must restate the motion and conduct a viva voce
or nominal voting.
Mr. TOLENTINO. The fact that nobody objects means a
unanimous action of the House. Insofar as the matter of
procedure is concerned, this has been a precedent since
I came here seven years ago, and it has been the
procedure in this House that if somebody objects, then a
debate follows and after the debate, then the voting
comes in.
Nor does the Constitution require that the yeas and the
nays of the Members be taken every time a House has
to vote, except only in the following instances: upon
the last and third readings of a bill, at the request of
one-fifth of the Members present, and in repassing a
bill over the veto of the President.

In view of grave abuse
Indeed, the phrase "grave abuse of discretion amounting
to lack or excess of jurisdiction" has a settled meaning in
the jurisprudence of procedure. It means such capricious
and whimsical exercise of judgment by a tribunal
exercising judicial or quasi judicial power as to amount to
lack of power.
In view of the enrolled bill doctrine
Under the enrolled bill doctrine, the signing of H. No.
7198 by the Speaker of the House and the President of
the Senate and the certification by the secretaries of
both Houses of Congress that it was passed on
November 21, 1996 are conclusive of its due
enactment.
This Court quoted from Wigmore on Evidence the
following excerpt which embodies good, if old-fashioned
democratic theory: “Instead of trusting a faithful Judiciary
to check an inefficient Legislature, they should turn to
improve the Legislature. The sensible solution is not to
patch and mend casual errors by asking the Judiciary to
violate legal principle and to do impossibilities with the
Constitution; but to represent ourselves with competent,
careful, and honest legislators, the work of whose hands
on the statute-roll may come to reflect credit upon the
name of popular government.”
(In view of justiciability according to PUNO, J.)
With due respect, I do not agree that the issues posed
by the petitioner are non-justiciable. Nor do I agree
that we will trivialize the principle of separation of power
if we assume jurisdiction over the case at bar. Even in
the United States, the principle of separation of power is
no longer an impregnable impediment against the
interposition of judicial power on cases involving breach
of rules of procedure by legislators.
The Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore
constitutional restraints or violate fundamental rights,
and there should be a reasonable relation between the
mode or method of proceedings established by the rule
and the result which is sought to be attained. But within
these limitations all matters of method are open to the
determination of the House, and it is no impeachment of
the rule to say that some other way would be better,
more accurate, or even more just.
G.R. No. L-2821 March 4, 1949
JOSE AVELINO, petitioner,
vs.
MARIANO J. CUENCO, respondent.
Vicente J. Francisco for petitioner.
Office of the Solicitor General Felix Angelo Bautista,
Ramon Diokno and Lorenzo M. Tañada for respondent.
Teehankee, Fernando, Sunico & Rodrigo; Vera,
Montesines & Navarro; Felixberto M. Serrano and
Vicente del Rosario as amici curiae.
RESOLUTION
In G.R. No. L-2821, Avelino vs. Cuenco, the Court by a
vote of six justices against four resolved to deny the
petition.
Without prejudice to the promulgation of a more
extended opinion, this is now written briefly to explain the
principal grounds for the denial.
59
The Court believes the following essential facts have
been established:
In the session of the Senate of February 18, 1949,
Senator Lorenzo M. Tañadare quested that his right to
speak on the next session day, February 21, 1949, to
formulate charges against the then Senate President
Jose Avelino be reserved. His request was approved.
On February 21, 1949, hours before the opening of the
session Senator Tañada and Senator Tañada and
Senator Prospero Sanidad filed with the Secretary of the
Senate a resolution enumerating charges against the
then Senate President and ordering the investigation
thereof.
Although a sufficient number of senators to constitute
a quorum were at the Senate session hall at the
appointed time (10:00 A.M.), and the petitioner was
already in his office, said petitioner delayed his
appearance at the session hall until about 11:35 A.M.
When he finally ascended the rostrum, he did not
immediately open the session, but instead requested
from the Secretary a copy of the resolution submitted by
Senators Tañada and Sanidad and in the presence of
the public he read slowly and carefully said resolution,
after which he called and conferred with his colleagues
Senator Francisco and Tirona.
Shortly before 12:00 noon, due to the session be
opened, the petitioner finally called the meeting to order.
Except Senator Sotto who was confined in a hospital and
Senator Confesor who is in the United States, all the
Senator were present.
Senator Sanidad, following a long established practice,
moved that the roll call be dispensed with, but Senator
Tirona opposed said motion, obviously in pursuance of a
premeditated plan of petitioner and his partisans to make
use of dilatory tactics to prevent Senator Tañada from
delivering his privilege speech. The roll was called.
Senator Sanidad next moved, as is the usual practice, to
dispense with the reading of the minutes, but this motion
was likewise opposed by Senator Tirona and David,
evidently, again, in pursuance of the above-mentioned
conspiracy.
Before and after the roll call and before and after the
reading of the minutes, Senator Tañada repeatedly stood
up to claim his right to deliver his one-hour privilege
speech but the petitioner, then presiding, continuosly
ignored him; and when after the reading of the minutes,
Senator Tañada instead on being recognized by the
Chair, the petitioner announced that he would order the
arrest of any senator who would speak without being
previously recognized by him, but all the while, tolerating
the actions of his follower, Senator Tirona, who was
continuously shouting at Senator Sanidad "Out of order!"
everytime the latter would ask for recognition of Senator
Tañada.
At this juncture, some disorderly conduct broke out in the
Senate gallery, as if by pre-arrangement. At about this
same time Senator Pablo Angeles David, one of the
petitioner's followers, was recognized by petitioner, and
he moved for adjournment of session, evidently, again, in
pursuance of the above-mentioned conspiracy to muzzle
Senator Tañada.
Senator Sanidad registered his opposition to the
adjournment of the session and this opposition was
seconded by herein respondent who moved that the
motion of adjournment be submitted to a vote. Another
commotion ensued.
Senator David reiterated his motion for adjournment and
herein respondent also reiterated his opposition to the
adjournment and again moved that the motion of
Senator David be submitted to a vote.
Suddenly, the petitioner banged the gavel and
abandoning the Chair hurriedly walked out of the session
hall followed by Senator David, Tirona, Francisco,
Torres, Magalona and Clarin, while the rest of the
senators remained. Whereupon Senator Melencio
Arranz, Senate President Pro-tempore, urged by those
senators present took the Chair and proceeded with the
session.
Senator Cabili stood up, and asked that it be made of
record — it was so made — that the deliberate
abandonment of the Chair by the petitioner, made it
incumbent upon Senate President Pro-tempore Arranz
and the remaining members of the Senate to continue
the session in order not to paralyze the functions of the
Senate.
Senate President Pro-tempore Arranz then suggested
that respondent be designated to preside over the
session which suggestion was carried unanimously. the
respondent thereupon took the Chair.
Upon motion of Senator Arranz, which was approved
Gregorio Abad was appointedActing Secretary, because
the Assistance Secretary, who was then acting as
Secretary, had followed the petitioner when the latter
abandoned the session.
Senator Tañada, after being recognized by the Chair,
was then finally able to deliver his privilege speech.
Thereafter Senator Sanidad read aloud the complete text
of said Resolution (No. 68), and submitted his motion for
approval thereof and the same was unanimously
approved.
With Senate President Pro-tempore Arranz again
occupying the Chair, after the respondent had yielded it
to him, Senator Sanidad introduced Resolution No. 67,
entitled "Resolution declaring vacant the position of the
President of the Senate and designated the Honorable
Mariano Jesus Cuenco Acting President of the Senate."
Put to a vote, the said resolution was unanimously
approved.
Senator Cuenco took the oath.
The next day the President of the Philippines recognized
the respondent as acting president of the Philippines
Senate.
By his petition in this quo warranto proceeding
petitioners asked the Court to declare him the rightful
President of the Philippines senate and oust respondent.
The Court has examined all principal angles of the
controversy and believes that these are the crucial
points:
a. Does the Court have jurisdiction over the subject-
matter?
b. If it is has, were resolution Nos. 68 and 67 validly
approved?
c. Should the petition be granted?
To the first question, the answer is in the negative, in
view of the separation of powers, the political nature of
the controversy (Alejandrino vs. Quezon, 46 Phil., 83;
Vera vs. Avelino, 77 Phil., 192; Mabanag vs. Lopez Vito,
78 Phil., 1) and the constitutional grant to the Senate of
the power to elect its own president, which power should
not be interfered with, nor taken over, by the judiciary.
We refused to take cognizance of the Vera case even if
the rights of the electors of the suspended senators were
alleged affected without any immediate remedy. A fortiori
we should abstain in this case because the selection of
the presiding officer affect only the Senators themselves
who are at liberty at any time to choose their officers,
change or reinstate them. Anyway, if, as the petition
must imply to be acceptable, the majority of the Senators
want petitioner to preside, his remedy lies in the Senate
Session Hall — not in the Supreme Court.
The Court will not sally into the legitimate domain of the
Senate on the plea that our refusal to intercede might
lead into a crisis, even a resolution. No state of things
has been proved that might change the temper of the
Filipino people as a peaceful and law-abiding citizens.
60
And we should not allow ourselves to be stampeded into
a rash action inconsistent with the calm that should
characterized judicial deliberations.
The precedent of Werts vs. Roger does not apply,
because among other reasons, the situation is not where
two sets of senators have constituted themselves
into two senates actually functioning as such, (as in said
Werts case), there being no question that there is
presently one Philippines Senate only. To their credit be
it recorded that petitioner and his partisans have not
erected themselves into another Senate. The petitioner's
claim is merely that respondent has not been duly
elected in his place in the same one Philippines Senate.
It is furthermore believed that the recognition accorded
by the Chief Executive to the respondent makes it
advisable, more than ever, to adopt the hands-off policy
wisely enunciated by this Court in matters of similar
nature.
The second question depends upon these sub-
questions. (1) Was the session of the so-called rump
Senate a continuation of the session validly assembled
with twenty two Senators in the morning of February 21,
1949?; (2) Was there a quorum in that session? Mr.
Justice Montemayor and Mr. Justice Reyes deem it
useless, for the present to pass on these questions once
it is held, as they do, that the Court has no jurisdiction
over the case. What follows is the opinion of the other
four on those four on those sub-questions.
Supposing that the Court has jurisdiction, there is
unanimity in the view that the session under Senator
Arranz was a continuation of the morning session and
that a minority of ten senators may not, by leaving the
Hall, prevent the other twelve senators from passing a
resolution that met with their unanimous endorsement.
The answer might be different had the resolution been
approved only by ten or less.
If the rump session was not a continuation of the
morning session, was it validly constituted? In other
words, was there the majority required by the
Constitution for the transaction of the business of the
Senate? Justice Paras, Feria, Pablo and Bengzon say
there was, firstly because the minute say so, secondly,
because at the beginning of such session there were at
least fourteen senators including Senators Pendatun and
Lopez, and thirdly because in view of the absence from
the country of Senator Tomas Confesor twelve senators
constitute a majority of the Senate of twelve three
senators. When the Constitution declares that a majority
of "each House" shall constitute a quorum, "the House:
does not mean "all" the members. Even a majority of all
the members constitute "the House". (Missouri
Pac. vs. Kansas, 63 Law ed. [U. S.], p. 239). There is a
difference between a majority of "the House", the latter
requiring less number than the first. Therefore an
absolute majority (12) of all the members of the Senate
less one (23), constitutes constitutional majority of the
Senate for the purpose of a quorum. Mr. Justice Pablo
believes furthermore than even if the twelve did not
constitute a quorum, they could have ordered the arrest
of one, at least, of the absent members; if one had been
so arrested, there would be no doubt Quorum then, and
Senator Cuenco would have been elected just the same
inasmuch as there would be eleven for Cuenco, one
against and one abstained.
In fine, all the four justice agree that the Court being
confronted with the practical situation that of the twenty
three senators who may participate in the Senate
deliberations in the days immediately after this decision,
twelve senators will support Senator Cuenco and, at
most, eleven will side with Senator Avelino, it would be
most injudicious to declare the latter as the rightful
President of the Senate, that office being essentially one
that depends exclusively upon the will of the majority of
the senators, the rule of the Senate about tenure of the
President of that body being amenable at any time by
that majority. And at any session hereafter held with
thirteen or more senators, in order to avoid all
controversy arising from the divergence of opinion here
about quorum and for the benefit of all concerned,the
said twelve senators who approved the resolutions
herein involved could ratify all their acts and thereby
place them beyond the shadow of a doubt.
As already stated, the six justices hereinabove
mentioned voted to dismiss the petition. Without costs.
AVELINO VS. CUENCO
Political Question; Separation of Power; Legislative
Branch
Avelino vs Cuenco
83 PHIL 17, March 4, 1949
JOSE AVELINO, petitioner,
vs.
MARIANO J. CUENCO, respondent
Facts:
1. In a session of the Senate, Tanada’s request to
deliver a speech in order to formulate charges against
then Senate President Avelino was approved. With the
leadership of the Senate President followed by his
supporters, they deliberately tried to delay and prevent
Tanada from delivering his speech. Before Senator
Tañada could deliver his privilege speech to formulate
charges against the incumbent Senate President, the
petitioner, motu propio adjourned the session of the
Senate and walked out with his followers.
2. Senator Cabili request to made the following
incidents into a record:
1. The deliberate abandonment of the Chair by
the petitioner, made it incumbent upon Senate
President Pro-tempore Arranz and the remaining
members of the Senate to continue the session in
order not to paralyze the functions of the Senate.
2. Senate President Pro-tempore Arranz
suggested that respondent be designated to preside
over the session which suggestion was carried
unanimously.
3. The respondent, Senator Mariano Cuenco,
thereupon took the Chair.
3. Gregorio Abad was appointed Acting Secretary upon
motion of Senator Arranz, because the Assistance
Secretary, who was then acting as Secretary, had
followed the petitioner when the latter abandoned the
session.
4. Senator Tañada, after being recognized by the Chair,
was then finally able to deliver his privilege speech.
Thereafter Senator Sanidad read aloud the complete text
61
of said Resolution (No. 68), and submitted his motion for
approval thereof and the same was unanimously
approved.
5. The petitioners, Senator Jose Avelino, in a quo
warranto proceeding, asked the court to declare him the
rightful Senate President and oust the respondent,
Mariano Cuenco, contending that the latter had not been
validly elected because twelve members did not
constitute a quorum – the majority required of the 24-
member Senate.
Issues:
1. Whether or not the court has jurisdiction on subject
matter.
2. Whether or not Resolutions 67 and 68 was validly
approved.
3. Whether or not the petitioner be granted to declare
him the rightful President of the Philippines Senate and
oust respondent.
Rulings:
In the resolution of the case, the Court held that:
1. The Supreme Court held that they cannot take
cognizance of the case. The court will be against the
doctrine of separation of powers.
1. In view of the separation of powers, the
political nature of the controversy and the
constitutional grant to the Senate of the power to
elect its own president, which power should not be
interfered with, nor taken over, by the judiciary.
2. The court will not interfere in this case
because the selection of the presiding officer affect
only the Senators themselves who are at liberty at
any time to choose their officers, change or reinstate
them. If, as the petition must imply to be acceptable,
the majority of the Senators want petitioner to
preside, his remedy lies in the Senate Session Hall —
not in the Supreme Court.
2. Yes, it was validly constituted, supposing that the
Court has jurisdiction.
1. Justice Paras, Feria, Pablo and Bengzon say
there was the majority required by the Constitution
for the transaction of the business of the Senate,
because, firstly, the minute say so, secondly, because
at the beginning of such session there were at least
fourteen senators including Senators Pendatun and
Lopez, and thirdly because in view of the absence
 from the country of Senator Tomas Confesor twelve
senators constitute a majority of the Senate of
twenty-three senators.
2. When the Constitution declares that a
majority of “each House” shall constitute a quorum,
“the House: does not mean “all” the members. Even
a majority of all the members constitute “the
House”. There is a difference between a majority of
“the House”, the latter requiring less number than
the first. Therefore an absolute majority (12) of all
the members of the Senate less one (23), constitutes
constitutional majority of the Senate for the purpose
of a quorum.
3. The Court adopts a hands-off policy on this matter.
1. The Court found it injudicious to declare the
petitioner as the rightful President of the Senate,
since the office depends exclusively upon the will of
the majority of the senators, the rule of the Senate
about tenure of the President of that body being
amenable at any time by that majority.
2. At any session hereafter held with thirteen
or more senators, in order to avoid all controversy
arising from the divergence of opinion here
about quorum and for the benefit of all concerned,
the said twelve senators who approved the
resolutions herein involved could ratify all their acts
and thereby place them beyond the shadow of a
doubt.
Hence, by a vote of 6 to 4, The Supreme Court dismissed the
petition on the ground as it involved a political question. The
Supreme Court should abstain in this case because the
selection of the presiding officer affects only the Senators
themselves who are at liberty at any time to choose their
officers, change or reinstate them.
G.R. No. 94571 April 22, 1991
TEOFISTO T. GUINGONA, JR. and AQUILINO Q.
PIMENTEL, JR., petitioners,
vs.
HON. GUILLERMO CARAGUE, in his capacity as
Secretary, Budget & Management, HON. ROZALINA
S. CAJUCOM in her capacity as National Treasurer
and COMMISSION ON AUDIT, respondents.
Ramon A. Gonzales for petitioners.
GANCAYCO, J.:
This is a case of first impression whereby petitioners
question the constitutionality of the automatic
appropriation for debt service in the 1990 budget.
As alleged in the petition, the facts are as follows:
The 1990 budget consists of P98.4 Billion in automatic
appropriation (with P86.8 Billion for debt service) and
P155.3 Billion appropriated under Republic Act No.
6831, otherwise known as the General Appropriations
Act, or a total of P233.5 Billion,1 while the appropriations
for the Department of Education, Culture and Sports
amount to P27,017,813,000.00.2
62
The said automatic appropriation for debt service is
authorized by P.D. No. 81, entitled "Amending Certain
Provisions of Republic Act Numbered Four Thousand
Eight Hundred Sixty, as Amended (Re: Foreign
Borrowing Act)," by P.D. No. 1177, entitled "Revising the
Budget Process in Order to Institutionalize the Budgetary
Innovations of the New Society," and by P.D. No. 1967,
entitled "An Act Strenghthening the Guarantee and
Payment Positions of the Republic of the Philippines on
Its Contingent Liabilities Arising out of Relent and
Guaranteed Loan by Appropriating Funds For The
Purpose.
There can be no question that petitioners as Senators of
the Republic of the Philippines may bring this suit where
a constitutional issue is raised.3 Indeed, even a taxpayer
has personality to restrain unlawful expenditure of public
funds.
The petitioner seek the declaration of the
unconstitutionality of P.D. No. 81, Sections 31 of P.D.
1177, and P.D. No. 1967. The petition also seeks to
restrain the disbursement for debt service under the
1990 budget pursuant to said decrees.
Respondents contend that the petition involves a pure
political question which is the repeal or amendment of
said laws addressed to the judgment, wisdom and
patriotism of the legislative body and not this Court.
In Gonzales,5 the main issue was the unconstitutionality
of the presidential veto of certain provision particularly
Section 16 of the General Appropriations Act of 1990,
R.A. No. 6831. This Court, in disposing of the issue,
stated —
The political question doctrine neither interposes
an obstacle to judicial determination of the rival
claims. The jurisdiction to delimit constitutional
boundaries has been given to this Court. It
cannot abdicate that obligation mandated by the
1987 Constitution, although said provision by no
means does away with the applicability of the
principle in appropriate cases.
Sec. 1. The judicial power shad be
vested in one Supreme Court and in
such lower courts as may be established
by law.
Judicial power includes the duty of the
courts of justice to settle actual
controversies involving rights which are
legally demandable and enforceable,
and to determine whether or not there
has been a grave abuse of discretion
amounting to lack or excess of
jurisdiction on the part of any branch or
instrumentality of the Government.
With the Senate maintaining that the President's
veto is unconstitutional and that charge being
controverted, there is an actual case or
justiciable controversy between the Upper
House of Congress and the executive
department that may be taken cognizance of by
this Court.
The questions raised in the instant petition are —
I. IS THE APPROPRIATION OF P86 BILLION IN
THE P233 BILLION 1990 BUDGET VIOLATIVE
OF SECTION 5, ARTICLE XIV OF THE
CONSTITUTION?
II. ARE PD No. 81, PD No. 1177 AND PD No.
1967 STILL OPERATIVE UNDER THE
CONSTITUTION?
III. ARE THEY VIOLATIVE OF SECTION 29(l),
ARTICLE VI OF THE CONSTITUTION?6
There is thus a justiciable controversy raised in the
petition which this Court may properly take cognizance
of On the first issue, the petitioners aver —
 According to Sec. 5, Art. XIV of the Constitution:
(5) The State shall assign the highest
budgetary priority to education and
ensure that teaching will attract and
retain its rightful share of the best
available talents through adequate
remuneration and other means of job
satisfaction and fulfillment.
The reason behind the said provision is stated,
thus:
In explaining his proposed amendment,
Mr. Ople stated that all the great and
sincere piety professed by every
President and every Congress of the
Philippines since the end of World War
II for the economic welfare of the public
schoolteachers always ended up in
failure and this failure, he stated, had
caused mass defection of the best and
brightest teachers to other careers,
including menial jobs in overseas
employment and concerted actions by
them to project their grievances, mainly
over low pay and abject working
conditions.
He pointed to the high expectations
generated by the February Revolution,
especially keen among public
schoolteachers, which at present
exacerbate these long frustrated hopes.
Mr. Ople stated that despite the sincerity
of all administrations that tried vainly to
respond to the needs of the teachers,
the central problem that always defeated
their pious intentions was really the one
budgetary priority in the sense that any
proposed increase for public
schoolteachers had to be multiplied
many times by the number of
government employees in general and
their equitable claims to any pay
standardization such that the pay rate of
teachers is hopelessly pegged to the
rate of government workers in general.
This, he stated, foredoomed the
prospect of a significant pay increase for
teachers.
Mr. Ople pointed out that the recognition
by the Constitution of the highest priority
for public schoolteachers, and by
implication, for all teachers, would
ensure that the President and Congress
would be strongly urged by a
constitutional mandate to grant to them
such a level of remuneration and other
incentives that would make teaching
competitive again and attractive to the
best available talents in the nation.
Finally, Mr. Ople recalled that before
World War II, teaching competed most
successfully against all other career
choices for the best and the brightest of
the younger generation. It is for this
reason, he stated, that his proposed
amendment if approved, would ensure
that teaching would be restored to its
lost glory as the career of choice for the
most talented and most public-spirited of
the younger generation in the sense that
it would become the countervailing
measure against the continued decline
of teaching and the wholesale desertion
of this noble profession presently taking
63
place. He further stated that this would
ensure that the future and the quality of
the population would be asserted as a
top priority against many clamorous and
importunate but less important claims of
the present. (Journal of the
Constitutional Commission, Vol. II, p.
1172)
However, as against this constitutional intention, P86
Billion is appropriated for debt service while only P27
Billion is appropriated for the Department of Education in
the 1990 budget. It plain, therefore, that the said
appropriation for debt services is inconsistent with the
Constitution, hence, viod (Art. 7, New Civil Code). 7
While it is true that under Section 5(5), Article XIV of the
Constitution Congress is mandated to "assign the
highest budgetary priority to education" in order to
"insure that teaching will attract and retain its rightful
share of the best available talents through adequate
remuneration and other means of job satisfaction and
fulfillment," it does not thereby follow that the hands of
Congress are so hamstrung as to deprive it the power to
respond to the imperatives of the national interest and
for the attainment of other state policies or objectives.
As aptly observed by respondents, since 1985, the
budget for education has tripled to upgrade and improve
the facility of the public school system. The
compensation of teachers has been doubled. The
amount of P29,740,611,000.008 set aside for the
Department of Education, Culture and Sports under the
General Appropriations Act (R.A. No. 6831), is the
highest budgetary allocation among all department
budgets. This is a clear compliance with the aforesaid
constitutional mandate according highest priority to
education.
Having faithfully complied therewith, Congress is
certainly not without any power, guided only by its good
judgment, to provide an appropriation, that can
reasonably service our enormous debt, the greater
portion of which was inherited from the previous
administration. It is not only a matter of honor and to
protect the credit standing of the country. More
especially, the very survival of our economy is at stake.
Thus, if in the process Congress appropriated an amount
for debt service bigger than the share allocated to
education, the Court finds and so holds that said
appropriation cannot be thereby assailed as
unconstitutional.
Now to the second issue. The petitioners made the
following observations:
To begin with, Rep. Act 4860 entitled "AN
ACT AUTHORIZING THE PRESIDENT OF THE
PHILIPPINES TO OBTAIN SUCH
FOREIGN LOANS AND CREDITS, OR TO
INCUR SUCH FOREIGN INDEBTEDNESS, AS
MAY BE NECESSARY TO FINANCE
APPROVED ECONOMIC DEVELOPMENT
PURPOSES OR PROJECTS, AND TO
GUARANTEE, IN BEHALF OF THE REPUBLIC
OF THE PHILIPPINES, FOREIGN LOANS
OBTAINED OR BONDS ISSUED BY
CORPORATIONS OWNED OR CONTROLLED
BY THE GOVERNMENT OF THE PHILIPPINES
FOR ECONOMIC DEVELOPMENT PURPOSES
INCLUDING THOSE INCURRED FOR
PURPOSES OF RELENDING TO THE PRIVATE
SECTOR, APPROPRIATING THE NECESSARY
FUNDS THEREFOR, AND FOR OTHER
PURPOSES, provides:
Sec. 2. The total amount of loans,
credits and indebtedness, excluding
interests, which the President of the
Philippines is authorized to incur under
 this Act shall not exceed one billion
United States dollars or its equivalent in
other foreign currencies at the exchange
rate prevailing at the time the loans,
credits and indebtedness are
incurred: Provided, however, That the
total loans, credits and indebtedness
incurred under this Act shall not
exceed two hundred fifty million in the
fiscal year of the approval of this Act,
and two hundred fifty million every fiscal
year thereafter, all in United States
dollars or its equivalent in other
currencies.
Sec. 5. It shall be the duty of the
President, within thirty days after the
opening of every regular session,
to report to the Congress the amount
of loans, credits and indebtedness
contracted, as well as the guarantees
extended, and the purposes and
projects for which the loans, credits and
indebtedness were incurred, and the
guarantees extended, as well as such
loans which may be reloaned to Filipino
owned or controlled corporations and
similar purposes.
Sec. 6. The Congress shall
appropriate the necessary amount out of
any funds in the National Treasury not
otherwise appropriated, to cover the
payment of the principal and interest on
such loans, credits or indebtedness as
and when they shall become due.
However, after the declaration of martial law, President
Marcos issued PD 81 amending Section 6, thus:
Sec. 7. Section six of the same Act is hereby
further amended to read as follows:
Sec. 6. Any provision of law to the
contrary notwithstanding, and in order to
enable the Republic of the Philippines to
pay the principal, interest, taxes and
other normal banking charges on the
loans, credits or indebtedness, or on the
bonds, debentures, securities or other
evidences of indebtedness sold in
international markets incurred under the
authority of this Act, the proceeds of
which are deemed appropriated for the
projects, all the revenue realized from
the projects financed by such loans,
credits or indebtedness, or on the
bonds, debentures, securities or other
evidences of indebtedness, shall be
turned over in full, after deducting actual
and necessary expenses for the
operation and maintenance of said
projects, to the National Treasury by the
government office, agency or
instrumentality, or government-owned or
controlled corporation concerned, which
is hereby appropriated for the purpose
as and when they shall become due. In
case the revenue realized is insufficient
to cover the principal, interest and other
charges, such portion of the budgetary
savings as may be necessary to cover
the balance or deficiency shall be set
aside exclusively for the purpose by the
government office, agency or
instrumentality, or government-owned or
controlled corporation
concerned: Provided, That, if there still
remains a deficiency, such amount
64
necessary to cover the payment of the
principal and interest on such loans,
credit or indebtedness as and when
they shall become due is hereby
appropriated out of any funds in the
national treasury not otherwise
appropriated: . . .
President Marcos also issued PD 1177, which
provides:
Sec. 31. Automatic appropriations. –– All
expenditures for (a) personnel
retirement premiums, government
service insurance, and other similar
fixed expenditures, (b) principal and
interest on public debt, (c)
national government guarantees of
obligations which are drawn upon, are
automatically appropriated; Provided,
that no obligations shall be incurred or
payments made from funds thus
automatically appropriated except as
issued in the form of regular budgetary
allotments.
and PD 1967, which provides:
Sec. 1. There is hereby
appropriated, out of any funds in the
National Treasury not otherwise
appropriated, such amounts as may be
necessary to effect payments on foreign
or domestic loans, or foreign or
domestic loans whereon creditors make
a call on the direct and indirect
guarantee of the Republic of the
Philippines, obtained by:
a. The Republic of the
Philippines the proceeds of
which were relent to
government-owned or controlled
corporations and/or government
financial institutions;
b. government-owned or
controlled corporations and/or
government financial institutions
the proceeds of which were
relent to public or private
institutions;
c. government-owned or
controlled corporations and/or
financial institutions and
guaranteed by the Republic of
the Philippines;
d. other public or private
institutions and guaranteed by
government-owned or controlled
corporations and/or government
financial institutions.
Sec. 2. All repayments made by
borrower institutions on the loans for
whose account advances were made by
the National Treasury will revert to the
General Fund.
Sec. 3. In the event that any borrower
institution is unable to settle the
advances made out of the appropriation
provided therein, the Treasurer of the
Philippines shall make the proper
recommendation to the Minister of
Finance on whether such advances
shall be treated as equity or subsidy of
the National Government to the
institution concerned, which shall be
considered in the budgetary program of
the Government.
 In the "Budget of Expenditures and
Sources of Financing Fiscal Year 1990,"
which accompanied her budget
message to Congress, the President of
the Philippines, Corazon C. Aquino,
stated:
Sources Appropriation
The P233.5 billion budget proposed for fiscal
year 1990 will require P132.1 billion of new
programmed appropriations out of a total P155.3
billion in new legislative authorization from
Congress. The rest of the budget, totalling
P101.4 billion, will be sourced from existing
appropriations: P98.4 billion from Automatic
Appropriations and P3.0 billion from Continuing
Appropriations (Fig. 4).
And according to Figure 4, . . ., P86.8 billion out of the
P98.4 Billion are programmed for debt service. In other
words, the President had, on her own, determined and
set aside the said amount of P98.4 Billion with the rest of
the appropriations of P155.3 Billion to be determined and
fixed by Congress, which is now Rep. Act 6831.9
Petitioners argue that the said automatic appropriations
under the aforesaid decrees of then President Marcos
became functus oficio when he was ousted in February,
1986; that upon the expiration of the one-man legislature
in the person of President Marcos, the legislative power
was restored to Congress on February 2, 1987 when the
Constitution was ratified by the people; that there is a
need for a new legislation by Congress providing for
automatic appropriation, but Congress, up to the
present, has not approved any such law; and thus the
said P86.8 Billion automatic appropriation in the 1990
budget is an administrative act that rests on no law, and
thus, it cannot be enforced.
Moreover, petitioners contend that
assuming arguendo that P.D. No. 81, P.D. No. 1177 and
P.D. No. 1967 did not expire with the ouster of President
Marcos, after the adoption of the 1987 Constitution, the
said decrees are inoperative under Section 3, Article
XVIII which provides ––
Sec. 3. All existing laws, decrees, executive
orders, proclamations, letters of instructions, and
other executive issuances not inconsistent with
this Constitution shall remain operative until
amended, repealed, or revoked." (Emphasis
supplied.)
They then point out that since the said decrees are
inconsistent with Section 24, Article VI of the
Constitution, i.e.,
Sec. 24. All appropriation, revenue or
tariff bills, bills authorizing increase of the public
debt, bills of local application, and private bills
shall originate exclusively in the House of
Representatives, but the Senate may propose or
concur with amendments. (Emphasis supplied.)
whereby bills have to be approved by the
President,10 then a law must be passed by Congress to
authorize said automatic appropriation. Further,
petitioners state said decrees violate Section 29(l) of
Article VI of the Constitution which provides as follows
––
Sec. 29(l). No money shall be paid out of the
Treasury except in pursuance of
an appropriation made by law.
They assert that there must be definiteness, certainty
and exactness in an appropriation,11 otherwise it is an
undue delegation of legislative power to the President
who determines in advance the amount appropriated for
the debt service.12
The Court is not persuaded.
65
Section 3, Article XVIII of the Constitution recognizes
that "All existing laws, decrees, executive orders,
proclamations, letters of instructions and other executive
issuances not inconsistent with the Constitution shall
remain operative until amended, repealed or revoked."
This transitory provision of the Constitution has precisely
been adopted by its framers to preserve the social order
so that legislation by the then President Marcos may be
recognized. Such laws are to remain in force and effect
unless they are inconsistent with the Constitution or, are
otherwise amended, repealed or revoked.
An examination of the aforecited presidential decrees
show the clear intent that the amounts needed to cover
the payment of the principal and interest on all foreign
loans, including those guaranteed by the national
government, should be made available when they shall
become due precisely without the necessity of periodic
enactments of separate laws appropriating funds
therefor, since both the periods and necessities are
incapable of determination in advance.
The automatic appropriation provides the flexibility for
the effective execution of debt management policies. Its
political wisdom has been convincingly discussed by the
Solicitor General as he argues —
. . . First, for example, it enables the
Government to take advantage of a favorable
turn of market conditions by redeeming high-
interest securities and borrowing at lower rates,
or to shift from short-term to long-term
instruments, or to enter into arrangements that
could lighten our outstanding debt burden debt-
to-equity, debt to asset, debt-to-debt or other
such schemes. Second, the automatic
appropriation obviates the serious difficulties in
debt servicing arising from any deviation from
what has been previously programmed. The
annual debt service estimates, which are usually
made one year in advance, are based on a
mathematical set or matrix or, in layman's
parlance, "basket" of foreign exchange and
interest rate assumptions which may significantly
differ from actual rates not even in proportion to
changes on the basis of the assumptions.
Absent an automatic appropriation clause, the
Philippine Government has to await and depend
upon Congressional action, which by the time
this comes, may no longer be responsive to the
intended conditions which in the meantime may
have already drastically changed. In the
meantime, also, delayed payments and
arrearages may have supervened, only to
worsen our debt service-to-total expenditure
ratio in the budget due to penalties and/or
demand for immediate payment even before due
dates.
Clearly, the claim that payment of the loans and
indebtedness is conditioned upon the
continuance of the person of President Marcos
and his legislative power goes against the intent
and purpose of the law. The purpose is foreseen
to subsist with or without the person of Marcos.13
The argument of petitioners that the said presidential
decrees did not meet the requirement and are therefore
inconsistent with Sections 24 and 27 of Article VI of the
Constitution which requires, among others, that "all
appropriations, . . . bills authorizing increase of public
debt" must be passed by Congress and approved by the
President is untenable. Certainly, the framers of the
Constitution did not contemplate that existing laws in the
statute books including existing presidential decrees
appropriating public money are reduced to mere "bills"
that must again go through the legislative million The
only reasonable interpretation of said provisions of the
Constitution which refer to "bills" is that they mean
appropriation measures still to be passed by Congress. If
the intention of the framers thereof were otherwise they
should have expressed their decision in a more direct or
express manner.
Well-known is the rule that repeal or amendment by
implication is frowned upon. Equally fundamental is the
principle that construction of the Constitution and law is
generally applied prospectively and not retrospectively
unless it is so clearly stated.
On the third issue that there is undue delegation of
legislative power, in Edu vs. Ericta,14 this Court had this
to say ––
What cannot be delegated is the authority under
the Constitution to make laws and to alter and
repeal them;the test is the completeness of the
statute in all its terms and provisions when it
leaves the hands of the legislature. To determine
whether or not there is an undue delegation of
legislative power, the inequity must be directed
to the scope and definiteness of the measure
enacted. The legislature does not abdicate its
function when it describes what job must be
done, who is to do it, and what is the scope of
his authority. For a complex economy, that may
indeed be the only way in which legislative
process can go forward . . .
To avoid the taint of unlawful delegation there
must be a standard, which implies at the very
least that the legislature itself determines
matters of principle and lays down fundamental
policy . . .
The standard may be either express or
implied . . . from the policy and purpose of the
act considered as whole . . .
In People vs. Vera,15 this Court said "the true distinction
is between the delegation of power to make the law,
which necessarily involves discretion as to what the law
shall be, and conferring authority or discretion as to its
execution, to be exercised under and in pursuance of the
law. The first cannot be done; to the latter no valid
objection can be made."
Ideally, the law must be complete in all its essential
terms and conditions when it leaves the legislature so
that there will be nothing left for the delegate to do when
it reaches him except enforce it. If there are gaps in the
law that will prevent its enforcement unless they are first
filled, the delegate will then have been given the
opportunity to step in the shoes of the legislature and
exercise a discretion essentially legislative in order to
repair the omissions. This is invalid delegation.16
The Court finds that in this case the questioned laws are
complete in all their essential terms and conditions and
sufficient standards are indicated therein.
The legislative intention in R.A. No. 4860, as amended,
Section 31 of P.D. No. 1177 and P.D. No. 1967 is that the
amount needed should be automatically set aside in
order to enable the Republic of the Philippines to pay the
principal, interest, taxes and other normal banking
charges on the loans, credits or indebtedness incurred
as guaranteed by it when they shall become due without
the need to enact a separate law appropriating funds
therefor as the need arises. The purpose of these laws is
to enable the government to make prompt payment
and/or advances for all loans to protect and maintain the
credit standing of the country.
Although the subject presidential decrees do not state
specific amounts to be paid, necessitated by the very
nature of the problem being addressed, the amounts
nevertheless are made certain by the legislative
parameters provided in the decrees. The Executive is
not of unlimited discretion as to the amounts to be
disbursed for debt servicing. The mandate is to pay only
the principal, interest, taxes and other normal banking
66
charges on the loans, credits or indebtedness, or on the
bonds, debentures or security or other evidences of
indebtedness sold in international markets incurred by
virtue of the law, as and when they shall become due.
No uncertainty arises in executive implementation as the
limit will be the exact amounts as shown by the books of
the Treasury.
The Government budgetary process has been
graphically described to consist of four major phases as
aptly discussed by the Solicitor General:
The Government budgeting process consists of
four major phases:
1. Budget preparation. The first step is
essentially tasked upon the Executive Branch
and covers the estimation of government
revenues, the determination of budgetary
priorities and activities within the constraints
imposed by available revenues and
by borrowing limits, and the translation of
desired priorities and activities into expenditure
levels.
Budget preparation starts with the budget call
issued by the Department of Budget and
Management. Each agency is required to submit
agency budget estimates in line with the
requirements consistent with the general ceilings
set by the Development Budget Coordinating
Council (DBCC).
With regard to debt servicing, the DBCC staff,
based on the macro-economic projections of
interest rates (e.g. LIBOR rate) and estimated
sources of domestic and foreign financing,
estimates debt service levels. Upon issuance of
budget call, the Bureau of Treasury computes for
the interest and principal payments for the year
for all direct national government borrowings and
other liabilities assumed by the same.
2. Legislative authorization. –– At this stage,
Congress enters the picture and deliberates
or acts on the budget proposals of the President,
and Congress in the exercise of its own
judgment and wisdom formulatesan
appropriation act precisely following the process
established by the Constitution, which specifies
that no money may be paid from the Treasury
except in accordance with an appropriation
made by law.
Debt service is not included in the General
Appropriation Act, since authorization therefor
already exists under RA No. 4860 and 245, as
amended and PD 1967. Precisely in the fight of
this subsisting authorization as embodied in said
Republic Acts and PD for debt service, Congress
does not concern itself with details for
implementation by the Executive, but largely with
annual levels and approval thereof upon due
deliberations as part of the whole obligation
program for the year. Upon such approval,
Congress has spoken and cannot be said to
have delegated its wisdom to the Executive, on
whose part lies
the implementation or execution of the legislative
wisdom.
3. Budget Execution. Tasked on the Executive,
the third phase of the budget process covers the
various operational aspects of budgeting. The
establishment of obligation authority ceilings, the
evaluation of work and financial plans for
individual activities, the continuing review of
government fiscal position, the regulation of
funds releases, the implementation of cash
payment schedules, and other related activities
comprise this phase of the budget cycle.
 Release from the debt service fired is triggered
by a request of the Bureau of the Treasury for
allotments from the Department of Budget and
Management, one quarter in advance of
payment schedule, to ensure prompt payments.
The Bureau of Treasury, upon receiving official
billings from the creditors, remits payments to
creditors through the Central Bank or to the
Sinking Fund established for government
security issues (Annex F).
4. Budget accountability. The fourth phase refers
to the evaluation of actual performance and
initially approved work targets, obligations
incurred, personnel hired and work
accomplished are compared with the targets set
at the time the agency budgets were approved.
There being no undue delegation of legislative
power as clearly above shown, petitioners insist
nevertheless that subject presidential decrees
constitute undue delegation of legislative power
to the executive on the alleged ground that the
appropriations therein are not exact,
certain or definite, invoking in support therefor
the Constitution of Nebraska, the constitution
under which the case of State v. Moore, 69 NW
974, cited by petitioners, was decided. Unlike
the Constitution of Nebraska, however, our
Constitution does not require a definite, certain,
exact or "specific appropriation made by law."
Section 29, Article VI of our 1987 Constitution
omits any of these words and simply states:
Section 29(l). No money shall be paid
out of the treasury except in pursuance
of an appropriation made by law.
More significantly, there is no provision in our
Constitution that provides or prescribes any
particular form of words or religious recitals in
which an authorization or appropriation by
Congress shall be made, except that it be "made
by law," such as precisely the authorization or
appropriation under the questioned presidential
decrees. In other words, in terms of time
horizons, an appropriation may be made
impliedly (as by past but subsisting legislations)
as well as expressly for the current fiscal year
(as by enactment of laws by the present
Congress), just as said appropriation may be
made in general as well as in specific terms. The
Congressional authorization may be embodied
in annual laws, such as a general appropriations
act or in special provisions of laws of general or
special application which appropriate public
funds for specific public purposes, such as the
questioned decrees. An appropriation measure
is sufficient if the legislative intention clearly and
certainly appears from the language employed
(In re Continuing Appropriations, 32 P. 272),
whether in the past or in the present.17
Thus, in accordance with Section 22, Article VII of the
1987 Constitution, President Corazon C. Aquino
submitted to Congress the Budget of Expenditures and
Sources of Financing for the Fiscal Year 1990. The
proposed 1990 expenditure program covering the
estimated obligation that will be incurred by the national
government during the fiscal year amounts to P233.5
Billion. Of the proposed budget, P86.8 is set aside for
debt servicing as follows:
1âwphi1
National Government Debt
Service Expenditures, 1990
(in million pesos)
Domestic Foreign Total
67
RA 245, RA 4860
as as
amended amended,
PD 1967
Interest
Payments P36,861 P18,570 P55,431
Principal
Amortization 16,310 15,077 31,387
18
Total P53,171 P33,647 P86,818
======== ======== ========
as authorized under P.D. 1967 and R.A. 4860 and 245,
as amended.
The Court, therefor, finds that R.A. No. 4860, as
amended by P.D. No. 81, Section 31 of P.D. 1177 and
P.D. No. 1967 constitute lawful authorizations or
appropriations, unless they are repealed or otherwise
amended by Congress. The Executive was thus merely
complying with the duty to implement the same.
There can be no question as to the patriotism and good
motive of petitioners in filing this petition. Unfortunately,
the petition must fail on the constitutional and legal
issues raised. As to whether or not the country should
honor its international debt, more especially the
enormous amount that had been incurred by the past
administration, which appears to be the ultimate
objective of the petition, is not an issue that is presented
or proposed to be addressed by the Court. Indeed, it is
more of a political decision for Congress and the
Executive to determine in the exercise of their wisdom
and sound discretion.
WHEREFORE, the petition is DISMISSED, without
pronouncement as to costs.
SO ORDERED.
Guingona, Jr. vs. Carague
G.R. No. 94571. April 22, 1991
FACTS:
The 1990 budget consists of P98.4 Billion in automatic
appropriation (with P86.8 Billion for debt service) and
P155.3 Billion appropriated under RA 6831, otherwise
known as the General Approriations Act, or a total of
P233.5 Billion, while the appropriations for the DECS
amount to P27,017,813,000.00.
The said automatic appropriation for debt service is
authorized by PD No. 18, entitled “ Amending Certain
Provisions of Republic Act Numbered Four Thousand
Eight Hundred Sixty, as Amended (Re: Foreign
Borrowing Act), “by PD No. 1177, entitled “Revising the
Budget Process in Order to Institutionalize the Budgetary
Innovations of the New Society,” and by PD No.1967,
entitled “An Act Strengthening the Guarantee and
Payment Positions of the Republic of the Philippines on
its Contingent Liabilities Arising out of Relent and
Guaranteed Loans by Appropriating Funds For The
Purpose.”
The petitioners were questioning the constitutionality of
the automatic appropriation for debt service, it being
higher than the budget for education, therefore it is
against Section 5(5), Article XIV of the Constitution which
mandates to “assign the highest budgetary priority to
education.”
ISSUE:
Whether or not the automatic appropriation for debt
service is unconstitutional; it being higher than the
budget for education.
HELD:
No. While it is true that under Section 5(5), Article XIV of
the Constitution Congress is mandated to “assign the
highest budgetary priority to education,” it does not
thereby follow that the hands of Congress are so
hamstrung as to deprive it the power to respond to the
imperatives of the national interest and for the attainment
of other state policies or objectives.
Congress is certainly not without any power, guided only
by its good judgment, to provide an appropriation, that
can reasonably service our enormous debt…It is not only
a matter of honor and to protect the credit standing of the
country. More especially, the very survival of our
economy is at stake. Thus, if in the process Congress
appropriated an amount for debt service bigger than the
share allocated to education, the Court finds and so
holds that said appropriation cannot be thereby assailed
as unconstitutional
G.R. No. 89914 November 20, 1991
JOSE F.S. BENGZON JR., ABELARDO TERMULO,
JOSE MANTECON, VICENTE MILLS JR., LEONARDO
GAMBOA, KURT BACHMANN JR., JOSE V.E.
JIMENEZ, ERNESTO CALUYA, AGERICO UNGSON,
SUSAN ROXAS, ELVIE CASTILLO, and CYNTHIA
SABIDO LIMJAP, petitioners,
vs.
THE SENATE BLUE RIBBON COMMITTEE AND ITS
MEMBERS, represented by and through the
CHAIRMAN, HON. WIGBERTO TAÑADA,
respondents, JOSE S. SANDEJAS, intervenor.
Bengzon, Zarraga, Narciso, Cudala, Pecson & Bengson
for petitioners.
Balgos & Perez for intervening petitioner.
Eddie Tamondong and Antonio T. Tagaro for
respondents.
PADILLA, J.:
This is a petition for prohibition with prayer for the
issuance of a temporary restraining order and/or
injuective relief, to enjoin the respondent Senate Blue
Ribbon committee from requiring the petitioners to testify
and produce evidence at its inquiry into the alleged sale
of the equity of Benjamin "Kokoy" Romualdez to the
Lopa Group in thirty-six (36) or thirty-nine (39)
corporations.
On 30 July 1987, the Republic of the Philippines,
represented by the Presidential Commission on Good
Government (PCGG), assisted by the Solicitor General,
filed with the Sandiganbayan Civil Case No. 0035
(PCGG Case No. 35) entitled "Republic of the
Philippines vs. Benjamin "Kokoy" Romualdez, et al.", for
reconveyance, reversion, accounting, restitution and
damages.
The complaint was amended several times by
impleading new defendants and/or amplifying the
allegations therein. Under the Second Amended
Complaint, 1 the herein petitioners were impleaded as
party defendants.
The complaint insofar as pertinent to herein petitioners,
as defendants, alleges among others that:
14. Defendants Benjamin (Kokoy) Romualdez
and Juliette Gomez Romualdez, acting by
themselves and/or in unlawful concert with
Defendants Ferdinand E. Marcos and Imelda R.
Marcos, and taking undue advantage of their
relationship, influence and connection with the
68
latter Defendant spouses, engaged in devices,
schemes and strategems to unjuestly enrigh
themselves at the expense of Plaintiff and the
Filipino people, among others:
(a) Obatained, with the active
collaboration of Defendants Sene J.
Gabaldon, Mario D. Camacho, Mamerto
Nepomuceno, Carlos J. Valdez, Cesar
C. Zalamea and Francisco Tantuico,
Atty. Jose Bengzon, Jr. and his law
partners, namely: Edilberto S. Narciso,
Jr., Jose Vicente E. Jimenez, Amando V.
Faustino, Jr., and Leonardo C. Cruz;
Jose S. Sandejas and his fellow senior
managers of FMMC/PNI Holdings
groups of companies such as Leonardo
Gamboa, Vicente T. Mills, Jr., Jose M.
Mantecon, Abelardo S. Termulo, Rex C.
Drilon II and Kurt Bachmann, Jr., control
of some of the biggest business
enterprises in the Philippines, such as
the Manila Corporation (MERALCO),
Benguet Consolidated and the
Philippine Commercial International
Bank (PCI Bank) by employing devious
financial schemes and techniques
calculated to require the massive
infusion and hemorrhage of government
funds with minimum or negligible
"cashout" from Defendant Benjamin
Romualdez...
xxx xxx xxx
(m) manipulated, with the support,
assistance and collaboration of
Philgurantee officials led by chairman
Cesar E.A. Virata and the Senior
managers of FMMC/PNI Holdings, Inc.
led by Jose S. Sandejas, Jr., Jose M.
Mantecom and Kurt S. Bachmann, Jr.,
among others, the formation of Erectors
Holdings, Inc. without infusing additional
capital solely for the purpose of Erectors
Incorporated with Philguarantee in the
amount of P527,387,440.71 with
insufficient securities/collaterals just to
enable Erectors Inc, to appear viable
and to borrow more capitals, so much so
that its obligation with Philgurantee has
reached a total of more than P2 Billion
as of June 30, 1987.
(n) at the onset of the present
Administration and/or within the week
following the February 1986 People's
Revolution, in conspiracy with, supoort,
assistance and collaboration of the
abovenamed lawyers of the Bengzon
Law Offices, or specifically Defendants
Jose F.S. Bengzon, Jr., V.E. Jimenez,
Amando V. Faustino, Jr., and Edilberto
S. Narciso, Jr., manipulated, shcemed,
and/or executed a series of devices
intended to conceal and place, and/or
for the purpose of concealing and
placing, beyond the inquiry and
jurisdiction of the Presidential
Commission on Good Government
(PCGG) herein Defendant's individual
and collective funds, properties, and
assets subject of and/or suited int he
instant Complaint.
(o) manuevered, with the technical
know-how and legalitic talents of the
FMMC senior manager and some of the
Bengzon law partners, such as Attys.
 Jose F.S. Bengzon, Jr., Edilberto S.
Narciso, Jr., Amando V. Faustino, Jose
Vicente E. Jimenez and Leonardo C.
Cruz, the purported sale of defendant
Benjamin Romualdez's interests in the
(i) Professional Managers, (ii) A & E
International Corporation (A & E), (iii)
First Manila Managerment Corporation
(FMMC), (iv) Philippine World Travel Inc.
(PWTI) and its subsidiaries consisting of
36 corporations in all, to PNI Holdings,
Inc. (wjose purported incorporations are
all members of Atty. Jose F.S. Bengzon's
law firm) for only P5 million on March 3,
1986 or three days after the creation of
the Presidential Commission on Good
Government on February 28, 1986, for
the sole purpose of deceiving and
preempting the Government, particularly
the PCGG, and making it appear that
defendant Benjamin Romualdez had
already divested himself of his
ownership of the same when in truth and
in fact, his interests are well intact and
being protected by Atty. Jose F.S.
Bengzon, Jr. and some of his law
partners, together with the FMMC senior
managers who still control and run the
affiars of said corporations, and in order
to entice the PCGG to approve the said
fictitious sale, the above-named
defendants offered P20 million as
"donation" to the Government;
(p) misused, with the connivance,
support and technical assitance of the
Bengzon law firm represented by Atty.
Jose F.S. Bengzon, Jr. as legal counsel,
together with defendants Cesar
Zalamea, Antonio Ozaeta, Mario D.
Camacho amd Senen J. Gabaldon as
members of the Board of Directors of
the Philippine Commercial International
bank (PCIB), the Meralco Pension Fund
(Fund, for short) in the amount of P25
million by cuasing it to be invested in the
PCIB and through the Bank's TSG,
assigned to PCI Development and PCI
Equity at 50% each, the Fund's (a)
8,028.011 common shares in the Bank
and (b) "Deposit in Subscription" in the
amount of P4,929.972.50 but of the
agreed consideration of P28 million for
the said assignment, PCI Development
and PCI Equity were able to pay only
P5,500.00 downpayment and the first
amortization of P3,937,500.00 thus
prompting the Fund to rescind its
assignment, and the consequent
reversion of the assigned brought the
total shareholding of the Fund to
11,470,555 voting shares or 36.8% of
the voting stock of the PCIB, and this
development (which the defendants
themselves orchestrated or allowed to
happen) was used by them as an
excuse for the unlawful dismantling or
cancellation of the Fund's 10 million
shares for allegedly exceeding the 30-
percent ceiling prescribed by Section
12-B of the General Banking Act,
although they know for a fact that what
the law declares as unlawful and void ab
initio are the subscriptions in excess of
the 30% ceiling "to the extent of the
excess over any of the ceilings
69
prescribed ..." and not the whole or
entire stockholding which they allowed
to stay for six years (from June 30, 1980
to March 24, 1986);
(q) cleverly hid behind the veil of
corporate entity, through the use of the
names and managerial expertise of the
FMMC senior manager and lawyers
identified as Jose B. Sandejas,
Leonardo Gamboa, Vicente T. Mills,
Abelardo S, Termulo, Edilberto S.
Narciso, Jr., Jose M. Mantecon, Rex C.
Drilon II, Kurt Bachmann, Jr. together
with the legal talents of corporate
lawyers, such as Attys. Jose F.S.
Bengzon, Jr., Jose V.E. Jimenez,
Amando V. Faustino, Jr., and Leonardo
C. Cruz, the ill-gotten wealth of
Benjamin T. Romualdez including,
among others, the 6,229,177 shares in
PCIB registered in the names of Trans
Middle East Phils. Equities, Inc. and
Edilberto S. Narciso, Jr. which they
refused to surrender to PCGG despite
their disclosure as they tried and
continue to exert efforts in getting hold
of the same as well as the shares in
Benguet registered in the names of
Palm Avenue Holdings and Palm
Avenue Realty Development Corp.
purportedly to be applied as payment for
the claim of P70 million of a "merger
company of the First Manila
Managerment Corp. group" supposedly
owned by them although the truth is that
all the said firms are still beneficially
owned by defendants Benjamin
Romualdez.
xxx xxx xxx
On 28 September 1988, petitioner (as
defendants) filed their respective
answers. 2 Meanwhile, from 2 to 6 August 1988,
conflicting reports on the disposition by the
PCGG of the "Romualdez corporations" were
carried in various metropolitan newspapers.
Thus, one newspaper reported that the
Romuladez firms had not been sequestered
because of the opposition of certain PCGG
officials who "had worked prviously as lawyers of
the Marcos crony firms." Another daily reported
otherwise, while others declared that on 3 March
1986, or shortly after the EDSA February 1986
revolution, the Romualdez companies" were
sold for P5 million, without PCGG approval, to a
holding company controlled by Romualdez, and
that Ricardo Lopa, the President's brother-in-
law, had effectively taken over the firms, even
pending negotiations for the purchase of the
corporations, for the same price of P5 million
which was reportedly way below the fair value of
their assets. 3
On 13 September 1988, the Senate Minority Floor Leader, Hon. Juan Ponce Enrile
delivered a speech "on a matter of personal privilege" before the Senate on the
alleged "take-over personal privilege" before the Senate on the alleged "take-over of
SOLOIL Incorporated, the flaship of the First Manila Management of Companies
(FMMC) by Ricardo Lopa" and called upon "the Senate to look into the possible
violation of the law in the case, particularly with regard to Republic Act No. 3019, the
Anti-Graft and Corrupt Practices Act." 4
On motion of Senator Orlando Mercado, the matter was referred by the Senate to
the Committee on Accountability of Public Officers (Blue Ribbon
Committee). 5
Thereafter, the Senate Blue Ribbon
Committee started its investigation on the
matter. Petitioners and Ricardo Lopa were
subpoenaed by the Committee to appear before
 it and testify on "what they know" regarding the balances to secure coordination in the
"sale of thirty-six (36) corporations belonging to workings of the various departments of
Benjamin "Kokoy" Romualdez." the government...
At the hearing held on 23 May 1989, Ricardo xxx xxx xxx
Lopa declined to testify on the ground that his But in the main, the Constitution has
testimony may "unduly prejudice" the defendants blocked out with deft strokes and in bold
in Civil Case No. 0035 before the lines, allotment of power to the
Sandiganbayan. Petitioner Jose F.S. Bengzon, executive, the legislative and the judicial
Jr. likewise refused to testify involing his departments of the government. The
constitutional right to due process, and averring ovelapping and interlacing of funcstions
that the publicity generated by respondents and duties between the several
Committee's inquiry could adversely affect his deaprtments, however, sometimes
rights as well as those of the other petitioners makes it hard to say just where the
who are his co-defendants in Civil Case No. political excitement, the great landmarks
0035 before the Sandiganbayan. of the Constitution are apt to be
The Senate Blue Ribbon Committee, thereupon, forgotten or marred, if not entirely
suspended its inquiry and directed the obliterated, in cases of conflict, the
petitioners to file their memorandum on the judicial departments is the only
constitutional issues raised, after which, it issued constitutional organ which can be called
a resolution 6 dated 5 June 1989 rejecting the upon to determine the proper allocation
petitioner's plea to be excused from testifying, of powers between the several
and the Committee voted to pursue and continue departments and among the integral or
its investigation of the matter. Senator Neptali constituent units thereof.
Gonzales dissented. 7 xxx xxx xxx
The Constitution is a definition of the
Claiming that the Senate Blue Ribbon Committee is poised to subpoena them and powers of government. Who is to
required their attendance and testimony in proceedings before the Committee, in determine the nature, scope and extent
excess of its jurisdiction and legislative purpose, in clear and blatant disregard of of such powers? The Constitution itself
their constitutional rights, and to their grave and irreparable damager, prejudice and has provided for the instrumentality of
injury, and that there is no appeal nor any other plain, speedy and adequate remedy the judiciary as the rational way. And
in the ordinary course of law, the petitioners filed the present petition for prohibition when the judiciary mediates to allocate
with a prayer for temporary restraning order and/or injunctive relief. constitutional boundaries; it does not
assert any superiority over the other
departments; it does not inr eality nullify
Meanwhile, one of the defendants in Civil Case No. 0035 before the
or invalidate an act of the legislature, but
Sandiganbayan, Jose S. Sandejas, filed with the Court of motion for
only asserts the solemn and sacred
intervention, 8
which the Court granted in the obligation assigned to it by tyhe
resolution 9 of 21 December 1989, and required Constitution to determine conflicting
the respondent Senate Blue Ribbon Committee claims of authority under the
to comment on the petition in intervention. In Constitution and to established for the
compliance, therewith, respondent Senate Blue parties in an actual controversy the
Ribbon Committee filed its comment 10 thereon. rights which that instrument secures and
Before discussing the issues raised by petitioner guarantess to them. This is in thruth all
and intervenor, we will first tackle the that is involved in what is termed
jurisdictional question raised by the respondent "judicial supremacy" which properly is
Committee. the power of judicial review under the
In its comment, respondent Committee claims Constitution. Even the, this power of
that this court cannot properly inquire into the judicial review is limited to actual cases
motives of the lawmakers in conducting and controversies to be exercised after
legislative investigations, much less cna it enjoin full opportunity of argument by the
the Congress or any its regular and special parties, and limited further to the
commitees — like what petitioners seek — from constitutional question raised or the
making inquiries in aid of legislation, under the very lis mota presented. Any attempt at
doctrine of separation of powers, which obtaines abstraction could only lead to dialectics
in our present system of government. and barren legal questions and to sterile
conclusions unrelated to actualities.
The contention is untenable. In Angara vs. Narrowed as its function is in this
Electoral Commission, 11 the Court held: manner, the judiciary does not pass
The separation of powers is a upon questions of wisdom, justice or
fundamental principle in our system of expediency of legislation. More thatn
government. It obtains not hrough that, courts accord the presumption of
express provision but by actual division constitutionality to legislative
in our Constitution. Each department of enactments, not only because the
the government has exclusive legislature is presumed to abide by the
cognizance of matters wihtin its Constitution but also becuase the
jurisdiction, and is supreme within its judiciary in the determination of actual
own sphere. But it does not follow from cases and controversies must reflect the
the fact that the three powers are to be wisdom and justice of the people as
kept separate and distinct that the expressed through their representatives
Constitution intended them to be in the executive and legislative
absolutely unrestrained and departments of the government.
independent of each other. The The "allocation of constituional boundaries" is a
Constitution has provided for an task that this Court must perfomr under the
elaborate system of checks and Constitution. Moreowever, as held in a recent

70
 case, 12 "(t)he political question doctrine neither Companies; that former PCGG Chairman
interposes an obstacle to judicial determination Ramon Diaz himself categorically stated in a
of the rival claims. The jurisdiction to delimit telecast interview by Mr. Luis Beltran on Channel
constitutional boundaries has been given to this 7 on 31 August 1988 that there has been no
Court. It cannot abdicate that obligation takeover by him (Lopa); and that theses
mandated by the 1987 Constitution, although repeated allegations of a "takeover" on his
said provision by no means does away with kthe (Lopa's) part of FMMC are baseless as they are
applicability of the principle in appropriate malicious.
cases." 13 The Lopa reply prompted Senator Enrile, during
the session of the Senate on 13 September
The Court is thus of the considered view that it has jurisdiction over the present 1988, to avail of the privilege hour, 17 so that he
controversy for the purpose of determining the scope and extent of the power of the could repond to the said Lopa letter, and also to
Senate Blue Ribbon Committee to conduct inquiries into private affirs in purported vindicate his reputation as a Member of the
aid of legislation. Senate of the Philippines, considering the claim
Coming to the specific issues raised in this case, petitioners contend that (1) the
of Mr. Lopa that his (Enrile's) charges that he
Senate Blue Ribbon Committee's inquiry has no valid legislative purpose, i.e., it is
(Lopa) had taken over the FMMC Group of
not done in aid of legislation; (2) the sale or disposition of hte Romualdez
Companies are "baseless" and "malicious."
corporations is a "purely private transaction" which is beyond the power of the
Thus, in his speech, 18Senator Enrile said,
Senate Blue Ribbon Committee to inquire into; and (3) the inquiry violates their right
among others, as follows:
to due process. Mr. President, I rise this afternnon on a
matter of personal privilege; the privilege
being that I received, Mr. President, a
The 1987 Constition expressly recognizes the power of both houses of Congress to letter dated September 4, 1988, signed
conduct inquiries in aid of legislation. 14
Thus, Section 21, Article by Mr. ricardo A. Lopa, a.k.a. or Baby
VI thereof provides: Lopa, wherein he denied categorically
The Senate or the House of that he has taken over the First Manila
Representatives or any of its respective Management Group of Companies
committee may conduct inquiries in aid which includes SOLOIL Incorporated.
of legislation in accordance with its duly xxx xxxx xxx
published rules of procedure. The rights In answer to Mr. Lopa, I will quote
of persons appearing in or affected by pertinent portions from an Official
such inquiries shall be respected. 15 Memorandum to the Presidential
Commission of Good Government
The power of both houses of Congress to conduct inquiries in aid of legislation is
written and signed by former Governor,
not, therefore, absolute or unlimited. Its exercise is circumscribed by the afore-
now Congressman Jose Ramirez, in his
quoted provision of the Constitution. Thus, as provided therein, the investigation
capacity as head of the PCGG Task
must be "in aid of legislation in accordance with its duly published rules of
Force for Region VIII. In his
procedure" and that "the rights of persons appearing in or affected by such inquiries
memorandum dated July 3, 1986, then
shall be respected." It follows then that the rights of persons under the Bill of Rights
Governor Ramirez stated that when he
must be respected, including the right to due process and the right not to be
and the members of his task force
compelled to testify against one's self.
sought to serve a sequestration order on
the management of SOLOIL in Tanauan,
The power to conduct formal inquiries or investigations in specifically provided for in
Leyte, management officials assured
Sec. 1 of the Senate Rules of Procedure Governing Inquiries in Aid of
him that relatives of the President of the
Legislation. Such inquiries may refer to the implementation or re-examination of any
Philippines were personally discussing
law or in connection with any proposed legislation or the formulation of future
and representing SOLOIL so that the
legislation. They may also extend to any and all matters vested by the Constitution
order of sequestration would be lifted
in Congress and/or in the Seante alone.
and that the new owner was Mr. Ricardo
A. Lopa.
As held in Jean L. Arnault vs. Leon Nazareno, et al., 16
the inquiry, to I will quote the pertinent portions in the
be within the jurisdiction of the legislative body Ramire's memorandum.
making it, must be material or necessary to the The first paragraph of the memorandum
exervise of a power in it vested by the reads as follows and I quote, Mr.
Constitution, such as to legislate or to expel a President:
member. "Our sequestration work of
Under Sec. 4 of the aforementioned Rules, the SOLOIL in Tanauan, Leyte was
Senate may refer to any committee or not heeded by management
committees any speech or resolution filed by any because they said another
Senator which in tis judgment requires an representation was being made
appropriate inquiry in aid of legislation. In order to this Commission for the
therefore to ascertain the character or nature of ventual lifting of our
an inquiry, resort must be had to the speech or sequestrationorder. They even
resolution under which such an inquiry is assured us that Mr. Ricardo
proposed to be made. Lopa and Peping Cojunangco
A perusal of the speech of Senator Enrile were personally discussing and
reveals that he (Senator Enrile) made a representing SOLOIL, so the
statement which was published in various order of sequestration will finally
newspapers on 2 September 1988 accusing Mr. be lifted. While we attempted to
Ricardo "Baby" Lopa of "having taken over the carry on our order, management
FMMC Group of Companies." As a consequence refused to cooperate and
thereof, Mr. Lopa wrote a letter to Senator Enrile vehemently turned down our
on 4 September 1988 categorically denying that request to make available to us
he had "taken over " the FMMC Group of the records of the company. In

71
 fact it was obviously clear that
they will meet us with forcethe
moment we insist on doing
normally our assigned task. In
view of the impending threat,
and to avoid any untoward
incident we decided to
temporarily suspend our work
until there is a more categorical
stand of this Commission in
view of the seemingly influential
represetation being made by
SOLOIL for us not to continue
our work."
Another pertinent portion of the same
memorandum is paragraph five, which
reads as follows, and I quote Mr.
President:
"The President, Mr. Gamboa,
this is, I understand, the
President of SOLOIL, and the
Plant Superintendent, Mr.
Jimenez including their chief
counsel, Atty. Mandong
Mendiola are now saying that
there have been divestment,
and that the new owner is now
Mr. Ricardo Lopa who according
to them, is the brother-in-law of
the President. They even went
further by telling us that even
Peping Cojuangco who we
know is the brother of her
excellency is also interested in
the ownership and management
of SOLOIL. When he demanded
for supporting papers which will
indicate aforesaid divestment,
Messrs. Gamboa, Jimenez and
Mendiola refused vehemently to
submit these papers to us,
instead they said it will be
submitted directly to this
Commission. To our mind their
continuous dropping of names is
not good for this Commission
and even to the President if our
dersire is to achieve
respectability and stability of the
government."
The contents of the memorandum of
then Governor and now Congressman
Jose Ramirez were personally
confirmed by him in a news interview
last September 7, 1988.
xxx xxxx xxx
Also relevant to this case, Mr. President,
is a letter of Mr. Ricardo Lopa himself in
August 11, 1988 issue of the
newspaper Malaya headlined "On
Alleged Takeover of Romualdez Firms."
Mr. Lopa states in the last paragraph of
the published letter and I quote him:
12. As of this writing, the sales
agreement is under review by
the PCGG solely to determine
the appropriate price. The sale
of these companies and our
prior rigtht to requires them
have never been at issue.
Perhaps I could not make it any clearer
to Mr. Lopa that I was not really making
baseless and malicious statements.
72
Senator Enrile concluded his privilege speech in
the following tenor:
Mr. President, it may be worthwhile for
the Senate to look into the possible
violation of the law in the case
particularly with regard to Republic Act
No. 3019, the Anti-Graft and Corrupt
Practices Act, Section 5 of which reads
as follows and I quote:
Sec. 5. Prohibition on certain
relatives. — It shall be unlawful
for the spouse or for nay
relative, by consanguinity or
affinity, within the third civil
degree, of the President of the
Philippines, the Vice-President
of the Philippines, the President
of the Senate, or the Speaker of
the House of Representatives,
to intervene directly or indirectly,
in any business, transaction,
contract or application with the
Government: Provided, that this
section shall not apply to any
person who prior to the
assumption of office of any of
the above officials to whom he is
related, has been already
dealing with the Government
along the same line of business,
nor to any transaction, contract
or application filed by him for
approval of which is not
discretionary on the part of the
officials concerned but depends
upon compliance with requisites
provided by law, nor to any act
lawfully performed in an official
capacity or in the exercise of a
profession.
Mr. President, I have done duty to this
Senate and to myself. I leave it to this
august Body to make its own
conclusion.
Verily, the speech of Senator Enrile contained no
suggestion of contemplated legislation; he
merely called upon the Senate to look into a
possible violation of Sec. 5 of RA No. 3019,
otherwise known as "The Anti-Graft and Corrupt
Practices Act." I other words, the purpose of the
inquiry to be conducted by respondent Blue
Ribbon commitee was to find out whether or not
the relatives of President Aquino, particularly Mr.
ricardo Lopa, had violated the law in connection
with the alleged sale of the 36 or 39 corporations
belonging to Benjamin "Kokoy" Romualdez to
the Lopaa Group. There appears to be,
therefore, no intended legislation involved.
The Court is also not impressed with the
respondent Committee's argument that the
questioned inquiry is to be conducted pursuant
to Senate Resolution No. 212. The said
resolution was introduced by Senator Jose D.
Lina in view of the representaions made by
leaders of school youth, community groups and
youth of non-governmental organizations to the
Senate Committee on Youth and Sports
Development, to look into the charges against
the PCGG filed by three (3) stockholders of
Oriental petroleum, i.e., that it has adopted a
"get-rich-quick scheme" for its nominee-directors
in a sequestered oil exploration firm.The
pertinent portion of Senate Resolution No. 212
reads as follows:
 xxx xxx xxx
WHEREAS, recent developments have
shown that no less than the Solicitor-
General has stated that the PCGG
Chairman and at least three
Commissioners should resign and that
the agency should rid itself of
"ineptness, incompetence and
corruption" and that the Sandiganbayan
has reportedly ordered the PCGG to
answer charges filed by three
stockholders of Oriental Petroleum that
it has adopted a "get-rich-quick scheme"
for its nominee-directors in a
sequestered oil exploration firm;
WHEREAS, leaders of school youth,
community groups and youth of non-
governmental organization had made
representations to the Senate
Committee on Youth and Sports
Development to look into the charges
against the PCGG since said agency is
a symbol of the changes expected by
the people when the EDSA revolution
took place and that the ill-gotten wealth
to be recovered will fund priority projects
which will benefit our people such as
CARP, free education in the elementary
and secondary levels reforestration, and
employment generation for rural and
urban workers;
WHEREAS, the government and the
present leadeship must demonstrate in
their public and private lives integrity,
honor and efficient management of
government services lest our youth
become disillusioned and lose hope and
return to an Idelogy and form of
government which is repugnant to true
freedom, democratic participation and
human rights: Now, therefore, be it.
Resolved by the Senate, That the
activities of the Presidential Commission
on Good Government be investigated by
the appropriate Committee in connection
with the implementation of Section 26,
Article XVIII of the Constitution. 19
Thus, the inquiry under Senate Resolution No. 212 is to look into the charges
against the PCGG filed by the three (3) stockholders of Oriental Petroleum in
connection with the implementation of Section 26, Article XVIII of the Constitution.
It cannot, therefore, be said that the contemplated inquiry on the subject of the
privilege speech of Senator Juan Ponce Enrile, i.e., the alleged sale of the 36 (or
39) corporations belonging to Benjamin "Kokoy" Romualdez to the Lopa Group is to
be conducted pursuant to Senate Resolution No. 212 because, firstly, Senator Enrile
did not indict the PCGG, and, secondly, neither Mr. Ricardo Lopa nor the herein
petitioners are connected with the government but are private citizens.
It appeals, therefore, that the contemplated inquiry by respondent Committee is not
really "in aid of legislation" becuase it is not related to a purpose within the
jurisdiction of Congress, since the aim of the investigation is to find out whether or
not the ralatives of the President or Mr. Ricardo Lopa had violated Section 5 RA No.
3019, the "Anti-Graft and Corrupt Practices Act", a matter that appears more within
the province of the courts rather than of the legislature. Besides, the Court may take
judicial notice that Mr. Ricardo Lopa died during the pendency of this case. In John
T. Watkins vs. United States, 20
it was held held:
... The power of congress to conduct
investigations in inherent in the
legislative process. That power is broad.
it encompasses inquiries concerning the
administration of existing laws as well as
proposed, or possibly needed statutes. It
73
includes surveys of defects in our
social,economic, or political system for
the purpose of enabling Congress to
remedy them. It comprehends probes
into departments of the Federal
Government to expose corruption,
inefficiency or waste. But broad asis this
power of inquiry, it is not
unlimited. There is no general authority
to expose the private affairs
ofindividuals without justification in
terms of the functions of congress. This
was freely conceded by Solicitor
General in his argument in this case.
Nor is the Congress a law enforcement
or trial agency. These are functions of
the executive and judicial departments
of government. No inquiry is an end in
itself; it must be related to and in
furtherance of a legitimate task of
Congress. Investigations conducted soly
for the personal aggrandizement of the
investigators or to "punish" those
investigated are indefensible. (emphasis
supplied)
It can not be overlooked that when respondent
Committee decide to conduct its investigation of
the petitioners, the complaint in Civil No. 0035
had already been filed with the Sandiganbayan.
A perusal of that complaint shows that one of its
principal causes of action against herein
petitioners, as defendants therein, is the alleged
sale of the 36 (or 39) corporations belonging to
Benjamin "Kokoy" Romualdez. Since the issues
in said complaint had long been joined by the
filing of petitioner's respective answers thereto,
the issue sought to be investigated by the
respondent Commitee is one over which
jurisdiction had been acquired by the
Sandiganbayan. In short, the issue had been
pre-empted by that court. To allow the
respondent Committee to conduct its own
investigation of an issue already before the
Sandiganbayan would not only pose the
possibility of conflicting judgments betweena
legislative commitee and a judicial tribunal, but if
the Committee's judgment were to be reached
before that of the Sandiganbayan, the possibility
of its influence being made to bear on the
ultimate judgment of the Sandiganbayan can not
be discounted.
In fine, for the rspondent Committee to probe
and inquire into the same justiciable controversy
already before the Sandiganbayan, would be an
encroachment into the exclusive domain of
judicial jurisdiction that had much earlier set in.
In Baremblatt vs. United States, 21 it was held
that:
Broad as it is, the power is not,
howevern, without limitations. Since
congress may only investigate into those
areas in which it may potentially
legislate or appropriate, it cannot inquire
into matters which are within the
exclusive province of one of the other
branches of the government. Lacking
the judicial power given to the Judiciary,
it cannot inquire into mattes that are
exclusively the concern of the Judiciary.
Neither can it suplant the Executive in
what exclusively belongs to the
Executive. ...
Now to another matter. It has been held that "a
congressional committee's right to inquire is
 'subject to all relevant limitations placed by the
Constitution on governmental action,' including
"'the relevant limitations of the Bill of Rights'." 22
In another case —
... the mere semblance of legislative purpose would not justify an
inquiry in the face of the Bill of Rights. The critical element is the
exeistence of, and the weight to be ascribed to, the interest of the
Congress in demanding disclosures from an unwilling witness. We
cannot simply assume, however, that every congressional
investigation is justified by a public need that over-balances any
private rights affected. To do so would be to abdicate the responsibility
placed by the Constitution upon the judiciary to insure that the
Congress does not unjustifiably encroah upon an individual's right to
privacy nor abridge his liberty of speech, press, religion or
assembly. 23
One of the basic rights guaranteed by the Constitution to an individual is the right
against self-incrimination. 24
Thir right constured as the right
to remain completely silent may be availed of by
the accused in a criminal case; but kit may be
invoked by other witnesses only as questions
are asked of them.
This distinction was enunciated by the Court
in Romeo Chavez vs. The Honorable Court of
Appeals, et al. 25thus —
Petitioner, as accused, occupies a
different tier of protection from an
ordinary witness. Whereas an ordinary
witness may be compelled to take the
witness stand and claim the privilege as
each question requiring an incriminating
answer is hot at him, an accused may
altother refuse to take the witness stand
and refuse to answer any all questions.
Moreover, this right of the accused is extended
to respondents in administrative investigations
but only if they partake of the nature of a criminal
proceeding or analogous to a criminal
proceeding. In Galman vs. Pamaran,26 the Court
reiterated the doctrine in Cabal vs. Kapuanan (6
SCRA 1059) to illustrate the right of witnesses to
invoke the right against self-incrimination not
only in criminal proceedings but also in all other
types of suit
It was held that:
We did not therein state that since he is
not an accused and the case is not a
criminal case, Cabal cannot refuse to
take the witness stand and testify, and
that he can invoke his right against self-
incrimination only when a question
which tends to elicit an answer that will
incriminate him is propounded to him.
Clearly then, it is not the characeter of
the suit involved but the nature of the
proceedings that controls. The privilege
has consistenly been held to extend to
all proceedings sanctioned by law and to
all cases in which punishment is sought
to be visited upon a witness, whether a
party or not.
We do not here modify these doctrines. If we
presently rule that petitioners may not be
compelled by the respondent Committee to
appear, testify and produce evidenc before it, it
is only becuase we hold that the questioned
inquiry is not in aid of legislation and, if pursued,
would be violative of the principle of separation
of powers between the legislative and the
judicial departments of government, ordained by
the Constitution.
74
WHEREFORE, the petition is GRANTED. The
Court holds that, under the facts, including the
circumtance that petitioners are presently
impleaded as defendants in a case before the
Sandiganbayan, which involves issues intimately
related to the subject of contemplated inquiry
before the respondet Committee, the respondent
Senate Blue Ribbon Committee is hereby
enjoined from compelling the petitioners and
intervenor to testify before it and produce
evidence at the said inquiry.
SO ORDERED.
Bengzon v Senate Blue Ribbon Committee Digest
G.R. No. 89914 November 20, 1991
Padilla, J.:
Facts:
1. Petitioner was one of the defendants in a civil case filed by the
government with the Sandiganbayan for the alleged
anomalous sale of Kokoy Romoaldez of several government
corporations to the group of Lopa, a brother-in-law of Pres.
Aquino.
2. By virtue of a privilege speech made by Sen. Enrile urging the
Senate to look into the transactions, an investigation was
conducted by the Senate Blue Ribbon Committee. Petitioners
and Ricardo Lopa were subpoenaed by the Committee to
appear before it and testify on "what they know" regarding
the "sale of thirty-six (36) corporations belonging to Benjamin
"Kokoy" Romualdez."
3. At the hearing, Lopa declined to testify on the ground that
his testimony may "unduly prejudice" the defendants in civil
case before the Sandiganbayan.
4. Petitioner filed for a TRO and/or injunctive relief claiming
that the inquiry was beyond the jurisdiction of the Senate. He
contended that the Senate Blue Ribbon Committee acted in
excess of its jurisdiction and legislative purpose. One of the
defendants in the case before the Sandiganbayan, Sandejas,
filed with the Court of motion for intervention. The Court
granted it and required the respondent Senate Blue Ribbon
Committee to comment on the petition in intervention.
ISSUE: W/N the Blue Ribbon inquiry was in aid of legislation
NO.
1. There appears to be no intended legislation involved. The
purpose of the inquiry to be conducted is not related to a
purpose within the jurisdiction of Congress, it was
conducted to find out whether or not the relatives of
President Aquino, particularly Mr. Lopa had violated RA 3019
in connection with the alleged sale of the 36 or 39
corporations belonging to Benjamin "Kokoy" Romualdez to
the Lopa Group.
2. The power of both houses of Congress to conduct inquiries in
aid of legislation is not absolute or unlimited. Its exercise is
circumscribed by the Constitution. As provided therein, the
investigation must be "in aid of legislation in accordance with
its duly published rules of procedure" and that "the rights of
persons appearing in or affected by such inquiries shall be
respected." It follows then that the rights of persons under
the Bill of Rights must be respected, including the right to due
process and the right not to be compelled to testify against
one's self.
3. The civil case was already filed in the Sandiganbayan and for
the Committee to probe and inquire into the same justiciable
controversy would be an encroachment into the exclusive
domain of judicial jurisdiction that had already earlier set
in. The issue sought to be investigated has already been pre-
empted by the Sandiganbayan. To allow the inquiry to
continue would not only pose the possibility of conflicting
judgments between the legislative committee and a judicial
tribunal.
4. Finally, a congressional committee’s right to inquire is subject
to all relevant limitations placed by the Constitution on
governmental action ‘including the relevant limitations of the
Bill of Rights. One of these rights is the right of an individual
to against self-incrimination. The right to remain silent is
extended to respondents in administrative investigations but
only if it partakes of the nature of a criminal proceeding or
analogous to a criminal proceeding. Hence, the petitioners
may not be compelled by respondent Committee to appear,
testify and produce evidence before it only because the
inquiry is not in aid of legislation and if pursued would be
violative of the principle of separation of powers between the
legislative and the judicial departments of the government as
ordained by the Constitution.
[G.R. NO. 167173 : December 27, 2007]
STANDARD CHARTERED BANK (Philippine
Branch), PAUL SIMON MORRIS, SUNDARA
RAMESH, OWEN BELMAN, SANJAY
AGGARWAL, RAJAMANI CHANDRASHEKAR,
MARIVEL GONZALES, MA. ELLEN VICTOR,
CHONA G. REYES, ZENAIDA IGLESIAS,
RAMONA BERNAD, MICHAELANGELO
AGUILAR, and FERNAND
TANSINGCO, Petitioners, v. SENATE
COMMITTEE ON BANKS, FINANCIAL
INSTITUTIONS AND CURRENCIES, as
represented by its Chairperson, HON.
EDGARDO J. ANGARA, Respondent.
DECISION
NACHURA, J.:
Before us is a Petition for Prohibition (With Prayer
for Issuance of Temporary Restraining Order
and/or Injunction) dated and filed on March 11,
2005 by petitioners against respondent Senate
Committee on Banks, Financial Institutions and
Currencies, as represented by its Chairperson
Edgardo J. Angara (respondent).
Petitioner Standard Chartered Bank (SCB)-
Philippines is an institution incorporated in
England with limited liability and is licensed to
engage in banking, trust, and other related
operations in the Philippines. Petitioners Paul
Simon Morris, Sundara Ramesh, Owen Belman,
Sanjay Aggarwal, Rajamani Chandrashekar,
Marivel Gonzales, Ma. Ellen Victor, Chona G.
Reyes, Zenaida Iglesias, Ramona Bernad,
Michaelangelo Aguilar, and Fernand Tansingco
are the Chief Executive Officer, Chief Operations
Officer, Country Head of Consumer Banking,
General Manager for Credit Card and Personal
Loans, Chief Financial Officer, Legal and
Compliance Officer, former Trust and Investment
Services Head, Country Tax Officer, Head of
Corporate Affairs, Head of Banking Services,
Head of Client Relationships, and the Head of
Global Markets of SCB-Philippines, respectively.
Respondent, on the other hand, is one of the
75
permanent committees of the Senate of the
Philippines.
The petition seeks the issuance of a temporary
restraining order (TRO) to enjoin respondent
from (1) proceeding with its inquiry pursuant to
Philippine Senate (P.S.) Resolution No. 166; (2)
compelling petitioners who are officers of
petitioner SCB-Philippines to attend and testify
before any further hearing to be conducted by
respondent, particularly that set on March 15,
2005; and (3) enforcing any hold-departure order
(HDO) and/or putting the petitioners on the
Watch List. It also prays that judgment be
rendered (1) annulling the subpoenae ad
testificandum and duces tecum issued to
petitioners, and (2) prohibiting the respondent
from compelling petitioners to appear and testify
in the inquiry being conducted pursuant to P.S.
Resolution No. 166.
The facts are as follows:
On February 1, 2005, Senator Juan Ponce Enrile,
Vice Chairperson of respondent, delivered a
privilege speech entitled "Arrogance of
Wealth"1 before the Senate based on a letter
from Atty. Mark R. Bocobo denouncing SCB-
Philippines for selling unregistered foreign
securities in violation of the Securities Regulation
Code (R.A. No. 8799) and urging the Senate to
immediately conduct an inquiry, in aid of
legislation, to prevent the occurrence of a similar
fraudulent activity in the future. Upon motion of
Senator Francis Pangilinan, the speech was
referred to respondent. Prior to the privilege
speech, Senator Enrile had introduced P.S.
Resolution No. 166,2 to wit:
RESOLUTION
DIRECTING THE COMMITTEE ON BANKS,
FINANCIAL INSTITUTIONS AND
CURRENCIES, TO CONDUCT AN INQUIRY, IN
AID OF LEGISLATION, INTO THE ILLEGAL
SALE OF UNREGISTERED AND HIGH-RISK
SECURITIES BY STANDARD CHARTERED
BANK, WHICH RESULTED IN BILLIONS OF
PESOS OF LOSSES TO THE INVESTING
PUBLIC
WHEREAS, Republic Act No. 7721, otherwise
known as the "Law Liberalizing the Entry and
Scope of Operations of Foreign Banks in the
Philippines," was approved on May 18, 1994 to
promote greater participation of foreign banks in
the Philippine Banking Industry that will stimulate
economic growth and serve as a channel for the
flow of funds into the economy;
WHEREAS, to promote greater competition in the
Philippine Banking Industry, foreign banks were
accorded the same privileges, allowed to perform
the same functions and subjected to the same
limitations under relevant banking laws imposed
upon domestic banks;
WHEREAS, Standard Chartered Bank was among
the foreign banks granted the privilege to do
business in our country under Republic Act No.
7721;
WHEREAS, there are complaints against Standard
Chartered Bank whose actions have reportedly
defrauded hundreds of Filipino investors of
billions of pesos through the sale of unregistered
securities in the form of high-risk mutual funds
falsely advertised and marketed as safe
investment havens;
WHEREAS, there are reports that Standard
Chartered Bank clearly knew that its actions were
violative of Philippine banking and securities laws
but cleverly disguised its illegal acts through the
use of pro-forma agreements containing waivers
of liability in favor of the bank;
WHEREAS, there are reports that in the early
stages of conducting these questionable
activities, the Bangko Sentral ng Pilipinas warned
and eventually fined Standard Chartered Bank a
measly P30,000 for violating Philippine banking
laws;
WHEREAS, the particular operations of Standard
Chartered Bank may constitute "conducting
business in an unsafe and unsound manner,"
punishable under Section 37 of Republic Act No.
7653 and should have drawn the higher penalty
of revocation of its quasi-banking license;
WHEREAS, Republic Act No. 8791 or the "General
Banking Act of 2000" deems a particular act or
omission as conducting business in an unsafe and
unsound manner as follows:
"Section 56.2 The act or omission has resulted or
may result in material loss or damage or
abnormal risk to the institution's depositors,
creditors, investors, stockholders or to the
Bangko Sentral or to the public in general."
WHEREAS, the sale of unregistered securities is
also a clear violation of Republic Act No. 8799 or
"The Securities Regulation Code of 2000" which
states:
"Section 8.1 Securities shall not be sold or
offered for sale or distribution within the
Philippines, without a registration statement duly
filed with and approved by the Commission. Prior
to such sale, information on the securities, in
such form and with such substance as the
Commission may prescribe, shall be made
available to each prospective purchaser."
WHEREAS, the Securities and Exchange
Commission (SEC) reportedly issued a Cease-
and-Desist Order (CDO) against Standard
Chartered Bank for the sale of these unregistered
securities but the case was reportedly settled
administratively and dismissed after Standard
Chartered Bank paid a fine of P7 Million;
WHEREAS, the SEC reportedly made an official
finding that Standard Chartered Bank actively
engaged in promoting and marketing the so-
called "Global Third Party Mutual Funds" to the
investing public and even set revenue quotas for
the sale of these funds;
WHEREAS, existing laws including the Securities
Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and
in effectively enforcing the registration rules
intended to protect the investing public from
fraudulent practices;
WHEREAS, the regulatory intervention by the
SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in
a manner that would protect the investing public;
WHEREAS, there is a need for remedial legislation
to address the situation, having in mind the
imposition of proportionate penalties to offending
entities and their directors, officers and
76
representatives among other additional
regulatory measures;
Now, therefore, BE IT RESOLVED, AS IT IS
HEREBY RESOLVED, to direct the Committee on
Banks, Currencies, and Financial Institutions, to
conduct an inquiry, in aid of legislation, into the
reported sale of unregistered and high-risk
securities by Standard Chartered Bank which
resulted in billions of losses to the investing
public.
Acting on the referral, respondent, through its
Chairperson, Senator Edgardo J. Angara, set the
initial hearing on February 28, 2005 to
investigate, in aid of legislation, the subject
matter of the speech and resolution filed by
Senator Enrile.
Respondent invited petitioners, among others, to
attend the hearing, requesting them to submit
their written position paper. Petitioners, through
counsel, submitted to respondent a letter3 dated
February 24, 2005 presenting their position,
particularly stressing that there were cases
pending in court allegedly involving the same
issues subject of the legislative inquiry, thereby
posing a challenge to the jurisdiction of
respondent to continue with the inquiry.
On February 28, 2005, respondent commenced
the investigation. Senator Enrile inquired who
among those invited as resource persons were
present and who were absent. Thereafter,
Senator Enrile moved that subpoenae be issued
to those who did not attend the hearing and that
the Senate request the Department of Justice,
through the Bureau of Immigration and
Deportation, to issue an HDO against them
and/or include them in the Bureau's Watch List.
Senator Juan Flavier seconded the motion and
the motion was approved.
Respondent then proceeded with the
investigation proper. Towards the end of the
hearing, petitioners, through counsel, made an
Opening Statement4 that brought to the attention
of respondent the lack of proper authorization
from affected clients for the bank to make
disclosures of their accounts and the lack of
copies of the accusing documents mentioned in
Senator Enrile's privilege speech, and reiterated
that there were pending court cases regarding
the alleged sale in the Philippines by SCB-
Philippines of unregistered foreign securities.
The February 28, 2005 hearing was adjourned
without the setting of the next hearing date.
However, petitioners were later served by
respondent with subpoenae ad testificandum and
duces tecum to compel them to attend and
testify at the hearing set on March 15, 2005.
Hence, this petition.
The grounds relied upon by petitioners are as
follows:
I.
THE COMMITTEE ACTED WITHOUT
JURISDICTION AND/OR ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN CONDUCTING AN
INVESTIGATION, PURPORTEDLY IN AID OF
LEGISLATION, BUT IN REALITY PROBING INTO
THE ISSUE OF WHETHER THE STANDARD
CHARTERED BANK HAD SOLD UNREGISTERED
FOREIGN SECURITIES IN THE PHILIPPINES. SAID
ISSUE HAS LONG BEEN THE SUBJECT OF
CRIMINAL AND CIVIL ACTIONS NOW PENDING
BEFORE THE COURT OF APPEALS, REGIONAL
TRIAL COURT OF PASIG CITY, METROPOLITAN
TRIAL COURT OF MAKATI CITY AND THE
PROSECUTOR'S OFFICE OF MAKATI CITY.
II.
THE COMMITTEE ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
JURISDICTION BY CONDUCTING AN
INVESTIGATION, PURPORTEDLY "IN AID OF
LEGISLATION," BUT IN REALITY IN "AID OF
COLLECTION" BY A HANDFUL OF TWO (2)
CLIENTS OF STANDARD CHARTERED BANK OF
LOSSES WHICH WERE FOR THEIR ACCOUNT AND
RISK. AT ANY RATE, SUCH COLLECTION IS
WITHIN THE PROVINCE OF THE COURT RATHER
THAN OF THE LEGISLATURE.
III.
THE COMMITTEE ACTED WITHOUT
JURISDICTION AND/OR ACTED WITH GRAVE
ABUSE OF DISCRETION AMOUNTING TO LACK OF
JURISDICTION IN COMPELLING PETITIONERS,
SOME OF WHOM ARE RESPONDENTS IN THE
PENDING CRIMINAL AND CIVIL ACTIONS
BROUGHT BY SAID CLIENTS, IN VIOLATION OF
PETITIONERS' RIGHT AGAINST SELF-
INCRIMINATION AND RIGHT TO PURSUE AND
DEFEND THEIR CAUSE IN COURT RATHER THAN
ENGAGE IN TRIAL BY PUBLICITY - A CLEAR
VIOLATION OF DUE PROCESS, RIGHT TO
PRIVACY AND TO TRAVEL.
IV.
THE COMMITTEE ACTED IN GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OF
JURISDICTION BY DISREGARDING ITS OWN
RULES.5
Petitioners argue that respondent has no
jurisdiction to conduct the inquiry because its
subject matter is the very same subject matter of
the following cases, to wit:
(a) CA-G.R. SP No. 85078, entitled "Manuel V.
Baviera v. Hon. Esperanza P. Rosario, et
al., pending before the 9th Division of the Court
of Appeals. In the petition, Mr. Baviera seeks to
annul and set aside the dismissal by the
Department of Justice of his complaint against
Standard Chartered Bank and its officers accusing
them of SELLING UNREGISTERED FOREIGN
SECURITIES IN VIOLATION OF P.D. NO.
1869 (SYNDICATED ESTAFA) AND ARTICLE
315 OF THE REVISED PENAL CODE.
(b) CA-G.R. SP No. 86200, entitled "Manuel V.
Baviera v. Hon. Rafael Buenaventura, et al.",
pending before the 15th Division of the Court of
Appeals. In the petition, Mr. Baviera seeks to
annul and set aside the termination for lack of
probable cause by the Anti-Money Laundering
Council ("AMLC") of the investigation of Standard
Chartered Bank for money laundering
activities BY SELLING UNREGISTERED
FOREIGN SECURITIES.
(c) CA-G.R. SP No. 87328, entitled "Manuel V.
Baviera v. Hon. Esperanza Paglinawan Rozario, et
al.," pending before the 16th Division of the
Court of Appeals. The petition seeks to annul and
set aside the dismissal by the Department of
Justice of Mr. Baviera's complaint accusing SCB
and its officers of violation of the Securities
77
Regulation Code by SELLING UNREGISTERED
FOREIGN SECURITIES.
(d) Civil Case No. 70173, entitled "Mr. Noel G.
Sanchez, et al. v. Standard Chartered
Bank," pending before Branch 155 of the
Regional Trial Court of Pasig City. Plaintiff seeks
damages and recovery of their investment
accusing the bank of SELLING UNREGISTERED
FOREIGN SECURITIES.
(e) Criminal Case No. 332034, entitled "People of
the Philippines v. Manuel V. Baviera,"pending
before Branch 64 of the Metropolitan Trial Court
of Makati City. Petitioner Morris is the private
complainant in this information for extortion or
blackmail against Mr. Baviera for demanding the
payment of US$2 Million with the threat
to EXPOSE THE BANK'S "LARGE SCALE
SCAM" CONSISTING [OF] ILLEGAL SELLING
OF UNREGISTERED FOREIGN SECURITIES
BY THE BANK, before various government
offices, such as the Department of Justice, the
BIR, Bangko Sentral ng Pilipinas, Regional Trial
Courts, and both houses of Congress.
(f) Criminal Case No. 331395, entitled "People of
the Philippines v. Manuel V. Baviera,"pending
before Branch 64 of the Metropolitan Trial Court
of Makati City. Petitioners Victor and Chona
Reyes are the private complainants in this
information for perjury committed by Mr. Baviera
in securing a hold departure order against the
petitioners herein from the Department of Justice
for their alleged involvement in syndicated estafa
and swindling BY SELLING UNREGISTERED
FOREIGN SECURITIES.
(g) I.S. No. 2004-B-2279-80, entitled "Aurelio
Litonjua III and Aurelio Litonjua, Jr. v. Antonette
de los Reyes, et al.," pending before the Office of
the Prosecutor, Makati City. This is a criminal
complaint accusing SCB and its officers of estafa
for SELLING UNREGISTERED FOREIGN
SECURITIES.6
Citing Bengzon, Jr. v. Senate Blue Ribbon
Committee,7 the petitioners claim that since the
issue of whether or not SCB-Philippines illegally
sold unregistered foreign securities is already
preempted by the courts that took cognizance of
the foregoing cases, the respondent, by this
investigation, would encroach upon the judicial
powers vested solely in these courts.
The argument is misplaced. Bengzon does not
apply squarely to petitioners' case.
It is true that in Bengzon, the Court declared that
the issue to be investigated was one over which
jurisdiction had already been acquired by the
Sandiganbayan, and to allow the [Senate Blue
Ribbon] Committee to investigate the matter
would create the possibility of conflicting
judgments; and that the inquiry into the same
justiciable controversy would be an
encroachment on the exclusive domain of judicial
jurisdiction that had set in much earlier.
To the extent that, in the case at bench, there
are a number of cases already pending in various
courts and administrative bodies involving the
petitioners, relative to the alleged sale of
unregistered foreign securities, there is a
resemblance between this case and Bengzon.
However, the similarity ends there.
Central to the Court's ruling in Bengzon - - that
the Senate Blue Ribbon Committee was without
any constitutional mooring to conduct the
legislative investigation - - was the Court's
determination that the intended inquiry was not
in aid of legislation. The Court found that the
speech of Senator Enrile, which sought such
investigation contained no suggestion of any
contemplated legislation; it merely called upon
the Senate to look into possible violations of
Section 5, Republic Act No. 3019. Thus, the Court
held that the requested probe failed to comply
with a fundamental requirement of Section 21,
Article VI of the Constitution, which states:
The Senate or the House of Representatives or
any of its respective committees may conduct
inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights
of persons appearing in or affected by such
inquiries shall be respected.
Accordingly, we stopped the Senate Blue Ribbon
Committee from proceeding with the legislative
investigation in that case.
Unfortunately for the petitioners, this
distinguishing factual milieu in Bengzon does not
obtain in the instant case. P.S. Resolution No.
166 is explicit on the subject and nature of the
inquiry to be (and already being) conducted by
the respondent Committee, as found in the last
three Whereas clauses thereof, viz.:
WHEREAS, existing laws including the Securities
Regulation Code seem to be inadequate in
preventing the sale of unregistered securities and
in effectively enforcing the registration rules
intended to protect the investing public from
fraudulent practices;
WHEREAS, the regulatory intervention by the
SEC and BSP likewise appears inadequate in
preventing the conduct of proscribed activities in
a manner that would protect the investing public;
WHEREAS, there is a need for remedial legislation
to address the situation, having in mind the
imposition of proportionate penalties to offending
entities and their directors, officers and
representatives among other additional
regulatory measures; (emphasis supplied)
The unmistakable objective of the investigation,
as set forth in the said resolution, exposes the
error in petitioners' allegation that the inquiry, as
initiated in a privilege speech by the very same
Senator Enrile, was simply "to denounce the
illegal practice committed by a foreign bank in
selling unregistered foreign securities x x x." This
fallacy is made more glaring when we consider
that, at the conclusion of his privilege speech,
Senator Enrile urged the Senate "to immediately
conduct an inquiry, in aid of legislation, so as to
prevent the occurrence of a similar fraudulent
activity in the future."
Indeed, the mere filing of a criminal or an
administrative complaint before a court or a
quasi-judicial body should not automatically bar
the conduct of legislative investigation.
Otherwise, it would be extremely easy to subvert
any intended inquiry by Congress through the
convenient ploy of instituting a criminal or an
administrative complaint. Surely, the exercise of
sovereign legislative authority, of which the
power of legislative inquiry is an essential
78
component, cannot be made subordinate to a
criminal or an administrative investigation.
As succinctly stated in the landmark case Arnault
v. Nazareno8'
[T]he power of inquiry - with process to enforce it
- is an essential and appropriate auxiliary to the
legislative function. A legislative body cannot
legislate wisely or effectively in the absence of
information respecting the conditions which the
legislation is intended to affect or change; and
where the legislative body does not itself possess
the requisite information - which is not
infrequently true - recourse must be had to
others who possess it.
Neither can the petitioners claim that they were
singled out by the respondent Committee. The
Court notes that among those invited as resource
persons were officials of the Securities and
Exchange Commission (SEC) and the Bangko
Sentral ng Pilipinas (BSP). These officials were
subjected to the same critical scrutiny by the
respondent relative to their separate findings on
the illegal sale of unregistered foreign securities
by SCB-Philippines. It is obvious that the
objective of the investigation was the quest for
remedies, in terms of legislation, to prevent the
recurrence of the allegedly fraudulent activity.
Still, petitioners insist that the inquiry conducted
by respondent was, in fact, "in aid of collection."
They claim that Atty. Bocobo and Manuel Baviera,
the latter a party to the pending court cases cited
by petitioners, were only seeking a friendly forum
so that they could recover their investments from
SCB-Philippines; and that the respondent has
allowed itself to be used as the conveniently
available vehicle to effect this purpose.
However, as correctly pointed out by respondent
in its Comment on the petition, Atty. Bocobo did
not file a complaint before the Senate for the
purpose of recovering his investment. On the
contrary, and as confirmed during the initial
hearing on February 28, 2005, his letter-
complaint humbly requested the Senate to
conduct an inquiry into the purportedly illegal
activities of SCB-Philippines, with the end view of
preventing the future occurrence of any similar
fraudulent activity by the banks in
general.9 Baviera, on the other hand, was not a
"complainant" but merely a witness in the
investigation, invited to testify on the alleged
illegal sale of unregistered foreign securities by
SCB-Philippines, being one of the supposed
victims thereof.
The Court further notes that when it denied
petitioners' prayer for the issuance of a TRO to
restrain the hearing set on March 15,
2005,10 respondent proceeded with the
investigation. On the said date, outraged by
petitioners' imputation that it was conducting the
investigation "in aid of collection," respondent
held petitioners, together with their counsel, Atty.
Reynaldo Geronimo, in contempt and ordered
their detention for six hours.
Petitioners filed a Motion for Partial
Reconsideration of this Court's Resolution dated
March 14, 2005 only with respect to the denial of
the prayer for the issuance of a TRO and/or writ
of preliminary injunction, alleging that their being
held in contempt was without legal basis, as the
phrase "in aid of collection" partakes of an
absolutely privileged allegation in the petition.
We do not agree. The Court has already
expounded on the essence of the contempt power
of Congress and its committees in this wise'
The principle that Congress or any of its bodies
has the power to punish recalcitrant witnesses is
founded upon reason and policy. Said power
must be considered implied or incidental to the
exercise of legislative power. How could a
legislative body obtain the knowledge and
information on which to base intended legislation
if it cannot require and compel the disclosure of
such knowledge and information, if it is impotent
to punish a defiance of its power and authority?
When the framers of the Constitution adopted the
principle of separation of powers, making each
branch supreme within the realm of its respective
authority, it must have intended each
department's authority to be full and complete,
independently of each other's authority or power.
And how could the authority and power become
complete if for every act of refusal, every act of
defiance, every act of contumacy against it, the
legislative body must resort to the judicial
department for the appropriate remedy, because
it is impotent by itself to punish or deal
therewith, with affronts committed against its
authority or dignity.11
The exercise by Congress or by any of its
committees of the power to punish contempt is
based on the principle of self-preservation. As the
branch of the government vested with the
legislative power, independently of the judicial
branch, it can assert its authority and punish
contumacious acts against it. Such power is sui
generis, as it attaches not to the discharge of
legislative functions per se, but to the sovereign
character of the legislature as one of the three
independent and coordinate branches of
government.12
In this case, petitioners' imputation that the
investigation was "in aid of collection" is a direct
challenge against the authority of the Senate
Committee, as it ascribes ill motive to the latter.
In this light, we find the contempt citation
against the petitioners reasonable and justified.
Furthermore, it is axiomatic that the power of
legislative investigation includes the power to
compel the attendance of witnesses. Corollary to
the power to compel the attendance of witnesses
is the power to ensure that said witnesses would
be available to testify in the legislative
investigation. In the case at bench, considering
that most of the officers of SCB-Philippines are
not Filipino nationals who may easily evade the
compulsive character of respondent's summons
by leaving the country, it was reasonable for the
respondent to request the assistance of the
Bureau of Immigration and Deportation to
prevent said witnesses from evading the inquiry
and defeating its purpose. In any event, no HDO
was issued by a court. The BID instead included
them only in the Watch List, which had the effect
of merely delaying petitioners' intended travel
abroad for five (5) days, provided no HDO is
issued against them.13
With respect to the right of privacy which
petitioners claim respondent has violated, suffice
it to state that privacy is not an absolute right.
79
While it is true that Section 21, Article VI of the
Constitution, guarantees respect for the rights of
persons affected by the legislative investigation,
not every invocation of the right to privacy
should be allowed to thwart a legitimate
congressional inquiry. In Sabio v. Gordon,14 we
have held that the right of the people to access
information on matters of public concern
generally prevails over the right to privacy of
ordinary financial transactions. In that case, we
declared that the right to privacy is not absolute
where there is an overriding compelling state
interest. Employing the rational basis relationship
test, as laid down in Morfe v. Mutuc,15 there is no
infringement of the individual's right to privacy as
the requirement to disclosure information is for a
valid purpose, in this case, to ensure that the
government agencies involved in regulating
banking transactions adequately protect the
public who invest in foreign securities. Suffice it
to state that this purpose constitutes a reason
compelling enough to proceed with the assailed
legislative investigation.16
As regards the issue of self-incrimination, the
petitioners, officers of SCB-Philippines, are not
being indicted as accused in a criminal
proceeding. They were summoned by respondent
merely as resource persons, or as witnesses, in a
legislative inquiry. As distinguished by this Court'
[An] accused occupies a different tier of
protection from an ordinary witness. Whereas an
ordinary witness may be compelled to take the
witness stand and claim the privilege as each
question requiring an incriminating answer is shot
at him, an accused may altogether refuse to take
the witness stand and refuse to answer any and
all questions.17
Concededly, this right of the accused against self-
incrimination is extended to respondents in
administrative investigations that partake of the
nature of or are analogous to criminal
proceedings. The privilege has consistently been
held to extend to all proceedings sanctioned by
law; and to all cases in which punishment is
sought to be visited upon a witness, whether a
party or not.18
However, in this case, petitioners neither stand
as accused in a criminal case nor will they be
subjected by the respondent to any penalty by
reason of their testimonies. Hence, they cannot
altogether decline appearing before respondent,
although they may invoke the privilege when a
question calling for an incriminating answer is
propounded.19
Petitioners' argument, that the investigation
before respondent may result in a
recommendation for their prosecution by the
appropriate government agencies, such as the
Department of Justice or the Office of the
Ombudsman, does not persuade.
As held in Sinclair v. United States20 - -
It may be conceded that Congress is without
authority to compel disclosures for the purpose of
aiding the prosecution of pending suits; but the
authority of that body, directly or through its
Committees, to require pertinent disclosures in
aid of its own constitutional power is not abridged
because the information sought to be elicited
may also be of use in such suits. x x x It is plain
that investigation of the matters involved in suits
brought or to be commenced under the Senate involving the same issues subject of the legislative
resolution directing the institution of suits for the
inquiry, thereby posing a challenge to the jurisdiction of
cancellation of the leases might directly aid in
respect of legislative action. respondent committee to proceed with the inquiry.
The prosecution of offenders by the prosecutorial
agencies and the trial before the courts is for the
punishment of persons who transgress the law. Legislative investigation commenced but with the invited
The intent of legislative inquiries, on the other
hand, is to arrive at a policy determination, which resource persons not being all present, Senator Enrile
may or may not be enacted into law.
Except only when it exercises the power to moved for the issuance of subpoena and an HDO or to
punish for contempt, the respondent, as with the
include such absentees to the Bureau of Immigrations’
other Committees of the Senate or of the House
of Representatives, cannot penalize violators Watch List. During the hearing, it was apparent that
even if there is overwhelming evidence of
criminal culpability. Other than proposing or petitioners lack proper authorizations to make
initiating amendatory or remedial legislation,
respondent can only recommend measures to disclosures and lack the copies of the accusing
address or remedy whatever irregularities may
be unearthed during the investigation, although it documents being mentioned by Senator Enrile. Thus,
may include in its Report a recommendation for
when hearing adjourned, petitioners were later served
the criminal indictment of persons who may
appear liable. At best, the recommendation, with subpoenas by respondent.
along with the evidence, contained in such a
Report would be persuasive, but it is still up to
the prosecutorial agencies and the courts to
Petitioner now seeks that respondent committee be
determine the liabilities of the offender.
Finally, petitioners sought anew, in their enjoined from proceeding, citing Bengzon Jr. v. Senate
Manifestation and Motion21 dated June 21, 2006,
the issuance by this Court of a TRO and/or writ of Blue Ribbon Committee, claiming that since the issue is
preliminary injunction to prevent respondent
from submitting its Committee Report No. 75 to already preempted by the courts, the legislative
the Senate in plenary for approval. However, 16
investigation is an encroachment upon the judicial
days prior to the filing of the Manifestation and
Motion, or on June 5, 2006, respondent had powers vested solely in the courts.
already submitted the report to the Senate in
plenary. While there is no showing that the said
report has been approved by the Senate, the
Issue:
subject of the Manifestation and Motion has
inescapably become moot and academic.
WHEREFORE, the Petition for Prohibition is
Whether the investigation in aid of legislation by
DENIED for lack of merit. The Manifestation and
Motion dated June 21, 2006 is, likewise, DENIED respondent committee encroaches upon the judicial
for being moot and academic.
SO ORDERED. power of the courts

Facts:
Ruling: NO.

Senator Enrile delivered a privilege speech denouncing

The unmistakable objective of the investigation, as set
SCB-Philippines for selling unregistered foreign
forth in the said resolution, exposes the error in
securities in violation of the Securities Regulation Code
petitioners’ allegation that the inquiry, as initiated in a
(RA 8799) and urging the Senate to immediately conduct
privilege speech by the very same Senator Enrile, was
an inquiry, in aid of legislation, to prevent the occurrence
simply “to denounce the illegal practice committed by a
of a similar fraudulent activity in the future. Upon motion
foreign bank in selling unregistered foreign securities x x
of Senator Pangilinan, the speech was referred to
x.” This fallacy is made more glaring when we consider
respondent, which through its Chairperson Senator
that, at the conclusion of his privilege speech, Senator
Angara, set an initial hearing and invited petitioners
Enrile urged the Senate “to immediately conduct an
herein to attend the hearing. Petitioners via letter
inquiry, in aid of legislation, so as to prevent the
stressed that there were pending cases in court allegedly
occurrence of a similar fraudulent activity in the future.”

80

Indeed, the mere filing of a criminal or an administrative
complaint before a court or a quasi-judicial body should
not automatically bar the conduct of
investigation. Otherwise, it would be extremely easy to
subvert any intended inquiry by Congress through the
convenient ploy of instituting a criminal
administrative complaint. Surely, the exercise
sovereign legislative authority, of which the power of
legislative inquiry is an essential component, cannot be
made subordinate to a criminal or an administrative
investigation.
Neither can the petitioners claim that they were singled
out by the respondent Committee. The Court notes that
among those invited as resource persons were officials
of the Securities and Exchange Commission (SEC) and
the Bangko Sentral ng Pilipinas (BSP). These officials
were subjected to the same critical scrutiny by the
respondent relative to their separate findings on the
illegal sale of unregistered foreign securities by SCB-
Philippines. It is obvious that the objective of the
investigation was the quest for remedies, in terms of
legislation, to prevent the recurrence of the allegedly
fraudulent activity.
Wherefore, the petition for prohibition is DENIED for lack
of merit.
G.R. No. L-6749 July 30, 1955
JEAN L. ARNAULT, petitioner-appellee,
vs.
EUSTAQUIO BALAGTAS, as Director of
Prisons, respondent-appellant.
Office of the Solicitor General Ambrosio Padilla,
Assistant Solicitor General Guillermo E. Torres and
Solicitor Jaime De Los Angeles for appellant.
Estanislao A. Fernandez and Roman B. Antonio for
appellee.
LABRADOR, J.:
This an appeal from judgment of the Court of First
Instance of Rizal, Pasay City Branch, Honorable Jose F.
Flores presiding, in habeas corpus proceeding, declaring
that the continued detention and confinement of Jean L.
Arnault in the new Bilibid Prison, in pursuance of Senate
Resolution No. 114, dated November 8, 1952, is illegal,
for the reason that the Senate of the Philippines
committed a clear abuse of discretion in considering his
answer naming one Jess D. Santos as the person to
whom delivery of the sum of P440,000 was made in the
sale of the Buenavista and Tambobong Estate, as a
81
refusal to answer the question directed by the Senate
committee to him, and on the further ground that said
Jean L. Arnault, by his answer has purged himself of
contempt and is consequently entitled to be released
and discharged.
legislative
Petitioner-appellee was an attorney in-fact or Ernest H.
Burt in the negotiations for the purchase of the
Buenavista and Tambobong Estates by the Government
of the Philippines. The purchase was effected on
October 21, 1949 and the price paid for both estates was
or an P5,000,000. On February 27, 1950, the Senate of the
Philippines adopted Resolution No. 8, whereby it created
of a Special Committee to determine "whether the said
purchase was honest, valid and proper, and whether the
price involved in the deal was fair and just, the parties
responsible therefor, any other facts the Committee may
deem proper in the premises." In the investigation
conducted by the Committee in pursuance of said
Resolution, petitioner-appellee was asked to whom a
part of the purchase price, or P440,000, was delivered.
Petitioner-appellee refused to answer this question,
whereupon the Committee resolved on May 15, 1950, to
order his commitment to the custody of the Sergeant at-
arms of the Philippines Senate and imprisoned in the
new Bilibid Prison in Rizal until such time when he shall
reveal to the Senate or to the Special Committee the
name of the person who received the P440,000 and to
answer questions pertinent thereto. In G.R. No. L-3820,
petitioner-appellee herein questioned the validity of the
confinement so ordered, by a petition for certiorari filed in
this Court. He contended that the Senate of the
Philippines has no power to punish him for contempt for
refusing to reveal the name of the person to whom he
delivered P440,000., that the Legislature lacks authority
to punish him for contempt beyond the term of the
legislative session, and that the question of the Senate
which he refused to answer is an incriminating question
which the appellee is not bound to answer. All the
abovementioned contentions were adversely passed
upon by the decision of this Court, so his petition for
release was denied.
In the month of December, 1951, while still in
confinement in Bilibid, petitioner-appellee executed an
affidavit, Exhibit A, wherein he gives in detail the history
of his life, the events surrounding acquisition of the
Buenavista and Tambobong Estates by Gen. Burt, the
supposed circumstances under which he met one by the
name of Jess D. Santos. Upon the presentation of the
said affidavit to the said Senate Special Committee, the
latter subjected petitioner to questioning regarding the
identity of Jess D. Santos, and after said investigation
and questioning the Committee adopted Resolution No.
114 on November 8, 1952. This Resolution reads as
follows:
RESOLUTION APPROVING THE REPORT OF
THE SPECIAL COMMITTEE TO INVESTIGATE
THE BUENAVISTA AND TAMBOBONG
ESTATES DEAL, AND ORDERING THE
DIRECTOR OF PRISON TO CONTINUE
HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND
DETENTION AT THE NEW BILIBID PRISON AT
MUNTINLUPA, RIZAL, UNTIL THE SAID
ARNAULT SHALL HAVE PURGED HIMSELF
OF CONTEMPT OF THE SENATE.
WHEREAS, on the 15th May 1950 the Senate of
the Philippines, transcending divisions of party
and faction in the national interest, adopted a
Resolution ordering the detention and
confinement of Jean L. Arnault at the New Bilibid
Prison in Muntinlupa, Rizal, until he should have
purged himself of contempt of the Senate by
revealing the person to whom he gave the sum
of P440,000 in connection with the Buenavista
 and Tambobong Estates deal, and by answering
other pertinent questions in connection
therewith;
WHEREAS, after considering the lengthy
testimony offered by the said Jean L. Arnault,
and the report thereon rendered by the Senate
Special Committee on the said deal, the Senate
holds and finds that, despite numerous and
generous opportunities offered to him at his own
instance and solicitation, the said Jean L. Arnault
has failed and refused, and continues to fail and
refuse, to reveal the person to whom he gave
the said amount of P440,000, and to answer
other pertinent questions in connection with the
Buenavista and Tambobong estates deal;
WHEREAS, the Senate holds and finds that the
situation of the said Jean L. Arnault has not
materially changed since he was committed to
prison for contempt of the Senate, and since the
Supreme Court of the Philippines, in a judgment
long since become final, upheld the power and
authority of the Senate to hold the said Jean L.
Arnault in custody, detention, and confinement,
said power and authority having been held to be
coercive rather than punitive, and fully justified
until the said Jean L. Arnault should have given
the information which he had withheld and
continues contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful
statements made by the said Jean L. Arnault on
the occasions above referred to constitute a
continuing contempt of the Senate, and an
added affront to its dignity and authority, such
that , were they to be condoned or overlooked,
the power and authority of the Senate to conduct
investigations would become futile and
ineffectual because they could be defied by any
person of sufficient stubbornness and malice;
WHEREAS, the Senate holds and finds that the
identity of the person to whom the said Jean L.
Arnault gave the amount of P440,000 in
connection with the Buenavista and Tambobong
estates deal, and the further information which
the Senate requires and which the said Jean L.
Arnault arrogantly and contumaciously
withholds, is required for the discharge of its
legislative functions, particularly so that
adequate measures can be taken to prevent the
repetition of similar frauds upon the Government
and the People of the Philippines and to recover
said amount; and
WHEREAS, while not insensible to the appeal of
understanding and mercy, the Senate holds and
finds that the said Jean L. Arnault, by his
insolent and contumacious defiance of the
legitimate authority of the Senate, is trifling with
its proceedings, renders himself unworthy of
mercy, and, in the language of the Supreme
Court, is his own jailer, because he could open
the doors of his prison at any time by revealing
the truth; now therefore, be it
Resolved by the Senate of the Philippines, That
the Senate hold and find, as it hereby holds and
finds, that Juan L. Arnault has not purged
himself of contempt of the Senate, and has in no
way altered his situation since he has committed
to coercive not punitive, imprisonment for such
contempt on the 15th day of May, 1950; and that
Senate order, as it hereby orders, the Director of
Prisons to hold the said Jean L. Arnault, in his
custody, and in confinement and detention at the
New Bilibid Prison in Muntinlupa, Rizal, in
coercive imprisonment, until he should have
purged himself of the aforesaid contempt to the
82
satisfaction, and until order to that effect, of the
Senate of the Philippines or of its Special
Committee to investigate the Buenavista and
Tambobong Estates deal.
Adopted, November 8, 1952 . (Exhibit 0)
In his petition for the writ of habeas corpus in the Court
of First Instance, petitioner-appellee alleges: (1) That the
acquisition by the Government, through the Rural
Progress Administration, of the Buenavista and
Tambobong Estates was not illegal nor irregular nor
scandalous nor malodorous, but was in fact beneficial to
the Government; (2) that the decision of this Court in G.
R. No. L-3820 declared that the Senate did not imprison
Arnault "beyond proper limitations", i.e., beyond the
period longer than arresto mayor, as this is the maximum
penalty that can be imposed under the provisions of
Article 150 of the Revised Penal Code; (3) that
petitioner-appellee purged himself of the contempt
charges when he disclosed the fact that the one to whom
he gave the P440,000 was Jess D. Santos, and
submitted evidence in corroboration thereof; (4) that the
Senate is not justified in finding that the petitioner-
appellee did tell the truth when he mentioned Jess D.
Santos as the person to whom he gave the P440,000,
specially on the basis of the evidence submitted to it; (5)
that the legislative purpose or intention, for which the
Senate ordered the confinement may be considered as
having been accomplished, and, therefore, there is no
reason for petitioner-appellee's continued confinement.
The claim that the purchase of the Buenavista and
Tambobong Estates is beneficial to the government and
is neither illegal nor irregular is beside the point. To our
minds, two questions are decisive of this case. The first
is: Did the Senate Special Committee believe the
statement of the petitioner-appellee that the person to
whom he gave the P440,000 is one by the name of Jess
D. Santos and if it did not, may the court review said
finding? And the second is: If the Senate did not believe
the statement, is the continued confinement and
detention of the petitioner-appellee, as ordered in Senate
Resolution of November 8, 1952, valid?
On the first question, the Senate found as a fact that
petitioner "has failed and refused, and continues to fail
and refuse, to reveal the person to whom he gave the
amount of P440,000" and that the situation of petitioner
"has not materially charged since he was committed to
prison." In the first resolution of the Senate Special
Committee of May 15, 1950, it found that petitioner
"refused to reveal the name of the persons to whom he
gave the P440,000, as well as to answer other pertinent
questions related to said amount." It is clear and evident
that the Senate Committee did not believe petitioner's
statement that the person to whom he delivered the
abovementioned amount is one by the name of Jess D.
Santos. The court a quo, however, arrogating unto itself
the power to review such finding, held that the "petitioner
has satisfactorily shown that the person of Jess D.
Santos actually and physically existed in the human
flesh," that the opinion or conclusion of the Senate
Committee is not borne to out by the evidence produced
at the investigation, that the Senate abused its discretion
in making its conclusion and that under these
circumstances the only thing that could in justice be
done to petitioner is to order his release and have his
case endorsed to the prosecution branch of the judicial
department for investigation and prosecution as the
circumstances warrant.
There is an inherent fundamental error in the course of
action that the lower court followed. It assumed that
courts have the right to review the findings of legislative
bodies in the exercise of the prerogative of legislation, or
interfere with their proceedings or their discretion in what
is known as the legislative process.
 The courts avoid encroachment upon the
legislature in its exercise of departmental
discretion in the means used to accomplish
legitimate legislative ends. Since the legislature
is given a large discretion in reference to the
means it may employ to promote the general
welfare, and alone may judge what means are
necessary and appropriate to accomplish an end
which the Constitution makes legitimate, the
courts cannot undertake to decide whether the
means adopted by the legislature are the only
means or even the best means possible to attain
the end sought, for such course would best the
exercise of the police power of the state in the
judicial department. It has been said that the
methods, regulations, and restrictions to be
imposed to attain results consistent with the
public welfare are purely of legislative
cognizance, and the determination of the
legislature is final, except when so arbitrary as to
be violative of the constitutional rights of the
citizen. Furthermore, in the absence of a clear
violation of a constitutional inhibition, the courts
should assume that legislative discretion has
been properly exercised. (11 Am. Jur., pp. 901-
902).
These the judicial department of the government has no
right or power or authority to do, much in the same
manner that the legislative department may not invade
the judicial realm in the ascertainment of truth and in the
application and interpretation of the law, in what is known
as the judicial process, because that would be in direct
conflict with the fundamental principle of separation of
powers established by the Constitution. The only
instances when judicial intervention may lawfully be
invoke are when there has been a violation of a
constitutional inhibition, or when there has been an
arbitrary exercise of the legislative discretion.
Under our constitutional system, the powers of
government are distributed among three
coordinate and substantially independent
organs: the legislative, the executive and the
judicial. Each of these departments of the
government derives its authority from the
Constitution which, in turn, is the highest
expression of the popular will. Each has
exclusive cognizance of the matters within its
jurisdiction, and is supreme within its own
sphere. (People of the Philippine Islands, et al.
vs. Vera, et al 65 Phil., 56; See also Angara vs.
Electoral Commission, 63 Phil., 139)
All that the courts may do, in relation to the proceedings
taken against petitioner prior to his incarceration, is to
determine if the constitutional guarantee of due process
has been accorded him before his incarceration by
legislative order, and this because of the mandate of the
Supreme Law of the land that no man shall be deprived
life, liberty or property without due process of law. In the
case at bar such right has fully been extended the
petitioner, he having been given the opportunity to be
heard personally and by counsel in all the proceedings
prior to the approval of the Resolution ordering his
continued confinement.
The second question involves in turn the following
propositions: Does the Philippine Senate have the power
and authority to pass its resolution ordering the
continued confinement of the petitioner? In the
supposition that such power and authority exist, was
such power legitimately exercised after the petitioner had
given the name Jess D. Santos? A study of the text of
the resolution readily shows that the Senate found that
the petitioner-appellee did not disclose, by the mere
giving of the name Jess D. Santos, the identity of the
person to whom the sum of P440, 000 was delivered,
83
and, in addition thereto that petitioner withheld said
identity arrogantly and contumaciously in continued
affront of the Senate's authority and dignity. Although the
resolution studiously avoids saying that the confinement
is a punishment, but merely seeks to coerce the
petitioner into telling the truth, the intention is evident
that the continuation of the imprisonment ordered is in
fact partly unitive. This may be inferred from the
confining made in the resolution that petitioner-
appellee's acts were arrogant and contumacious and
constituted an affront to the Senate's dignity and
authority. In a way, therefore, the petitioner's assumption
that the imprisonment is punitive is justified by the
language of the resolution, wherefore the issue now
before Us in whether the Senate has the power to punish
the contempt committed against it under the
circumstances of the case. This question is thus
squarely presented before Us for determination.
In the previous case of this same petitioner decided by
this Court, G. R. No. L-38201, Arnault vs. Nazareno, et
al. (46 Off. Gaz., No. 7, 3100), it was admitted and we
had ruled that the Senate has the authority to commit a
witness if he refuses to answer a question pertinent to a
legislative inquiry, to compel him to give the information,
i.e., by reason of its coercive power, not its punitive
power. It is now contended by petitioner that if he
committed an offense of contempt or perjury against the
legislative body, because he refused to reveal the
identity of the person in accordance with the demands of
the Senate Committee, the legislature may not punish
him, for the punishment for his refusal should be sought
through the ordinary processes of the law, i. e., by the
institution of a criminal action in a court of justice.
American legislative bodies, after which our own is
patterned, have the power to punish for contempt if the
contempt has had the effect of obstructing the exercise
by the legislature of, or deterring or preventing it from
exercising, its legitimate functions (Annotation to Jurney
vs. MacCraken, 79 L. ed. 814). While the power of the
United States Senate to punish for contempt was not
clearly recognized in its earlier decision (See Marshal vs.
Gordon, 61 L. ed. 881), the Supreme Court of the United
States two decades ago held that such power and
authority exist. In the case of Jurney vs. MacCraken (294
U. S. 123, 79 L. ed. 802), the question before it was
whether or not the Senate could order the confinement
of a private citizen because of the destruction and
removal by him of certain papers required to be
produced. The court said:
First, The main contention of MacCracken is that
the so-called power to punish for contempt may
never be exerted, in the case of a private citizen,
solely qua punishment. The argument is that the
power may be used by the legislative body
merely as a means of removing an existing
obstruction to the performance of its duties; that
the power to punish ceases as soon as the
obstruction has been removed, or its removal
has become impossible; and hence that there is
no power to punish a witness who, having been
requested to produce papers, destroys them
after service of the subpoena. The contention
rests upon a misconception of the limitations
upon the power of the Houses of Congress to
punish for contempt. It is true that the scope of
the power is narrow. No act is so punishable
unless it is of a nature to obstruct the
performance of the duties of the legislature. This
may be lack of power, because, as in Kilbourn
vs. Thompson, 103 U. S. 168, 26 L. ed. 377,
there was no legislative duty to be performed; or
because, as in Marshall vs. Gordon, 243 U. S.
521, 61 L. ed. 881, 37 S. Ct. 448, L. R. A. 1917F,
279, Ann. Cas. 1918B, 371, the act complained
 of is deemed not to be of a character to obstruct
the legislative process. But, where the offending
act was of a nature to obstruct the legislative
process, the fact that the obstruction has since
been removed, or that its removal has become
impossible is without legal significance.
The power to punish a private citizen for a past
and completed act was exerted by Congress as
early as 1795; and since then it has been
exercised on several occasions. It was asserted,
before the Revolution, by the colonial
assemblies, in intimation of the British House of
Commons; and afterwards by the Continental
Congress and by state legislative bodies. In
Anderson vs. Dunn, 6 Wheat, 204, 5 L. ed. 242,
decided in 1821, it was held that the House had
power to punish a private citizen for an attempt
to bribe a member. No case has been found in
which an exertion of the power to punish for
contempt has been successfully challenged on
the ground that, before punishment, the
offending act had been consummated or that the
obstruction suffered was irremediable. The
statement in the opinion in Marshall vs. Gordon,
243 U. S. 521, 61 L. ed. 881, 37 S. Ct. 448, L. R.
A. 1917F. 279 Ann. Cas. 1918B,
371, supra, upon which MacCracken relies, must
be read in the light of the particular facts. It was
there recognized that the only jurisdictional test
to be applied by the court is the character of the
offense; and that the continuance of the
obstruction, or the likelihood of its repetition, are
considerations for the discretion of the
legislators in meting out the punishment.
Here, we are concerned not with an extention of
congressional privilege, but with vindication of
the established and essential privilege of
requiring the production of evidence. For this
purpose, the power to punish for a past
contempt is an appropriate means. Compare Ex
parte Nugent (C. C.) 1 Brunner, Col. Cas. 296,
Fed. Cas No. 10375; Steward vs. Bleine, 1
MacArth. 453. The apprehensions expressed
from time to time in congressional debates, in
opposition to particular exercise of the contempt
power concerned, not the power to punish, as
such, but the broad, undefined privileges which it
was believed might find sanction in that power.
The ground for such fears has since been
effectively removed by the decisions of this
Court which hold that assertions of
congressional privilege are subject to judicial
review. Melbourn vs. Thompson, 103 U. S. 168,
26 L. ed. 377, supra; and that the power to
punish for contempt may not be extended to
slanderous attacks which presents no immediate
obstruction to legislative processes. Marshall vs.
Gordon, 243 U. S. 521, 61 L. ed. 881, 37 S. Ct.
448, L.R. A. 1917F, Ann. Cas. 1918B, 731 supra.
The principle that Congress or any of its bodies has the
power to punish recalcitrant witnesses is founded upon
reason and policy. Said power must be considered
implied or incidental to the exercise of legislative power,
or necessary to effectuate said power. How could a
legislative body obtain the knowledge and information on
which to base intended legislation if it cannot require and
compel the disclosure of such knowledge and
information, if it is impotent to punish a defiance of its
power and authority? When the framers of the
Constitution adopted the principle of separation of
powers, making each branch supreme within the realm
of its respective authority, it must have intended each
department's authority to be full and complete,
independently of the other's authority and power. And
84
how could the authority and power become complete if
for every act of refusal, every act of defiance, every act
of contumacy against it, the legislative body must resort
to the judicial department for the appropriate remedy,
because it is impotent by itself to punish or deal
therewith, with the affronts committed against its
authority or dignity. The process by which a
contumacious witness is dealt with by the legislature in
order to enable it to exercise its legislative power or
authority must be distinguished from the judicial process
by which offenders are brought to the courts of justice for
the meting of the punishment which the criminal law
imposes upon them. The former falls exclusively within
the legislative authority, the latter within the domain of
the courts; because the former is a necessary
concommitant of the legislative power or process, while
the latter has to do with the enforcement and application
of the criminal law.
We must also and that provided the contempt is related
to the exercise of the legislative power and is committed
in the course of the legislative process, the legislature's
authority to deal with the defiant and contumacious
witness should be supreme, and unless there is a
manifest and absolute disregard of discretion and a mere
exertion of arbitrary power coming within the reach of
constitutional limitations, the exercise of the authority is
not subject to judicial interference. (Marshall vs.
Gordon, supra).
The next question concerns the claim that the petitioner
has purged himself of contempt, because he says he
has already answered the original question which he had
previously been required to answer. In order that the
petitioner may be considered as having purged himself
of the contempt, it is necessary that he should have
testified truthfully, disclosing the real identity of the
person subject of the inquiry. No person guilty of
contempt may purge himself by another lie or falsehood;
this would be repetition of the offense. It is true that he
gave a name, Jess D. Santos, as that of the person to
whom delivery of the sum of P440,000 was made. The
Senate Committee refused to believe, and justly, that is
the real name of the person whose identity is being the
subject of the inquiry. The Senate, therefore, held that
the act of the petitioner continued the original contempt,
or reiterated it. Furthermore, the act further interpreted
as an affront to its dignity. It may well be taken as insult
to the intelligence of the honorable members of the body
that conducted the investigation. The act of defiance and
contempt could not have been clearer and more evident.
Certainly, the Senate resolution declaring the petitioner
in contempt may not be claimed as an exertion of an
arbitrary power.
One last contention of petitioner remains to be
considered. It is the claim that as the period of
imprisonment has lasted for a period which exceeded
that provided by law punishment for contempt, i. e., 6
months of arresto mayor, the petitioner is now entitled to
be released. This claim is not justified by the record.
Petitioner was originally confined by Resolution No. 17
on May 15, 1950. On December 13, 1951, he executed
his affidavit and thereafter he was called to testify again
before the Senate Committee. The latter passed its
Resolution No. 114 on November 6, 1952, and he
presented the petition for habeas corpus in this case on
March 3, 1953, i. e., five months after the last resolution
when the Senate found that the petitioner committed
another contempt. It is not true, therefore, that the
petitioner's punishment is beyond the full period
prescribed in the criminal law.
Besides, the last resolution of November 8, 1952 is also
of a coersive nature, in the sense that the Senate
Committee still demands and requires the disclosure of
the fact which the petitioner had obstinately refused to
divulge. While the Philippine Senate has not given up
hope that the petitioner may ultimately disclose the
record, it is improper for the courts to declare that the
continued confinement is an abuse of the legislative
power and thereby interfere in the exercise of the
legislative discretion.
The judgment appealed from should be, as it hereby is,
reversed, and the petition for the issuance of the writ
ofhabeas corpus denied. The order of the court allowing
the petitioner to give bail is declared null and void and
the petitioner is hereby ordered to be recommitted to the
custody of the respondent. With cost against the
petitioner-appellee.
ARNAULT vs. BALAGTAS
Citation: G.R. No. L-6749; 97 Phil. 358; July 30,
1955
Ponente: Labrador
Topic: Legislative investigation; may Senate hold
a person in contempt as a punitive measure.
FACTS:
This was a petition for habeas corpus filed by
Jean Arnault against the Director of Prisons,
Balagtas. Arnault was incarcerated pursuant to a
resolution by the Senate finding Arnault in
contempt for refusing to disclose the name of a
person with whom he transacted business in
relation to a government purchase of of the
Buenavista and Tambobong estates. The
circumstances of Arnault's incarceration are
described in the companion case Arnaultvs.
Nazareno (1950) which affirmed the Legislature's
power to hold a person in contempt for defying or
refusing to comply with an order in a legislative
inquiry.
Arnault eventually divulged that he had
transacted with one Jess D. Santos in relation to
the Buenavista and Tambobong deal. Upon
further inquiry, the Senate, obviously not
satisfied with Arnault's explanations, adopted
Resolution No. 114. The title of the resolution
states:
RESOLUTION APPROVING THE REPORT OF THE
SPECIAL COMMITTEE TO INVESTIGATE THE
BUENAVISTA AND TAMBOBONG ESTATES DEAL,
AND ORDERING THE DIRECTOR OF PRISON TO
CONTINUE HOLDING JEAN L. ARNAULT IN HIS
CUSTODY, AND IN CONFINEMENT AND
DETENTION AT THE NEW BILIBID PRISON AT
MUNTINLUPA, RIZAL, UNTIL THE SAID ARNAULT
SHALL HAVE PURGED HIMSELF OF CONTEMPT OF
THE SENATE.
xxx
WHEREAS, the Senate holds and finds that the
situation of the said Jean L. Arnault has not
materially changed since he was committed to
85
prison for contempt of the Senate, and since the
Supreme Court of the Philippines, in a judgment
long since become final, upheld the power and
authority of the Senate to hold the said Jean L.
Arnault in custody, detention, and confinement,
said power and authority having been held to be
coercive rather than punitive, and fully justified
until the said Jean L. Arnault should have given
the information which he had withheld and
continues contumaciously to withhold;
WHEREAS, the insolent and manifest untruthful
statements made by the said Jean L. Arnault on
the occasions above referred to constitute a
continuing contempt of the Senate, and an added
affront to its dignity and authority, such that ,
were they to be condoned or overlooked, the
power and authority of the Senate to conduct
investigations would become futile and ineffectual
because they could be defied by any person of
sufficient stubbornness and malice;
xxx
The Court of First Instance ruled in favor of
Petitioner Arnault and ordered his release.
ISSUE:
Whether or not Petitioner may be released from
his Senate-imposed incarceration.
1. Whether or not the CFI has the right to review
the findings of the Senate.
2. Whether or not the Senate may hold a person
in contempt or incarcerate him as a punitive
rather than as a coercive measure.
HELD:
YES. The Senate may continue to keep Petitioner
incarcerated.
1. NO. In the first place, the CFI did NOT have
the right to review the findings of the Senate. In
the above quoted resolution, the Senate in
stating that petitioner “has failed and refused,
and continues to fail and refuse, to reveal the
person to whom he gave the amount of
P440,000” and that the situation of petitioner
“has not materially charged since he was
committed to prison”, clearly shows that the
Senate believes that Arnault was still trying to
deceive them. The CFI on the other hand
arrogated unto itself to review such finding and
held that Arnault satisfactorily answered the
questions of the Senate in its investigation of the
Buenavista and Tambobong deal.
There is an inherent fundamental error in the
course of action that the lower court followed. It
assumed that courts have the right to review the
findings of legislative bodies in the exercise of the
prerogative of legislation, or interfere with their
proceedings or their discretion in what is known
as the legislative process. The Judicial
department has no right or power or authority to
do this, in the same manner that the legislative
department may not invade the judicial realm in
the ascertainment of truth and in the application
and interpretation of the law, in what is known as
the judicial process, because that would be in
direct conflict with the fundamental principle of
separation of powers established by the
Constitution. The only instances when judicial
intervention may lawfully be invoke are
when there has been a violation of a
constitutional inhibition, or when there has
been an arbitrary exercise of the legislative
discretion.
2. YES. The legislature may hold a person in
contempt or incarcerate him as a punitive
measure.
Although the resolution studiously avoids saying
that the confinement is a punishment, but merely
seeks to coerce the petitioner into telling the
truth, the intention is evident that the
continuation of the imprisonment ordered is in
fact partly punitive. This may be inferred from
the confining made in the resolution that
petitioner's acts were arrogant and contumacious
and constituted an affront to the Senate's dignity
and authority.
The legislature has the power to punish
recalcitrant witnesses. This power is founded
upon reason and policy. Said power must be
considered implied or incidental to the exercise of
legislative power, or necessary to effectuate said
power. How could a legislative body obtain the
knowledge and information on which to base
intended legislation if it cannot require and
compel the disclosure of such knowledge and
information, if it is impotent to punish a defiance
of its power and authority? The legislative
department should not be constrained to look to
the courts whenever for every act of refusal,
every act of defiance, every act of contumacy
with which it is faced.
The exercise of the legislature's authority to deal
with the defiant and contumacious witness should
be supreme and is not subject to judicial
interference, except when there is a manifest and
absolute disregard of discretion and a mere
86
exertion of arbitrary power coming within the
reach of constitutional limitations.
The judgment appealed from should be, as it
hereby is, reversed, and the petition for the
issuance of the writ of habeas corpus denied. The
order of the court allowing the petitioner to give
bail is declared null and void and the petitioner is
hereby ordered to be recommitted to the custody
of the respondent. With cost against the
petitioner-appellee.
G.R. No. L-45081 July 15, 1936
JOSE A. ANGARA, petitioner,
vs.
THE ELECTORAL COMMISSION, PEDRO YNSUA,
MIGUEL CASTILLO, and DIONISIO C.
MAYOR, respondents.
Godofredo Reyes for petitioner.
Office of the Solicitor General Hilado for respondent
Electoral Commission.
Pedro Ynsua in his own behalf.
No appearance for other respondents.
LAUREL, J.:
This is an original action instituted in this court by the
petitioner, Jose A. Angara, for the issuance of a writ of
prohibition to restrain and prohibit the Electoral
Commission, one of the respondents, from taking further
cognizance of the protest filed by Pedro Ynsua, another
respondent, against the election of said petitioner as
member of the National Assembly for the first assembly
district of the Province of Tayabas.
The facts of this case as they appear in the petition and
as admitted by the respondents are as follows:
(1) That in the elections of September 17, 1935,
the petitioner, Jose A. Angara, and the
respondents, Pedro Ynsua, Miguel Castillo and
Dionisio Mayor, were candidates voted for the
position of member of the National Assembly for
the first district of the Province of Tayabas;
(2) That on October 7, 1935, the provincial board
of canvassers, proclaimed the petitioner as
member-elect of the National Assembly for the
said district, for having received the most
number of votes;
(3) That on November 15, 1935, the petitioner
took his oath of office;
(4) That on December 3, 1935, the National
Assembly in session assembled, passed the
following resolution:
[No. 8]
RESOLUCION
CONFIRMANDO LAS ACTAS
DE AQUELLOS DIPUTADOS
CONTRA QUIENES NO SE HA
PRESENTADO PROTESTA.
Se resuelve: Que las actas de
eleccion de los Diputados
contra quienes no se hubiere
presentado debidamente una
protesta antes de la adopcion
de la presente resolucion sean,
como por la presente, son
aprobadas y confirmadas.
Adoptada, 3 de diciembre,
1935.
 (5) That on December 8, 1935, the herein
respondent Pedro Ynsua filed before the
Electoral Commission a "Motion of Protest"
against the election of the herein petitioner, Jose
A. Angara, being the only protest filed after the
passage of Resolutions No. 8 aforequoted, and
praying, among other-things, that said
respondent be declared elected member of the
National Assembly for the first district of
Tayabas, or that the election of said position be
nullified;
(6) That on December 9, 1935, the Electoral
Commission adopted a resolution, paragraph 6
of which provides:
6. La Comision no considerara ninguna
protesta que no se haya presentado en
o antes de este dia.
(7) That on December 20, 1935, the herein
petitioner, Jose A. Angara, one of the
respondents in the aforesaid protest, filed before
the Electoral Commission a "Motion to Dismiss
the Protest", alleging (a) that Resolution No. 8 of
Dismiss the Protest", alleging (a) that Resolution
No. 8 of the National Assembly was adopted in
the legitimate exercise of its constitutional
prerogative to prescribe the period during which
protests against the election of its members
should be presented; (b) that the aforesaid
resolution has for its object, and is the accepted
formula for, the limitation of said period; and (c)
that the protest in question was filed out of the
prescribed period;
(8) That on December 27, 1935, the herein
respondent, Pedro Ynsua, filed an "Answer to
the Motion of Dismissal" alleging that there is no
legal or constitutional provision barring the
presentation of a protest against the election of a
member of the National Assembly after
confirmation;
(9) That on December 31, 1935, the herein
petitioner, Jose A. Angara, filed a "Reply" to the
aforesaid "Answer to the Motion of Dismissal";
(10) That the case being submitted for decision,
the Electoral Commission promulgated a
resolution on January 23, 1936, denying herein
petitioner's "Motion to Dismiss the Protest."
The application of the petitioner sets forth the following
grounds for the issuance of the writ prayed for:
(a) That the Constitution confers exclusive
jurisdiction upon the electoral Commission solely
as regards the merits of contested elections to
the National Assembly;
(b) That the Constitution excludes from said
jurisdiction the power to regulate the
proceedings of said election contests, which
power has been reserved to the Legislative
Department of the Government or the National
Assembly;
(c) That like the Supreme Court and other courts
created in pursuance of the Constitution, whose
exclusive jurisdiction relates solely to deciding
the merits of controversies submitted to them for
decision and to matters involving their internal
organization, the Electoral Commission can
regulate its proceedings only if the National
Assembly has not availed of its primary power to
so regulate such proceedings;
(d) That Resolution No. 8 of the National
Assembly is, therefore, valid and should be
respected and obeyed;
(e) That under paragraph 13 of section 1 of the
ordinance appended to the Constitution and
87
paragraph 6 of article 7 of the Tydings-McDuffie
Law (No. 127 of the 73rd Congress of the United
States) as well as under section 1 and 3 (should
be sections 1 and 2) of article VIII of the
Constitution, this Supreme Court has jurisdiction
to pass upon the fundamental question herein
raised because it involves an interpretation of
the Constitution of the Philippines.
On February 25, 1936, the Solicitor-General appeared
and filed an answer in behalf of the respondent Electoral
Commission interposing the following special defenses:
(a) That the Electoral Commission has been
created by the Constitution as an instrumentality
of the Legislative Department invested with the
jurisdiction to decide "all contests relating to the
election, returns, and qualifications of the
members of the National Assembly"; that in
adopting its resolution of December 9, 1935,
fixing this date as the last day for the
presentation of protests against the election of
any member of the National Assembly, it acted
within its jurisdiction and in the legitimate
exercise of the implied powers granted it by the
Constitution to adopt the rules and regulations
essential to carry out the power and functions
conferred upon the same by the fundamental
law; that in adopting its resolution of January 23,
1936, overruling the motion of the petitioner to
dismiss the election protest in question, and
declaring itself with jurisdiction to take
cognizance of said protest, it acted in the
legitimate exercise of its quasi-judicial functions
a an instrumentality of the Legislative
Department of the Commonwealth Government,
and hence said act is beyond the judicial
cognizance or control of the Supreme Court;
(b) That the resolution of the National Assembly
of December 3, 1935, confirming the election of
the members of the National Assembly against
whom no protest had thus far been filed, could
not and did not deprive the electoral
Commission of its jurisdiction to take cognizance
of election protests filed within the time that
might be set by its own rules:
(c) That the Electoral Commission is a body
invested with quasi-judicial functions, created by
the Constitution as an instrumentality of the
Legislative Department, and is not an "inferior
tribunal, or corporation, or board, or person"
within the purview of section 226 and 516 of the
Code of Civil Procedure, against which
prohibition would lie.
The respondent Pedro Ynsua, in his turn, appeared and
filed an answer in his own behalf on March 2, 1936,
setting forth the following as his special defense:
(a) That at the time of the approval of the rules
of the Electoral Commission on December 9,
1935, there was no existing law fixing the period
within which protests against the election of
members of the National Assembly should be
filed; that in fixing December 9, 1935, as the last
day for the filing of protests against the election
of members of the National Assembly, the
Electoral Commission was exercising a power
impliedly conferred upon it by the Constitution,
by reason of its quasi-judicial attributes;
(b) That said respondent presented his motion of
protest before the Electoral Commission on
December 9, 1935, the last day fixed by
paragraph 6 of the rules of the said Electoral
Commission;
(c) That therefore the Electoral Commission
acquired jurisdiction over the protest filed by said
 respondent and over the parties thereto, and the
resolution of the Electoral Commission of
January 23, 1936, denying petitioner's motion to
dismiss said protest was an act within the
jurisdiction of the said commission, and is not
reviewable by means of a writ of prohibition;
(d) That neither the law nor the Constitution
requires confirmation by the National Assembly
of the election of its members, and that such
confirmation does not operate to limit the period
within which protests should be filed as to
deprive the Electoral Commission of jurisdiction
over protest filed subsequent thereto;
(e) That the Electoral Commission is an
independent entity created by the Constitution,
endowed with quasi-judicial functions, whose
decision are final and unappealable;
( f ) That the electoral Commission, as a
constitutional creation, is not an inferior tribunal,
corporation, board or person, within the terms of
sections 226 and 516 of the Code of Civil
Procedure; and that neither under the provisions
of sections 1 and 2 of article II (should be article
VIII) of the Constitution and paragraph 13 of
section 1 of the Ordinance appended thereto
could it be subject in the exercise of its quasi-
judicial functions to a writ of prohibition from the
Supreme Court;
(g) That paragraph 6 of article 7 of the Tydings-
McDuffie Law (No. 127 of the 73rd Congress of
the united States) has no application to the case
at bar.
The case was argued before us on March 13, 1936.
Before it was submitted for decision, the petitioner
prayed for the issuance of a preliminary writ of injunction
against the respondent Electoral Commission which
petition was denied "without passing upon the merits of
the case" by resolution of this court of March 21, 1936.
There was no appearance for the other respondents.
The issues to be decided in the case at bar may be
reduced to the following two principal propositions:
1. Has the Supreme Court jurisdiction over the
Electoral Commission and the subject matter of
the controversy upon the foregoing related facts,
and in the affirmative,
2. Has the said Electoral Commission acted
without or in excess of its jurisdiction in
assuming to the cognizance of the protest filed
the election of the herein petitioner
notwithstanding the previous confirmation of
such election by resolution of the National
Assembly?
We could perhaps dispose of this case by passing
directly upon the merits of the controversy. However, the
question of jurisdiction having been presented, we do not
feel justified in evading the issue. Being a case primæ
impressionis, it would hardly be consistent with our
sense of duty to overlook the broader aspect of the
question and leave it undecided. Neither would we be
doing justice to the industry and vehemence of counsel
were we not to pass upon the question of jurisdiction
squarely presented to our consideration.
The separation of powers is a fundamental principle in
our system of government. It obtains not through
express provision but by actual division in our
Constitution. Each department of the government has
exclusive cognizance of matters within its jurisdiction,
and is supreme within its own sphere. But it does not
follow from the fact that the three powers are to be kept
separate and distinct that the Constitution intended them
to be absolutely unrestrained and independent of each
other. The Constitution has provided for an elaborate
system of checks and balances to secure coordination in
88
the workings of the various departments of the
government. For example, the Chief Executive under our
Constitution is so far made a check on the legislative
power that this assent is required in the enactment of
laws. This, however, is subject to the further check that a
bill may become a law notwithstanding the refusal of the
President to approve it, by a vote of two-thirds or three-
fourths, as the case may be, of the National Assembly.
The President has also the right to convene the
Assembly in special session whenever he chooses. On
the other hand, the National Assembly operates as a
check on the Executive in the sense that its consent
through its Commission on Appointments is necessary in
the appointments of certain officers; and the concurrence
of a majority of all its members is essential to the
conclusion of treaties. Furthermore, in its power to
determine what courts other than the Supreme Court
shall be established, to define their jurisdiction and to
appropriate funds for their support, the National
Assembly controls the judicial department to a certain
extent. The Assembly also exercises the judicial power
of trying impeachments. And the judiciary in turn, with
the Supreme Court as the final arbiter, effectively checks
the other departments in the exercise of its power to
determine the law, and hence to declare executive and
legislative acts void if violative of the Constitution.
But in the main, the Constitution has blocked out with
deft strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government. The overlapping and interlacing of
functions and duties between the several departments,
however, sometimes makes it hard to say just where the
one leaves off and the other begins. In times of social
disquietude or political excitement, the great landmarks
of the Constitution are apt to be forgotten or marred, if
not entirely obliterated. In cases of conflict, the judicial
department is the only constitutional organ which can be
called upon to determine the proper allocation of powers
between the several departments and among the
integral or constituent units thereof.
As any human production, our Constitution is of course
lacking perfection and perfectibility, but as much as it
was within the power of our people, acting through their
delegates to so provide, that instrument which is the
expression of their sovereignty however limited, has
established a republican government intended to operate
and function as a harmonious whole, under a system of
checks and balances, and subject to specific limitations
and restrictions provided in the said instrument. The
Constitution sets forth in no uncertain language the
restrictions and limitations upon governmental powers
and agencies. If these restrictions and limitations are
transcended it would be inconceivable if the Constitution
had not provided for a mechanism by which to direct the
course of government along constitutional channels, for
then the distribution of powers would be mere verbiage,
the bill of rights mere expressions of sentiment, and the
principles of good government mere political apothegms.
Certainly, the limitation and restrictions embodied in our
Constitution are real as they should be in any living
constitution. In the United States where no express
constitutional grant is found in their constitution, the
possession of this moderating power of the courts, not to
speak of its historical origin and development there, has
been set at rest by popular acquiescence for a period of
more than one and a half centuries. In our case, this
moderating power is granted, if not expressly, by clear
implication from section 2 of article VIII of our
constitution.
The Constitution is a definition of the powers of
government. Who is to determine the nature, scope and
extent of such powers? The Constitution itself has
provided for the instrumentality of the judiciary as the
rational way. And when the judiciary mediates to allocate
constitutional boundaries, it does not assert any
superiority over the other departments; it does not in
reality nullify or invalidate an act of the legislature, but
only asserts the solemn and sacred obligation assigned
to it by the Constitution to determine conflicting claims of
authority under the Constitution and to establish for the
parties in an actual controversy the rights which that
instrument secures and guarantees to them. This is in
truth all that is involved in what is termed "judicial
supremacy" which properly is the power of judicial
review under the Constitution. Even then, this power of
judicial review is limited to actual cases and
controversies to be exercised after full opportunity of
argument by the parties, and limited further to the
constitutional question raised or the very lis
mota presented. Any attempt at abstraction could only
lead to dialectics and barren legal questions and to
sterile conclusions unrelated to actualities. Narrowed as
its function is in this manner, the judiciary does not pass
upon questions of wisdom, justice or expediency of
legislation. More than that, courts accord the
presumption of constitutionality to legislative enactments,
not only because the legislature is presumed to abide by
the Constitution but also because the judiciary in the
determination of actual cases and controversies must
reflect the wisdom and justice of the people as
expressed through their representatives in the executive
and legislative departments of the governments of the
government.
But much as we might postulate on the internal checks
of power provided in our Constitution, it ought not the
less to be remembered that, in the language of James
Madison, the system itself is not "the chief palladium of
constitutional liberty . . . the people who are authors of
this blessing must also be its guardians . . . their eyes
must be ever ready to mark, their voice to pronounce . . .
aggression on the authority of their constitution." In the
Last and ultimate analysis, then, must the success of our
government in the unfolding years to come be tested in
the crucible of Filipino minds and hearts than in
consultation rooms and court chambers.
In the case at bar, the national Assembly has by
resolution (No. 8) of December 3, 1935, confirmed the
election of the herein petitioner to the said body. On the
other hand, the Electoral Commission has by resolution
adopted on December 9, 1935, fixed said date as the
last day for the filing of protests against the election,
returns and qualifications of members of the National
Assembly, notwithstanding the previous confirmation
made by the National Assembly as aforesaid. If, as
contended by the petitioner, the resolution of the
National Assembly has the effect of cutting off the power
of the Electoral Commission to entertain protests against
the election, returns and qualifications of members of the
National Assembly, submitted after December 3, 1935,
then the resolution of the Electoral Commission of
December 9, 1935, is mere surplusage and had no
effect. But, if, as contended by the respondents, the
Electoral Commission has the sole power of regulating
its proceedings to the exclusion of the National
Assembly, then the resolution of December 9, 1935, by
which the Electoral Commission fixed said date as the
last day for filing protests against the election, returns
and qualifications of members of the National Assembly,
should be upheld.
Here is then presented an actual controversy involving
as it does a conflict of a grave constitutional nature
between the National Assembly on the one hand, and
the Electoral Commission on the other. From the very
nature of the republican government established in our
country in the light of American experience and of our
own, upon the judicial department is thrown the solemn
and inescapable obligation of interpreting the
Constitution and defining constitutional boundaries. The
89
Electoral Commission, as we shall have occasion to
refer hereafter, is a constitutional organ, created for a
specific purpose, namely to determine all contests
relating to the election, returns and qualifications of the
members of the National Assembly. Although the
Electoral Commission may not be interfered with, when
and while acting within the limits of its authority, it does
not follow that it is beyond the reach of the constitutional
mechanism adopted by the people and that it is not
subject to constitutional restrictions. The Electoral
Commission is not a separate department of the
government, and even if it were, conflicting claims of
authority under the fundamental law between
department powers and agencies of the government are
necessarily determined by the judiciary in justifiable and
appropriate cases. Discarding the English type and other
European types of constitutional government, the
framers of our constitution adopted the American type
where the written constitution is interpreted and given
effect by the judicial department. In some countries
which have declined to follow the American example,
provisions have been inserted in their constitutions
prohibiting the courts from exercising the power to
interpret the fundamental law. This is taken as a
recognition of what otherwise would be the rule that in
the absence of direct prohibition courts are bound to
assume what is logically their function. For instance, the
Constitution of Poland of 1921, expressly provides that
courts shall have no power to examine the validity of
statutes (art. 81, chap. IV). The former Austrian
Constitution contained a similar declaration. In countries
whose constitutions are silent in this respect, courts have
assumed this power. This is true in Norway, Greece,
Australia and South Africa. Whereas, in Czechoslovakia
(arts. 2 and 3, Preliminary Law to constitutional Charter
of the Czechoslovak Republic, February 29, 1920) and
Spain (arts. 121-123, Title IX, Constitutional of the
Republic of 1931) especial constitutional courts are
established to pass upon the validity of ordinary laws. In
our case, the nature of the present controversy shows
the necessity of a final constitutional arbiter to determine
the conflict of authority between two agencies created by
the Constitution. Were we to decline to take cognizance
of the controversy, who will determine the conflict? And if
the conflict were left undecided and undetermined, would
not a void be thus created in our constitutional system
which may be in the long run prove destructive of the
entire framework? To ask these questions is to answer
them. Natura vacuum abhorret, so must we avoid
exhaustion in our constitutional system. Upon principle,
reason and authority, we are clearly of the opinion that
upon the admitted facts of the present case, this court
has jurisdiction over the Electoral Commission and the
subject mater of the present controversy for the purpose
of determining the character, scope and extent of the
constitutional grant to the Electoral Commission as "the
sole judge of all contests relating to the election, returns
and qualifications of the members of the National
Assembly."
Having disposed of the question of jurisdiction, we shall
now proceed to pass upon the second proposition and
determine whether the Electoral Commission has acted
without or in excess of its jurisdiction in adopting its
resolution of December 9, 1935, and in assuming to take
cognizance of the protest filed against the election of the
herein petitioner notwithstanding the previous
confirmation thereof by the National Assembly on
December 3, 1935. As able counsel for the petitioner has
pointed out, the issue hinges on the interpretation of
section 4 of Article VI of the Constitution which provides:
"SEC. 4. There shall be an Electoral Commission
composed of three Justice of the Supreme Court
designated by the Chief Justice, and of six Members
chosen by the National Assembly, three of whom shall
be nominated by the party having the largest number of
votes, and three by the party having the second largest
number of votes therein. The senior Justice in the
Commission shall be its Chairman. The Electoral
Commission shall be the sole judge of all contests
relating to the election, returns and qualifications of the
members of the National Assembly." It is imperative,
therefore, that we delve into the origin and history of this
constitutional provision and inquire into the intention of
its framers and the people who adopted it so that we
may properly appreciate its full meaning, import and
significance.
The original provision regarding this subject in the Act of
Congress of July 1, 1902 (sec. 7, par. 5) laying down the
rule that "the assembly shall be the judge of the
elections, returns, and qualifications of its members",
was taken from clause 1 of section 5, Article I of the
Constitution of the United States providing that "Each
House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members, . . . ." The Act of
Congress of August 29, 1916 (sec. 18, par. 1) modified
this provision by the insertion of the word "sole" as
follows: "That the Senate and House of Representatives,
respectively, shall be the sole judges of the elections,
returns, and qualifications of their elective members . . ."
apparently in order to emphasize the exclusive the
Legislative over the particular case s therein specified.
This court has had occasion to characterize this grant of
power to the Philippine Senate and House of
Representatives, respectively, as "full, clear and
complete" (Veloso vs. Boards of Canvassers of Leyte
and Samar [1919], 39 Phil., 886, 888.)
The first step towards the creation of an independent
tribunal for the purpose of deciding contested elections
to the legislature was taken by the sub-committee of five
appointed by the Committee on Constitutional
Guarantees of the Constitutional Convention, which sub-
committee submitted a report on August 30, 1934,
recommending the creation of a Tribunal of
Constitutional Security empowered to hear legislature
but also against the election of executive officers for
whose election the vote of the whole nation is required,
as well as to initiate impeachment proceedings against
specified executive and judicial officer. For the purpose
of hearing legislative protests, the tribunal was to be
composed of three justices designated by the Supreme
Court and six members of the house of the legislature to
which the contest corresponds, three members to be
designed by the majority party and three by the minority,
to be presided over by the Senior Justice unless the
Chief Justice is also a member in which case the latter
shall preside. The foregoing proposal was submitted by
the Committee on Constitutional Guarantees to the
Convention on September 15, 1934, with slight
modifications consisting in the reduction of the legislative
representation to four members, that is, two senators to
be designated one each from the two major parties in the
Senate and two representatives to be designated one
each from the two major parties in the House of
Representatives, and in awarding representation to the
executive department in the persons of two
representatives to be designated by the President.
Meanwhile, the Committee on Legislative Power was
also preparing its report. As submitted to the Convention
on September 24, 1934 subsection 5, section 5, of the
proposed Article on the Legislative Department, reads as
follows:
The elections, returns and qualifications of the
members of either house and all cases
contesting the election of any of their members
shall be judged by an Electoral Commission,
constituted, as to each House, by three
members elected by the members of the party
having the largest number of votes therein, three
90
elected by the members of the party having the
second largest number of votes, and as to its
Chairman, one Justice of the Supreme Court
designated by the Chief Justice.
The idea of creating a Tribunal of Constitutional Security
with comprehensive jurisdiction as proposed by the
Committee on Constitutional Guarantees which was
probably inspired by the Spanish plan (art. 121,
Constitution of the Spanish Republic of 1931), was soon
abandoned in favor of the proposition of the Committee
on Legislative Power to create a similar body with
reduced powers and with specific and limited jurisdiction,
to be designated as a Electoral Commission. The
Sponsorship Committee modified the proposal of the
Committee on Legislative Power with respect to the
composition of the Electoral Commission and made
further changes in phraseology to suit the project of
adopting a unicameral instead of a bicameral legislature.
The draft as finally submitted to the Convention on
October 26, 1934, reads as follows:
(6) The elections, returns and qualifications of
the Members of the National Assembly and all
cases contesting the election of any of its
Members shall be judged by an Electoral
Commission, composed of three members
elected by the party having the largest number
of votes in the National Assembly, three elected
by the members of the party having the second
largest number of votes, and three justices of the
Supreme Court designated by the Chief Justice,
the Commission to be presided over by one of
said justices.
During the discussion of the amendment introduced by
Delegates Labrador, Abordo, and others, proposing to
strike out the whole subsection of the foregoing draft and
inserting in lieu thereof the following: "The National
Assembly shall be the soled and exclusive judge of the
elections, returns, and qualifications of the Members",
the following illuminating remarks were made on the floor
of the Convention in its session of December 4, 1934, as
to the scope of the said draft:
xxx xxx xxx
Mr. VENTURA. Mr. President, we have a doubt
here as to the scope of the meaning of the first
four lines, paragraph 6, page 11 of the draft,
reading: "The elections, returns and
qualifications of the Members of the National
Assembly and all cases contesting the election
of any of its Members shall be judged by an
Electoral Commission, . . ." I should like to ask
from the gentleman from Capiz whether the
election and qualification of the member whose
elections is not contested shall also be judged
by the Electoral Commission.
Mr. ROXAS. If there is no question about the
election of the members, there is nothing to be
judged; that is why the word "judge" is used to
indicate a controversy. If there is no question
about the election of a member, there is nothing
to be submitted to the Electoral Commission and
there is nothing to be determined.
Mr. VENTURA. But does that carry the idea also
that the Electoral Commission shall confirm also
the election of those whose election is not
contested?
Mr. ROXAS. There is no need of confirmation.
As the gentleman knows, the action of the
House of Representatives confirming the
election of its members is just a matter of the
rules of the assembly. It is not constitutional. It is
not necessary. After a man files his credentials
that he has been elected, that is sufficient,
unless his election is contested.
 Mr. VENTURA. But I do not believe that that is
sufficient, as we have observed that for
purposes of the auditor, in the matter of election
of a member to a legislative body, because he
will not authorize his pay.
Mr. ROXAS. Well, what is the case with regards
to the municipal president who is elected? What
happens with regards to the councilors of a
municipality? Does anybody confirm their
election? The municipal council does this: it
makes a canvass and proclaims — in this case
the municipal council proclaims who has been
elected, and it ends there, unless there is a
contest. It is the same case; there is no need on
the part of the Electoral Commission unless
there is a contest. The first clause refers to the
case referred to by the gentleman from Cavite
where one person tries to be elected in place of
another who was declared elected. From
example, in a case when the residence of the
man who has been elected is in question, or in
case the citizenship of the man who has been
elected is in question.
However, if the assembly desires to annul the
power of the commission, it may do so by certain
maneuvers upon its first meeting when the
returns are submitted to the assembly. The
purpose is to give to the Electoral Commission
all the powers exercised by the assembly
referring to the elections, returns and
qualifications of the members. When there is no
contest, there is nothing to be judged.
Mr. VENTURA. Then it should be eliminated.
Mr. ROXAS. But that is a different matter, I think
Mr. Delegate.
Mr. CINCO. Mr. President, I have a similar
question as that propounded by the gentleman
from Ilocos Norte when I arose a while ago.
However I want to ask more questions from the
delegate from Capiz. This paragraph 6 on page
11 of the draft cites cases contesting the election
as separate from the first part of the sections
which refers to elections, returns and
qualifications.
Mr. ROXAS. That is merely for the sake of
clarity. In fact the cases of contested elections
are already included in the phrase "the
elections, returns and qualifications." This
phrase "and contested elections" was inserted
merely for the sake of clarity.
Mr. CINCO. Under this paragraph, may not the
Electoral Commission, at its own instance,
refuse to confirm the elections of the members."
Mr. ROXAS. I do not think so, unless there is a
protest.
Mr. LABRADOR. Mr. President, will the
gentleman yield?
THE PRESIDENT. The gentleman may yield, if
he so desires.
Mr. ROXAS. Willingly.
Mr. LABRADOR. Does not the gentleman from
Capiz believe that unless this power is granted
to the assembly, the assembly on its own motion
does not have the right to contest the election
and qualification of its members?
Mr. ROXAS. I have no doubt but that the
gentleman is right. If this draft is retained as it is,
even if two-thirds of the assembly believe that a
member has not the qualifications provided by
law, they cannot remove him for that reason.
91
Mr. LABRADOR. So that the right to remove
shall only be retained by the Electoral
Commission.
Mr. ROXAS. By the assembly for misconduct.
Mr. LABRADOR. I mean with respect to the
qualifications of the members.
Mr. ROXAS. Yes, by the Electoral Commission.
Mr. LABRADOR. So that under this draft, no
member of the assembly has the right to
question the eligibility of its members?
Mr. ROXAS. Before a member can question the
eligibility, he must go to the Electoral
Commission and make the question before the
Electoral Commission.
Mr. LABRADOR. So that the Electoral
Commission shall decide whether the election is
contested or not contested.
Mr. ROXAS. Yes, sir: that is the purpose.
Mr. PELAYO. Mr. President, I would like to be
informed if the Electoral Commission has power
and authority to pass upon the qualifications of
the members of the National Assembly even
though that question has not been raised.
Mr. ROXAS. I have just said that they have no
power, because they can only judge.
In the same session, the first clause of the aforesaid
draft reading "The election, returns and qualifications of
the members of the National Assembly and" was
eliminated by the Sponsorship Committee in response to
an amendment introduced by Delegates Francisco,
Ventura, Vinzons, Rafols, Lim, Mumar and others. In
explaining the difference between the original draft and
the draft as amended, Delegate Roxas speaking for the
Sponsorship Committee said:
xxx xxx xxx
Sr. ROXAS. La diferencia, señor Presidente,
consiste solamente en obviar la objecion
apuntada por varios Delegados al efecto de que
la primera clausula del draft que dice: "The
elections, returns and qualifications of the
members of the National Assembly" parece que
da a la Comision Electoral la facultad de
determinar tambien la eleccion de los miembros
que no ha sido protestados y para obviar esa
dificultad, creemos que la enmienda tien razon
en ese sentido, si enmendamos el draft, de tal
modo que se lea como sigue: "All cases
contesting the election", de modo que los jueces
de la Comision Electoral se limitaran solamente
a los casos en que haya habido protesta contra
las actas." Before the amendment of Delegate
Labrador was voted upon the following
interpellation also took place:
El Sr. CONEJERO. Antes de votarse la
enmienda, quisiera
El Sr. PRESIDENTE. ¿Que dice el Comite?
El Sr. ROXAS. Con mucho gusto.
El Sr. CONEJERO. Tal como esta el draft, dando
tres miembros a la mayoria, y otros tres a la
minoria y tres a la Corte Suprema, ¿no cree Su
Señoria que esto equivale practicamente a dejar
el asunto a los miembros del Tribunal Supremo?
El Sr. ROXAS. Si y no. Creemos que si el
tribunal o la Commission esta constituido en esa
forma, tanto los miembros de la mayoria como
los de la minoria asi como los miembros de la
Corte Suprema consideraran la cuestion sobre
la base de sus meritos, sabiendo que el
partidismo no es suficiente para dar el triunfo.
El Sr. CONEJERO. ¿Cree Su Señoria que en un
caso como ese, podriamos hacer que tanto los
 de la mayoria como los de la minoria
prescindieran del partidismo?
El Sr. ROXAS. Creo que si, porque el partidismo
no les daria el triunfo.
xxx xxx xxx
The amendment introduced by Delegates Labrador,
Abordo and others seeking to restore the power to
decide contests relating to the election, returns and
qualifications of members of the National Assembly to
the National Assembly itself, was defeated by a vote of
ninety-eight (98) against fifty-six (56).
In the same session of December 4, 1934, Delegate
Cruz (C.) sought to amend the draft by reducing the
representation of the minority party and the Supreme
Court in the Electoral Commission to two members each,
so as to accord more representation to the majority
party. The Convention rejected this amendment by a
vote of seventy-six (76) against forty-six (46), thus
maintaining the non-partisan character of the
commission.
As approved on January 31, 1935, the draft was made to
read as follows:
(6) All cases contesting the elections, returns
and qualifications of the Members of the
National Assembly shall be judged by an
Electoral Commission, composed of three
members elected by the party having the largest
number of votes in the National Assembly, three
elected by the members of the party having the
second largest number of votes, and three
justices of the Supreme Court designated by the
Chief Justice, the Commission to be presided
over by one of said justices.
The Style Committee to which the draft was submitted
revised it as follows:
SEC. 4. There shall be an Electoral Commission
composed of three Justices of the Supreme
Court designated by the Chief Justice, and of six
Members chosen by the National Assembly,
three of whom shall be nominated by the party
having the largest number of votes, and three by
the party having the second largest number of
votes therein. The senior Justice in the
Commission shall be its chairman. The Electoral
Commission shall be the sole judge of the
election, returns, and qualifications of the
Members of the National Assembly.
When the foregoing draft was submitted for approval on
February 8, 1935, the Style Committee, through
President Recto, to effectuate the original intention of the
Convention, agreed to insert the phrase "All contests
relating to" between the phrase "judge of" and the words
"the elections", which was accordingly accepted by the
Convention.
The transfer of the power of determining the election,
returns and qualifications of the members of the
legislature long lodged in the legislative body, to an
independent, impartial and non-partisan tribunal, is by no
means a mere experiment in the science of government.
Cushing, in his Law and Practice of Legislative
Assemblies (ninth edition, chapter VI, pages 57, 58),
gives a vivid account of the "scandalously notorious"
canvassing of votes by political parties in the disposition
of contests by the House of Commons in the following
passages which are partly quoted by the petitioner in his
printed memorandum of March 14, 1936:
153. From the time when the commons
established their right to be the exclusive judges
of the elections, returns, and qualifications of
their members, until the year 1770, two modes
of proceeding prevailed, in the determination of
controverted elections, and rights of
92
membership. One of the standing committees
appointed at the commencement of each
session, was denominated the committee of
privileges and elections, whose functions was to
hear and investigate all questions of this
description which might be referred to them, and
to report their proceedings, with their opinion
thereupon, to the house, from time to time.
When an election petition was referred to this
committee they heard the parties and their
witnesses and other evidence, and made a
report of all the evidence, together with their
opinion thereupon, in the form of resolutions,
which were considered and agreed or disagreed
to by the house. The other mode of proceeding
was by a hearing at the bar of the house itself.
When this court was adopted, the case was
heard and decided by the house, in substantially
the same manner as by a committee. The
committee of privileges and elections although a
select committee. The committee of privileges
and elections although a select committee was
usually what is called an open one; that is to say,
in order to constitute the committee, a quorum of
the members named was required to be present,
but all the members of the house were at liberty
to attend the committee and vote if they pleased.
154. With the growth of political parties in
parliament questions relating to the right of
membership gradually assumed a political
character; so that for many years previous to the
year 1770, controverted elections had been tried
and determined by the house of commons, as
mere party questions, upon which the strength of
contending factions might be tested. Thus, for
Example, in 1741, Sir Robert Walpole, after
repeated attacks upon his government, resigned
his office in consequence of an adverse vote
upon the Chippenham election. Mr. Hatsell
remarks, of the trial of election cases, as
conducted under this system, that "Every
principle of decency and justice were notoriously
and openly prostituted, from whence the
younger part of the house were insensibly, but
too successfully, induced to adopt the same
licentious conduct in more serious matters, and
in questions of higher importance to the public
welfare." Mr. George Grenville, a distinguished
member of the house of commons, undertook to
propose a remedy for the evil, and, on the 7th of
March, 1770, obtained the unanimous leave of
the house to bring in a bill, "to regulate the trial
of controverted elections, or returns of members
to serve in parliament." In his speech to explain
his plan, on the motion for leave, Mr. Grenville
alluded to the existing practice in the following
terms: "Instead of trusting to the merits of their
respective causes, the principal dependence of
both parties is their private interest among us;
and it is scandalously notorious that we are as
earnestly canvassed to attend in favor of the
opposite sides, as if we were wholly self-
elective, and not bound to act by the principles
of justice, but by the discretionary impulse of our
own inclinations; nay, it is well known, that in
every contested election, many members of this
house, who are ultimately to judge in a kind of
judicial capacity between the competitors, enlist
themselves as parties in the contention, and
take upon themselves the partial management of
the very business, upon which they should
determine with the strictest impartiality."
155. It was to put an end to the practices thus
described, that Mr. Grenville brought in a bill
 which met with the approbation of both houses,
and received the royal assent on the 12th of
April, 1770. This was the celebrated law since
known by the name of the Grenville Act; of which
Mr. Hatsell declares, that it "was one of the
nobles works, for the honor of the house of
commons, and the security of the constitution,
that was ever devised by any minister or
statesman." It is probable, that the magnitude of
the evil, or the apparent success of the remedy,
may have led many of the contemporaries of the
measure to the information of a judgement,
which was not acquiesced in by some of the
leading statesmen of the day, and has not been
entirely confirmed by subsequent experience.
The bill was objected to by Lord North, Mr. De
Grey, afterwards chief justice of the common
pleas, Mr. Ellis, Mr. Dyson, who had been clerk
of the house, and Mr. Charles James Fox,
chiefly on the ground, that the introduction of the
new system was an essential alteration of the
constitution of parliament, and a total abrogation
of one of the most important rights and
jurisdictions of the house of commons.
As early as 1868, the House of Commons in England
solved the problem of insuring the non-partisan
settlement of the controverted elections of its members
by abdicating its prerogative to two judges of the King's
Bench of the High Court of Justice selected from a rota
in accordance with rules of court made for the purpose.
Having proved successful, the practice has become
imbedded in English jurisprudence (Parliamentary
Elections Act, 1868 [31 & 32 Vict. c. 125] as amended by
Parliamentary Elections and Corrupt Practices Act. 1879
[42 & 43 Vict. c. 75], s. 2; Corrupt and Illegal Practices
Preventions Act, 1883 [46 & 47 Vict. c. 51;, s. 70;
Expiring Laws Continuance Act, 1911 [1 & 2 Geo. 5, c.
22]; Laws of England, vol. XII, p. 408, vol. XXI, p. 787).
In the Dominion of Canada, election contests which were
originally heard by the Committee of the House of
Commons, are since 1922 tried in the courts. Likewise,
in the Commonwealth of Australia, election contests
which were originally determined by each house, are
since 1922 tried in the High Court. In Hungary, the
organic law provides that all protests against the election
of members of the Upper House of the Diet are to be
resolved by the Supreme Administrative Court (Law 22
of 1916, chap. 2, art. 37, par. 6). The Constitution of
Poland of March 17, 1921 (art. 19) and the Constitution
of the Free City of Danzig of May 13, 1922 (art. 10) vest
the authority to decide contested elections to the Diet or
National Assembly in the Supreme Court. For the
purpose of deciding legislative contests, the Constitution
of the German Reich of July 1, 1919 (art. 31), the
Constitution of the Czechoslovak Republic of February
29, 1920 (art. 19) and the Constitution of the Grecian
Republic of June 2, 1927 (art. 43), all provide for an
Electoral Commission.
The creation of an Electoral Commission whose
membership is recruited both from the legislature and
the judiciary is by no means unknown in the United
States. In the presidential elections of 1876 there was a
dispute as to the number of electoral votes received by
each of the two opposing candidates. As the Constitution
made no adequate provision for such a contingency,
Congress passed a law on January 29, 1877 (United
States Statutes at Large, vol. 19, chap. 37, pp. 227-229),
creating a special Electoral Commission composed of
five members elected by the Senate, five members
elected by the House of Representatives, and five
justices of the Supreme Court, the fifth justice to be
selected by the four designated in the Act. The decision
of the commission was to be binding unless rejected by
the two houses voting separately. Although there is not
93
much of a moral lesson to be derived from the
experience of America in this regard, judging from the
observations of Justice Field, who was a member of that
body on the part of the Supreme Court (Countryman, the
Supreme Court of the United States and its Appellate
Power under the Constitution [Albany, 1913] —
Relentless Partisanship of Electoral Commission, p.
25 et seq.), the experiment has at least abiding historical
interest.
The members of the Constitutional Convention who
framed our fundamental law were in their majority men
mature in years and experience. To be sure, many of
them were familiar with the history and political
development of other countries of the world. When ,
therefore, they deemed it wise to create an Electoral
Commission as a constitutional organ and invested it
with the exclusive function of passing upon and
determining the election, returns and qualifications of the
members of the National Assembly, they must have done
so not only in the light of their own experience but also
having in view the experience of other enlightened
peoples of the world. The creation of the Electoral
Commission was designed to remedy certain evils of
which the framers of our Constitution were cognizant.
Notwithstanding the vigorous opposition of some
members of the Convention to its creation, the plan, as
hereinabove stated, was approved by that body by a
vote of 98 against 58. All that can be said now is that,
upon the approval of the constitutional the creation of the
Electoral Commission is the expression of the wisdom
and "ultimate justice of the people". (Abraham Lincoln,
First Inaugural Address, March 4, 1861.)
From the deliberations of our Constitutional Convention it
is evident that the purpose was to transfer in its totality
all the powers previously exercised by the legislature in
matters pertaining to contested elections of its members,
to an independent and impartial tribunal. It was not so
much the knowledge and appreciation of contemporary
constitutional precedents, however, as the long-felt need
of determining legislative contests devoid of partisan
considerations which prompted the people, acting
through their delegates to the Convention, to provide for
this body known as the Electoral Commission. With this
end in view, a composite body in which both the majority
and minority parties are equally represented to off-set
partisan influence in its deliberations was created, and
further endowed with judicial temper by including in its
membership three justices of the Supreme Court.
The Electoral Commission is a constitutional creation,
invested with the necessary authority in the performance
and execution of the limited and specific function
assigned to it by the Constitution. Although it is not a
power in our tripartite scheme of government, it is, to all
intents and purposes, when acting within the limits of its
authority, an independent organ. It is, to be sure, closer
to the legislative department than to any other. The
location of the provision (section 4) creating the Electoral
Commission under Article VI entitled "Legislative
Department" of our Constitution is very indicative. Its
compositions is also significant in that it is constituted by
a majority of members of the legislature. But it is a body
separate from and independent of the legislature.
The grant of power to the Electoral Commission to judge
all contests relating to the election, returns and
qualifications of members of the National Assembly, is
intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express
lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the
National Assembly. And this is as effective a restriction
upon the legislative power as an express prohibition in
the Constitution (Ex parte Lewis, 45 Tex. Crim. Rep., 1;
State vs.Whisman, 36 S.D., 260; L.R.A., 1917B, 1). If we
concede the power claimed in behalf of the National
Assembly that said body may regulate the proceedings
of the Electoral Commission and cut off the power of the
commission to lay down the period within which protests
should be filed, the grant of power to the commission
would be ineffective. The Electoral Commission in such
case would be invested with the power to determine
contested cases involving the election, returns and
qualifications of the members of the National Assembly
but subject at all times to the regulative power of the
National Assembly. Not only would the purpose of the
framers of our Constitution of totally transferring this
authority from the legislative body be frustrated, but a
dual authority would be created with the resultant
inevitable clash of powers from time to time. A sad
spectacle would then be presented of the Electoral
Commission retaining the bare authority of taking
cognizance of cases referred to, but in reality without the
necessary means to render that authority effective
whenever and whenever the National Assembly has
chosen to act, a situation worse than that intended to be
remedied by the framers of our Constitution. The power
to regulate on the part of the National Assembly in
procedural matters will inevitably lead to the ultimate
control by the Assembly of the entire proceedings of the
Electoral Commission, and, by indirection, to the entire
abrogation of the constitutional grant. It is obvious that
this result should not be permitted.
We are not insensible to the impassioned argument or
the learned counsel for the petitioner regarding the
importance and necessity of respecting the dignity and
independence of the national Assembly as a coordinate
department of the government and of according validity
to its acts, to avoid what he characterized would be
practically an unlimited power of the commission in the
admission of protests against members of the National
Assembly. But as we have pointed out hereinabove, the
creation of the Electoral Commission carried with it ex
necesitate rei the power regulative in character to limit
the time with which protests intrusted to its cognizance
should be filed. It is a settled rule of construction that
where a general power is conferred or duty enjoined,
every particular power necessary for the exercise of the
one or the performance of the other is also conferred
(Cooley, Constitutional Limitations, eight ed., vol. I, pp.
138, 139). In the absence of any further constitutional
provision relating to the procedure to be followed in filing
protests before the Electoral Commission, therefore, the
incidental power to promulgate such rules necessary for
the proper exercise of its exclusive power to judge all
contests relating to the election, returns and
qualifications of members of the National Assembly,
must be deemed by necessary implication to have been
lodged also in the Electoral Commission.
It is, indeed, possible that, as suggested by counsel for
the petitioner, the Electoral Commission may abuse its
regulative authority by admitting protests beyond any
reasonable time, to the disturbance of the tranquillity and
peace of mind of the members of the National Assembly.
But the possibility of abuse is not argument against the
concession of the power as there is no power that is not
susceptible of abuse. In the second place, if any mistake
has been committed in the creation of an Electoral
Commission and in investing it with exclusive jurisdiction
in all cases relating to the election, returns, and
qualifications of members of the National Assembly, the
remedy is political, not judicial, and must be sought
through the ordinary processes of democracy. All the
possible abuses of the government are not intended to
be corrected by the judiciary. We believe, however, that
the people in creating the Electoral Commission reposed
as much confidence in this body in the exclusive
determination of the specified cases assigned to it, as
they have given to the Supreme Court in the proper
cases entrusted to it for decision. All the agencies of the
94
government were designed by the Constitution to
achieve specific purposes, and each constitutional organ
working within its own particular sphere of discretionary
action must be deemed to be animated with the same
zeal and honesty in accomplishing the great ends for
which they were created by the sovereign will. That the
actuations of these constitutional agencies might leave
much to be desired in given instances, is inherent in the
perfection of human institutions. In the third place, from
the fact that the Electoral Commission may not be
interfered with in the exercise of its legitimate power, it
does not follow that its acts, however illegal or
unconstitutional, may not be challenge in appropriate
cases over which the courts may exercise jurisdiction.
But independently of the legal and constitutional aspects
of the present case, there are considerations of equitable
character that should not be overlooked in the
appreciation of the intrinsic merits of the controversy.
The Commonwealth Government was inaugurated on
November 15, 1935, on which date the Constitution,
except as to the provisions mentioned in section 6 of
Article XV thereof, went into effect. The new National
Assembly convened on November 25th of that year, and
the resolution confirming the election of the petitioner,
Jose A. Angara was approved by that body on December
3, 1935. The protest by the herein respondent Pedro
Ynsua against the election of the petitioner was filed on
December 9 of the same year. The pleadings do not
show when the Electoral Commission was formally
organized but it does appear that on December 9, 1935,
the Electoral Commission met for the first time and
approved a resolution fixing said date as the last day for
the filing of election protest. When, therefore, the
National Assembly passed its resolution of December 3,
1935, confirming the election of the petitioner to the
National Assembly, the Electoral Commission had not
yet met; neither does it appear that said body had
actually been organized. As a mater of fact, according to
certified copies of official records on file in the archives
division of the National Assembly attached to the record
of this case upon the petition of the petitioner, the three
justices of the Supreme Court the six members of the
National Assembly constituting the Electoral Commission
were respectively designated only on December 4 and 6,
1935. If Resolution No. 8 of the National Assembly
confirming non-protested elections of members of the
National Assembly had the effect of limiting or tolling the
time for the presentation of protests, the result would be
that the National Assembly — on the hypothesis that it
still retained the incidental power of regulation in such
cases — had already barred the presentation of protests
before the Electoral Commission had had time to
organize itself and deliberate on the mode and method
to be followed in a matter entrusted to its exclusive
jurisdiction by the Constitution. This result was not and
could not have been contemplated, and should be
avoided.
From another angle, Resolution No. 8 of the National
Assembly confirming the election of members against
whom no protests had been filed at the time of its
passage on December 3, 1935, can not be construed as
a limitation upon the time for the initiation of election
contests. While there might have been good reason for
the legislative practice of confirmation of the election of
members of the legislature at the time when the power to
decide election contests was still lodged in the
legislature, confirmation alone by the legislature cannot
be construed as depriving the Electoral Commission of
the authority incidental to its constitutional power to be
"the sole judge of all contest relating to the election,
returns, and qualifications of the members of the
National Assembly", to fix the time for the filing of said
election protests. Confirmation by the National Assembly
of the returns of its members against whose election no
protests have been filed is, to all legal purposes,
unnecessary. As contended by the Electoral Commission
in its resolution of January 23, 1936, overruling the
motion of the herein petitioner to dismiss the protest filed
by the respondent Pedro Ynsua, confirmation of the
election of any member is not required by the
Constitution before he can discharge his duties as such
member. As a matter of fact, certification by the proper
provincial board of canvassers is sufficient to entitle a
member-elect to a seat in the national Assembly and to
render him eligible to any office in said body (No. 1, par.
1, Rules of the National Assembly, adopted December 6,
1935).
Under the practice prevailing both in the English House
of Commons and in the Congress of the United States,
confirmation is neither necessary in order to entitle a
member-elect to take his seat. The return of the proper
election officers is sufficient, and the member-elect
presenting such return begins to enjoy the privileges of a
member from the time that he takes his oath of office
(Laws of England, vol. 12, pp. 331. 332; vol. 21, pp. 694,
695; U. S. C. A., Title 2, secs. 21, 25, 26). Confirmation
is in order only in cases of contested elections where the
decision is adverse to the claims of the protestant. In
England, the judges' decision or report in controverted
elections is certified to the Speaker of the House of
Commons, and the House, upon being informed of such
certificate or report by the Speaker, is required to enter
the same upon the Journals, and to give such directions
for confirming or altering the return, or for the issue of a
writ for a new election, or for carrying into execution the
determination as circumstances may require (31 & 32
Vict., c. 125, sec. 13). In the United States, it is believed,
the order or decision of the particular house itself is
generally regarded as sufficient, without any actual
alternation or amendment of the return (Cushing, Law
and Practice of Legislative Assemblies, 9th ed., sec.
166).
Under the practice prevailing when the Jones Law was
still in force, each house of the Philippine Legislature
fixed the time when protests against the election of any
of its members should be filed. This was expressly
authorized by section 18 of the Jones Law making each
house the sole judge of the election, return and
qualifications of its members, as well as by a law (sec.
478, Act No. 3387) empowering each house to
respectively prescribe by resolution the time and manner
of filing contest in the election of member of said bodies.
As a matter of formality, after the time fixed by its rules
for the filing of protests had already expired, each house
passed a resolution confirming or approving the returns
of such members against whose election no protests had
been filed within the prescribed time. This was
interpreted as cutting off the filing of further protests
against the election of those members not theretofore
contested (Amistad vs. Claravall [Isabela], Second
Philippine Legislature, Record — First Period, p. 89;
Urguello vs. Rama [Third District, Cebu], Sixth Philippine
Legislature; Fetalvero vs. Festin [Romblon], Sixth
Philippine Legislature, Record — First Period, pp. 637-
640; Kintanar vs. Aldanese [Fourth District, Cebu], Sixth
Philippine Legislature, Record — First Period, pp. 1121,
1122; Aguilar vs. Corpus [Masbate], Eighth Philippine
Legislature, Record — First Period, vol. III, No. 56, pp.
892, 893). The Constitution has repealed section 18 of
the Jones Law. Act No. 3387, section 478, must be
deemed to have been impliedly abrogated also, for the
reason that with the power to determine all contest
relating to the election, returns and qualifications of
members of the National Assembly, is inseparably linked
the authority to prescribe regulations for the exercise of
that power. There was thus no law nor constitutional
provisions which authorized the National Assembly to fix,
as it is alleged to have fixed on December 3, 1935, the
95
time for the filing of contests against the election of its
members. And what the National Assembly could not do
directly, it could not do by indirection through the medium
of confirmation.
Summarizing, we conclude:
(a) That the government established by the
Constitution follows fundamentally the theory of
separation of power into the legislative, the
executive and the judicial.
(b) That the system of checks and balances and
the overlapping of functions and duties often
makes difficult the delimitation of the powers
granted.
(c) That in cases of conflict between the several
departments and among the agencies thereof,
the judiciary, with the Supreme Court as the final
arbiter, is the only constitutional mechanism
devised finally to resolve the conflict and allocate
constitutional boundaries.
(d) That judicial supremacy is but the power of
judicial review in actual and appropriate cases
and controversies, and is the power and duty to
see that no one branch or agency of the
government transcends the Constitution, which
is the source of all authority.
(e) That the Electoral Commission is an
independent constitutional creation with specific
powers and functions to execute and perform,
closer for purposes of classification to the
legislative than to any of the other two
departments of the governments.
(f ) That the Electoral Commission is the sole
judge of all contests relating to the election,
returns and qualifications of members of the
National Assembly.
(g) That under the organic law prevailing before
the present Constitution went into effect, each
house of the legislature was respectively the
sole judge of the elections, returns, and
qualifications of their elective members.
(h) That the present Constitution has transferred
all the powers previously exercised by the
legislature with respect to contests relating to the
elections, returns and qualifications of its
members, to the Electoral Commission.
(i) That such transfer of power from the
legislature to the Electoral Commission was full,
clear and complete, and carried with it ex
necesitate rei the implied power inter alia to
prescribe the rules and regulations as to the time
and manner of filing protests.
( j) That the avowed purpose in creating the
Electoral Commission was to have an
independent constitutional organ pass upon all
contests relating to the election, returns and
qualifications of members of the National
Assembly, devoid of partisan influence or
consideration, which object would be frustrated if
the National Assembly were to retain the power
to prescribe rules and regulations regarding the
manner of conducting said contests.
(k) That section 4 of article VI of the Constitution
repealed not only section 18 of the Jones Law
making each house of the Philippine Legislature
respectively the sole judge of the elections,
returns and qualifications of its elective
members, but also section 478 of Act No. 3387
empowering each house to prescribe by
resolution the time and manner of filing contests
against the election of its members, the time and
manner of notifying the adverse party, and bond
 or bonds, to be required, if any, and to fix the
costs and expenses of contest.
(l) That confirmation by the National Assembly of
the election is contested or not, is not essential
before such member-elect may discharge the
duties and enjoy the privileges of a member of
the National Assembly.
(m) That confirmation by the National Assembly
of the election of any member against whom no
protest had been filed prior to said confirmation,
does not and cannot deprive the Electoral
Commission of its incidental power to prescribe
the time within which protests against the
election of any member of the National
Assembly should be filed.
We hold, therefore, that the Electoral Commission was
acting within the legitimate exercise of its constitutional
prerogative in assuming to take cognizance of the
protest filed by the respondent Pedro Ynsua against the
election of the herein petitioner Jose A. Angara, and that
the resolution of the National Assembly of December 3,
1935 can not in any manner toll the time for filing
protests against the elections, returns and qualifications
of members of the National Assembly, nor prevent the
filing of a protest within such time as the rules of the
Electoral Commission might prescribe.
In view of the conclusion reached by us relative to the
character of the Electoral Commission as a constitutional
creation and as to the scope and extent of its authority
under the facts of the present controversy, we deem it
unnecessary to determine whether the Electoral
Commission is an inferior tribunal, corporation, board or
person within the purview of sections 226 and 516 of the
Code of Civil Procedure.
The petition for a writ of prohibition against the Electoral
Commission is hereby denied, with costs against the
petitioner. So ordered.
Angara v. Electoral Commission, G.R. No. L-45081,
July 15, 1936
DECISION
(En Banc)
LAUREL, J.:
I. THE FACTS
Petitioner Jose Angara was proclaimed winner
and took his oath of office as member of the National
Assembly of the Commonwealth Government. On
December 3, 1935, the National Assembly passed a
resolution confirming the election of those who have not
been subject of an election protest prior to the adoption
of the said resolution.
On December 8, 1935, however, private
respondent Pedro Ynsua filed an election protest against
the petitioner before the Electoral Commission of the
National Assembly. The following day, December 9,
1935, the Electoral Commission adopted its own
resolution providing that it will not consider any election
protest that was not submitted on or before December 9,
1935.
Citing among others the earlier resolution of the
National Assembly, the petitioner sought the dismissal of
respondent’s protest. The Electoral Commission
however denied his motion.
II. THE ISSUE
Did the Electoral Commission act without or in
excess of its jurisdiction in taking cognizance of the
96
protest filed against the election of the petitioner
notwithstanding the previous confirmation of such
election by resolution of the National Assembly?
III. THE RULING
[The Court DENIED the petition.]
NO, the Electoral Commission did not act
without or in excess of its jurisdiction in taking
cognizance of the protest filed against the election
of the petitioner notwithstanding the previous
confirmation of such election by resolution of the
National Assembly.
The Electoral Commission acted within the
legitimate exercise of its constitutional prerogative in
assuming to take cognizance of the protest filed by the
respondent Ynsua against the election of the petitioner
Angara, and that the earlier resolution of the National
Assembly cannot in any manner toll the time for filing
election protests against members of the National
Assembly, nor prevent the filing of a protest within such
time as the rules of the Electoral Commission might
prescribe.
The grant of power to the Electoral Commission
to judge all contests relating to the election, returns and
qualifications of members of the National Assembly, is
intended to be as complete and unimpaired as if it had
remained originally in the legislature. The express
lodging of that power in the Electoral Commission is an
implied denial of the exercise of that power by the
National Assembly. xxx.
[T]he creation of the Electoral Commission
carried with it ex necesitate rei the power regulative in
character to limit the time with which protests intrusted to
its cognizance should be filed. [W]here a general power
is conferred or duty enjoined, every particular power
necessary for the exercise of the one or the performance
of the other is also conferred. In the absence of any
further constitutional provision relating to the procedure
to be followed in filing protests before the Electoral
Commission, therefore, the incidental power to
promulgate such rules necessary for the proper exercise
of its exclusive power to judge all contests relating to the
election, returns and qualifications of members of the
National Assembly, must be deemed by necessary
implication to have been lodged also in the Electoral
Commission.
G.R. No. 97105 October 15, 1991
ROSETTE YNIGUEZ LERIAS, petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL
TRIBUNAL and ROGER G. MERCADO, respondent.
Lino M. Patajo for petitioner.
Brillantes, Nachua, Navarro & Arcilla Law Offices for
private respondent.
PARAS, J.:
Politicians who are members of electoral tribunals, must
think and act like judges, accordingly, they must resolve
election controversies with judicial, not political, integrity.
The independence of the House of Representatives
Electoral Tribunal, (HRET, for brevity) as a constitutional
body has time and again been upheld by this Court in
many cases. (Lazatin v. House Electoral Tribunal, 168
SCRA 391; Robles v. House of Representatives
Electoral Tribunal, 181 SCRA 780). The power of the
HRET, as the "sole judge" of all contests relating to the
election returns and qualifications of its members is
 beyond dispute. (Art. VI, Sec. 17 of the 1987
Constitution) Thus, judicial review of decisions or final
resolutions of the HRET is possible only in the exercise
of this Court's so-called "extra-ordinary jurisdiction" –
upon a determination that the tribunal's decision or
resolution was rendered without or in excess of its
jurisdiction or with grave abuse of discretion or upon a
clear showing of such arbitrary and improvident use by
the Tribunal of its power as constitutes a denial of due
process of law, or upon a demonstration of a very clear
unmitigated error, manifestly constituting such a grave
abuse of discretion that there has to be a remedy for
such abuse. (Morrero v. Bocar, 66 Phil. 429, 431; Lazatin
v. House Electoral Tribunal, supra; Robles v.
HRET, supra) Then only where such grave abuse of
discretion is clearly shown that the Court interferes with
the HRET's judgment or decision.
Accordingly, it is in this light that We shall proceed to
examine the contentions of the parties in this case.
Petitioner Rosette Y. Lerias filed her certificate of
candidacy as the official candidate of the UPP-KBL for
the position of Representative for the lone district of
Southern Leyte in the May 11, 1987 elections. In her
certificate of candidacy she gave her full name as
"Rosette Ynigues Lerias". Her maiden name is Rosette
Ynigues. Respondent Roger G. Mercado was the
administration candidate for the same position.
During the canvass of votes for the congressional
candidates by the Provincial Board of Canvassers of
Southern Leyte, it appeared that, excluding the
certificate of canvass from the Municipality of Libagon
which had been questioned by Mercado on the ground
that allegedly it had been tampered with, the candidates
who received the two (2) highest number of votes were
Roger G. Mercado with 34,442 votes and Rosette Y.
Lerias with 34,128 votes, respectively.
In the provincial board's copy of the certificate of
canvass for the municipality of Libagon, Lerias received
1,811 votes while Mercado received 1,351. Thus, if said
copy would be the one to be included in the canvass,
Lerias would have received 35,939 votes as against
Mercado's 35,793 votes, giving Lerias a winning margin
of 146 votes. But, the provincial board of canvassers
ruled that their copy of the certificate of canvass
contained erasures, alterations and superimpositions
and therefore, cannot be used as basis of the canvass.
The provincial board of canvassers rejected the
explanation of the members of the municipal board of
canvassers of Libagon that said corrections were made
to correct honest clerical mistakes which did not affect
the integrity of the certificate and said corrections were
made in the presence of the watchers of all the nine (9)
candidates for the position, including those of Mercado
who offered no objection.
Lerias appealed the ruling of the provincial board of
canvassers to the Comelec praying that the Commission
order the provincial board of canvassers to use their
copy of the certificate of canvass for Libagon.
At the scheduled hearing on June 5, 1987, Atty.
Valeriano Tumol, then counsel for Lerias, agreed to use
the Comelec copy of the certificate of canvass provided
that it be found to be authentic and genuine. A similar
reservation was made by counsel for Mercado.
The Comelec copy of the certificate of canvass was
produced and when opened it showed that Lerias
received only 1,411 votes in Libagon because in
Precincts 6, 10, 18 and 19 she received in each of the
said precincts 100 votes less than what she received as
shown in the provincial board of canvasser's copy of the
certificate of canvass. The alleged discrepancy is as
follows:
Precinct Provincial Board of Comelec
97
Canvassers's Copy Copy
"6 162 votes 62
votes
" 10 123 " 23 "
" 18 132 " 32 "
" 19 156 " 56 "
Nevertheless, the Comelec, (Second Division) in its
Resolution dated June 6, 1987, directed the provincial
board of canvassers to complete the canvass by
crediting Mercado 1,351 votes and Lerias 1,411 votes,
the votes received by them, respectively, as shown in the
Comelec copy of the certificate of canvas. So, on June 7,
1987, the provincial board of canvassers reconvened,
resumed the canvass and proclaimed Mercado, as the
winning candidate, having received the highest number
of votes – 35,793. Lerias, his closest rival, received
35,539 votes or a difference of 254 votes. On June 7,
1987, Lerias filed an urgent ex-parte motion for the
reconsideration of the June 6, 1987 resolution. She
prayed that the members of the municipal board of
canvassers be summoned to testify on the authenticity
and veracity of the Comelec copy of the certificate of
canvass and statement of votes submitted to the
Comelec and that the election returns for precincts 6, 10,
18 & 19 be produced.
On June 15, 1987 Lerias filed with the Comelec a
petition (SPC No. 87-488) for the annulment of the
canvass and proclamation of Mercado, praying that the
ballot boxes of precints 6, 10, 18 & 19 of Libagon be
ordered opened and the votes therein recounted. On
June 21, 1987, she filed a motion to suspend the effects
of the proclamation of Mercado.
There being no action taken by the Comelec on the said
motion and since the term of office of the members of
the House of Representatives would commence on June
30, 1987, Lerias filed on June 30, 1987 before this Court
a petition (G.R. No. 78833) for the annulment of the
Comelec resolution of June 6, 1987 and the
proclamation of Mercado.
Meanwhile, in SPC-87-488, the Comelec en
banc required Mercado to file an answer. Instead of filing
an answer, however, Mercado filed a motion to dismiss
on the grounds that (a) the resolution dated June 6, 1987
had already become final because the motion for
reconsideration filed by Lerias was ex-parte and did not
stop the running of the period to appeal therefrom and
(b) since Lerias filed with the Supreme Court a petition
for the annulment of the Comelec's June 6, 1987
resolution and the subsequent proclamation of Mercado,
she had abandoned her previous petition with the
Comelec.
At the scheduled hearing on June 16, 1987 of SPC-87-
488, the members of the municipal board of canvassers
of Libagon and the school teachers who served as
inspectors of Precincts 6, 10, 18 and 19 were present
and manifested that they were ready to testify and affirm
that the Comelec copy of the certificate of canvass was
not authentic for it did not correctly state the number of
votes received by the parties since Lerias actually
obtained 1,811 votes in Libagon, not 1,411 votes. The
Comelec did not want to hear the case on the merits
opting instead to merely hear Mercado's motion to
dismiss. The said witnesses were not given the chance
to testify.
On June 17, 1987, the Comelec resolved to dismiss On the basis of all of the foregoing, and the
SPC-87-488 because the petitioner had filed a case with supporting details as contained in ANNEXES A,
the Supreme Court and had, therefore, abandoned her B and C and in order to determine the final
case with the Comelec. results of the elections for the position of
On July 22, 1987 Lerias filed with this Court a second Member of the House of Representatives,
petition to set aside not only the Comelec's resolution of representing the lone district of Southern Leyte,
July 6, 1987 but also the resolution of July 17, 1987. a full and final RECAPITULATION is hereunder
The petition was heard on oral argument and on provided:
September 10, 1987, this Court dismissed the petition
because (a) the Comelec resolution of June 6, 1987 and FINAL
the proclamation of Mercado had already become TABULATION
executory inasmuch as five days had elapsed from
receipt of a copy of said resolution by petitioner and no Mercado Lerias
restraining order had been issued by the Court citing
Sec. 246 of the Omnibus Election Code, and (b) Lerias
thru counsel had agreed before the Comelec (SecondVotes per tally of the
Division) during the hearing therein on June 5, 1987 to Provincial Board of
use the Comelec copy of the certificate of canvass.
Lerias filed a motion for reconsideration but the sameCanvassers, used to
was denied. Hence, on October 1, 1987, she filed an
election protest with respondent HRET.
PROCLAIM protestee
In her protest, Lerias contested the results of the election
in Precinct Nos. 6, 10, 18 & 19 of Libagon asserting that
the total votes credited to her in the said four precinctsMercado 35,793 35,539
(1,411 votes) were less than or short by 400 votes from
that actually obtained by her (1,811 votes) and if the
provincial board of canvassers' copy of the certificate deduct:
of Votes per
canvass for Libagon were to be used as basis of the
canvass instead of the Comelec copy, she would have
garnered 35,930 votes as against Mercado's 35,793 Election Returns –
votes or a winning margin of 146 votes. Thus, Lerias
prayed that (a) precautionary measures be undertaken from 81 protested
for the safekeeping and custody of the ballot boxes and
election documents used in the protested precincts and
that they be brought to the Tribunal to prevent tampering precincts 2,154 6,885
and to protect their integrity; (b) a recount of the votes
cast in said precincts be immediately ordered; and (c)
the proclamation of Mercado be set aside and that she UNCONTESTED 33,639 28,654
be declared the duly elected Representative for the lone VOTES
district of Southern Leyte. She further prayed that
Mercado be ordered to pay damages, attorney's fees Add: Votes per
and costs.
Mercado filed his Answer with Counter-Protest, denying
the material allegations of the protest and counter- REVISION
protesting the results of the elections in 377 precincts.
He alleged that the votes cast for him were (a) (physicalcount) 2,287 6,867
intentionally misread in favor of Lerias; (b) not counted or
tallied, and/or counted or tallied in favor of Lerias; (c)
considered marked or were intentionally marked and;T(d) otals 35,926 35,521
tampered and changed. The counter-protest also
charged that blank spaces in the ballots were filled with
Lerias' name; that various ballots for Lerias, pasted with Revision Results:
stickers, were considered valid and counted for Lerias;
that votes in the election returns were tampered with and deduct: Rejected
altered in favor of Lerias, and that terrorism and massive
vote-buying were employed by her.
The initial hearing was scheduled for August 22, 1988,Ballots (objected) 362 252
but on March 7, 1988 unidentified uniformed armed men
raided the municipal building of Libagon and stole theT o t a l s 35,564 35,269
ballot boxes for the 20 precincts of Libagon stored in the
office of the municipal treasurer. Fortunately, these
armed mem overlooked the ballot box which was keptadd: in Claimed and
the office of the election registrar at the second floor of
said municipal building. Said ballot box contained all the
copies of the election returns of Libagon which were ADMITTED Ballots 26 273
used in the municipal canvass. It is in the said office that
said ballot box remained until a representative of the 35,590 35,542
HRET went to Libagon on March 23 and 24, 1988 to
take possession of the contents of the same particularly
the election returns kept in said ballot box. add: Restored Votes 0 2
On December 6, 1990, the Tribunal (by a vote of 5-4)
promulgated its now assailed Decision, the pertinent FINAL RESULTS 35,590 35,544
portion of which reads:

98
(Protestee Mercado wins by a plurality of 46 votes)
ACCORDINGLY, THE PROTEST of protestant
Lerias is dismissed; and by virtue of the results
of revision of the eighty one (81) counter-
protested precincts, the Tribunal declares that
protestee Mercado is the duly elected
Representative of the Lone District of the
Province of Southern Leyte, by a plurality of
FORTY SIX (46) votes; having garnered a total
of THIRTY FIVE THOUSAND FIVE HUNDRED
NINETY (35,590) votes as against the THIRTY
FIVE THOUSAND FIVE HUNDRED FORTY
FOUR (35,544) votes of protestant Lerias. No
pronouncement as to costs.
WHEREFORE, as soon as this Decision
becomes final, notice and copies of the Decision
shall be sent to the President of the Philippines,
the House of Representatives, through the
Speaker, and the Commission on Audit, through
its Chairman, pursuant to the Rules of the House
of Representatives Electoral Tribunal, Section
28.
SO ORDERED. (pp. 136-137)
The Chairperson of the Tribunal, the Honorable Justice
Ameurfina M. Herrera dissented, in this wise:
It becomes only too obvious then that by sheer
force of numbers; by overturning, at the post-
appreciation stage, the rulings earlier made by
the Tribunal admitting the claimed ballots for
Protestant Lerias; by departing from the
interpretation of the neighborhood rule
heretofore consistently followed by the Tribunal;
by injecting `strange jurisprudence,' particularly
on the intent rule; the majority has succeeded in
altering the figures that reflect the final outcome
of this election protest and, in the process,
thwarting the true will of the electorate in the
lone district of Southern Leyte.
Premises Considered, I vote to declare
Protestant Rosette Y. Lerias the winner in this
election protest. To the plurality of 20 votes
obtained by her in the counter-protested
precincts according to the outcome of the
appreciation of ballots, must be added the 400
votes that should have been counted in her favor
in the municipality of Libagon. All told, Protestant
Lerias should, therefore, be credited with a total
of thirty six thousand eight (36,008) votes as
against thirty five thousand five hundred eighty
eight (35,588) votes for Protestee Mercado, or a
margin of four hundred twenty (420) votes. (pp.
169-170 Rollo)
Likewise, the Honorable, Justice Isagani Cruz,
concurring with the dissent of Justice Herrera stated:
I cannot help noting that, as in several earlier
cases, all the five members representing the
majority party are again voting together in favor
of the Protestee, who also happens to belong to
their party. Whatever this coincidence may
import, I repeat my observation in the Ong cases
(HRET Nos. 13 and 15, Nov. 6, 1989) that
`although the composition of the Tribunal is
predominantly legislative, the function of this
body is purely judicial, to be discharged on the
basis solely of legal considerations, without
regard to political, personal and other irrelevant
persuasions. (pp. 258-259, Rollo)
The Honorable, Justice Emilio Gancayco (now retired)
concurred with the dissent of Justices Herrera and Cruz.
Another member of the Tribunal, Representative Antonio
H. Cerilles, also in his dissent, stated:
Going over all the foregoing facts and
circumstances, Ihonestly fear that the majority
99
decision will open the Tribunal to a charge of
grave abuse of discretion in dismissing the
protest and disallowing the admission of the
results of Precinct Nos. 6, 10, 18 and 19 of the
Municipality of Libagon, Southern Leyte, as
reflected in the election returns, and the
overwhelming documentary and testimonial
evidences introduced, supported by well-settled
jurisprudence. The same grave abuse of
discretion may be said of the replacement of the
results of the Screening Committee where
protestant Lerias was originally a winner by
twenty (20) votes over Mercado on the counter-
protest alone, but which tabulation was
reconsidered and ultimately replaced with a
revised tabulation which altered the result, this
time with protestee Mercado winning by forty-
two (42) votes over Lerias, without any
Identification and ocular review of the ballots of
the protestant thus rejected and no proper
showing of the grounds for such rejection.
All these considered, I feel compelled to register
my dissent to this shameful and blatant
disregard of the evidence, the law, and the
rudiments of fairness. I regret that the majority
decision will lend truth to the suspicion that a
protestant from an opposition party cannot
secure substantial justice from this Tribunal. It is
the perception of many that the odds are
stacked against such party mainly because of
the composition of the Tribunal, and no
evidence, no law, no jurisprudence, not even
elementary principles of fair play, equity or
morality can outweigh a determined
demonstration of party stand, partiality and bias.
I will not be party to such travesty of justice.
This is not the first time – and it certainly will not be the
last – when I as the lone opposition member of this
Tribunal joined the three Justices of the Supreme Court
in dissent. But I do so guided no less by the
pronouncement of Justice Isagani A. Cruz, a member of
this Tribunal, when he said: `Whatever this division may
imply, it is worth stressing that although the composition
of the Tribunal is predominantly legislative, the function
of this body is purely judicial, to be discharged, on the
basis solely of legal considerations without regard to
political, personal and other irrelevant
persuasions. 1 (Emphasis supplied)
I now indicate that I favor the admission of the
results of the election returns of Precinct Nos. 6,
10, 18, and 19 of the Municipality of Libagon,
Southern Leyte, and to return to protestant
Lerias the 400 votes which was fraudulently
taken away from her. Likewise, the original
revision results of the screening of the ballots of
the counter-protested precincts, as submitted to
and previously approved by the Tribunal, which
reflected that Lerias was ahead of Mercado by
20 votes, should be upheld. Protestant Lerias
should thus be credited with a totality of 36,008
votes as against 35,588 votes of protestee
Mercado, in a final untarnished count.
Protestant, should, therefore, be declared the
winner in the May 11, 1987 election for the Lone
District of Southern Leyte, having obtained a
majority of the valid votes cast in the said
election, with a plurality of four hundred twenty
(420) votes over the protestee, and thus, further
declare protestant Rosette Y. Lerias as the duly
elected Representative of the Lone District of
Southern Leyte. (Rollo, pp. 287-189)
Lerias filed a motion for reconsideration. Mercado also
filed a partial motion for reconsideration.
Acting on the said motions, the Tribunal, on January 31,
1991 promulgated its assailed Resolution, the dispositive
portion of which reads:
WHEREFORE, the Tribunal Resolved to DENY
protestant's Motion for Reconsideration for lack of merit.
Protestee's Partial Motion for Reconsideration, is hereby
GRANTED. The Tribunal also DIRECTS motu propio the
appropriate correction of the `Votes per Revision' of the
Protestant, pursuant to the verified errors committed, so
as to reflect the true and correct votes actually garnered
by the protestant and the protestee.
ACCORDINGLY, the Decision of the Tribunal
promulgated on December 6, 1990 is hereby
amended and modified, by declaring protestee
Mercado as the duly elected Representative of
the Lone Legislative District of the Province of
Southern Leyte, by a plurality of SIXTY SEVEN
(67) VOTES, having garnered a total of THIRTY
FIVE THOUSAND FIVE HUNDRED NINETY
FIVE (35,595) VOTES, as against the THIRTY
FIVE THOUSAND FIVE HUNDRED TWENTY
EIGHT (35,528) VOTES of protestant Lerias.
(pp. 344, Rollo)
In her revised Dissenting Opinion, (pp. 346-353 Rollo)
the Honorable Justice Herrera made the following
clarifications:
Interpolating the necessary corrections,
therefore, the final tabulation of votes obtained
by the parties in the counter-protested precincts
should be revised as follows:
MERCADO
Votes per
proclamation 35,793
Deduct:
Votes in 81
counter-protested
precincts 2,154
Votes-Uncontested
precincts 33,639
Add:
Votes per
revision
(physical count,
as corrected 2,292 (formerly
2,287)
TOTAL 35,931 (formerly
35,926)
Deduct:
Rejected ballots 363
TOTAL 35,568 (formerly
35,563)
Add:
Claimed ballots
admitted
(as corrected) 25
Add: votes restored 0
TOTAL VOTES 35,593 (formerly
35,588)
Plurality of Protestant Lerias – 12 votes (instead of20 in
the original dissent)
To this plurality of twelve (12) votes obtained by
Protestant Lerias in the counter-protested
precincts must be added the 400 votes obtained
by her in the four contested precincts in Libagon.
Protestant Lerias should, therefore, be credited
with a total of thirty six thousand five (36,005)
votes as against thirty five thousand five
hundred ninety three (35,593) votes for
Protestee Mercado, or a margin of four hundred
twelve (412) votes, instead of the 420 votes in
the original dissent.
PREMISES CONSIDERED, in so far as the
undersigned's dissent is concerned, Protestee
Mercado's Partial Motion for Rreconsideration is
denied, and I reiterate my vote to proclaim
Protestant Rosette Y. Lerias as the fully elected
Representative for Southern Leyte. (pp. 351-
353, Rollo)
Justice Cruz maintained his original dissent.
Representative Cerilles filed a "Dissenting Opinion on
Denial of Protestant's Motion for Reconsideration" (pp.
355-357 Rollo) stating that :
In sum, Protestant should therefore be declared
winner in the May 11, 1987 election for the Lone
District of Southern Leyte having obtained a
plurality of four hundred four (404) votes over
the Protestee, and thus further declare
Protestant Rosette Y. Lerias as the duly elected
Representative of the Lone District of Southern
Leyte. (pp. 356-357, Rollo)
We have read and examined, with utmost interest and
care, the contentions of the parties, the majority opinion
of the five members of the Tribunal as well as the
separate dissenting opinions of the chairperson and
some members of the electoral tribunal, and the Court
arrived at the conclusion, without any hesitation,
reservation, or doubt, that the Tribunal (the majority
opinion) in rendering its questioned Decision and
Resolution had acted whimsically and arbitrarily and with
very grave abuse of discretion. It is for this reason that
We cannot bring ourselves to agree with their decision.
The Protest
Lerias contended that in the four (4) protested precincts
of Libagon where her votes were determined to be 1,411
only, the same were allegedly reduced by 100 votes in
each precinct, thus totalling 400, the details of which
reduction are as follows:

100

Precinct Lerias' Lerias'
Protested Credited Claimed
Votes Votes
No. 6 62 162
No. 10 23 123
No. 18 32 132
No. 19 56 156
Should her claimed votes as aforestated be sustained
Lerias' total votes from the municipality of Libagon shall
be 1,811 votes. In such an eventuality, Lerias shall have
been able to recover 400 votes, more than sufficient to
overcome the winning margin of Mercado, thereby
prevailing by a plurality of 146 votes.
To prove her contention, Lerias submitted original copies
of the certificate of canvass of the municipal board of
canvassers and the provincial board of canvassers. She
also invoked the original copy of the election returns for
the municipal board of canvassers of Libagon. These
documents, particularly the election returns showed that
Lerias received 162 votes in Prec. No. 6, 123 votes in
Prec. No. 10, 132 votes in Prec. No. 18 and 156 votes in
Prec. No. 19 to give her a total of 1,811 votes in the
entire municipality of Libagon.
Upon the other hand, Mercado relied mainly on
the xerox copy of the certificate of canvass for the
Comelec. This certificate showed that Lerias received 62
votes in Prec. No. 6, 23 votes in Prec. No. 10, 32 votes
in Prec. No. 18 and 56 votes in Prec. No. 19.
The HRET majority opinion rejected the election returns
and sustained the certificate of canvass because (1) the
Comelec found that the Comelec copy of the certificate
of canvass is "regular, genuine and authentic on its face"
and said finding of the Comelec had been sustained by
the Supreme Court; (2) the protestant (meaning Lerias)
had agreed during the pre-proclamation proceedings to
the use of the Comelec copy of the certificate of
canvass; and (3) the authenticity of the election returns
from the four (4) disputed precincts had not been
established.
The reasons given by the majority for doubting the
authenticity of the election returns are: (a) the non-
production of the election returns during the entire pre-
proclamation proceedings definitely creates much doubt
as to their authenticity especially so when they surfaced
only almost a year later after the ballots had been stolen;
(b) during that time, the election returns may have been
tampered with and "doctored" to Lerias' advantage; (c)
no proof whatsoever was offered to show that the
integrity of the ballot box in which they were kept was not
violated; and (d) thewitnesses presented by Lerias had
shown their partisanship in her favor by executing
affidavits to support her protest.
The foregoing findings and pronouncements of the
HRET (majorirty opinion) are totally bereft of any support
in law and settled jurisprudence.
In an election contest where what is involved is the
correctness of the number of votes of each candidate,
the best and most conclusive evidence are the ballots
themselves. But where the ballots cannot be produced or
are not available, the election returns would be the best
evidence. Where it has been duly determined that actual
voting and election by the registered voter had taken
place in the questioned precincts or voting centers, the
election returns cannot be disregarded and excluded
101
with the resulting disenfranchisement of the voters, but
must be accorded prima facie status as bona fide reports
of the results of the voting. Canvassing boards, the
Comelec and the HRET must exercise extreme caution
in rejecting returns and may do so only upon the most
convincing proof that the returns are obviously
manufactured or fake. And, conformably to established
rules, it is the party alleging that the election returns had
been tampered with, who should submit proof of this
allegation.
At this juncture, it is well to stress that the evidence
before the HRET is the original copy of the election
returns while the Comelec's copy of the certificate of
canvass, is merely a xerox copy, the original thereof had
not been produced.
Under the best evidence rule, "there can be no evidence
of a writing, the contents of which are the subject of
inquiry, other than the original writing itself" except only
in the cases enumerated in Rule 130, Sec. 2 of the
Rules of Court. The exceptions are not present here.
Moreover, the xerox copy of the certificate of canvass is
inadmissible as secondary evidence because the
requirements of Sec. 4 of the same Rule have not been
met. (Dissent of J. Cruz, p. 254) Besides this certificate
of canvass had been disowned by the chairman and
members of the municipal board of canvassers, claiming
that the same was falsified since their signatures and
thumbmarks appearing thereon are not theirs and the
number of votes credited to Lerias in the municipality of
Libagon had been reduced from 1,811 to 1,411. (TSN,
Sept. 13, 1988 AM, pp. 74-78; TSN, Sept. 13, 1988 PM,
pp. 41-46; Dissenting Opinion, Rep. A.H. Cerilles, p. 2)
The finding of the Comelec in the pre-proclamation
proceedings that its copy of the certificate of canvass is
"genuine and authentic" and which finding was sustained
by this Court (G.R. No. 78833; 79882-83) is not binding
and conclusive. The HRET must be referring to the
following portion of the decision of this Court –
Public interest demands that pre-proclamation contests
should be terminated with dispatch so as not to unduly
deprive the people of representation, as in this case, in
the halls of Congress. As the
Court has stressed in Enrile v. Comelec, and other
cases, the policy of the election law is that pre-
proclamation controversies should be summarily
decided, consistent with the law's desire that the
canvass and proclamation should be delayed as little as
possible. The powers of the COMELEC are essentially
executive and administrative in nature and the question
of fraud, terrorism and other irregularities in the conduct
of the election should be ventilated in a regular election
protest and the Commission on Elections is not the
proper forum for deciding such matters; neither the
Constitution nor statute has granted the COMELEC or
the board of canvassers the power, in the canvass of
elections returns to look beyond the face thereof `once
satisfied of their authenticity'. We believe that the matters
brought up by petitioner should be ventilated before the
House Electoral Tribunal. Unlike in the past, it is no
longer the COMELEC but the House Electoral Tribunal
which is `the sole judge of all contests relating to the
election, returns, and qualifications' of the members of
the House of Representatives.
In opting to go by the COMELEC copy which on
its face did not show any alteration, the
COMELEC did not commit any grave abuse of
discretion, specially since both parties agreed to
the COMELEC using its own copy (Copy No. 3).
Accordingly, the Court resolved to DISMISS the
petition for lack ofmerit. The temporary
restraining order issued on July 23, 1987 is
hereby LIFTED effective immediately. (Rollo, pp.
264-265)
It would appear, therefore, that this Court sustained the
use of the Comelec's copy of the certificate of canvass
instead of the copy of the provincial board of canvassers
only to establish prima facie (but not actually) the winner
(as called for by the summary nature of pre-proclamation
proceedings), without prejudice to a more judicious and
unhurried determination in an election protest, and
because Lerias' thru counsel had previously agreed
conditionally and qualifiedly to its tentative use for pre-
proclamation proceedings. The decision of this court was
merely an affirmance of the action of the Comelec and it
cannot be relied upon as a final adjudication on the
merits, on the issue of the genuiness and authenticity of
the said certificate of canvass. Besides, the use of said
Comelec copy of the certificate of canvass by the board
of canvassers did not foreclose the right of Lerias to
prove that the votes attributed to have been received by
her as stated, in said certificate of canvass is not correct.
Acceptance of a certificate of canvass as genuine and
authentic for purposes of canvass simply means that
said certificate of canvass is genuine and authentic for
the purpose of determining the prima facie winner in the
election. But the very purpose of an election contest is to
establish who is the actual winner in the election.
Anent the pronouncement of the HRET (majority opinion)
that having agreed to the use of the Comelec's copy of
the certificate of canvass, Lerias is now estopped from
assailing it, suffice it to state that Lerias agreed to the
use of said copy because she was not aware then that
the figures therein had been altered. It is a matter of
record that she immediately objected after she
discovered the discrepancy. At any rate, she cannot be
estopped from protesting a falsification of the voters' will
because such estoppel would contravene public policy.
(Dissent of J. Cruz, p. 5) Moreover, as indicated in the
discussion hereinabove, under the circumstances
relating to pre-proclamation, estoppel certainly cannot
apply.
As to the delay in presenting the election returns
because these were not presented during the whole pre-
proclamation proceedings, it must be noted that at that
time, the four ballot boxes of Libagon with their
correspondidng ballots were still intact and as these
would have provided the best evidence, resorting to the
election returns was uncalled for. It is for this reason that
Lerias had asked for a recount of the ballots and this
would have obviated the need for the election returns.
Under these circumstances the failure of Lerias to ask
for the production of the election returns during those
times that the ballots were still available cannot be
considered as ground for considering said election
returns as of dubious character.
The "suspicion" of the HRET (majority opinion) regarding
the possible tampering of the election returns are at best
merely speculative and dispelled by the incontrovertible
evidence in the case. On its face, these election returns
have no traces of tampering. Even the majority decision
admits that said election returns "appear to be originals
and on their faces, authentic." (Decision, p. 21)
The authenticity of said returns, particularly those of
Precincts 6, 10, 18, and 19, the four disputed precincts,
had been further established by the testimonies of the
members of the Board of Election Inspectors of said
precincts during the hearing before the Tribunal and
before the hearing officer designated to hear the case.
More importantly, examination of said returns
conclusively established the Identity of said returns as
the very same ones prepared by the respective Board of
Election Inspectors during the counting of the votes. The
election returns for Precinct 6 was marked as Exhibit "F";
that of Precinct 10, Exhibit "AA"; Precinct 18, Exhibit "U",
and Precincts 19, Exhibit "P".
The election returns for Precinct 6 bears Serial No. 0138;
for Precincts 10, No. 0142; for Precinct 18, No. 0150;
102
and for Precinct 19, No. 0151. The minutes of voting for
each of said precincts which were submitted to the
Comelec and later on presented in evidence before the
Tribunal, indicated the serial numbers of the election
returns for said precincts and they corresponded to the
serial numbers of election returns for the four precincts.
The NAMFREL reposts, (copy from the National
Headquarters) which were presented during the initial
hearing before the HRET by a representaive of the
national headquarters of NAMFREL, as well as the
copies of said reports of Bencouer Gado, the municipal
coordinator of NAMFREL in Libagon, also indicated that
the election returns for Precinct 6 bears Serial No. 0138;
Precinct 10, Serial No. 0142; Precinct 18, Serial No.
0150 and Precinct 19, Serial No. 0151. 2 The envelopes
wherein said election returns were originally placed by
the Board of Election Inspectors from said precincts,
when they turned over said election returns to the
election registrar, were the very same envelopes which
contained the election returns from said precincts at the
time that they were turned over to Luspo (the Tribunal's
representative) on March 24, 1988. The Identity of said
envelopes had been conclusively proven by the fact that
the serial numbers that they bear and the Comelec
paper seal sealing said envelopes are the same. The
serial numbers of said envelopes had been noted in the
minutes of each of said proceedings.
The envelope containing the election returns for Precinct
6 bears Serial No. 042366 and the Comelec paper seal
thereof bears Serial No. 017318.
The envelope containing the election returns for
Precincts 10 bears Sereial No. 042370 and the Comelec
paper seal thereof bears Serial No. 0173226.
The envelope containing the election returns for Precinct
18 bears Serial No. 04373 while the Comelec paper seal
thereof bears Serial No. 0173326.
The envelope containing the election returns for Precinct
19 bears Serial No. 042379 while the Comelec paper
seal thereof bears Serial No. 173332.
When the chairmen of each of said precincts testified
before the Hearing Officer designated by the Tribunal,
they all Identified their respective signatures and
thumbmarks appearing on the envelopes for said four
precincts. Ruego, the chairman of the Municipal Board of
Canvassers and acting election registrar during the
election, also Identified his signature on the envelopes
acknowledging the receipt of said envelopes containing
the election returns for said precincts.
The four chairmen of said precincts also positively
Identified that the election returns shown to them for their
respective precincts taken from the custodian of the
Tribunal and placed inside Envelopes A and B were the
very same election returns prepared by them. They
Identified their own signatures and thumbmarks and
those of the other members of the board of election
inspectors in their respective precincts.
On the basis of the election returns from the four
disputed precincts, the votes of Lerias and Mercado in
said precincts were as follows:
Pr L M
ec e er
in r c
ct i a
s a d
N s o
o.
6 1 4
6 5
2

10 1 7
2 9
3 Precinct 10 protestant received 123 votes while
18 1 4
3 6
2 Lopina, certified by the members of the Board of Election
19 1 2
5 4
6 NAMFREL Operation Quick Count Report No. 075589,
It would appear then that the votes of Lerias as indicated
in the Comelec copy of the Certificate of Canvass (Exh.
22) had been systematically reduced by 100 votes in
each of the four precincts. With the correction of the
votes of Lerias in said four precincts as reflected in
the election returns it would result that in the entire
Municipality of Libagon protestant received 1,811
votes while Mercado received only 1,351 votes.
Consequently, the total number of votes Lerias received
in the entire congressional district would be 35,939 votes
(400 votes more than what was credited to her in the
Comelec copy of the Certificate of Canvass which was
the basis of the proclamation of Mercado) while Mercado
received 35,793 votes giving a margin in favor of Lerias
of 146 votes before the revision of the ballots in the
precincts involved in the counter-protest of protestee.
The number of votes received by protestant and
protestee in the four disputed precincts of Libagon as
shown in the election returns for said precincts is
substantiated by the following documentary evidences:
1. The NAMFREL Operation Quick Count (OQC)
reports, national headquarters' copies and
copies of the municipal coordinator of NAMFREL
in Libagon (Exhs. EE, FF, GG, HH, H, CC, X);
2. The certificate of votes of the candidates (CE
form 13) issued to the representatives of the
political parties (Exhs. D and E for Precinct 6;
Exhs. V and UU for Precinct 18; Exhs. L and M
for Precinct 19);
3. The certified result of the canvassing
prepared by watchers of UPP-KBL (Exhs. G for
Precinct 56; Exh. DD for Precinct 10; Exh. Y for
Precinct 18 and Exh. O for Precinct 19);
4. The Municipal Board of Canvassers' copy of
the certificate of votes and its supporting
statement of votes (Exh. LL);
5. The Provincial Board of Canvassers' copy of
the Certificate of Canvass and its supporting
statement of votes (Exh. LL);
6. The letter report to Comelec, Manila, dated
May 18, 1987, of Manuel Paler, OIC Mayor of
Maasin as municipal chairman of Lakas ng
Bansa (Exh. J);
7. The letter report to Comelec, Manila, dated
May 18, 1987, of Rito B. Go, PDP-Laban
Chairman for Southern Leyte (Exh. I); and
8. The tally board (photograph taken by
photographer Rodriguez (Exh. NN).
According to NAMFREL Operation Quick Count Report
No. 075576 for Precinct 6, both the national
headquarters' copy and the copy of the NAMFREL
municipal coordinator, Bencouer Gado (Exhs. H and
CC), protestant got 162 votes while protestee got only 45
votes.
NAMFREL Operation Quick Count Report No. 075580
prepared by NAMFREL representative Edna Pajo, duly
certified by the members of the Board of Election
Inspectors of Precinct 10 after verifying its accuracy,
103
checking the same against the election returns and the
tally sheet, both national headquarters' copy and the
copy of the municipal coordinator, showed that in said
protestee received 79 votes (Exh. CC and Exh. FF).
NAMFREL Operation Quick Count Report No. 075590
for Precinct 18 prepared by NAMFREL watcher Rito
Inspectors of said precinct after verifying if they tally with
the results as shown in their tally board showed, that in
said precinct protestant received 142 votes as against
protestee's 46 votes (Exh. X).
prepared by NAMFREL watchers assigned to Precinct
19, duly certified to by the members of the Board of
Election Inspectors of said precinct, after checking
whether the votes of the candidates contained in said
OQC report tally with the election returns in the tally
sheet showed, that protestant obtained in said precinct
156 votes while protestee received 24 votes (Exh. N).
The certificate of votes (CE Form No. 13) issued to the
watchers of the political parties (Exhibits E, D, V, WW, L
and M), as well as the reports prepared by the watchers
of UPP-KBL (Exhibits G, DD, Y and O) also showed the
same votes received by protestant and protestee in the
four disputed precincts as reflected in the election
returns for said precincts.
The tally board used in the canvass remained displayed
in the session hall of the municipal building of Libagon
for several months after the elections. Pictures of said
tally board were taken by Rudy Rodriguez, a
professional photographer (Exh. NN, TSN Sept. 12,
1988, p. 48). According to said tally board the votes of
protestant and protestee were the same as those shown
in the election returns. If they were erroneous, Mayor
Paitan of Libagon who has his office on the same floor
who saw said tally board every day, would have
complained about the entries particularly for Precincts 6,
10, 18 and 19, which were the subject of the raging
election contest between protestant and protestee.
The reports of Manuel Paler, OIC Mayor of Maasin and
chairman of Lakas ng Bansa to the chairman of the
Commission on Elections dated May 18, 1987, received
by the Law Department of Comelec on May 20, 1987,
and the report of Rito Go, chairman of PDP-Laban for
Southern Leyte, to the chairman of the Commission on
Elections dated also May 18, 1987 and received by the
Law Department on May 20, 1987 (Exhibits J and I),
similarly reflected that Lerias received 1,811 votes in
Libagon while Mercado obtained 1,351 votes.
In the entire congressional district Lerias obtained
35,937 votes while Mercado obtained 35,795 votes.
These are reports coming from Lakas ng Bansa and
PDP-Laban, political parties who had their own
candidates. They would not have filed said reports
admitting that Lerias obtained more votes than their own
candidates unless the same were actually the votes
obtained by her as verified by their own representatives.
The Municipal Board of Canvassers' copy of the
Certificate of Canvass and supporting statement of votes
as well as the Provincial Board of Canvassers' copy of
said reports showed that Lerias obtained 1,811 votes in
Libagon. True, that the Provincial Board of Canvassers
rejected their copy of said Certificate of Canvass
because of certain erasures and alterations therein. But
the members of the Municipal Board of Canvassers
explained to the Provincial Board of Canvassers that the
corrections made by them were merely to correct certain
clerical errors. It should be pointed out here that the
corrections and erasures made did not refer to the votes
of the congressional candidates. The votes of Lerias and
Mercado in Precincts 6, 10, 18 and 19 of Libagon bear
no corrections or erasures. And in the canvass for the
senatorial candidates, the Provincial Board of
Canvassers' copy which the board rejected in the
congressional canvass, was used as basis of the
canvass. The board would have rejected the same were
it not authentic.The fact that said copy of the Certificate
of Canvass was used in the senatorial canvass
conducted after the congressional canvass would
indicate that the board considered the same authentic.
(Dissenting Opinion of Rep. Cerilles, pp. 13-19)
The fact that the members of the board of election
inspectors in the disputed precincts had executed
affidavits in support of the claim of Lerias cannot be
considered as partisanship since it is the duty of
saidmembers of the board to inform the Comelec, of the
actual results of voting in their respective precincts.
In any event, the test of whether or not the testimonies of
said election officials should not be believed because
they are biased or prejudiced would be the tenor of their
respective terstimonies or affidavits, whether the same
are credible and corroborated by other evidence. The
testimonies of these election inspectors that the election
returns were the very same election returns prepared by
them were corroborated by the documentary evidence
which had not at all been disputed such as the
NAMFREL reports, the statement of votes given to the
representatives of the other parties, the tally sheets, the
certificates of canvass, both the municipal board and
provincial board of canvassers' copies (not the Comelec
copy which reflected a different result).
In this regard, the dissenting opinion of Justice Hugo
Gutierrez, Jr. in G.R. Nos. 78833, 79882-83 entitled
"Lerias v. Comelec et al", is very pertinent:
Another inexplicable act of the COMELEC is the
refusal to even hear the members of the Libagon
municipal board of canvassers and the election
board of inspectors of the four disputed precincts
who expressed willingness to testify as to which
certificates are genuine. When the very persons
whose signatures appear on the questioned
certificates attest that those are not their
signatures because the correct copies are the
two copies carrying their corrections, it is the
height of incongruity to even refuse to hear
them. They are the persons in the best position
to state what they did, what they entered on the
various election forms, etc., but they were
unceremoniously ignored. To say that these
persons were either purchased or coerced is not
only unkind, to say the least, but irrational and
without basis. First, their testimonies could be
rejected if perceived as not truthful. But they
should be heard. Second, these personnel
manning the election precincts and canvass
boards are all government employees. The head
of the municipal canvass board is a COMELEC
employee. The rest of the canvassers are other
government officials. The precincts are manned
totally by school teachers. Why should they be
summarily rejected as the most competent of all
possible witnesses? (Emphasis supplied)
xxx xxx xxx
The tactic of `win the proclamation and delay the
protest' is even more rampant than when it first
surfaced. The ruling in Espino v. Zaldivar (21
SCRA 1204, 1213) that we should not wink at a
brazen form of wrongdoing to subvert the
people's will and in mockery crown the loser with
victory; the genuine returns must be ascertained
and the obvious forgery disregarded remains as
true now as it was then. (Emphasis supplied)
(pp. 279-280, Rollo)
But more importantly, another xerox copy of the Comelec
copy of the certificate of canvass exactly the same as
104
the xerox copy of the Comelec copy submitted to the
HRET is attached to the joint affidavit of the Chairman
and members of the municipal board of canvassers of
Libagon, to show that their signatures and thumbmarks
appearing in the Comelec copy before the HRET are not
their own signatures and thumbmarks. For purposes of
comparison, they affixed their respective signatures and
thumbmarks on the margin of said xerox copy of the
supposed Comelec copy of the certificate of canvass.
Therefore, the Comelec's copy of the certificate of
canvass used by the Comelec and sustained by the
Tribunal`s majority opinion is not only a xerox copy but is
a xerox copy of a falsified and forged document. This
being the case, it should not be given any evidentiary
value. It is incredible that the majority opinion in the
HRET decision would deliberately use forged signatures
and thumbmarks simply in their desire to produce an
infamous political decision. Surely this is pure anathema
to all rules of fair play.
All told, the Court is of the considered opinion that the
HRET (majority opinion) had no basis at all in
considering the election returns from Precincts 6, 10, 18
& 19 as not authentic. And considering the overwhelming
and indubitable evidence presented by Lerias in support
of her protest, more particularly the election returns
which in the absence of the ballots would constitute the
best evidence, the actual number of votes received by
Lerias and Mercado in the four (4) contested precincts
are as follows:
Precinct Lerias Mercado
No.
6 162 45
10 123 79
18 132 46
19 156 24
and that in the entire municipality of Libagon, Lerias
obtained 1,811 votes while Mercado obtained 1,351
votes. Based solely on the protest, in the whole
congressional district, Lerias obtained 35,939 votes as
against Mercado's 35,793 votes, giving her a winning
margin of 146 votes.
The Counter-Protest
After the Tribunal had screened and appreciated both
the "objected to" and "claimed" ballots from the 81
precincts subject of the counter-protest of Mercado, the
result was 363 ballots of Mercado and 249 ballots of
Lerias were rejected and 25 ballots claimed by Mercado
and 334 ballots claimed by Lerias were admitted. Two
ballots were also restored to Lerias after it was found out
that her name written thereon was tampered with or
erased by another person and the name of Mercado
written in its place. This gave Lerias a winning margin of
20 votes over Mercado as shown in the following
tabulations:
LER MERC
IAS ADO
Votes 35,5 35,793
Per 39
Proclam
ation
Votes-
 apply. According to the majority the neighborhood rule
Counter itself is but an exception to that accepted rule on
- appreciation that the candidate's name placed in another
proteste line not the proper space for the position he is aspiring is
d a stray vote, and being already an exception the same
must be applied most rigidly and very strictly. (Decision,
p. 35)
precinct 6,88 2,154
s 5 Thus, according to the majority, ballots with "Rosette" or
"roset" or "rosit" written on line 1 for senators, even if the
space for congressman is blank and no other candidate
Votes- for congress is written on the ballot, were rejected and
Unconte denied admission by the majority.
sted 2. The same principle of strict application of the intent or
neighborhood rule was applied to votes placed on line 1
precinct 28,6 33,639 for senator, which merely reflects the initials of the first
s 54 name of a candidate but whose surname or maiden
surname happens to be the same surname of a
legitimate candidate for senator. Under this application of
Votes- the neighborhood rule, votes for protestant cast as "R.
Per Iniguez" or "Yniguez R." or L. Yniguez" or Yniguez L"
Revisio were also rejected.
n 3. A ballot where the name Lerias is written on line 1 for
senator is rejected where it appears that it is written by
of 6,86 2,287 an assistor.
ballots 7 4. Where the only entry in the space for Representative
was Yniguez, said ballot is considered as a misplaced
vote for senatorial candidate Yniguez since there was an
35,5 35,926 Yniguez who was a candidate for senator who is at the
21 same time an official.
The aforementioned departures from the application of
Rejecte 249 363 the "neighborhood rule" laid down in "Nograles v.
d Dureza" (HRET Case No. 34, June 16, 1990) are
Ballots unwarranted and clearly designed by the majority to
reduce the claimed votes to be admitted for Lerias and
make Mercado eventually the winner.
Claimed Under Subsec. 1 of Sec. 211 of the Omnibus Election
Ballots Code, a ballot where only the first name of a candidate
or his surname is written is considered a vote for such
Admitte 334 25 candidate as there is no other candidate with the same
d first name or surname for the same office.The majority
opinion, therefore, which did not count the ballots cast
where only the first name of Lerias was written
35,6 35,588 "Rosette", "rosit" or "roset" is contrary to said subsec. 1
06 of Sec. 211 of the Omnibus Election Code.
In her certificate of candidacy, Lerias gave her full name
Votes as "Rosette Yniguez Lerias." It is for this reason that the
Restore Tribunal during the appreciation of the ballots in its
d to executive sessions admitted as votes for Lerias ballots
containing, "Yniguez R", "Yniguez L", Yniguez Roset",
"R. Yniguez" or "L. Yniguez" written on the first line of
Lerias 2 senators for it is very clear that said ballots were
intended to be cast for Lerias. Under Subsec. 3 of
Section 211 of the OmnibusElection Code, said ballots
35,6 should be counted as votes for Lerias inasmuch as there
08 is no other candidate for the same position of
Representative who is an incumbent. Subsec. 3, Sec.
Plurality 20 211 reads:
of 3. In case the candidate is a woman who uses
Lerias her maiden or married surname or both and
there is another candidate with the same
This was disregarded by the majority and in the revised surname, a ballot bearing only such surname
tabulation reflected in the majority decision, Mercado no shall be counted in favor of the candidate who is
longer lost by 20 votes. Instead he already won by a an incumbent. (p. 315, Rollo)
plurality of 42 votes over Lerias. This came about In said particular ballots they cannot be considered as
through the simple expedient of reducing the already votes cast for senatorial candidate Yniguez inasmuch as
admitted claimed ballots of Lerias by 57 votes (from the in the same ballot Yniguez had also been voted for as
original 334 to 277); invalidating 3 more ballots of Lerias senator in the proper space for senators.
(from 249 to 252) and adding 1 more to the claimed Some of the ballots rejected by the majority also contain
ballots of Mercado (from 25 to 26) at the same time the name "Lerias" on line 1 for Senator. These ballots
rejecting 1 more ballot of Mercado (from 363 to 364). were written by assistors, and therefore, were admitted
The modification consisted in: as valid. (Timbol v. Lazatin, HRET Case No. 46, 22
1. Where only the first name of the candidate is written March 1990). The majority rejected these ballots by
on line 1 for senator, the neighborhood rule will not discounting the applicability of the "neighborhood rule".

105
On this point, the Honorable Chairperson, J. Herrera in
her dissent aptly ruled:
Strangely enough, according to the majority, the
'neighborhood rule' liberalizes the `proper space'
rule because the voter may not be literate, `but
should find no applicability where the ballots are
filled by assistors who themselves appear
illiterate' (p. 37, Majority Opinion). This
pronouncement has been plucked from thin air
and appears nowhere in electoral jurisprudence.
What is settled is the guideline adopted in the
case of Nograles v. Dureza (HRET Case No. 34,
June 16, 1990), and on the basis of which the
Tribunal admitted the ballots in question. Thus:
2. Ballots where the name of a candidate was
written on line 1 for Senators or in the shaded
box immediately above the line for
Representative, were counted in favor of that
candidate, provided, that (1) the line for
Representative had been left blank, and (2) no
other name of a candidate for Representative
was written on other lines for Senators, in the
same ballot (Mandac v. Samaoante, 54 Phil. 706
[1903]. (Decision, p. 17)
This rule does not distinguish between ballots
written by the voter himself or assisted by
another. (p. 168, Rollo)
Finally, there are 170 ballots of Lerias with stickers which
had been rejected. Again, the majority had committed an
error in rejecting said ballots, Justice Cruz, in his dissent
stated:
In addition to the above observations, I will also
express my objections to the rejection of the 170
ballots cast for the Protestant which were
considered marked with stickers by the majority.
As long as the stickers were pasted on a blank
space on the ballot, I agree that the ballot should
be invalidated under Section 211, Rule 20, of the
Omnibus Election Code. But I maintain that
where the stickers appeared to have been
hastily and surreptitiously stuck on other parts of
the ballots (mostly diagonally and without any
uniform location), this was done by persons
other than the voters themselves, precisely to
invalidate the ballots. It is illogical for a voter to
take the trouble of writing down the names of his
candidates, sometimes laboriously, only to nullify
the ballot (and all his votes) by pasting a sticker
on it. (pp. 257-258, Rollo)
But, what is more revealing are the following
observations of Rep. Cerilles in his dissent, as follows:
Based on the evidence presented, I am
thoroughly convinced that Lerias was
systematically cheated of one hundred (100)
votes in each of the four precincts of Libagon.
The majority of the Tribunal refuse to reinstate
these 400 votes of Lerias inspite of the
overwhelming weight of evidence and the laws
and jurisprudence in point. And now that she
won by twenty (20) votes in the original
tabulation on the counter-protest submitted
before the Tribunal, inspite of the dismissal of
her protest, the majority simply decided to
change the results with Mercado coming out with
a plurality of forty-two (42) votes. All told, the
results of this election have been magically
changed twice and, in both instances, always
against the protestant Lerias. This is definitely
bad precedent. It may be that in the future
candidates will no longer believe in the counting
of votes for, after all, the results can easily be
changed, or otherwise replaced, substituted,
modified or altered as in this case, by the sheer
106
force of the majority, no matter how erroneous,
arbitrary and legally unjustified that judgment
may be. Although I recognize the reality of the
composition of this Tribunal, stilI I am tempted to
ask whatever happened to our conception and
application of the Rule of Law?
Having asked that question, I entertain serious
doubt about the legality of the action undertaken
by the majority especially so since the winner in
the original tabulation suddenly became the
loser. Clearly, it was an afterthought on the part
of the majority. This, to say the least, is
anomalous because the result of the screening
of ballots had already been approved previously
by the Tribunal after a random checking was
made in accordance with established
procedures.
In effect, therefore, the majority re-opened what
was already approved and simply reconsidered
their previous ruling thus rejecting fifty-seven
(57) ballots claimed by the protestant which
were already admitted in her favor, and
invalidating three (3) more from her valid ballots.
This action is arbitrary because these already
admitted ballots were reconsidered and rejected
without the benefit of an ocular review by the
members of the Tribunal. And it becomes all the
more irregular because these ballots were just
deducted from the total ballots claimed by the
protestant and already admitted without
Identifying which ballots these are.
Absent such Identification, it is downright unfair
to have these ballots rejected on the mere say-
so of the majority without the benefit of the
examination. Might is not necessarily right. (pp.
283-284, Rollo)
This was the same observation made by the Honorable
Justice Herrera, when she stated in her dissent, thus:
In the executive session of 15 November 1990,
the re-appreciation of some of the ballots was
sought. Some members of the Tribunal firmly
opposed any re-opening of the case on the
ground that it would entail delay in its resolution,
besides the fact that all observations/objections
should have been raised and ruled upon during
the appreciation state. Attention was also called
to the fact that rulings on the ballots appreciated
were made by at least a majority vote of the
members present in meetings where there was a
required quorum, hence, the resolutions arrived
at were valid and official acts of the Tribunal.
When the issue was subsequently put to a vote,
a majority of the members voted to overturn the
previous rulings of the Tribunal, even as the
other members urged that the rulings made by
the Tribunal during the appreciation of ballots
should no longer be disturbed as the case had
already been submitted for decision.
It becomes only too obvious then that by sheer
force of numbers; by overturning at the post-
appreciation stage, the rulings earlier made by
the Tribunal admitting the claimed ballots for
Protestant Lerias; by departing from the
interpretation of the neighborhood rule
heretofore consistently followed by the tribunal;
by injecting `strange jurisprudence', particularly
on the intent rule; the majority has succeeded in
altering the figures that reflect the final outcome
of this election protest and, in the process,
thwarting the true will of the electorate in the
lone district of Southern Leyte. (pp. 168-169,
Rollo)
Conclusion
Considering the indubitable evidence on record the 400
votes fraudulently taken away from Lerias should be
returned to her. So that in the entire municipality of
Libagon, she received 1,811 votes. From the
original 35,539 votes, Lerias should be credited
with 35,939 votes as against the 35,793 votes of
Mercado giving her a margin of 146 votes. Whatever the
results of the review of the ballots in the counter-
protested precincts would be, (wherein Mercado won by
67 votes according to the majority, or as found by the
dissenting members, Lerias won by 12 votes (dissent of
J. Herrera) or by 20 votes (dissent of Rep. Cerilles)
Lerias would still be the winner.
WHEREFORE, the decision of the Honorable Electoral
Tribunal in HRET Case No. 16 is REVERSED and SET
ASIDE. The Court declares that petitioner Rosette
Yniguez Lerias is the duly elected representative of the
Lone District of the Province of Southern Leyte.
SO ORDERED.
Republic Act No. 6735 August 4, 1989
AN ACT PROVIDING FOR A SYSTEM OF INITIATIVE
AND REFERENDUM AND APPROPRIATING FUNDS
THEREFOR
Be it enacted by the Senate and House of
Representatives of the Philippines in Congress
assembled:
I. — General Provisions
Section 1. Title. — This Act shall be known as "The
Initiative and Referendum Act."
Section 2. Statement of Policy. — The power of the
people under a system of initiative and referendum to
directly propose, enact, approve or reject, in whole or in
part, the Constitution, laws, ordinances, or resolutions
passed by any legislative body upon compliance with the
requirements of this Act is hereby affirmed, recognized
and guaranteed.
Section 3. Definition of Terms. — For purposes of this
Act, the following terms shall mean:
(a) "Initiative" is the power of the people to
propose amendments to the Constitution or to
propose and enact legislations through an
election called for the purpose.
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.
(b) "Indirect initiative" is exercise of initiative by
the people through a proposition sent to
Congress or the local legislative body for action.
(c) "Referendum" is the power of the electorate
to approve or reject a legislation through an
election called for the purpose. It may be of two
classes, namely:
c.1. Referendum on statutes which
refers to a petition to approve or reject
an act or law, or part thereof, passed by
Congress; and
c.2. Referendum on local law which
refers to a petition to approve or reject a
law, resolution or ordinance enacted by
regional assemblies and local legislative
bodies.
107
(d) "Proposition" is the measure proposed by the
voters.
(e) "Plebiscite" is the electoral process by which
an initiative on the Constitution is approved or
rejected by the people.
(f) "Petition" is the written instrument containing
the proposition and the required number of
signatories. It shall be in a form to be determined
by and submitted to the Commission on
Elections, hereinafter referred to as the
Commission.
(g) "Local government units" refers to provinces,
cities, municipalities and barangays.
(h) "Local legislative bodies" refers to the
Sangguniang Panlalawigan, Sangguniang
Panlungsod, Sangguniang Bayan, and
Sangguniang Nayon.
(i) "Local executives" refers to the Provincial
Governors, City or Municipal Mayors and
Punong Barangay, as the case may be.
Section 4. Who may exercise. — The power of
initiative and referendum may be exercised by all
registered voters of the country, autonomous regions,
provinces, cities, municipalities and barangays.
Section 5. Requirements. — (a) To exercise the power
of initiative or referendum, at least ten per centum (10%)
of the total number of the registered voters, of which
every legislative district is represented by at least three
per centum (3%) of the registered voters thereof, shall
sign a petition for the purpose and register the same with
the Commission.
(b) A petition for an initiative on the 1987
Constitution must have at least twelve per
centum (12%) of the total number of registered
voters as signatories, of which every legislative
district must be represented by at least three per
centum (3%) of the registered voters therein.
Initiative on the Constitution may be exercised
only after five (5) years from the ratification of
the 1987 Constitution and only once every five
(5) years thereafter.
(c) The petition shall state the following:
c.1. contents or text of the proposed law
sought to be enacted, approved or
rejected, amended or repealed, as the
case may be;
c.2. the proposition;
c.3. the reason or reasons therefor;
c.4. that it is not one of the exceptions
provided herein;
c.5. signatures of the petitioners or
registered voters; and
c.6. an abstract or summary in not more
than one hundred (100) words which
shall be legibly written or printed at the
top of every page of the petition.
(d) A referendum or initiative affecting a law,
resolution or ordinance passed by the legislative
assembly of an autonomous region, province or
city is deemed validly initiated if the petition
thereof is signed by at least ten per centum
(10%) of the registered voters in the province or
city, of which every legislative district must be
represented by at least three per centum (3%) of
the registered voters therein; Provided, however,
That if the province or city is composed only of
one (1) legislative district, then at least each
municipality in a province or each barangay in a
city should be represented by at least three per
centum (3%) of the registered voters therein.
 (e) A referendum of initiative on an ordinance
passed in a municipality shall be deemed validly
initiated if the petition therefor is signed by at
least ten per centum (10%) of the registered
voters in the municipality, of which every
barangay is represented by at least three per
centum (3%) of the registered voters therein.
(f) A referendum or initiative on a barangay
resolution or ordinance is deemed validly
initiated if signed by at least ten per centum
(10%) of the registered voters in said barangay.
Section 6. Special Registration. — The Commission
on Election shall set a special registration day at least
three (3) weeks before a scheduled initiative or
referendum.
Section 7. Verification of Signatures. — The Election
Registrar shall verify the signatures on the basis of the
registry list of voters, voters' affidavits and voters
identification cards used in the immediately preceding
election.
II. — National Initiative and Referendum
SECTION 8. Conduct and Date of Initiative or
Referendum. — The Commission shall call and
supervise the conduct of initiative or referendum.
Within a period of thirty (30) days from receipt of the
petition, the Commission shall, upon determining the
sufficiency of the petition, publish the same in Filipino
and English at least twice in newspapers of general and
local circulation and set the date of the initiative or
referendum which shall not be earlier than forty-five (45)
days but not later than ninety (90) days from the
determination by the Commission of the sufficiency of
the petition.
Section 9. Effectivity of Initiative or Referendum
Proposition. — (a) The Proposition of the enactment,
approval, amendment or rejection of a national law shall
be submitted to and approved by a majority of the votes
cast by all the registered voters of the Philippines.
If, as certified to by the Commission, the
proposition is approved by a majority of the
votes cast, the national law proposed for
enactment, approval, or amendment shall
become effective fifteen (15) days following
completion of its publication in the Official
Gazette or in a newspaper of general circulation
in the Philippines. If, as certified by the
Commission, the proposition to reject a national
law is approved by a majority of the votes cast,
the said national law shall be deemed repealed
and the repeal shall become effective fifteen (15)
days following the completion of publication of
the proposition and the certification by the
Commission in the Official Gazette or in a
newspaper of general circulation in the
Philippines.
However, if the majority vote is not obtained, the
national law sought to be rejected or amended
shall remain in full force and effect.
(b) The proposition in an initiative on the
Constitution approved by a majority of the votes
cast in the plebiscite shall become effective as to
the day of the plebiscite.
(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 by the Commission.
Section 10. Prohibited Measures. — The following
cannot be the subject of an initiative or referendum
petition:
(a) No petition embracing more than one (1)
subject shall be submitted to the electorate; and
108
(b) Statutes involving emergency measures, the
enactment of which are specifically vested in
Congress by the Constitution, cannot be subject
to referendum until ninety (90) days after its
effectivity.
Section 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. The
petition shall contain a summary of the chief purposes
and contents of the bill that the organization proposes to
be enacted into law by the legislature.
The procedure to be followed on the initiative bill shall be
the same as the enactment of any legislative measure
before the House of Representatives except that the said
initiative bill shall have precedence over the pending
legislative measures on the committee.
Section 12. Appeal. — The decision of the Commission
on the findings of the sufficiency or insufficiency of the
petition for initiative or referendum may be appealed to
the Supreme Court within thirty (30) days from notice
thereof.
III. — Local Initiative and Referendum
SECTION 13. Procedure in Local Initiative. — (a) Not
less than two thousand (2,000) registered voters in case
of autonomous regions, one thousand (1,000) in case of
provinces and cities, one hundred (100) in case of
municipalities, and fifty (50) in case of barangays, may
file a petition with the Regional Assembly or local
legislative body, respectively, proposing the adoption,
enactment, repeal, or amendment, of any law, ordinance
or resolution.
(b) If no favorable action thereon is made by
local legislative body within (30) days from its
presentation, the proponents through their duly
authorized and registered representative may
invoke their power of initiative, giving notice
thereof to the local legislative body concerned.
(c) The proposition shall be numbered serially
starting from one (1). The Secretary of Local
Government or his designated representative
shall extend assistance in the formulation of the
proposition.
(d) Two or more propositions may be submitted
in an initiative.
(e) Proponents shall have one hundred twenty
(120) days in case of autonomous regions,
ninety (90) days in case of provinces and cities,
sixty (60) days in case of municipalities, and
thirty (30) days in case of barangays, from notice
mentioned in subsection (b) hereof to collect the
required number of signatures.
(f) The petition shall be signed before the
Election Registrar, or his designated
representative, in the presence of a
representative of the proponent, and a
representative of the regional assemblies and
local legislative bodies concerned in a public
place in the autonomous region or local
government unit, as the case may be. Signature
stations may be established in as many places
as may be warranted.
(g) Upon the lapse of the period herein provided,
the Commission on Elections, through its office
in the local government unit concerned shall
certify as to whether or not the required number
of signatures has been obtained. Failure to
obtain the required number is a defeat of the
proposition.
(h) If the required number of the signatures is
obtained, the Commission shall then set a date
for the initiative at which the proposition shall be
 submitted to the registered voters in the local
government unit concerned for their approval
within ninety (90) days from the date of
certification by the Commission, as provided in
subsection (g) hereof, in case of autonomous
regions, sixty (60) days in case of the provinces
and cities, forty-five (45) days in case of
municipalities, and thirty (30) days in case of
barangays. The initiative shall then be held on
the date set, after which the results thereof shall
be certified and proclaimed by the Commission
on Elections.
Section 14. Effectivity of Local Propositions. — If the
proposition is approved by a majority of the votes cast, it
shall take effect fifteen (15) days after certification by the
Commission as if affirmative action thereon had been
made by the local legislative body and local executive
concerned. If it fails to obtain said number of votes, the
proposition is considered defeated.
Section 15. Limitations on Local Initiatives. — (a) The
power of local initiative shall not be exercised more than
once a year.
(b) Initiative shall extend only to subjects or
matters which are within the legal powers of the
local legislative bodies to enact.
(c) If at any time before the initiative is held, the
local legislative body shall adopt in toto the
proposition presented, the initiative shall be
cancelled. However, those against such action
may, if they so desire, apply for initiative in the
manner herein provided.
Section 16. Limitations Upon Local Legislative
Bodies. — Any proposition or ordinance or resolution
approved through the system of initiative and
referendum as herein provided shall not be repealed,
modified or amended, by the local legislative body
concerned within six (6) months from the date therefrom,
and may be amended, modified or repealed by the local
legislative body within three (3) years thereafter by a
vote of three-fourths (3/4) of all its members: Provided,
however, that in case of barangays, the period shall be
one (1) year after the expiration of the first six (6)
months.
Section 17. Local Referendum. — Notwithstanding the
provisions of Section 4 hereof, any local legislative body
may submit to the registered voters of autonomous
region, provinces, cities, municipalities and barangays
for the approval or rejection, any ordinance or resolution
duly enacted or approved.
Said referendum shall be held under the control and
direction of the Commission within sixty (60) days in
case of provinces and cities, forty-five (45) days in case
of municipalities and thirty (30) days in case of
barangays.
The Commission shall certify and proclaim the results of
the said referendum.
Section 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.
IV. — Final Provisions
SECTION 19. Applicability of the Omnibus Election
Code. — The Omnibus Election Code and other election
laws, not inconsistent with the provisions of this Act, shall
apply to all initiatives and referenda.
Section 20. Rules and Regulations. — The
Commission is hereby empowered to promulgate such
rules and regulations as may be necessary to carry out
the purposes of this Act.
109
Section 21. Appropriations. — The amount necessary
to defray the cost of the initial implementation of this Act
shall be charged against the Contingent Fund in the
General Appropriations Act of the current year.
Thereafter, such sums as may be necessary for the full
implementation of this Act shall be included in the annual
General Appropriations Act.
Section 22. Separability Clause. — If any part or
provision of this Act is held invalid or unconstitutional, the
other parts or provisions thereof shall remain valid and
effective.
Section 23. Effectivity. — This Act shall take effect
fifteen (15) days after its publication in a newspaper of
general circulation.
SENATE OF THE PHILIPPINES, represented by
FRANKLIN M. DRILON, in his capacity as Senate
President, JUAN M. FLAVIER, in his capacity as
Senate President Pro Tempore, FRANCIS N.
PANGILINAN, in his capacity as Majority Leader,
AQUILINO Q. PIMENTEL, JR., in his capacity as
Minority Leader, SENATORS RODOLFO G. BIAZON,
"COMPANERA" PIA S. CAYETANO, JINGGOY
EJERCITO ESTRADA, LUISA "LOI" EJERCITO
ESTRADA, JUAN PONCE ENRILE, RICHARD J.
GORDON, PANFILO M. LACSON, ALFREDO S.LIM, M.
A. MADRIGAL, SERGIO OSMENA III, RALPH G.
RECTO, and MAR ROXAS, Petitioners,
vs.
EDUARDO R. ERMITA, in his capacity as Executive
Secretary and alter-ego of President Gloria
Macapagal-Arroyo, and anyone acting in his stead
and in behalf of the President of the
Philippines, Respondents.
x-------------------------x
G.R. No. 169659 April 20, 2006
BAYAN MUNA represented by DR. REYNALDO
LESACA, JR., Rep. SATUR OCAMPO, Rep. CRISPIN
BELTRAN, Rep. RAFAEL MARIANO, Rep. LIZA
MAZA, Rep. TEODORO CASINO, Rep. JOEL
VIRADOR, COURAGE represented by FERDINAND
GAITE, and COUNSELS FOR THE DEFENSE OF
LIBERTIES (CODAL) represented by ATTY.
REMEDIOS BALBIN, Petitioners,
vs.
EDUARDO ERMITA, in his capacity as Executive
Secretary and alter-ego of President Gloria
Macapagal-Arroyo, Respondent.
x-------------------------x
G.R. No. 169660 April 20, 2006
FRANCISCO I. CHAVEZ, Petitioner,
vs.
EDUARDO R. ERMITA, in his capacity as Executive
Secretary, AVELINO J. CRUZ, JR., in his capacity as
Secretary of Defense, and GENEROSO S. SENGA, in
his capacity as AFP Chief of Staff, Respondents.
x-------------------------x
G.R. No. 169667 April 20, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,
vs.
HON. EDUARDO R. ERMITA, in his capacity as
Executive Secretary, Respondent.
x-------------------------x
G.R. No. 169834 April 20, 2006
PDP- LABAN, Petitioner,
vs.
EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
x-------------------------x
G.R. No. 171246 April 20, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA,
ROMULO R. RIVERA, JOSE AMOR AMORANDO,
ALICIA A. RISOS-VIDAL, FILEMON C. ABELITA III,
MANUEL P. LEGASPI, J. B. JOVY C. BERNABE,
BERNARD L. DAGCUTA, ROGELIO V. GARCIA, and
the INTEGRATED BAR FOR THE
PHILIPPINES, Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO R.
ERMITA, Respondent.
DECISION
CARPIO MORALES, J.:
A transparent government is one of the hallmarks of a
truly republican state. Even in the early history of
republican thought, however, it has been recognized that
the head of government may keep certain information
confidential in pursuit of the public interest. Explaining
the reason for vesting executive power in only one
magistrate, a distinguished delegate to the U.S.
Constitutional Convention said: "Decision, activity,
secrecy, and dispatch will generally characterize the
proceedings of one man, in a much more eminent
degree than the proceedings of any greater number; and
in proportion as the number is increased, these qualities
will be diminished."1
History has been witness, however, to the fact that the
power to withhold information lends itself to abuse,
hence, the necessity to guard it zealously.
The present consolidated petitions for certiorari and
prohibition proffer that the President has abused such
power by issuing Executive Order No. 464 (E.O. 464)
last September 28, 2005. They thus pray for its
declaration as null and void for being unconstitutional.
In resolving the controversy, this Court shall proceed
with the recognition that the issuance under review has
come from a co-equal branch of government, which thus
entitles it to a strong presumption of constitutionality.
Once the challenged order is found to be indeed violative
of the Constitution, it is duty-bound to declare it so. For
the Constitution, being the highest expression of the
sovereign will of the Filipino people, must prevail over
any issuance of the government that contravenes its
mandates.
In the exercise of its legislative power, the Senate of the
Philippines, through its various Senate Committees,
conducts inquiries or investigations in aid of legislation
which call for, inter alia, the attendance of officials and
employees of the executive department, bureaus, and
offices including those employed in Government Owned
and Controlled Corporations, the Armed Forces of the
Philippines (AFP), and the Philippine National Police
(PNP).
On September 21 to 23, 2005, the Committee of the
Senate as a whole issued invitations to various officials
of the Executive Department for them to appear on
September 29, 2005 as resource speakers in a public
hearing on the railway project of the North Luzon
Railways Corporation with the China National Machinery
and Equipment Group (hereinafter North Rail Project).
The public hearing was sparked by a privilege speech of
Senator Juan Ponce Enrile urging the Senate to
investigate the alleged overpricing and other unlawful
provisions of the contract covering the North Rail Project.
The Senate Committee on National Defense and
Security likewise issued invitations2 dated September 22,
2005 to the following officials of the AFP: the
Commanding General of the Philippine Army, Lt. Gen.
Hermogenes C. Esperon; Inspector General of the AFP
Vice Admiral Mateo M. Mayuga; Deputy Chief of Staff for
Intelligence of the AFP Rear Admiral Tirso R. Danga;
Chief of the Intelligence Service of the AFP Brig. Gen.
Marlu Q. Quevedo; Assistant Superintendent of the
Philippine Military Academy (PMA) Brig. Gen. Francisco
V. Gudani; and Assistant Commandant, Corps of Cadets
of the PMA, Col. Alexander F. Balutan, for them to attend
110
as resource persons in a public hearing scheduled on
September 28, 2005 on the following: (1) Privilege
Speech of Senator Aquilino Q. Pimentel Jr., delivered on
June 6, 2005 entitled "Bunye has Provided Smoking Gun
or has Opened a Can of Worms that Show Massive
Electoral Fraud in the Presidential Election of May
2005"; (2) Privilege Speech of Senator Jinggoy E.
Estrada delivered on July 26, 2005 entitled "The
Philippines as the Wire-Tapping Capital of the World"; (3)
Privilege Speech of Senator Rodolfo Biazon delivered on
August 1, 2005 entitled "Clear and Present Danger"; (4)
Senate Resolution No. 285 filed by Senator Maria Ana
Consuelo Madrigal – Resolution Directing the Committee
on National Defense and Security to Conduct an Inquiry,
in Aid of Legislation, and in the National Interest, on the
Role of the Military in the So-called "Gloriagate Scandal";
and (5) Senate Resolution No. 295 filed by Senator
Biazon – Resolution Directing the Committee on National
Defense and Security to Conduct an Inquiry, in Aid of
Legislation, on the Wire-Tapping of the President of the
Philippines.
Also invited to the above-said hearing scheduled on
September 28 2005 was the AFP Chief of Staff, General
Generoso S. Senga who, by letter3 dated September 27,
2005, requested for its postponement "due to a pressing
operational situation that demands [his utmost personal
attention" while "some of the invited AFP officers are
currently attending to other urgent operational matters."
On September 28, 2005, Senate President Franklin M.
Drilon received from Executive Secretary Eduardo R.
Ermita a letter4 dated September 27, 2005 "respectfully
request[ing] for the postponement of the hearing
[regarding the NorthRail project] to which various officials
of the Executive Department have been invited" in order
to "afford said officials ample time and opportunity to
study and prepare for the various issues so that they
may better enlighten the Senate Committee on its
investigation."
Senate President Drilon, however, wrote5 Executive
Secretary Ermita that the Senators "are unable to
accede to [his request]" as it "was sent belatedly" and
"[a]ll preparations and arrangements as well as notices
to all resource persons were completed [the previous]
week."
Senate President Drilon likewise received on September
28, 2005 a letter6 from the President of the North Luzon
Railways Corporation Jose L. Cortes, Jr. requesting that
the hearing on the NorthRail project be postponed or
cancelled until a copy of the report of the UP Law Center
on the contract agreements relative to the project had
been secured.
On September 28, 2005, the President issued E.O. 464,
"Ensuring Observance of the Principle of Separation of
Powers, Adherence to the Rule on Executive Privilege
and Respect for the Rights of Public Officials Appearing
in Legislative Inquiries in Aid of Legislation Under the
Constitution, and For Other Purposes,"7 which, pursuant
to Section 6 thereof, took effect immediately. The salient
provisions of the Order are as follows:
SECTION 1. Appearance by Heads of Departments
Before Congress. – In accordance with Article VI,
Section 22 of the Constitution and to implement the
Constitutional provisions on the separation of powers
between co-equal branches of the government, all heads
of departments of the Executive Branch of the
government shall secure the consent of the President
prior to appearing before either House of Congress.
When the security of the State or the public interest so
requires and the President so states in writing, the
appearance shall only be conducted in executive
session.
SECTION. 2. Nature, Scope and Coverage of Executive
Privilege. –
(a) Nature and Scope. - The rule of confidentiality based
on executive privilege is fundamental to the operation of
government and rooted in the separation of powers
under the Constitution (Almonte vs. Vasquez, G.R. No.
95367, 23 May 1995). Further, Republic Act No. 6713 or
the Code of Conduct and Ethical Standards for Public
Officials and Employees provides that Public Officials
and Employees shall not use or divulge confidential or
classified information officially known to them by reason
of their office and not made available to the public to
prejudice the public interest.
Executive privilege covers all confidential or classified
information between the President and the public officers
covered by this executive order, including:
Conversations and correspondence between the
President and the public official covered by this
executive order (Almonte vs. Vasquez G.R. No. 95367,
23 May 1995; Chavez v. Public Estates Authority, G.R.
No. 133250, 9 July 2002);
Military, diplomatic and other national security matters
which in the interest of national security should not be
divulged (Almonte vs. Vasquez, G.R. No. 95367, 23 May
1995; Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998).
Information between inter-government agencies prior to
the conclusion of treaties and executive agreements
(Chavez v. Presidential Commission on Good
Government, G.R. No. 130716, 9 December 1998);
Discussion in close-door Cabinet meetings (Chavez v.
Presidential Commission on Good Government, G.R.
No. 130716, 9 December 1998);
Matters affecting national security and public order
(Chavez v. Public Estates Authority, G.R. No. 133250, 9
July 2002).
(b) Who are covered. – The following are covered by this
executive order:
Senior officials of executive departments who in the
judgment of the department heads are covered by the
executive privilege;
Generals and flag officers of the Armed Forces of the
Philippines and such other officers who in the judgment
of the Chief of Staff are covered by the executive
privilege;
Philippine National Police (PNP) officers with rank of
chief superintendent or higher and such other officers
who in the judgment of the Chief of the PNP are covered
by the executive privilege;
Senior national security officials who in the judgment of
the National Security Adviser are covered by the
executive privilege; and
Such other officers as may be determined by the
President.
SECTION 3. Appearance of Other Public Officials Before
Congress. – All public officials enumerated in Section 2
(b) hereof shall secure prior consent of the President
prior to appearing before either House of Congress to
ensure the observance of the principle of separation of
powers, adherence to the rule on executive privilege and
respect for the rights of public officials appearing in
inquiries in aid of legislation. (Emphasis and
underscoring supplied)
Also on September 28, 2005, Senate President Drilon
received from Executive Secretary Ermita a copy of E.O.
464, and another letter8 informing him "that officials of
the Executive Department invited to appear at the
meeting [regarding the NorthRail project] will not be able
to attend the same without the consent of the President,
pursuant to [E.O. 464]" and that "said officials have not
secured the required consent from the President." On
even date which was also the scheduled date of the
hearing on the alleged wiretapping, Gen. Senga sent a
letter9 to Senator Biazon, Chairperson of the Committee
111
on National Defense and Security, informing him "that
per instruction of [President Arroyo], thru the Secretary of
National Defense, no officer of the [AFP] is authorized to
appear before any Senate or Congressional hearings
without seeking a written approval from the President"
and "that no approval has been granted by the President
to any AFP officer to appear before the public hearing of
the Senate Committee on National Defense and Security
scheduled [on] 28 September 2005."
Despite the communications received from Executive
Secretary Ermita and Gen. Senga, the investigation
scheduled by the Committee on National Defense and
Security pushed through, with only Col. Balutan and
Brig. Gen. Gudani among all the AFP officials invited
attending.
For defying President Arroyo’s order barring military
personnel from testifying before legislative inquiries
without her approval, Brig. Gen. Gudani and Col. Balutan
were relieved from their military posts and were made to
face court martial proceedings.
As to the NorthRail project hearing scheduled on
September 29, 2005, Executive Secretary Ermita, citing
E.O. 464, sent letter of regrets, in response to the
invitations sent to the following government officials:
Light Railway Transit Authority Administrator Melquiades
Robles, Metro Rail Transit Authority Administrator
Roberto Lastimoso, Department of Justice (DOJ) Chief
State Counsel Ricardo V. Perez, then Presidential Legal
Counsel Merceditas Gutierrez, Department of
Transportation and Communication (DOTC)
Undersecretary Guiling Mamonding, DOTC Secretary
Leandro Mendoza, Philippine National Railways General
Manager Jose Serase II, Monetary Board Member
Juanita Amatong, Bases Conversion Development
Authority Chairperson Gen. Narciso Abaya and
Secretary Romulo L. Neri.10 NorthRail President Cortes
sent personal regrets likewise citing E.O. 464.11
On October 3, 2005, three petitions, docketed as G.R.
Nos. 169659, 169660, and 169667, for certiorari and
prohibition, were filed before this Court challenging the
constitutionality of E.O. 464.
In G.R. No. 169659, petitioners party-list Bayan Muna,
House of Representatives Members Satur Ocampo,
Crispin Beltran, Rafael Mariano, Liza Maza, Joel Virador
and Teodoro Casino, Courage, an organization of
government employees, and Counsels for the Defense
of Liberties (CODAL), a group of lawyers dedicated to
the promotion of justice, democracy and peace, all
claiming to have standing to file the suit because of the
transcendental importance of the issues they posed,
pray, in their petition that E.O. 464 be declared null and
void for being unconstitutional; that respondent
Executive Secretary Ermita, in his capacity as Executive
Secretary and alter-ego of President Arroyo, be
prohibited from imposing, and threatening to impose
sanctions on officials who appear before Congress due
to congressional summons. Additionally, petitioners claim
that E.O. 464 infringes on their rights and impedes them
from fulfilling their respective obligations. Thus, Bayan
Muna alleges that E.O. 464 infringes on its right as a
political party entitled to participate in governance; Satur
Ocampo, et al. allege that E.O. 464 infringes on their
rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight
functions in the implementation of laws; Courage alleges
that the tenure of its members in public office is
predicated on, and threatened by, their submission to the
requirements of E.O. 464 should they be summoned by
Congress; and CODAL alleges that its members have a
sworn duty to uphold the rule of law, and their rights to
information and to transparent governance are
threatened by the imposition of E.O. 464.
In G.R. No. 169660, petitioner Francisco I. Chavez,
claiming that his constitutional rights as a citizen,
taxpayer and law practitioner, are affected by the
enforcement of E.O. 464, prays in his petition that E.O.
464 be declared null and void for being unconstitutional.
In G.R. No. 169667, petitioner Alternative Law Groups,
Inc.12 (ALG), alleging that as a coalition of 17 legal
resource non-governmental organizations engaged in
developmental lawyering and work with the poor and
marginalized sectors in different parts of the country, and
as an organization of citizens of the Philippines and a
part of the general public, it has legal standing to institute
the petition to enforce its constitutional right to
information on matters of public concern, a right which
was denied to the public by E.O. 464,13 prays, that said
order be declared null and void for being unconstitutional
and that respondent Executive Secretary Ermita be
ordered to cease from implementing it.
On October 11, 2005, Petitioner Senate of the
Philippines, alleging that it has a vital interest in the
resolution of the issue of the validity of E.O. 464 for it
stands to suffer imminent and material injury, as it has
already sustained the same with its continued
enforcement since it directly interferes with and impedes
the valid exercise of the Senate’s powers and functions
and conceals information of great public interest and
concern, filed its petition for certiorari and prohibition,
docketed as G.R. No. 169777 and prays that E.O. 464
be declared unconstitutional.
On October 14, 2005, PDP-Laban, a registered political
party with members duly elected into the Philippine
Senate and House of Representatives, filed a similar
petition for certiorari and prohibition, docketed as G.R.
No. 169834, alleging that it is affected by the challenged
E.O. 464 because it hampers its legislative agenda to be
implemented through its members in Congress,
particularly in the conduct of inquiries in aid of legislation
and transcendental issues need to be resolved to avert a
constitutional crisis between the executive and legislative
branches of the government.
Meanwhile, by letter14 dated February 6, 2006, Senator
Biazon reiterated his invitation to Gen. Senga for him
and other military officers to attend the hearing on the
alleged wiretapping scheduled on February 10, 2005.
Gen. Senga replied, however, by letter15 dated February
8, 2006, that "[p]ursuant to Executive Order No. 464,
th[e] Headquarters requested for a clearance from the
President to allow [them] to appear before the public
hearing" and that "they will attend once [their] request is
approved by the President." As none of those invited
appeared, the hearing on February 10, 2006 was
cancelled.16
In another investigation conducted jointly by the Senate
Committee on Agriculture and Food and the Blue Ribbon
Committee on the alleged mismanagement and use of
the fertilizer fund under the Ginintuang Masaganang Ani
program of the Department of Agriculture (DA), several
Cabinet officials were invited to the hearings scheduled
on October 5 and 26, November 24 and December 12,
2005 but most of them failed to attend, DA
Undersecretary Belinda Gonzales, DA Assistant
Secretary Felix Jose Montes, Fertilizer and Pesticide
Authority Executive Director Norlito R. Gicana,17 and
those from the Department of Budget and
Management18 having invoked E.O. 464.
In the budget hearings set by the Senate on February 8
and 13, 2006, Press Secretary and Presidential
Spokesperson Ignacio R. Bunye,19 DOJ Secretary Raul
M. Gonzalez20 and Department of Interior and Local
Government Undersecretary Marius P.
Corpus21 communicated their inability to attend due to
lack of appropriate clearance from the President
pursuant to E.O. 464. During the February 13, 2005
budget hearing, however, Secretary Bunye was allowed
to attend by Executive Secretary Ermita.
112
On February 13, 2006, Jose Anselmo I. Cadiz and the
incumbent members of the Board of Governors of the
Integrated Bar of the Philippines, as taxpayers, and the
Integrated Bar of the Philippines as the official
organization of all Philippine lawyers, all invoking their
constitutional right to be informed on matters of public
interest, filed their petition for certiorari and prohibition,
docketed as G.R. No. 171246, and pray that E.O. 464 be
declared null and void.
All the petitions pray for the issuance of a Temporary
Restraining Order enjoining respondents from
implementing, enforcing, and observing E.O. 464.
In the oral arguments on the petitions conducted on
February 21, 2006, the following substantive issues were
ventilated: (1) whether respondents committed grave
abuse of discretion in implementing E.O. 464 prior to its
publication in the Official Gazette or in a newspaper of
general circulation; and (2) whether E.O. 464 violates the
following provisions of the Constitution: Art. II, Sec. 28,
Art. III, Sec. 4, Art. III, Sec. 7, Art. IV. Sec. 1, Art. VI, Sec.
21, Art. VI, Sec. 22, Art. XI, Sec. 1, and Art. XIII, Sec. 16.
The procedural issue of whether there is an actual case
or controversy that calls for judicial review was not taken
up; instead, the parties were instructed to discuss it in
their respective memoranda.
After the conclusion of the oral arguments, the parties
were directed to submit their respective memoranda,
paying particular attention to the following propositions:
(1) that E.O. 464 is, on its face, unconstitutional; and (2)
assuming that it is not, it is unconstitutional as applied in
four instances, namely: (a) the so called Fertilizer scam;
(b) the NorthRail investigation (c) the Wiretapping activity
of the ISAFP; and (d) the investigation on the Venable
contract.22
Petitioners in G.R. No. 16966023 and G.R. No.
16977724 filed their memoranda on March 7, 2006, while
those in G.R. No. 16966725 and G.R. No. 16983426 filed
theirs the next day or on March 8, 2006. Petitioners in
G.R. No. 171246 did not file any memorandum.
Petitioners Bayan Muna et al. in G.R. No. 169659, after
their motion for extension to file memorandum27 was
granted, subsequently filed a manifestation28 dated
March 14, 2006 that it would no longer file its
memorandum in the interest of having the issues
resolved soonest, prompting this Court to issue a
Resolution reprimanding them.29
Petitioners submit that E.O. 464 violates the following
constitutional provisions:
Art. VI, Sec. 2130
Art. VI, Sec. 2231
Art. VI, Sec. 132
Art. XI, Sec. 133
Art. III, Sec. 734
Art. III, Sec. 435
Art. XIII, Sec. 16 36
Art. II, Sec. 2837
Respondents Executive Secretary Ermita et al., on the
other hand, pray in their consolidated memorandum 38 on
March 13, 2006 for the dismissal of the petitions for lack
of merit.
The Court synthesizes the issues to be resolved as
follows:
1. Whether E.O. 464 contravenes the power of
inquiry vested in Congress;
2. Whether E.O. 464 violates the right of the
people to information on matters of public
concern; and
3. Whether respondents have committed grave
abuse of discretion when they implemented E.O.
464 prior to its publication in a newspaper of
general circulation.
Essential requisites for judicial review
Before proceeding to resolve the issue of the
constitutionality of E.O. 464, ascertainment of whether
the requisites for a valid exercise of the Court’s power of
judicial review are present is in order.
Like almost all powers conferred by the Constitution, the
power of judicial review is subject to limitations, to wit:
(1) there must be an actual case or controversy calling
for the exercise of judicial power; (2) the person
challenging the act must have standing to challenge the
validity of the subject act or issuance; otherwise stated,
he must have a personal and substantial interest in the
case such that he has sustained, or will sustain, direct
injury as a result of its enforcement; (3) the question of
constitutionality must be raised at the earliest
opportunity; and (4) the issue of constitutionality must be
the very lis mota of the case.39
Except with respect to the requisites of standing and
existence of an actual case or controversy where the
disagreement between the parties lies, discussion of the
rest of the requisites shall be omitted.
Standing
Respondents, through the Solicitor General, assert that
the allegations in G.R. Nos. 169659, 169660 and 169667
make it clear that they, adverting to the non-appearance
of several officials of the executive department in the
investigations called by the different committees of the
Senate, were brought to vindicate the constitutional duty
of the Senate or its different committees to conduct
inquiry in aid of legislation or in the exercise of its
oversight functions. They maintain that Representatives
Ocampo et al. have not shown any specific prerogative,
power, and privilege of the House of Representatives
which had been effectively impaired by E.O. 464, there
being no mention of any investigation called by the
House of Representatives or any of its committees which
was aborted due to the implementation of E.O. 464.
As for Bayan Muna’s alleged interest as a party-list
representing the marginalized and underrepresented,
and that of the other petitioner groups and individuals
who profess to have standing as advocates and
defenders of the Constitution, respondents contend that
such interest falls short of that required to confer
standing on them as parties "injured-in-fact." 40
Respecting petitioner Chavez, respondents contend that
Chavez may not claim an interest as a taxpayer for the
implementation of E.O. 464 does not involve the
exercise of taxing or spending power. 41
With regard to the petition filed by the Senate,
respondents argue that in the absence of a personal or
direct injury by reason of the issuance of E.O. 464, the
Senate and its individual members are not the proper
parties to assail the constitutionality of E.O. 464.
Invoking this Court’s ruling in National Economic
Protectionism Association v. Ongpin42 and Valmonte v.
Philippine Charity Sweepstakes Office,43 respondents
assert that to be considered a proper party, one must
have a personal and substantial interest in the case,
such that he has sustained or will sustain direct injury
due to the enforcement of E.O. 464.44
That the Senate of the Philippines has a fundamental
right essential not only for intelligent public decision-
making in a democratic system, but more especially for
sound legislation45 is not disputed. E.O. 464, however,
allegedly stifles the ability of the members of Congress
to access information that is crucial to law-
making.46 Verily, the Senate, including its individual
members, has a substantial and direct interest over the
outcome of the controversy and is the proper party to
assail the constitutionality of E.O. 464. Indeed,
legislators have standing to maintain inviolate the
prerogative, powers and privileges vested by the
Constitution in their office and are allowed to sue to
113
question the validity of any official action which they
claim infringes their prerogatives as legislators. 47
In the same vein, party-list representatives Satur
Ocampo (Bayan Muna), Teodoro Casino (Bayan Muna),
Joel Virador (Bayan Muna), Crispin Beltran (Anakpawis),
Rafael Mariano (Anakpawis), and Liza Maza (Gabriela)
are allowed to sue to question the constitutionality of
E.O. 464, the absence of any claim that an investigation
called by the House of Representatives or any of its
committees was aborted due to the implementation of
E.O. 464 notwithstanding, it being sufficient that a claim
is made that E.O. 464 infringes on their constitutional
rights and duties as members of Congress to conduct
investigation in aid of legislation and conduct oversight
functions in the implementation of laws.
The national political party, Bayan Muna, likewise meets
the standing requirement as it obtained three seats in the
House of Representatives in the 2004 elections and is,
therefore, entitled to participate in the legislative process
consonant with the declared policy underlying the party
list system of affording citizens belonging to marginalized
and underrepresented sectors, organizations and parties
who lack well-defined political constituencies to
contribute to the formulation and enactment of legislation
that will benefit the nation.48
As Bayan Muna and Representatives Ocampo et al.
have the standing to file their petitions, passing on the
standing of their co-petitioners Courage and Codal is
rendered unnecessary.49
In filing their respective petitions, Chavez, the ALG which
claims to be an organization of citizens, and the
incumbent members of the IBP Board of Governors and
the IBP in behalf of its lawyer members,50 invoke their
constitutional right to information on matters of public
concern, asserting that the right to information, curtailed
and violated by E.O. 464, is essential to the effective
exercise of other constitutional rights51 and to the
maintenance of the balance of power among the three
branches of the government through the principle of
checks and balances.52
It is well-settled that when suing as a citizen, the interest
of the petitioner in assailing the constitutionality of laws,
presidential decrees, orders, and other regulations, must
be direct and personal. In Franciso v. House of
Representatives,53 this Court held that when the
proceeding involves the assertion of a public right, the
mere fact that he is a citizen satisfies the requirement of
personal interest.
As for petitioner PDP-Laban, it asseverates that it is
clothed with legal standing in view of the transcendental
issues raised in its petition which this Court needs to
resolve in order to avert a constitutional crisis. For it to
be accorded standing on the ground of transcendental
importance, however, it must establish (1) the character
of the funds (that it is public) or other assets involved in
the case, (2) the presence of a clear case of disregard of
a constitutional or statutory prohibition by the public
respondent agency or instrumentality of the government,
and (3) the lack of any party with a more direct and
specific interest in raising the questions being
raised.54 The first and last determinants not being
present as no public funds or assets are involved and
petitioners in G.R. Nos. 169777 and 169659 have direct
and specific interests in the resolution of the controversy,
petitioner PDP-Laban is bereft of standing to file its
petition. Its allegation that E.O. 464 hampers its
legislative agenda is vague and uncertain, and at best is
only a "generalized interest" which it shares with the rest
of the political parties. Concrete injury, whether actual or
threatened, is that indispensable element of a dispute
which serves in part to cast it in a form traditionally
capable of judicial resolution.55 In fine, PDP-Laban’s
alleged interest as a political party does not suffice to
clothe it with legal standing.
Actual Case or Controversy
Petitioners assert that an actual case exists, they citing
the absence of the executive officials invited by the
Senate to its hearings after the issuance of E.O. 464,
particularly those on the NorthRail project and the
wiretapping controversy.
Respondents counter that there is no case or
controversy, there being no showing that President
Arroyo has actually withheld her consent or prohibited
the appearance of the invited officials. 56 These officials,
they claim, merely communicated to the Senate that they
have not yet secured the consent of the President, not
that the President prohibited their
attendance.57 Specifically with regard to the AFP officers
who did not attend the hearing on September 28, 2005,
respondents claim that the instruction not to attend
without the President’s consent was based on its role as
Commander-in-Chief of the Armed Forces, not on E.O.
464.
Respondents thus conclude that the petitions merely rest
on an unfounded apprehension that the President will
abuse its power of preventing the appearance of officials
before Congress, and that such apprehension is not
sufficient for challenging the validity of E.O. 464.
The Court finds respondents’ assertion that the
President has not withheld her consent or prohibited the
appearance of the officials concerned immaterial in
determining the existence of an actual case or
controversy insofar as E.O. 464 is concerned. For E.O.
464 does not require either a deliberate withholding of
consent or an express prohibition issuing from the
President in order to bar officials from appearing before
Congress.
As the implementation of the challenged order has
already resulted in the absence of officials invited to the
hearings of petitioner Senate of the Philippines, it would
make no sense to wait for any further event before
considering the present case ripe for adjudication.
Indeed, it would be sheer abandonment of duty if this
Court would now refrain from passing on the
constitutionality of E.O. 464.
Constitutionality of E.O. 464
E.O. 464, to the extent that it bars the appearance of
executive officials before Congress, deprives Congress
of the information in the possession of these officials. To
resolve the question of whether such withholding of
information violates the Constitution, consideration of the
general power of Congress to obtain information,
otherwise known as the power of inquiry, is in order.
The power of inquiry
The Congress power of inquiry is expressly recognized
in Section 21 of Article VI of the Constitution which
reads:
SECTION 21. The Senate or the House of
Representatives or any of its respective committees may
conduct inquiries in aid of legislation in accordance with
its duly published rules of procedure. The rights of
persons appearing in or affected by such inquiries shall
be respected. (Underscoring supplied)
This provision is worded exactly as Section 8 of Article
VIII of the 1973 Constitution except that, in the latter, it
vests the power of inquiry in the unicameral legislature
established therein – the Batasang Pambansa – and its
committees.
The 1935 Constitution did not contain a similar provision.
Nonetheless, in Arnault v. Nazareno,58 a case decided in
1950 under that Constitution, the Court already
recognized that the power of inquiry is inherent in the
power to legislate.
Arnault involved a Senate investigation of the reportedly
anomalous purchase of the Buenavista and Tambobong
Estates by the Rural Progress Administration. Arnault,
114
who was considered a leading witness in the
controversy, was called to testify thereon by the Senate.
On account of his refusal to answer the questions of the
senators on an important point, he was, by resolution of
the Senate, detained for contempt. Upholding the
Senate’s power to punish Arnault for contempt, this
Court held:
Although there is no provision in the Constitution
expressly investing either House of Congress with power
to make investigations and exact testimony to the end
that it may exercise its legislative functions advisedly and
effectively, such power is so far incidental to the
legislative function as to be implied. In other words, the
power of inquiry – with process to enforce it – is an
essential and appropriate auxiliary to the legislative
function. A legislative body cannot legislate wisely or
effectively in the absence of information respecting the
conditions which the legislation is intended to affect or
change; and where the legislative body does not itself
possess the requisite information – which is not
infrequently true – recourse must be had to others who
do possess it. Experience has shown that mere requests
for such information are often unavailing, and also that
information which is volunteered is not always accurate
or complete; so some means of compulsion is essential
to obtain what is needed.59 . . . (Emphasis and
underscoring supplied)
That this power of inquiry is broad enough to cover
officials of the executive branch may be deduced from
the same case. The power of inquiry, the Court therein
ruled, is co-extensive with the power to legislate. 60 The
matters which may be a proper subject of legislation and
those which may be a proper subject of investigation are
one. It follows that the operation of government, being a
legitimate subject for legislation, is a proper subject for
investigation.
Thus, the Court found that the Senate investigation of
the government transaction involved in Arnault was a
proper exercise of the power of inquiry. Besides being
related to the expenditure of public funds of which
Congress is the guardian, the transaction, the Court
held, "also involved government agencies created by
Congress and officers whose positions it is within the
power of Congress to regulate or even abolish."
Since Congress has authority to inquire into the
operations of the executive branch, it would be
incongruous to hold that the power of inquiry does not
extend to executive officials who are the most familiar
with and informed on executive operations.
As discussed in Arnault, the power of inquiry, "with
process to enforce it," is grounded on the necessity of
information in the legislative process. If the information
possessed by executive officials on the operation of their
offices is necessary for wise legislation on that subject,
by parity of reasoning, Congress has the right to that
information and the power to compel the disclosure
thereof.
As evidenced by the American experience during the so-
called "McCarthy era," however, the right of Congress to
conduct inquiries in aid of legislation is, in theory, no less
susceptible to abuse than executive or judicial power. It
may thus be subjected to judicial review pursuant to the
Court’s certiorari powers under Section 1, Article VIII of
the Constitution.
For one, as noted in Bengzon v. Senate Blue Ribbon
Committee,61 the inquiry itself might not properly be in
aid of legislation, and thus beyond the constitutional
power of Congress. Such inquiry could not usurp judicial
functions. Parenthetically, one possible way for
Congress to avoid such a result as occurred in Bengzon
is to indicate in its invitations to the public officials
concerned, or to any person for that matter, the possible
needed statute which prompted the need for the inquiry.
Given such statement in its invitations, along with the
usual indication of the subject of inquiry and the
questions relative to and in furtherance thereof, there
would be less room for speculation on the part of the
person invited on whether the inquiry is in aid of
legislation.
Section 21, Article VI likewise establishes crucial
safeguards that proscribe the legislative power of inquiry.
The provision requires that the inquiry be done in
accordance with the Senate or House’s duly published
rules of procedure, necessarily implying the
constitutional infirmity of an inquiry conducted without
duly published rules of procedure. Section 21 also
mandates that the rights of persons appearing in or
affected by such inquiries be respected, an imposition
that obligates Congress to adhere to the guarantees in
the Bill of Rights.
These abuses are, of course, remediable before the
courts, upon the proper suit filed by the persons affected,
even if they belong to the executive branch.
Nonetheless, there may be exceptional circumstances,
none appearing to obtain at present, wherein a clear
pattern of abuse of the legislative power of inquiry might
be established, resulting in palpable violations of the
rights guaranteed to members of the executive
department under the Bill of Rights. In such instances,
depending on the particulars of each case, attempts by
the Executive Branch to forestall these abuses may be
accorded judicial sanction.
Even where the inquiry is in aid of legislation, there are
still recognized exemptions to the power of inquiry, which
exemptions fall under the rubric of "executive privilege."
Since this term figures prominently in the challenged
order, it being mentioned in its provisions, its preambular
clauses,62 and in its very title, a discussion of executive
privilege is crucial for determining the constitutionality of
E.O. 464.
Executive privilege
The phrase "executive privilege" is not new in this
jurisdiction. It has been used even prior to the
promulgation of the 1986 Constitution.63 Being of
American origin, it is best understood in light of how it
has been defined and used in the legal literature of the
United States.
Schwartz defines executive privilege as "the power of
the Government to withhold information from the public,
the courts, and the Congress."64 Similarly, Rozell defines
it as "the right of the President and high-level executive
branch officers to withhold information from Congress,
the courts, and ultimately the public."65
Executive privilege is, nonetheless, not a clear or unitary
concept. 66 It has encompassed claims of varying
kinds.67Tribe, in fact, comments that while it is customary
to employ the phrase "executive privilege," it may be
more accurate to speak of executive privileges "since
presidential refusals to furnish information may be
actuated by any of at least three distinct kinds of
considerations, and may be asserted, with differing
degrees of success, in the context of either judicial or
legislative investigations."
One variety of the privilege, Tribe explains, is the state
secrets privilege invoked by U.S. Presidents, beginning
with Washington, on the ground that the information is of
such nature that its disclosure would subvert crucial
military or diplomatic objectives. Another variety is the
informer’s privilege, or the privilege of the Government
not to disclose the identity of persons who furnish
information of violations of law to officers charged with
the enforcement of that law. Finally, a generic privilege
for internal deliberations has been said to attach to
intragovernmental documents reflecting advisory
opinions, recommendations and deliberations comprising
115
part of a process by which governmental decisions and
policies are formulated. 68
Tribe’s comment is supported by the ruling in In re
Sealed Case, thus:
Since the beginnings of our nation, executive officials
have claimed a variety of privileges to resist disclosure of
information the confidentiality of which they felt was
crucial to fulfillment of the unique role and
responsibilities of the executive branch of our
government. Courts ruled early that the executive had a
right to withhold documents that might reveal military or
state secrets. The courts have also granted the
executive a right to withhold the identity of government
informers in some circumstances and a qualified right to
withhold information related to pending investigations. x
x x"69 (Emphasis and underscoring supplied)
The entry in Black’s Law Dictionary on "executive
privilege" is similarly instructive regarding the scope of
the doctrine.
This privilege, based on the constitutional doctrine of
separation of powers, exempts the executive from
disclosure requirements applicable to the ordinary citizen
or organization where such exemption is necessary to
the discharge of highly important executive
responsibilities involved in maintaining governmental
operations, and extends not only to military and
diplomatic secrets but also to documents integral to an
appropriate exercise of the executive’ domestic
decisional and policy making functions, that is, those
documents reflecting the frank expression necessary in
intra-governmental advisory and deliberative
communications.70 (Emphasis and underscoring
supplied)
That a type of information is recognized as privileged
does not, however, necessarily mean that it would be
considered privileged in all instances. For in determining
the validity of a claim of privilege, the question that must
be asked is not only whether the requested information
falls within one of the traditional privileges, but also
whether that privilege should be honored in a given
procedural setting.71
The leading case on executive privilege in the United
States is U.S. v. Nixon, 72 decided in 1974. In issue in
that case was the validity of President Nixon’s claim of
executive privilege against a subpoena issued by a
district court requiring the production of certain tapes and
documents relating to the Watergate investigations. The
claim of privilege was based on the President’s general
interest in the confidentiality of his conversations and
correspondence. The U.S. Court held that while there is
no explicit reference to a privilege of confidentiality in the
U.S. Constitution, it is constitutionally based to the extent
that it relates to the effective discharge of a President’s
powers. The Court, nonetheless, rejected the President’s
claim of privilege, ruling that the privilege must be
balanced against the public interest in the fair
administration of criminal justice. Notably, the Court was
careful to clarify that it was not there addressing the
issue of claims of privilege in a civil litigation or against
congressional demands for information.
Cases in the U.S. which involve claims of executive
privilege against Congress are rare.73 Despite frequent
assertion of the privilege to deny information to
Congress, beginning with President Washington’s refusal
to turn over treaty negotiation records to the House of
Representatives, the U.S. Supreme Court has never
adjudicated the issue.74 However, the U.S. Court of
Appeals for the District of Columbia Circuit, in a case
decided earlier in the same year as Nixon, recognized
the President’s privilege over his conversations against a
congressional subpoena.75 Anticipating the balancing
approach adopted by the U.S. Supreme Court in Nixon,
the Court of Appeals weighed the public interest
protected by the claim of privilege against the interest
that would be served by disclosure to the Committee.
Ruling that the balance favored the President, the Court
declined to enforce the subpoena. 76
In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v.
Vasquez.77Almonte used the term in reference to the
same privilege subject of Nixon. It quoted the following
portion of the Nixon decision which explains the basis for
the privilege:
"The expectation of a President to the confidentiality of
his conversations and correspondences, like the claim of
confidentiality of judicial deliberations, for example, has
all the values to which we accord deference for the
privacy of all citizens and, added to those values, is the
necessity for protection of the public interest in candid,
objective, and even blunt or harsh opinions in
Presidential decision-making. A President and those who
assist him must be free to explore alternatives in the
process of shaping policies and making decisions and to
do so in a way many would be unwilling to express
except privately. These are the considerations justifying
a presumptive privilege for Presidential communications.
The privilege is fundamental to the operation of
government and inextricably rooted in the separation of
powers under the Constitution x x x " (Emphasis and
underscoring supplied)
Almonte involved a subpoena duces tecum issued by the
Ombudsman against the therein petitioners. It did not
involve, as expressly stated in the decision, the right of
the people to information.78 Nonetheless, the Court
recognized that there are certain types of information
which the government may withhold from the public, thus
acknowledging, in substance if not in name, that
executive privilege may be claimed against citizens’
demands for information.
In Chavez v. PCGG,79 the Court held that this jurisdiction
recognizes the common law holding that there is a
"governmental privilege against public disclosure with
respect to state secrets regarding military, diplomatic and
other national security matters."80 The same case held
that closed-door Cabinet meetings are also a recognized
limitation on the right to information.
Similarly, in Chavez v. Public Estates Authority,81 the
Court ruled that the right to information does not extend
to matters recognized as "privileged information under
the separation of powers,"82 by which the Court meant
Presidential conversations, correspondences, and
discussions in closed-door Cabinet meetings. It also held
that information on military and diplomatic secrets and
those affecting national security, and information on
investigations of crimes by law enforcement agencies
before the prosecution of the accused were exempted
from the right to information.
From the above discussion on the meaning and scope of
executive privilege, both in the United States and in this
jurisdiction, a clear principle emerges. Executive
privilege, whether asserted against Congress, the courts,
or the public, is recognized only in relation to certain
types of information of a sensitive character. While
executive privilege is a constitutional concept, a claim
thereof may be valid or not depending on the ground
invoked to justify it and the context in which it is made.
Noticeably absent is any recognition that executive
officials are exempt from the duty to disclose information
by the mere fact of being executive officials. Indeed, the
extraordinary character of the exemptions indicates that
the presumption inclines heavily against executive
secrecy and in favor of disclosure.
Validity of Section 1
Section 1 is similar to Section 3 in that both require the
officials covered by them to secure the consent of the
President prior to appearing before Congress. There are
116
significant differences between the two provisions,
however, which constrain this Court to discuss the
validity of these provisions separately.
Section 1 specifically applies to department heads. It
does not, unlike Section 3, require a prior determination
by any official whether they are covered by E.O. 464.
The President herself has, through the challenged order,
made the determination that they are. Further, unlike
also Section 3, the coverage of department heads under
Section 1 is not made to depend on the department
heads’ possession of any information which might be
covered by executive privilege. In fact, in marked
contrast to Section 3 vis-à-vis Section 2, there is no
reference to executive privilege at all. Rather, the
required prior consent under Section 1 is grounded on
Article VI, Section 22 of the Constitution on what has
been referred to as the question hour.
SECTION 22. The heads of departments may upon their
own initiative, with the consent of the President, or upon
the request of either House, as the rules of each House
shall provide, appear before and be heard by such
House on any matter pertaining to their departments.
Written questions shall be submitted to the President of
the Senate or the Speaker of the House of
Representatives at least three days before their
scheduled appearance. Interpellations shall not be
limited to written questions, but may cover matters
related thereto. When the security of the State or the
public interest so requires and the President so states in
writing, the appearance shall be conducted in executive
session.
Determining the validity of Section 1 thus requires an
examination of the meaning of Section 22 of Article VI.
Section 22 which provides for the question hour must be
interpreted vis-à-vis Section 21 which provides for the
power of either House of Congress to "conduct inquiries
in aid of legislation." As the following excerpt of the
deliberations of the Constitutional Commission shows,
the framers were aware that these two provisions
involved distinct functions of Congress.
MR. MAAMBONG. x x x When we amended Section 20
[now Section 22 on the Question Hour] yesterday, I
noticed that members of the Cabinet cannot be
compelled anymore to appear before the House of
Representatives or before the Senate. I have a particular
problem in this regard, Madam President, because in our
experience in the Regular Batasang Pambansa – as the
Gentleman himself has experienced in the interim
Batasang Pambansa – one of the most competent inputs
that we can put in our committee deliberations, either in
aid of legislation or in congressional investigations, is the
testimonies of Cabinet ministers. We usually invite them,
but if they do not come and it is a congressional
investigation, we usually issue subpoenas.
I want to be clarified on a statement made by
Commissioner Suarez when he said that the fact that the
Cabinet ministers may refuse to come to the House of
Representatives or the Senate [when requested under
Section 22] does not mean that they need not come
when they are invited or subpoenaed by the committee
of either House when it comes to inquiries in aid of
legislation or congressional investigation. According to
Commissioner Suarez, that is allowed and their
presence can be had under Section 21. Does the
gentleman confirm this, Madam President?
MR. DAVIDE. We confirm that, Madam President,
because Section 20 refers only to what was originally the
Question Hour, whereas, Section 21 would refer
specifically to inquiries in aid of legislation, under which
anybody for that matter, may be summoned and if he
refuses, he can be held in contempt of the
House.83 (Emphasis and underscoring supplied)
A distinction was thus made between inquiries in aid of
legislation and the question hour. While attendance was
meant to be discretionary in the question hour, it was
compulsory in inquiries in aid of legislation. The
reference to Commissioner Suarez bears noting, he
being one of the proponents of the amendment to make
the appearance of department heads discretionary in the
question hour.
So clearly was this distinction conveyed to the members
of the Commission that the Committee on Style,
precisely in recognition of this distinction, later moved
the provision on question hour from its original position
as Section 20 in the original draft down to Section 31, far
from the provision on inquiries in aid of legislation. This
gave rise to the following exchange during the
deliberations:
MR. GUINGONA. [speaking in his capacity as Chairman
of the Committee on Style] We now go, Mr. Presiding
Officer, to the Article on Legislative and may I request
the chairperson of the Legislative Department,
Commissioner Davide, to give his reaction.
THE PRESIDING OFFICER (Mr. Jamir). Commissioner
Davide is recognized.|avvphi|.net
MR. DAVIDE. Thank you, Mr. Presiding Officer. I have
only one reaction to the Question Hour. I propose that
instead of putting it as Section 31, it should follow
Legislative Inquiries.
THE PRESIDING OFFICER. What does the committee
say?
MR. GUINGONA. I ask Commissioner Maambong to
reply, Mr. Presiding Officer.
MR. MAAMBONG. Actually, we considered that
previously when we sequenced this but we reasoned
that in Section 21, which is Legislative Inquiry, it is
actually a power of Congress in terms of its own
lawmaking; whereas, a Question Hour is not actually a
power in terms of its own lawmaking power because in
Legislative Inquiry, it is in aid of legislation. And so we
put Question Hour as Section 31. I hope Commissioner
Davide will consider this.
MR. DAVIDE. The Question Hour is closely related with
the legislative power, and it is precisely as a complement
to or a supplement of the Legislative Inquiry. The
appearance of the members of Cabinet would be very,
very essential not only in the application of check and
balance but also, in effect, in aid of legislation.
MR. MAAMBONG. After conferring with the committee,
we find merit in the suggestion of Commissioner Davide.
In other words, we are accepting that and so this Section
31 would now become Section 22. Would it be,
Commissioner Davide?
MR. DAVIDE. Yes.84 (Emphasis and underscoring
supplied)
Consistent with their statements earlier in the
deliberations, Commissioners Davide and Maambong
proceeded from the same assumption that these
provisions pertained to two different functions of the
legislature. Both Commissioners understood that the
power to conduct inquiries in aid of legislation is different
from the power to conduct inquiries during the question
hour. Commissioner Davide’s only concern was that the
two provisions on these distinct powers be placed
closely together, they being complementary to each
other. Neither Commissioner considered them as
identical functions of Congress.
The foregoing opinion was not the two Commissioners’
alone. From the above-quoted exchange, Commissioner
Maambong’s committee – the Committee on Style –
shared the view that the two provisions reflected distinct
functions of Congress. Commissioner Davide, on the
other hand, was speaking in his capacity as Chairman of
the Committee on the Legislative Department. His views
117
may thus be presumed as representing that of his
Committee.
In the context of a parliamentary system of government,
the "question hour" has a definite meaning. It is a period
of confrontation initiated by Parliament to hold the Prime
Minister and the other ministers accountable for their
acts and the operation of the
government,85 corresponding to what is known in Britain
as the question period. There was a specific provision for
a question hour in the 1973 Constitution86 which made
the appearance of ministers mandatory. The same
perfectly conformed to the parliamentary system
established by that Constitution, where the ministers are
also members of the legislature and are directly
accountable to it.
An essential feature of the parliamentary system of
government is the immediate accountability of the Prime
Minister and the Cabinet to the National Assembly. They
shall be responsible to the National Assembly for the
program of government and shall determine the
guidelines of national policy. Unlike in the presidential
system where the tenure of office of all elected officials
cannot be terminated before their term expired, the
Prime Minister and the Cabinet remain in office only as
long as they enjoy the confidence of the National
Assembly. The moment this confidence is lost the Prime
Minister and the Cabinet may be changed.87
The framers of the 1987 Constitution removed the
mandatory nature of such appearance during the
question hour in the present Constitution so as to
conform more fully to a system of separation of
powers.88 To that extent, the question hour, as it is
presently understood in this jurisdiction, departs from the
question period of the parliamentary system. That
department heads may not be required to appear in a
question hour does not, however, mean that the
legislature is rendered powerless to elicit information
from them in all circumstances. In fact, in light of the
absence of a mandatory question period, the need to
enforce Congress’ right to executive information in the
performance of its legislative function becomes more
imperative. As Schwartz observes:
Indeed, if the separation of powers has anything to tell
us on the subject under discussion, it is that the
Congress has the right to obtain information from any
source – even from officials of departments and
agencies in the executive branch. In the United States
there is, unlike the situation which prevails in a
parliamentary system such as that in Britain, a clear
separation between the legislative and executive
branches. It is this very separation that makes the
congressional right to obtain information from the
executive so essential, if the functions of the Congress
as the elected representatives of the people are
adequately to be carried out. The absence of close
rapport between the legislative and executive branches
in this country, comparable to those which exist under a
parliamentary system, and the nonexistence in the
Congress of an institution such as the British question
period have perforce made reliance by the Congress
upon its right to obtain information from the executive
essential, if it is intelligently to perform its legislative
tasks. Unless the Congress possesses the right to obtain
executive information, its power of oversight of
administration in a system such as ours becomes a
power devoid of most of its practical content, since it
depends for its effectiveness solely upon information
parceled out ex gratia by the executive.89 (Emphasis and
underscoring supplied)
Sections 21 and 22, therefore, while closely related and
complementary to each other, should not be considered
as pertaining to the same power of Congress. One
specifically relates to the power to conduct inquiries in
aid of legislation, the aim of which is to elicit information
that may be used for legislation, while the other pertains
to the power to conduct a question hour, the objective of
which is to obtain information in pursuit of Congress’
oversight function.
When Congress merely seeks to be informed on how
department heads are implementing the statutes which it
has issued, its right to such information is not as
imperative as that of the President to whom, as Chief
Executive, such department heads must give a report of
their performance as a matter of duty. In such instances,
Section 22, in keeping with the separation of powers,
states that Congress may only request their appearance.
Nonetheless, when the inquiry in which Congress
requires their appearance is "in aid of legislation" under
Section 21, the appearance is mandatory for the same
reasons stated in Arnault.90
In fine, the oversight function of Congress may be
facilitated by compulsory process only to the extent that
it is performed in pursuit of legislation. This is consistent
with the intent discerned from the deliberations of the
Constitutional Commission.
Ultimately, the power of Congress to compel the
appearance of executive officials under Section 21 and
the lack of it under Section 22 find their basis in the
principle of separation of powers. While the executive
branch is a co-equal branch of the legislature, it cannot
frustrate the power of Congress to legislate by refusing
to comply with its demands for information.
When Congress exercises its power of inquiry, the only
way for department heads to exempt themselves
therefrom is by a valid claim of privilege. They are not
exempt by the mere fact that they are department heads.
Only one executive official may be exempted from this
power — the President on whom executive power is
vested, hence, beyond the reach of Congress except
through the power of impeachment. It is based on her
being the highest official of the executive branch, and the
due respect accorded to a co-equal branch of
government which is sanctioned by a long-standing
custom.
By the same token, members of the Supreme Court are
also exempt from this power of inquiry. Unlike the
Presidency, judicial power is vested in a collegial body;
hence, each member thereof is exempt on the basis not
only of separation of powers but also on the fiscal
autonomy and the constitutional independence of the
judiciary. This point is not in dispute, as even counsel for
the Senate, Sen. Joker Arroyo, admitted it during the oral
argument upon interpellation of the Chief Justice.
Having established the proper interpretation of Section
22, Article VI of the Constitution, the Court now proceeds
to pass on the constitutionality of Section 1 of E.O. 464.
Section 1, in view of its specific reference to Section 22
of Article VI of the Constitution and the absence of any
reference to inquiries in aid of legislation, must be
construed as limited in its application to appearances of
department heads in the question hour contemplated in
the provision of said Section 22 of Article VI. The reading
is dictated by the basic rule of construction that
issuances must be interpreted, as much as possible, in a
way that will render it constitutional.
The requirement then to secure presidential consent
under Section 1, limited as it is only to appearances in
the question hour, is valid on its face. For under Section
22, Article VI of the Constitution, the appearance of
department heads in the question hour is discretionary
on their part.
Section 1 cannot, however, be applied to appearances of
department heads in inquiries in aid of legislation.
Congress is not bound in such instances to respect the
refusal of the department head to appear in such inquiry,
unless a valid claim of privilege is subsequently made,
118
either by the President herself or by the Executive
Secretary.
Validity of Sections 2 and 3
Section 3 of E.O. 464 requires all the public officials
enumerated in Section 2(b) to secure the consent of the
President prior to appearing before either house of
Congress. The enumeration is broad. It covers all senior
officials of executive departments, all officers of the AFP
and the PNP, and all senior national security officials
who, in the judgment of the heads of offices designated
in the same section (i.e. department heads, Chief of Staff
of the AFP, Chief of the PNP, and the National Security
Adviser), are "covered by the executive privilege."
The enumeration also includes such other officers as
may be determined by the President. Given the title of
Section 2 — "Nature, Scope and Coverage of Executive
Privilege" —, it is evident that under the rule of ejusdem
generis, the determination by the President under this
provision is intended to be based on a similar finding of
coverage under executive privilege.
En passant, the Court notes that Section 2(b) of E.O.
464 virtually states that executive privilege actually
covers persons. Such is a misuse of the doctrine.
Executive privilege, as discussed above, is properly
invoked in relation to specific categories of information
and not to categories of persons.
In light, however, of Sec 2(a) of E.O. 464 which deals
with the nature, scope and coverage of executive
privilege, the reference to persons being "covered by the
executive privilege" may be read as an abbreviated way
of saying that the person is in possession of information
which is, in the judgment of the head of office concerned,
privileged as defined in Section 2(a). The Court shall
thus proceed on the assumption that this is the intention
of the challenged order.
Upon a determination by the designated head of office or
by the President that an official is "covered by the
executive privilege," such official is subjected to the
requirement that he first secure the consent of the
President prior to appearing before Congress. This
requirement effectively bars the appearance of the
official concerned unless the same is permitted by the
President. The proviso allowing the President to give its
consent means nothing more than that the President
may reverse a prohibition which already exists by virtue
of E.O. 464.
Thus, underlying this requirement of prior consent is the
determination by a head of office, authorized by the
President under E.O. 464, or by the President herself,
that such official is in possession of information that is
covered by executive privilege. This determination then
becomes the basis for the official’s not showing up in the
legislative investigation.
In view thereof, whenever an official invokes E.O. 464 to
justify his failure to be present, such invocation must be
construed as a declaration to Congress that the
President, or a head of office authorized by the
President, has determined that the requested information
is privileged, and that the President has not reversed
such determination. Such declaration, however, even
without mentioning the term "executive privilege,"
amounts to an implied claim that the information is being
withheld by the executive branch, by authority of the
President, on the basis of executive privilege. Verily,
there is an implied claim of privilege.
The letter dated September 28, 2005 of respondent
Executive Secretary Ermita to Senate President Drilon
illustrates the implied nature of the claim of privilege
authorized by E.O. 464. It reads:
In connection with the inquiry to be conducted by the
Committee of the Whole regarding the Northrail Project
of the North Luzon Railways Corporation on 29
September 2005 at 10:00 a.m., please be informed that
officials of the Executive Department invited to appear at
the meeting will not be able to attend the same without
the consent of the President, pursuant to Executive
Order No. 464 (s. 2005), entitled "Ensuring Observance
Of The Principle Of Separation Of Powers, Adherence To
The Rule On Executive Privilege And Respect For The
Rights Of Public Officials Appearing In Legislative
Inquiries In Aid Of Legislation Under The Constitution,
And For Other Purposes". Said officials have not
secured the required consent from the President.
(Underscoring supplied)
The letter does not explicitly invoke executive privilege or
that the matter on which these officials are being
requested to be resource persons falls under the
recognized grounds of the privilege to justify their
absence. Nor does it expressly state that in view of the
lack of consent from the President under E.O. 464, they
cannot attend the hearing.
Significant premises in this letter, however, are left
unstated, deliberately or not. The letter assumes that the
invited officials are covered by E.O. 464. As explained
earlier, however, to be covered by the order means that
a determination has been made, by the designated head
of office or the President, that the invited official
possesses information that is covered by executive
privilege. Thus, although it is not stated in the letter that
such determination has been made, the same must be
deemed implied. Respecting the statement that the
invited officials have not secured the consent of the
President, it only means that the President has not
reversed the standing prohibition against their
appearance before Congress.
Inevitably, Executive Secretary Ermita’s letter leads to
the conclusion that the executive branch, either through
the President or the heads of offices authorized under
E.O. 464, has made a determination that the information
required by the Senate is privileged, and that, at the time
of writing, there has been no contrary pronouncement
from the President. In fine, an implied claim of privilege
has been made by the executive.
While there is no Philippine case that directly addresses
the issue of whether executive privilege may be invoked
against Congress, it is gathered from Chavez v. PEA that
certain information in the possession of the executive
may validly be claimed as privileged even against
Congress. Thus, the case holds:
There is no claim by PEA that the information demanded
by petitioner is privileged information rooted in the
separation of powers. The information does not cover
Presidential conversations, correspondences, or
discussions during closed-door Cabinet meetings which,
like internal-deliberations of the Supreme Court and
other collegiate courts, or executive sessions of either
house of Congress, are recognized as confidential. This
kind of information cannot be pried open by a co-equal
branch of government. A frank exchange of exploratory
ideas and assessments, free from the glare of publicity
and pressure by interested parties, is essential to protect
the independence of decision-making of those tasked to
exercise Presidential, Legislative and Judicial power.
This is not the situation in the instant case.91 (Emphasis
and underscoring supplied)
Section 3 of E.O. 464, therefore, cannot be dismissed
outright as invalid by the mere fact that it sanctions
claims of executive privilege. This Court must look
further and assess the claim of privilege authorized by
the Order to determine whether it is valid.
While the validity of claims of privilege must be assessed
on a case to case basis, examining the ground invoked
therefor and the particular circumstances surrounding it,
there is, in an implied claim of privilege, a defect that
renders it invalid per se. By its very nature, and as
demonstrated by the letter of respondent Executive
119
Secretary quoted above, the implied claim authorized by
Section 3 of E.O. 464 is not accompanied by any specific
allegation of the basis thereof (e.g., whether the
information demanded involves military or diplomatic
secrets, closed-door Cabinet meetings, etc.). While
Section 2(a) enumerates the types of information that
are covered by the privilege under the challenged order,
Congress is left to speculate as to which among them is
being referred to by the executive. The enumeration is
not even intended to be comprehensive, but a mere
statement of what is included in the phrase "confidential
or classified information between the President and the
public officers covered by this executive order."
Certainly, Congress has the right to know why the
executive considers the requested information privileged.
It does not suffice to merely declare that the President,
or an authorized head of office, has determined that it is
so, and that the President has not overturned that
determination. Such declaration leaves Congress in the
dark on how the requested information could be
classified as privileged. That the message is couched in
terms that, on first impression, do not seem like a claim
of privilege only makes it more pernicious. It threatens to
make Congress doubly blind to the question of why the
executive branch is not providing it with the information
that it has requested.
A claim of privilege, being a claim of exemption from an
obligation to disclose information, must, therefore, be
clearly asserted. As U.S. v. Reynolds teaches:
The privilege belongs to the government and must be
asserted by it; it can neither be claimed nor waived by a
private party. It is not to be lightly invoked. There must
be a formal claim of privilege, lodged by the head of the
department which has control over the matter, after
actual personal consideration by that officer. The court
itself must determine whether the circumstances are
appropriate for the claim of privilege, and yet do so
without forcing a disclosure of the very thing the privilege
is designed to protect.92 (Underscoring supplied)
Absent then a statement of the specific basis of a claim
of executive privilege, there is no way of determining
whether it falls under one of the traditional privileges, or
whether, given the circumstances in which it is made, it
should be respected.93 These, in substance, were the
same criteria in assessing the claim of privilege asserted
against the Ombudsman in Almonte v. Vasquez94 and,
more in point, against a committee of the Senate in
Senate Select Committee on Presidential Campaign
Activities v. Nixon.95
A.O. Smith v. Federal Trade Commission is
enlightening:
[T]he lack of specificity renders an assessment of the
potential harm resulting from disclosure impossible,
thereby preventing the Court from balancing such harm
against plaintiffs’ needs to determine whether to override
any claims of privilege.96 (Underscoring supplied)
And so is U.S. v. Article of Drug:97
On the present state of the record, this Court is not
called upon to perform this balancing operation. In
stating its objection to claimant’s interrogatories,
government asserts, and nothing more, that the
disclosures sought by claimant would inhibit the free
expression of opinion that non-disclosure is designed to
protect. The government has not shown – nor even
alleged – that those who evaluated claimant’s product
were involved in internal policymaking, generally, or in
this particular instance. Privilege cannot be set up by an
unsupported claim. The facts upon which the privilege is
based must be established. To find these interrogatories
objectionable, this Court would have to assume that the
evaluation and classification of claimant’s products was
a matter of internal policy formulation, an assumption in
which this Court is unwilling to indulge sua
sponte.98 (Emphasis and underscoring supplied)
Mobil Oil Corp. v. Department of Energy99 similarly
emphasizes that "an agency must provide ‘precise and
certain’ reasons for preserving the confidentiality of
requested information."
Black v. Sheraton Corp. of America100 amplifies, thus:
A formal and proper claim of executive privilege requires
a specific designation and description of the documents
within its scope as well as precise and certain reasons
for preserving their confidentiality. Without this specificity,
it is impossible for a court to analyze the claim short of
disclosure of the very thing sought to be protected. As
the affidavit now stands, the Court has little more than its
sua sponte speculation with which to weigh the
applicability of the claim. An improperly asserted claim of
privilege is no claim of privilege. Therefore, despite the
fact that a claim was made by the proper executive as
Reynolds requires, the Court can not recognize the claim
in the instant case because it is legally insufficient to
allow the Court to make a just and reasonable
determination as to its applicability. To recognize such a
broad claim in which the Defendant has given no precise
or compelling reasons to shield these documents from
outside scrutiny, would make a farce of the whole
procedure.101 (Emphasis and underscoring supplied)
Due respect for a co-equal branch of government,
moreover, demands no less than a claim of privilege
clearly stating the grounds therefor. Apropos is the
following ruling in McPhaul v. U.S:102
We think the Court’s decision in United States v. Bryan,
339 U.S. 323, 70 S. Ct. 724, is highly relevant to these
questions. For it is as true here as it was there, that ‘if
(petitioner) had legitimate reasons for failing to produce
the records of the association, a decent respect for the
House of Representatives, by whose authority the
subpoenas issued, would have required that (he) state
(his) reasons for noncompliance upon the return of the
writ. Such a statement would have given the
Subcommittee an opportunity to avoid the blocking of its
inquiry by taking other appropriate steps to obtain the
records. ‘To deny the Committee the opportunity to
consider the objection or remedy is in itself a contempt of
its authority and an obstruction of its processes. His
failure to make any such statement was "a patent
evasion of the duty of one summoned to produce papers
before a congressional committee[, and] cannot be
condoned." (Emphasis and underscoring supplied;
citations omitted)
Upon the other hand, Congress must not require the
executive to state the reasons for the claim with such
particularity as to compel disclosure of the information
which the privilege is meant to protect.103 A useful
analogy in determining the requisite degree of
particularity would be the privilege against self-
incrimination. Thus, Hoffman v. U.S.104 declares:
The witness is not exonerated from answering merely
because he declares that in so doing he would
incriminate himself – his say-so does not of itself
establish the hazard of incrimination. It is for the court to
say whether his silence is justified, and to require him to
answer if ‘it clearly appears to the court that he is
mistaken.’ However, if the witness, upon interposing his
claim, were required to prove the hazard in the sense in
which a claim is usually required to be established in
court, he would be compelled to surrender the very
protection which the privilege is designed to guarantee.
To sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be
dangerous because injurious disclosure could result." x x
x (Emphasis and underscoring supplied)
120
The claim of privilege under Section 3 of E.O. 464 in
relation to Section 2(b) is thus invalid per se. It is not
asserted. It is merely implied. Instead of providing
precise and certain reasons for the claim, it merely
invokes E.O. 464, coupled with an announcement that
the President has not given her consent. It is woefully
insufficient for Congress to determine whether the
withholding of information is justified under the
circumstances of each case. It severely frustrates the
power of inquiry of Congress.
In fine, Section 3 and Section 2(b) of E.O. 464 must be
invalidated.
No infirmity, however, can be imputed to Section 2(a) as
it merely provides guidelines, binding only on the heads
of office mentioned in Section 2(b), on what is covered
by executive privilege. It does not purport to be
conclusive on the other branches of government. It may
thus be construed as a mere expression of opinion by
the President regarding the nature and scope of
executive privilege.
Petitioners, however, assert as another ground for
invalidating the challenged order the alleged unlawful
delegation of authority to the heads of offices in Section
2(b). Petitioner Senate of the Philippines, in particular,
cites the case of the United States where, so it claims,
only the President can assert executive privilege to
withhold information from Congress.
Section 2(b) in relation to Section 3 virtually provides
that, once the head of office determines that a certain
information is privileged, such determination is presumed
to bear the President’s authority and has the effect of
prohibiting the official from appearing before Congress,
subject only to the express pronouncement of the
President that it is allowing the appearance of such
official. These provisions thus allow the President to
authorize claims of privilege by mere silence.
Such presumptive authorization, however, is contrary to
the exceptional nature of the privilege. Executive
privilege, as already discussed, is recognized with
respect to information the confidential nature of which is
crucial to the fulfillment of the unique role and
responsibilities of the executive branch,105 or in those
instances where exemption from disclosure is necessary
to the discharge of highly important executive
responsibilities.106 The doctrine of executive privilege is
thus premised on the fact that certain informations must,
as a matter of necessity, be kept confidential in pursuit of
the public interest. The privilege being, by definition, an
exemption from the obligation to disclose information, in
this case to Congress, the necessity must be of such
high degree as to outweigh the public interest in
enforcing that obligation in a particular case.
In light of this highly exceptional nature of the privilege,
the Court finds it essential to limit to the President the
power to invoke the privilege. She may of course
authorize the Executive Secretary to invoke the privilege
on her behalf, in which case the Executive Secretary
must state that the authority is "By order of the
President," which means that he personally consulted
with her. The privilege being an extraordinary power, it
must be wielded only by the highest official in the
executive hierarchy. In other words, the President may
not authorize her subordinates to exercise such power.
There is even less reason to uphold such authorization
in the instant case where the authorization is not explicit
but by mere silence. Section 3, in relation to Section
2(b), is further invalid on this score.
It follows, therefore, that when an official is being
summoned by Congress on a matter which, in his own
judgment, might be covered by executive privilege, he
must be afforded reasonable time to inform the President
or the Executive Secretary of the possible need for
invoking the privilege. This is necessary in order to
provide the President or the Executive Secretary with fair
opportunity to consider whether the matter indeed calls
for a claim of executive privilege. If, after the lapse of
that reasonable time, neither the President nor the
Executive Secretary invokes the privilege, Congress is
no longer bound to respect the failure of the official to
appear before Congress and may then opt to avail of the
necessary legal means to compel his appearance.
The Court notes that one of the expressed purposes for
requiring officials to secure the consent of the President
under Section 3 of E.O. 464 is to ensure "respect for the
rights of public officials appearing in inquiries in aid of
legislation." That such rights must indeed be respected
by Congress is an echo from Article VI Section 21 of the
Constitution mandating that "[t]he rights of persons
appearing in or affected by such inquiries shall be
respected."
In light of the above discussion of Section 3, it is clear
that it is essentially an authorization for implied claims of
executive privilege, for which reason it must be
invalidated. That such authorization is partly motivated
by the need to ensure respect for such officials does not
change the infirm nature of the authorization itself.
Right to Information
E.O 464 is concerned only with the demands of
Congress for the appearance of executive officials in the
hearings conducted by it, and not with the demands of
citizens for information pursuant to their right to
information on matters of public concern. Petitioners are
not amiss in claiming, however, that what is involved in
the present controversy is not merely the legislative
power of inquiry, but the right of the people to
information.
There are, it bears noting, clear distinctions between the
right of Congress to information which underlies the
power of inquiry and the right of the people to
information on matters of public concern. For one, the
demand of a citizen for the production of documents
pursuant to his right to information does not have the
same obligatory force as a subpoena duces tecum
issued by Congress. Neither does the right to information
grant a citizen the power to exact testimony from
government officials. These powers belong only to
Congress and not to an individual citizen.
Thus, while Congress is composed of representatives
elected by the people, it does not follow, except in a
highly qualified sense, that in every exercise of its power
of inquiry, the people are exercising their right to
information.
To the extent that investigations in aid of legislation are
generally conducted in public, however, any executive
issuance tending to unduly limit disclosures of
information in such investigations necessarily deprives
the people of information which, being presumed to be in
aid of legislation, is presumed to be a matter of public
concern. The citizens are thereby denied access to
information which they can use in formulating their own
opinions on the matter before Congress — opinions
which they can then communicate to their
representatives and other government officials through
the various legal means allowed by their freedom of
expression. Thus holds Valmonte v. Belmonte:
It is in the interest of the State that the channels for free
political discussion be maintained to the end that the
government may perceive and be responsive to the
people’s will. Yet, this open dialogue can be effective
only to the extent that the citizenry is informed and thus
able to formulate its will intelligently. Only when the
participants in the discussion are aware of the issues
and have access to information relating thereto can such
bear fruit.107(Emphasis and underscoring supplied)
The impairment of the right of the people to information
as a consequence of E.O. 464 is, therefore, in the sense
121
explained above, just as direct as its violation of the
legislature’s power of inquiry.
Implementation of E.O. 464 prior to its publication
While E.O. 464 applies only to officials of the executive
branch, it does not follow that the same is exempt from
the need for publication. On the need for publishing even
those statutes that do not directly apply to people in
general, Tañada v. Tuvera states:
The term "laws" should refer to all laws and not only to
those of general application, for strictly speaking all laws
relate to the people in general albeit there are some that
do not apply to them directly. An example is a law
granting citizenship to a particular individual, like a
relative of President Marcos who was decreed instant
naturalization. It surely cannot be said that such a law
does not affect the public although it unquestionably
does not apply directly to all the people. The subject of
such law is a matter of public interest which any member
of the body politic may question in the political forums or,
if he is a proper party, even in courts of
justice.108 (Emphasis and underscoring supplied)
Although the above statement was made in reference to
statutes, logic dictates that the challenged order must be
covered by the publication requirement. As explained
above, E.O. 464 has a direct effect on the right of the
people to information on matters of public concern. It is,
therefore, a matter of public interest which members of
the body politic may question before this Court. Due
process thus requires that the people should have been
apprised of this issuance before it was implemented.
Conclusion
Congress undoubtedly has a right to information from the
executive branch whenever it is sought in aid of
legislation. If the executive branch withholds such
information on the ground that it is privileged, it must so
assert it and state the reason therefor and why it must be
respected.
The infirm provisions of E.O. 464, however, allow the
executive branch to evade congressional requests for
information without need of clearly asserting a right to do
so and/or proffering its reasons therefor. By the mere
expedient of invoking said provisions, the power of
Congress to conduct inquiries in aid of legislation is
frustrated. That is impermissible. For
[w]hat republican theory did accomplish…was to reverse
the old presumption in favor of secrecy, based on the
divine right of kings and nobles, and replace it with a
presumption in favor of publicity, based on the doctrine
of popular sovereignty. (Underscoring supplied)109
Resort to any means then by which officials of the
executive branch could refuse to divulge information
cannot be presumed valid. Otherwise, we shall not have
merely nullified the power of our legislature to inquire
into the operations of government, but we shall have
given up something of much greater value – our right as
a people to take part in government.
WHEREFORE, the petitions are PARTLY GRANTED.
Sections 2(b) and 3 of Executive Order No. 464 (series
of 2005), "Ensuring Observance of the Principle of
Separation of Powers, Adherence to the Rule on
Executive
Privilege and Respect for the Rights of Public Officials
Appearing in Legislative Inquiries in Aid of Legislation
Under the Constitution, and For Other Purposes," are
declared VOID. Sections 1 and 2(a) are, however,
VALID.
SO ORDERED.
Senate vs. Ermita (G.R. No. 169777) - Digest
Facts:
This case is regarding the railway project of
the North Luzon Railways Corporation with
the China National Machinery and
Equipment Group as well as the
Wiretapping activity of the ISAFP, and the
Fertilizer scam.
The Senate Committees sent invitations to
various officials of the Executive
Department and AFP officials for them to
appear before Senate on Sept. 29, 2005.
Before said date arrived, Executive Sec.
Ermita sent a letter to Senate President
Drilon, requesting for a postponement of
the hearing on Sept. 29 in order to “afford
said officials ample time and opportunity to
study and prepare for the various issues so
that they may better enlighten the Senate
Committee on its investigation.” Senate
refused the request.
On Sept. 28, 2005, the President issued EO
464, effective immediately, which, among
others, mandated that “all heads of
departments of the Executive Branch of the
government shall secure the consent of the
President prior to appearing before either
House of Congress.” Pursuant to this Order,
Executive Sec. Ermita communicated to the
Senate that the executive and AFP officials
would not be able to attend the meeting
since the President has not yet given her
consent. Despite the lack of consent, Col.
Balutan and Brig. Gen. Gudani, among all
the AFP officials invited, attended the
investigation. Both faced court marshal for
such attendance.
Issue:
Whether E.O. 464 contravenes the power of
inquiry vested in Congress.
Ruling:
To determine the constitutionality of E.O.
464, the Supreme Court discussed the two
different functions of the Legislature: The
power to conduct inquiries in aid of
legislation and the power to conduct inquiry
during question hour.
Question Hour:
The power to conduct inquiry during
question hours is recognized in Article 6,
Section 22 of the 1987 Constitution, which
reads:
“The heads of departments may, upon their
own initiative, with the consent of the
President, or upon the request of either
House, as the rules of each House shall
provide, appear before and be heard by
such House on any matter pertaining to
their departments. Written questions shall
be submitted to the President of the Senate
or the Speaker of the House of
Representatives at least three days before
their scheduled appearance. Interpellations
shall not be limited to written questions,
but may cover matters related thereto.
When the security of the State or the public
interest so requires and the President so
states in writing, the appearance shall be
conducted in executive session.”
The objective of conducting a question hour
is to obtain information in pursuit of
122
Congress’ oversight function. When
Congress merely seeks to be informed on
how department heads are implementing
the statutes which it had issued, the
department heads’ appearance is merely
requested.
The Supreme Court construed Section 1 of
E.O. 464 as those in relation to the
appearance of department heads during
question hour as it explicitly referred to
Section 22, Article 6 of the 1987
Constitution.
In aid of Legislation:
The Legislature’s power to conduct inquiry
in aid of legislation is expressly recognized
in Article 6, section21 of the 1987
Constitution, which reads:
“The Senate or the House of
Representatives or any of its respective
committees may conduct inquiries in aid of
legislation in accordance with its duly
published rules of procedure. The rights of
persons appearing in, or affected by, such
inquiries shall be respected.”
The power of inquiry in aid of legislation is
inherent in the power to legislate. A
legislative body cannot legislate wisely or
effectively in the absence of information
respecting the conditions which the
legislation is intended to affect or change.
And where the legislative body does not
itself possess the requisite information,
recourse must be had to others who do
possess it.
But even where the inquiry is in aid of
legislation, there are still recognized
exemptions to the power of inquiry, which
exemptions fall under the rubric of
“executive privilege”. This is the power of
the government to withhold information
from the public, the courts, and the
Congress. This is recognized only to certain
types of information of a sensitive
character. When Congress exercise its
power of inquiry, the only way for
department heads to exempt themselves
therefrom is by a valid claim of privilege.
They are not exempt by the mere fact that
they are department heads. Only one
official may be exempted from this power --
the President.
Section 2 & 3 of E.O. 464 requires that all
the public officials enumerated in Section
2(b) should secure the consent of the
President prior to appearing before either
house of Congress. The enumeration is
broad. In view thereof, whenever an official
invokes E.O.464 to justify the failure to be
present, such invocation must be construed
as a declaration to Congress that the
President, or a head of office authorized by
the President, has determined that the
requested information is privileged.
The letter sent by the Executive Secretary
to Senator Drilon does not explicitly invoke
executive privilege or that the matter on
which these officials are being requested to
be resource persons falls under the
recognized grounds of the privilege to
justify their absence. Nor does it expressly
state that in view of the lack of consent
from the President under E.O. 464, they
cannot attend the hearing. The letter
assumes that the invited official possesses
information that is covered by the executive
privilege. Certainly, Congress has the right
to know why the executive considers the
requested information privileged. It does
not suffice to merely declare that the
President, or an authorized head of office,
has determined that it is so.
The claim of privilege under Section 3 of
E.O. 464 in relation to Section 2(b) is thus
invalid per se. It is not asserted. It is merely
implied. Instead of providing precise and
certain reasons for the claim, it merely
invokes E.O. 464, coupled with an
announcement that the President has not
given her consent.
When an official is being summoned by
Congress on a matter which, in his own
judgment, might be covered by executive
privilege, he must be afforded reasonable
time to inform the President or the
Executive Secretary of the possible need for
invoking the privilege. This is necessary to
provide the President or the Executive
Secretary with fair opportunity to consider
whether the matter indeed calls for a claim
of executive privilege. If, after the lapse of
that reasonable time, neither the President
nor the Executive Secretary invokes the
privilege, Congress is no longer bound to
respect the failure of the official to appear
before Congress and may then opt to avail
of the necessary legal means to compel his
appearance.
Wherefore, the petitions are partly granted.
Sections 2(b) and 3 of E.O. 464 are declared
void. Section 1(a) are however valid.
G.R. No. 88211 October 27, 1989
FERDINAND E. MARCOS, IMELDA R. MARCOS,
FERDINAND R. MARCOS. JR., IRENE M. ARANETA,
IMEE M. MANOTOC, TOMAS MANOTOC, GREGORIO
ARANETA, PACIFICO E. MARCOS, NICANOR
YÑIGUEZ and PHILIPPINE CONSTITUTION
ASSOCIATION (PHILCONSA), represented by its
President, CONRADO F. ESTRELLA, petitioners,
vs.
HONORABLE RAUL MANGLAPUS, CATALINO
MACARAIG, SEDFREY ORDOÑEZ, MIRIAM
DEFENSOR SANTIAGO, FIDEL RAMOS, RENATO DE
VILLA, in their capacity as Secretary of Foreign
Affairs, Executive Secretary, Secretary of Justice,
Immigration Commissioner, Secretary of National
Defense and Chief of Staff, respectively, respondents.
RESOLUTION
EN BANC:
In its decision dated September 15,1989, the Court, by a
vote of eight (8) to seven (7), dismissed the petition, after
finding that the President did not act arbitrarily or with
grave abuse of discretion in determining that the return
of former President Marcos and his family at the present
time and under present circumstances pose a threat to
national interest and welfare and in prohibiting their
123
return to the Philippines. On September 28, 1989, former
President Marcos died in Honolulu, Hawaii. In a
statement, President Aquino said:
In the interest of the safety of those who
will take the death of Mr. Marcos in
widely and passionately conflicting
ways, and for the tranquility of the state
and order of society, the remains of
Ferdinand E. Marcos will not be allowed
to be brought to our country until such
time as the government, be it under this
administration or the succeeding one,
shall otherwise decide. [Motion for
Reconsideration, p. 1; Rollo, p, 443.]
On October 2, 1989, a Motion for Reconsideration was
filed by petitioners, raising the following major
arguments:
1. to bar former President Marcos and his family from
returning to the Philippines is to deny them not only the
inherent right of citizens to return to their country of birth
but also the protection of the Constitution and all of the
rights guaranteed to Filipinos under the Constitution;
2. the President has no power to bar a Filipino from his
own country; if she has, she had exercised it arbitrarily;
and
3. there is no basis for barring the return of the family of
former President Marcos. Thus, petitioners prayed that
the Court reconsider its decision, order respondents to
issue the necessary travel documents to enable Mrs.
Imelda R. Marcos, Ferdinand R. Marcos, Jr., Irene M.
Araneta, Imee M. Manotoc, Tommy Manotoc and
Gregorio Araneta to return to the Philippines, and enjoin
respondents from implementing President Aquino's
decision to bar the return of the remains of Mr. Marcos,
and the other petitioners, to the Philippines.
Commenting on the motion for reconsideration, the
Solicitor General argued that the motion for
reconsideration is moot and academic as to the
deceased Mr. Marcos. Moreover, he asserts that "the
'formal' rights being invoked by the Marcoses under the
label 'right to return', including the label 'return of Marcos'
remains, is in reality or substance a 'right' to destabilize
the country, a 'right' to hide the Marcoses' incessant
shadowy orchestrated efforts at destabilization."
[Comment, p. 29.] Thus, he prays that the Motion for
Reconsideration be denied for lack of merit.
We deny the motion for reconsideration.
1. It must be emphasized that as in all motions for
reconsideration, the burden is upon the movants,
petitioner herein, to show that there are compelling
reasons to reconsider the decision of the Court.
2. After a thorough consideration of the matters raised in
the motion for reconsideration, the Court is of the view
that no compelling reasons have been established by
petitioners to warrant a reconsideration of the Court's
decision.
The death of Mr. Marcos, although it may be viewed as a
supervening event, has not changed the factual scenario
under which the Court's decision was rendered. The
threats to the government, to which the return of the
Marcoses has been viewed to provide a catalytic effect,
have not been shown to have ceased. On the contrary,
instead of erasing fears as to the destabilization that will
be caused by the return of the Marcoses, Mrs. Marcos
reinforced the basis for the decision to bar their return
when she called President Aquino "illegal," claiming that
it is Mr. Marcos, not Mrs. Aquino, who is the "legal"
President of the Philippines, and declared that the matter
"should be brought to all the courts of the world."
[Comment, p. 1; Philippine Star, October 4, 1989.]
3. Contrary to petitioners' view, it cannot be denied that
the President, upon whom executive power is vested,
has unstated residual powers which are implied from the
grant of executive power and which are necessary for
her to comply with her duties under the Constitution. The
powers of the President are not limited to what are
expressly enumerated in the article on the Executive
Department and in scattered provisions of the
Constitution. This is so, notwithstanding the avowed
intent of the members of the Constitutional Commission
of 1986 to limit the powers of the President as a reaction
to the abuses under the regime of Mr. Marcos, for the
result was a limitation of specific power of the President,
particularly those relating to the commander-in-chief
clause, but not a diminution of the general grant of
executive power.
That the President has powers other than those
expressly stated in the Constitution is nothing new. This
is recognized under the U.S. Constitution from which we
have patterned the distribution of governmental powers
among three (3) separate branches.
Article II, [section] 1, provides that "The
Executive Power shall be vested in a
President of the United States of
America." In Alexander Hamilton's
widely accepted view, this statement
cannot be read as mere shorthand for
the specific executive authorizations that
follow it in [sections] 2 and 3. Hamilton
stressed the difference between the
sweeping language of article II, section
1, and the conditional language of article
I, [section] 1: "All legislative
Powers herein granted shall be vested
in a Congress of the United States . . ."
Hamilton submitted that "[t]he [article III
enumeration [in sections 2 and 31 ought
therefore to be considered, as intended
merely to specify the principal articles
implied in the definition of execution
power; leaving the rest to flow from the
general grant of that power, interpreted
in confomity with other parts of the
Constitution...
In Myers v. United States, the Supreme
Court — accepted Hamilton's
proposition, concluding that the federal
executive, unlike the Congress, could
exercise power from sources not
enumerated, so long as not forbidden by
the constitutional text: the executive
power was given in general terms,
strengthened by specific terms where
emphasis was regarded as appropriate,
and was limited by direct expressions
where limitation was needed. . ." The
language of Chief Justice Taft in Myers
makes clear that the constitutional
concept of inherent power is not a
synonym for power without limit; rather,
the concept suggests only that not all
powers granted in the Constitution are
themselves exhausted by internal
enumeration, so that, within a sphere
properly regarded as one of "executive'
power, authority is implied unless there
or elsewhere expressly limited. [TRIBE,
AMERICAN CONSTITUTIONAL LAW
158-159 (1978).]
And neither can we subscribe to the view that a
recognition of the President's implied or residual powers
is tantamount to setting the stage for another
dictatorship. Despite petitioners' strained analogy, the
residual powers of the President under the Constitution
should not be confused with the power of the President
under the 1973 Constitution to legislate pursuant to
Amendment No. 6 which provides:
124
Whenever in the judgment of the
President (Prime Minister), there exists
a grave emergency or a threat or
imminence thereof, or whenever
the interim Batasang Pambansa or the
regular National Assembly fails or is
unable to act adequately on any matter
for any reason that in his judgment
requires immediate action, he may, in
order to meet the exigency, issue the
necessary decrees, orders, or letters of
instruction, which shall form part of the
law of the land,
There is no similarity between the residual powers of the
President under the 1987 Constitution and the power of
the President under the 1973 Constitution pursuant to
Amendment No. 6. First of all, Amendment No. 6 refers
to an express grant of power. It is not implied. Then,
Amendment No. 6 refers to a grant to the President of
the specific power of legislation.
4. Among the duties of the President under the
Constitution, in compliance with his (or her) oath of
office, is to protect and promote the interest and welfare
of the people. Her decision to bar the return of the
Marcoses and subsequently, the remains of Mr. Marcos
at the present time and under present circumstances is
in compliance with this bounden duty. In the absence of
a clear showing that she had acted with arbitrariness or
with grave abuse of discretion in arriving at this decision,
the Court will not enjoin the implementation of this
decision.
ACCORDINGLY, the Court resolved to DENY the Motion
for Reconsideration for lack of merit."
Marcos v. Manglapus
Facts:
Former President Ferdinand Marcos petitions the SC for
mandamus and prohibition asking to order respondents
to issue travel documents to him and his immediate
family and to enjoin the implementation of the President
"s decision to bar their return to the Philippines.
Issue:
WON the President may prohibit the Marcoses from
returning to the Philippines, in the exercise of the powers
granted in her by the Constitution.
Ruling:
Affirmative. Although the 1987 Constitution imposes
limitations on the exercise of specific powers of the
President, it maintains intact what is traditionally
considered as within the scope of "executive power ".
The powers of the President cannot be said to be limited
only to the specific powers enumerated in the
Constitution. Whatever power inherent in the
government that is neither legislative nor judicial has to
be executive. Even the members of the Legislature has
recognized that indeed Mrs. Aquino has the power under
the Constitution to bar the Marcoses from returning, as
per House Resolution No. 1342.
Marcos v Manglapus, et. al.
Facts: Same as above, except that Ferdinand has died.
Held: Among the duties of the President under the
Constitution, in compliance with his (or her) oath of
office, is to protect and promote the interest and welfare
of the people. Her decision to bar the return of the
Marcoses and subsequently, the remains of Mr. Marcos
at the present time and under present circumstances is
in compliance with this bounden duty. In the absence of
a clear showing that she had acted with arbitrariness or
with grave abuse of discretion in arriving at this decision,
the Court will not enjoin the implementation of this
decision.
------------------
Facts:
This case involves a petition of mandamus and
prohibition asking the court to order the respondents
Secretary of Foreign Affairs, etc. To issue a "travel
documents "to former Pres. Marcos and the immediate
members of his family and to enjoin the implementation
of the President's decision to bar their return to the
Philippines. Petitioners assert that the right of the
Marcoses "to return "in the Philippines is guaranteed by
"the Bill of Rights, specifically "Sections "1 and 6. They
contended that Pres. Aquino is without power to impair
the liberty of abode of the Marcoses because only a
court may do so within the limits prescribed by law. Nor
the President impair their right to travel because no law
has authorized her to do so.
They further assert that under "international law, their
right "to return "to the Philippines is guaranteed
particularly by the Universal Declaration of Human
Rights and the International Covenant on "Civil "and
Political Rights, which has been ratified by the
Philippines.
Issue:
"Whether or not, in the exercise of the powers granted
by "the constitution, the President (Aquino) may prohibit
the Marcoses from returning to the Philippines.
Held:
"It must be emphasized that the individual right involved
is not the right to "travel from "the Philippines to other
countries or within the Philippines. These are what the
right to travel would normally connote. Essentially, the
right involved in this case at bar is the right "to return "to
one's country, a distinct right under "international law,
independent from although related to the right to travel.
Thus, the Universal Declaration of Human Rights and
the International Covenant on "Civil "and Political Rights
treat the right to freedom of "movement "and abode
within the territory of a state, the right to leave the
country, and the right to enter one's country as separate
and distinct rights. What the Declaration speaks of is the
"right to freedom of "movement "and residence within the
borders of each state". On the other hand, the Covenant
guarantees the right to liberty of "movement "and
freedom to choose his residence and the right to be free
to leave any country, including his own. Such rights may
only be restricted by laws protecting the "national
security, public order, "public health "or morals or the
separate rights of others. However, right to enter one's
country cannot be arbitrarily deprived. It would be
therefore inappropriate to construe the limitations to the
right "to return "to ones country in the same context as
those pertaining to the liberty of abode and the right to
travel.
The Bill of rights "treats only the liberty of abode and the
right to travel, but it is a well considered view that the
right "to return "may be considered, as a generally
accepted principle of "International Law "and under our
Constitution as part of the law of the land. "
The court held that President did not act arbitrarily or
with grave abuse of discretion in determining that the
return of the Former Pres. Marcos and his family poses a
serious threat to national interest and welfare. President
Aquino has determined that the destabilization caused
by the return of the Marcoses would wipe away the gains
achieved during the past few years after the Marcos
regime.
125
The return of the Marcoses poses a serious threat and
therefore prohibiting their return to the Philippines, the
instant petition is hereby DISMISSED.
G.R. No. L-7708 May 30, 1955
JOSE MONDANO, petitioner,
vs.
FERNANDO SILVOSA, Provincial Governor of
Surigao, JOSE ARREZA and OLIMPIO EPIS,
Members of the Provincial Board, respondents.
D. Avila and C. H. Lozada for petitioner.
Olimpio R. Epis in his own behalf and for his co-
respondents.
PADILLA, J.:
The petitioner is the duly elected and qualified mayor of
the municipality of Mainit, province of Surigao. On 27
February 1954 Consolacion Vda. de Mosende filed a
sworn complaint with the Presidential Complaints and
Action Committee accusing him of (1) rape committed on
her daughter Caridad Mosende; and (2) concubinage for
cohabiting with her daughter in a place other than the
conjugal dwelling. On 6 March the Assistant Executive
Secretary indorsed the complaint to the respondent
provincial governor for immediate investigation,
appropriate action and report. On 10 April the petitioner
appeared before the provincial governor in obedience to
his summons and was served with a copy of the
complaint filed by the provincial governor with provincial
board. On the same day, the provincial governor issued
Administrative Order No. 8 suspending the petitioner
from office. Thereafter, the Provincial Board proceeded
to hear the charges preferred against the petitioner over
his objection.
The petitioner prays for a writ of prohibition with
preliminary injunction to enjoin the respondents from
further proceeding with the hearing of the administrative
case against him and for a declaration that the order of
suspension issued by the respondent provincial governor
is illegal and without legal effect.
On 4 May 1954 the writ of preliminary injunction prayed
for was issued after filing and approval of a bond for
P500.
The answer of the respondents admits the facts alleged
in the petition except those that are inferences and
conclusions of law and invokes the provisions of section
79 (c)of the Revised Administrative Code which clothes
the department head with "direct control, direction, and
supervision over all bureaus and offices under his
jurisdiction . . ." and to that end "may order the
investigation of any act or conduct of any person in the
service of any bureau or office under his Department and
in connection therewith may appoint a committee or
designate an official or person who shall conduct such
investigations; . . ."and the rule in the case of Villena vs.
Secretary of Interior, 67 Phil. 452, which upheld "the
power of the Secretary of Interior to conduct at its own
initiative investigation of charges against local elective
municipal officials and to suspend them preventively," on
the board proposition "that under the presidential type of
government which we have adopted and considering the
departmental organization established and continued in
force by paragraph 1, section 11, Article VII, of our
Constitution, all executive and administrative
organizations are adjuncts of the Executive
Departments, the heads of the various executive
departments are assistants and agents of the Chief
Executive."
The executive departments of the Government of the
Philippines created and organized before the approval of
the Constitution continued to exist as "authorized by law
until the Congress shall provide otherwise."1 Section 10,
paragraph 1, Article VII, of the Constitution provides:
"The President shall have control of all the executive
departments, bureaus, or offices, exercise general
supervision over all local governments as may be
provided by law, and take care that the laws be faithfully
executed." Under this constitutional provision the
President has been invested with the power of control of
all the executive departments, bureaus, or offices, but
not of all local governments over which he has been
granted only the power of general supervision as may be
provided by law. The Department head as agent of the
President has direct control and supervision over all
bureaus and offices under his jurisdiction as provided for
in section 79 (c) of the Revised Administrative Code, but
he does not have the same control of local governments
as that exercised by him over bureaus and offices under
his jurisdiction. Likewise, his authority to order the
investigation of any act or conduct of any person in the
service of any bureau or office under his department is
confined to bureaus or offices under his jurisdiction and
does not extend to local governments over which, as
already stated, the President exercises only general
supervision as may be provided by law. If the provisions
of section 79 (c) of the Revised Administrative Code are
to be construed as conferring upon the corresponding
department head direct control, direction, and
supervision over all local governments and that for the
reason he may order the investigation of an official of a
local government for malfeasance in office, such
interpretation would be contrary to the provisions of
paragraph 1, section 10, Article VII, of the Constitution. If
"general supervision over all local governments" is to be
construedas the same power granted to the Department
Head in section 79 (c) of the Revised Administrative
Code, then there would no longer be a distinction or
difference between the power of control and that of
supervision. In administrative law supervision means
overseeing or the power or authority of an officer to see
that subordinate officers perform their duties. If the latter
fail or neglect to fulfill them the former may take such
action or step as prescribed by law to make them
perform their duties. Control, on the other hand, means
the power of an officer to alter or modify or nullify or set
aside what a subordinate officer had done in the
performance of his duties and to substitute the judgment
of the former for that of the latter. Such is the import of
the provisions of section 79 (c) of the Revised
Administrative Code and 37 of Act No. 4007. The
Congress has expressly and specifically lodged the
provincial supervision over municipal officials in the
provincial governor who is authorized to "receive and
investigate complaints made under oath against
municipal officers for neglect of duty, oppression,
corruption or other form of maladministration of office,
and conviction by final judgment of any crime involving
moral turpitude."2 And if the charges are serious, "he
shall submit written charges touching the matter to the
provincial board, furnishing a copy of such charges to
the accused either personally or by registered mail, and
he may in such case suspend the officer (not being the
municipal treasurer) pending action by the board, if in his
opinion the charge be one affecting the official integrity
of the officer in question." 3 Section 86 of the Revised
Administrative Code adds nothing to the power of
supervision to be exercised by the Department Head
over the administration of . . . municipalities . . .. If it be
construed that it does and such additional power is the
same authority as that vested in the Department Head
by section 79 (c) of the Revised Administrative Code,
then such additional power must be deemed to have
been abrogated by section 10 (1), Article VII, of the
Constitution.
In Lacson vs. Roque, 49 Off. Gaz. 93, this Court held
that the power of the President to remove officials from
office as provided for in section 64 (b) of the Revised
Administrative Code must be done "conformably to law;"
and only for disloyalty to the Republic of the Philippines
126
he "may at any time remove a person from any position
of trust or authority under the Government of the
(Philippine Islands) Philippines." Again, this power of
removal must be exercised conformably to law.
In the indorsement to the provincial governor the
Assistant Executive Secretary requested immediate
investigation, appropriate action and report on the
complaint indorsed to him, and called his attention to
section 2193 of the Revised Administrative Code which
provides for the institution of judicial proceedings by the
provincial fiscal upon direction of the provincial governor.
If the indorsement of the Assistant Executive Secretary
be taken as a designation of the provincial governor to
investigate the petitioner, then he would only be acting
as agent of the Executive, but the investigation to be
conducted by him would not be that which is provided for
in sections 2188, 2189 and 2190 of the Revised
Administrative Code. The charges preferred against the
respondent are not malfeasances or any of those
enumerated or specified in section 2188 of the Revised
Administrative Code, because rape and concubinage
have nothing to do with the performance of his duties as
mayor nor do they constitute or involve" neglect of duty,
oppression, corruption or any other form of
maladministration of office." True, they may involve
moral turpitude, but before the provincial governor and
board may act and proceed in accordance with the
provisions of the Revised Administrative Code referred
to, a conviction by final judgment must precede the filing
by the provincial governor of charges and trial by the
provincial board. Even the provincial fiscal cannot file an
information for rape without a sworn complaint of the
offended party who is 28 years of age and the crime of
concubinage cannot be prosecuted but upon sworn
complaint of the offended spouse.4 The charges
preferred against the petitioner, municipal mayor of
Mainit, province of Surigao, not being those or any of
those specified in section 2188 of the Revised
Administrative Code, the investigation of such charges
by the provincial board is unauthorized and illegal. The
suspension of the petitioner as mayor of the municipality
of Mainit is, consequently, unlawful and without authority
of law.
The writ of prohibition prayed for is granted, without
pronouncement as to costs.
Mondano v. Silvosa
L-7708, 30 May 1955
FACTS:
The petitioner, Jose Mondano, is the duly elected and
qualified Mayor of the Municipality of Mainit, Surigao. On
27 February 1954, Consolacion Vda. De Mosende filed a
sworn complaint with the Presidential Complaints and
Action Committee accusing him of rape and
concubinage which was subsequently indorsed by the
Assistant Executive Secretary to the respondent,
Fernando Silvosa, Governor of Surigao for immediate
investigation, appropriate action and report. On April
10,1954, petitioner appeared, upon summon, before the
respondent with the Provincial Board. On the same day,
the respondent issued Administrative Order No.8
suspending the petitioner from office, and thereafter, the
Provincial Board proceeded to hear the charges against
him.
ISSUE:
Whether the indorsement of the complaint, by the
Assistant Executive Secretary, to the respondent is legal.
HELD:
Yes because the heads of various executive
departments are agents of the President who,
constitutionally, have general supervision over local
governments, as may be provided by law. “Supervision,
in administrative law, means overseeing or the power or
authority of an official to see that subordinate officers
perform their duties…” The respondent Governor, upon
the indorsement of the Assistant Executive Secretary, is
only acting as an agent of the President in investigating
the petitioner.
G.R. No. L-27811 November 17, 1967
LACSON-MAGALLANES CO., INC., plaintiff-appellant,
vs.
JOSE PAÑO, HON. JUAN PAJO, in his capacity as
Executive Secretary, and HON. JUAN DE G.
RODRIGUEZ, in his capacity as Secretary of
Agriculture and Natural Resources, defendants-
appellees.
Leopoldo M. Abellera for plaintiff-appellant.
Victorio Advincula for defendant Jose Paño.
Office of the Solicitor General for defendant Secretary of
Agriculture and Natural Resources and Executive
Secretary.
SANCHEZ, J.:
The question — May the Executive Secretary, acting by
authority of the President, reverse a decision of the
Director of Lands that had been affirmed by the
Executive Secretary of Agriculture and Natural
Resources — yielded an affirmative answer from the
lower court.1
Hence, this appeal certified to this Court by the Court of
Appeals upon the provisions of Sections 17 and 31 of
the Judiciary Act of 1948, as amended.
The undisputed controlling facts are:
In 1932, Jose Magallanes was a permittee and actual
occupant of a 1,103-hectare pasture land situated in
Tamlangon, Municipality of Bansalan, Province of Davao.
On January 9, 1953, Magallanes ceded his rights and
interests to a portion (392,7569 hectares) of the above
public land to plaintiff.
On April 13, 1954, the portion Magallanes ceded to
plaintiff was officially released from the forest zone as
pasture land and declared agricultural land.
On January 26, 1955, Jose Paño and nineteen other
claimants2 applied for the purchase of ninety hectares of
the released area.
On March 29, 1955, plaintiff corporation in turn filed its
own sales application covering the entire released area.
This was protested by Jose Paño and his nineteen
companions upon the averment that they are actual
occupants of the part thereof covered by their own sales
application.
The Director of Lands, following an investigation of the
conflict, rendered a decision on July 31, 1956 giving due
course to the application of plaintiff corporation, and
dismissing the claim of Jose Paño and his companions.
A move to reconsider failed.
On July 5, 1957, the Secretary of Agriculture and Natural
Resources — on appeal by Jose Paño for himself and
his companions — held that the appeal was without
merit and dismissed the same.
The case was elevated to the President of the
Philippines.
On June 25, 1958, Executive Secretary Juan Pajo, "[b]y
authority of the President" decided the controversy,
modified the decision of the Director of Lands as
affirmed by the Secretary of Agriculture and Natural
Resources, and (1) declared that "it would be for the
public interest that appellants, who are mostly landless
farmers who depend on the land for their existence, be
allocated that portion on which they have made
improvements;" and (2) directed that the controverted
land (northern portion of Block I, LC Map 1749, Project
127
No. 27, of Bansalan, Davao, with Latian River as the
dividing line) "should be subdivided into lots of
convenient sizes and allocated to actual occupants,
without prejudice to the corporation's right to
reimbursement for the cost of surveying this portion." It
may be well to state, at this point, that the decision just
mentioned, signed by the Executive Secretary, was
planted upon the facts as found in said decision.
Plaintiff corporation took the foregoing decision to the
Court of First Instance praying that judgment be
rendered declaring: (1) that the decision of the Secretary
of Agriculture and Natural Resources has full force and
effect; and (2) that the decision of the Executive
Secretary is contrary to law and of no legal force and
effect.
And now subject of this appeal is the judgment of the
court a quo dismissing plaintiff's case.
1. Plaintiff's mainstay is Section 4 of Commonwealth Act
141. The precept there is that decisions of the Director of
Lands "as to questions of facts shall be conclusive when
approved" by the Secretary of Agriculture and Natural
Resources. Plaintiff's trenchment claim is that this statute
is controlling not only upon courts but also upon the
President.
Plaintiff's position is incorrect. The President's duty to
execute the law is of constitutional origin.3 So, too, is his
control of all executive departments.4 Thus it is, that
department heads are men of his confidence. His is the
power to appoint them; his, too, is the privilege to
dismiss them at pleasure. Naturally, he controls and
directs their acts. Implicit then is his authority to go over,
confirm, modify or reverse the action taken by his
department secretaries. In this context, it may not be
said that the President cannot rule on the correctness of
a decision of a department secretary.
Particularly in reference to the decisions of the Director
of Lands, as affirmed by the Secretary of Agriculture and
Natural Resources, the standard practice is to allow
appeals from such decisions to the Office of the
President.5This Court has recognized this practice in
several cases. In one, the decision of the Lands Director
as approved by the Secretary was considered
superseded by that of the President's appeal.6 In other
cases, failure to pursue or resort to this last remedy of
appeal was considered a fatal defect, warranting
dismissal of the case, for non-exhaustion of all
administrative remedies.7
Parenthetically, it may be stated that the right to appeal
to the President reposes upon the President's power of
control over the executive departments.8 And control
simply means "the power of an officer to alter or modify
or nullify or set aside what a subordinate officer had
done in the performance of his duties and to substitute
the judgment of the former for that of the latter." 9
This unquestionably negates the assertion that the
President cannot undo an act of his department
secretary.
2. Plaintiff next submits that the decision of the Executive
Secretary herein is an undue delegation of power. The
Constitution, petitioner asserts, does not contain any
provision whereby the presidential power of control may
be delegated to the Executive Secretary. It is argued that
it is the constitutional duty of the President to act
personally upon the matter.
It is correct to say that constitutional powers there are
which the President must exercise in person.10 Not as
correct, however, is it so say that the Chief Executive
may not delegate to his Executive Secretary acts which
the Constitution does not command that he perform in
person.11 Reason is not wanting for this view. The
President is not expected to perform in person all the
multifarious executive and administrative functions. The
Office of the Executive Secretary is an auxiliary unit
which assists the President. The rule which has thus
gained recognition is that "under our constitutional setup
the Executive Secretary who acts for and in behalf and
by authority of the President has an undisputed
jurisdiction to affirm, modify, or even reverse any order"
that the Secretary of Agriculture and Natural Resources,
including the Director of Lands, may issue.12
3. But plaintiff underscores the fact that the Executive
Secretary is equal in rank to the other department heads,
no higher than anyone of them. From this, plaintiff carves
the argument that one department head, on the pretext
that he is an alter ego of the President, cannot intrude
into the zone of action allocated to another department
secretary. This argument betrays lack of appreciation of
the fact that where, as in this case, the Executive
Secretary acts "[b]y authority of the President," his
decision is that of the President's. Such decision is to be
given full faith and credit by our courts. The assumed
authority of the Executive Secretary is to be accepted.
For, only the President may rightfully say that the
Executive Secretary is not authorized to do so.
Therefore, unless the action taken is "disapproved or
reprobated by the Chief Executive,"13 that remains the
act of the Chief Executive, and cannot be successfully
assailed.14 No such disapproval or reprobation is even
intimated in the record of this case.
For the reasons given, the judgment under review is
hereby affirmed. Costs against plaintiff. So ordered.
Concepcion, C.J., Reyes, J.B
Lacson-Magallanes Co., Inc. v. Pano
G.R. No. L-27811 November 17, 1967
Sanchez, J.
Facts:
Magallanes was permitted to use and
occupy a land used for pasture in Davao. The said
land was a forest zone which was later declared
as an agricultural zone. Magallanes then ceded
his rights to LMC of which he is a co-owner. Paňo
was a farmer who asserted his claim over the
same piece of land. The Director of Lands denied
Paňo’s request. The Secretary of Agriculture
likewise denied his petition hence it was elevated
to the Office of the President. Exec Sec Pajo ruled
in favor of Paňo. LMC averred that the earlier
decision of the Secretary is already conclusive
hence beyond appeal. He also averred that the
decision of the Executive Secretary is an undue
delegation of power. The Constitution, LMC
asserts, does not contain any provision whereby
the presidential power of control may be
delegated to the Executive Secretary. It is argued
that it is the constitutional duty of the President
to act personally upon the matter.
Issue:
whether or not the power of control
may be delegated to the Executive Secretary and
whether it can be further delegated by the
Executive Secretary
Held:
The President's duty to execute the law
is of constitutional origin. So, too, is his control of
all executive departments. Thus it is, that
department heads are men of his confidence. His
is the power to appoint them; his, too, is the
privilege to dismiss them at pleasure. Naturally,
he controls and directs their acts. Implicit then is
his authority to go over, confirm, modify or
reverse the action taken by his department
128
secretaries. In this context, it may not be said
that the President cannot rule on the correctness
of a decision of a department secretary.
Parenthetically, it may be stated that the right to
appeal to the President reposes upon the
President's power of control over the executive
departments. And control simply means "the
power of an officer to alter or modify or nullify or
set aside what a subordinate officer had done in
the performance of his duties and to substitute
the judgment of the former for that of the latter."
It is correct to say that constitutional
powers there are which the President must
exercise in person. Not as correct, however, is it
to say that the Chief Executive may not delegate
to his Executive Secretary acts which the
Constitution does not command that he perform
in person. Reason is not wanting for this view. The
President is not expected to perform in person all
the multifarious executive and administrative
functions. The office of the Executive Secretary is
an auxiliary unit which assists the President. The
rule which has thus gained recognition is that
"under our constitutional setup the Executive
Secretary who acts for and in behalf and by
authority of the President has an undisputed
jurisdiction to affirm, modify, or even reverse any
order" that the Secretary of Agriculture and
Natural Resources, including the Director of
Lands, may issue.
G.R. No. 88291 May 31, 1991
ERNESTO M. MACEDA, petitioner,
vs.
HON. CATALINO MACARAIG, JR., in his capacity as
Executive Secretary, Office of the President; HON.
VICENTE R. JAYME, in his capacity as Secretary of
the Department of Finance; HON. SALVADOR
MISON, in his capacity as Commissioner, Bureau of
Customs; HON. JOSE U. ONG, in his capacity as
Commissioner of Internal Revenue; NATIONAL
POWER CORPORATION; the FISCAL INCENTIVES
REVIEW BOARD; Caltex (Phils.) Inc.; Pilipinas Shell
Petroleum Corporation; Philippine National Oil
Corporation; and Petrophil Corporation, respondents.
Villamor & Villamor Law Offices for petitioner.
Angara, Abello, Concepcion, Regala & Cruz for Pilipinas
Shell Petroleum Corporation.
Siguion Reyna, Montecillo & Ongsiako for Caltex
(Phils.), Inc.
GANCAYCO, J.:
This petition seeks to nullify certain decisions, orders,
rulings, and resolutions of respondents Executive
Secretary, Secretary of Finance, Commissioner of
Internal Revenue, Commissioner of Customs and the
Fiscal Incentives Review Board FIRB for exempting the
National Power Corporation (NPC) from indirect tax and
duties.
The relevant facts are not in dispute.
On November 3, 1986, Commonwealth Act No. 120
created the NPC as a public corporation to undertake the
development of hydraulic power and the production of
power from other sources.1
On June 4, 1949, Republic Act No. 358 granted NPC tax
and duty exemption privileges under—
Sec. 2. To facilitate payment of its indebtedness,
the National Power Corporation shall be exempt
from all taxes, duties, fees, imposts, charges
and restrictions of the Republic of the
 Philippines, its provinces, cities and
municipalities.
On September 10, 1971, Republic Act No. 6395 revised
the charter of the NPC wherein Congress declared as a
national policy the total electrification of the Philippines
through the development of power from all sources to
meet the needs of industrial development and rural
electrification which should be pursued coordinately and
supported by all instrumentalities and agencies of the
government, including its financial institutions.2 The
corporate existence of NPC was extended to carry out
this policy, specifically to undertake the development of
hydro electric generation of power and the production of
electricity from nuclear, geothermal and other sources,
as well as the transmission of electric power on a
nationwide basis.3 Being a non-profit corporation,
Section 13 of the law provided in detail the exemption of
the NPC from all taxes, duties, fees, imposts and other
charges by the government and its instrumentalities.
On January 22, 1974, Presidential Decree No. 380
amended section 13, paragraphs (a) and (d) of Republic
Act No. 6395 by specifying, among others, the
exemption of NPC from such taxes, duties, fees, imposts
and other charges imposed "directly or indirectly," on all
petroleum products used by NPC in its operation.
Presidential Decree No. 938 dated May 27, 1976 further
amended the aforesaid provision by integrating the tax
exemption in general terms under one paragraph.
On June 11, 1984, Presidential Decree No. 1931
withdrew all tax exemption privileges granted in favor of
government-owned or controlled corporations including
their subsidiaries.4 However, said law empowered the
President and/or the then Minister of Finance, upon
recommendation of the FIRB to restore, partially or
totally, the exemption withdrawn, or otherwise revise the
scope and coverage of any applicable tax and duty.
Pursuant to said law, on February 7, 1985, the FIRB
issued Resolution No. 10-85 restoring the tax and duty
exemption privileges of NPC from June 11, 1984 to June
30, 1985. On January 7, 1986, the FIRB issued
resolution No. 1-86 indefinitely restoring the NPC tax and
duty exemption privileges effective July 1, 1985.
However, effective March 10, 1987, Executive Order No.
93 once again withdrew all tax and duty incentives
granted to government and private entities which had
been restored under Presidential Decree Nos. 1931 and
1955 but it gave the authority to FIRB to restore, revise
the scope and prescribe the date of effectivity of such tax
and/or duty exemptions.
On June 24, 1987 the FIRB issued Resolution No. 17-87
restoring NPC's tax and duty exemption privileges
effective March 10, 1987. On October 5, 1987, the
President, through respondent Executive Secretary
Macaraig, Jr., confirmed and approved FIRB Resolution
No. 17-87.
As alleged in the petition, the following are the
background facts:
The following are the facts relevant to NPC's
questioned claim for refunds of taxes and duties
originally paid by respondents Caltex, Petrophil
and Shell for specific and ad valorem taxes to
the BIR; and for Customs duties and ad valorem
taxes paid by PNOC, Shell and Caltex to the
Bureau of Customs on its crude oil importation.
Many of the factual statements are reproduced
from the Senate Committee on Accountability of
Public Officers and Investigations (Blue Ribbon)
Report No. 474 dated January 12, 1989 and
approved by the Senate on April 21, 1989 (copy
attached hereto as Annex "A") and are identified
in quotation marks:
1. Since May 27, 1976 when P.D. No. 938 was
issued until June 11, 1984 when P.D. No. 1931
129
was promulgated abolishing the tax exemptions
of all government-owned or-controlled
corporations, the oil firms never paid excise or
specific and ad valorem taxes for petroleum
products sold and delivered to the NPC. This
non-payment of taxes therefore spanned a
period of eight (8) years. (par. 23, p. 7, Annex
"A")
During this period, the Bureau of Internal
Revenue was not collecting specific taxes on the
purchases of NPC of petroleum products from
the oil companies on the erroneous belief that
the National Power Corporation (NPC) was
exempt from indirect taxes as reflected in the
letter of Deputy Commissioner of Internal
Revenue (DCIR) Romulo Villa to the NPC dated
October 29, 1980 granting blanket authority to
the NPC to purchase petroleum products from
the oil companies without payment of specific
tax (copy of this letter is attached hereto as
petitioner's Annex "B").
2. The oil companies started to pay specific
and ad valorem taxes on their sales of oil
products to NPC only after the promulgation of
P.D. No. 1931 on June 11, 1984, withdrawing all
exemptions granted in favor of government-
owned or-controlled corporations and
empowering the FIRB to recommend to the
President or to the Minister of Finance the
restoration of the exemptions which were
withdrawn. "Specifically, Caltex paid the total
amount of P58,020,110.79 in specific and ad
valorem taxes for deliveries of petroleum
products to NPC covering the period from
October 31, 1984 to April 27, 1985." (par. 23, p.
7, Annex "A")
3. Caltex billings to NPC until June 10, 1984
always included customs duty without the tax
portion. Beginning June 11, 1984, when P.D.
1931 was promulgated abolishing NPC's tax
exemptions, Caltex's billings to NPC always
included both duties and taxes. (Caturla, tsn,
Oct. 10, 1988, pp. 1-5) (par. 24, p, 7, Annex "A")
4. For the sales of petroleum products delivered
to NPC during the period from October, 1984 to
April, 1985, NPC was billed a total of
P522,016,77.34 (sic) including both duties and
taxes, the specific tax component being valued
at P58,020,110.79. (par. 25, p. 8, Annex "A").
5. Fiscal Incentives Review Board (FIRB)
Resolution 10-85, dated February 7, 1985,
certified true copy of which is hereto attached as
Annex "C", restored the tax exemption privileges
of NPC effective retroactively to June 11, 1984
up to June 30, 1985. The first paragraph of said
resolution reads as follows:
1. Effective June 11, 1984, the tax and
duty exemption privileges enjoyed by
the National Power Corporation under
C.A. No. 120, as amended, are restored
up to June 30, 1985.
Because of this restoration (Annex "G") the NPC
applied on September 11, 1985 with the BIR for
a "refund of Specific Taxes paid on petroleum
products . . . in the total amount of
P58,020,110.79. (par. 26, pp. 8-9, Annex "A")
6. In a letter to the president of the NPC dated
May 8, 1985 (copy attached as petitioner's
Annex "D"), Acting BIR Commissioner Ruben
Ancheta declared:
FIRB Resolution No. 10-85 serves as
sufficient basis to allow NPC to
purchase petroleum products from the
 oil companies free of specific and ad
valorem taxes, during the period in
question.
The "period in question" is June 1 1, 1 984 to
June 30, 1 985.
7. On June 6, 1985—The president of the NPC,
Mr. Gabriel Itchon, wrote Mr. Cesar Virata,
Chairman of the FIRB (Annex "E"), requesting
"the FIRB to resolve conflicting rulings on the tax
exemption privileges of the National Power
Corporation (NPC)." These rulings involve FIRB
Resolutions No. 1-84 and 10-85. (par. 40, p. 12,
Annex "A")
8. In a letter to the President of NPC (Annex
"F"), dated June 26, 1985, Minister Cesar Virata
confirmed the ruling of May 8, 1985 of Acting
BIR Commissioner Ruben Ancheta, (par. 41, p.
12, Annex "A")
9. On October 22, 1985, however, under BIR
Ruling No. 186-85, addressed to Hanil
Development Co., Ltd., a Korean contractor of
NPC for its infrastructure projects, certified true
copy of which is attached hereto as petitioner's
Annex "E", BIR Acting Commissioner Ruben
Ancheta ruled:
In Reply please be informed that after a
re-study of Section 13, R.A. 6395, as
amended by P.D. 938, this Office is of
the opinion, and so holds, that the scope
of the tax exemption privilege enjoyed
by NPC under said section covers only
taxes for which it is directly liable and
not on taxes which are only shifted to it.
(Phil. Acetylene vs. C.I.R. et al., G.R. L-
19707, Aug. 17, 1967) Since contractor's
tax is directly payable by the contractor,
not by NPC, your request for exemption,
based on the stipulation in the aforesaid
contract that NPC shall assume
payment of your contractor's tax liability,
cannot be granted for lack of legal
basis." (Annex "H") (emphasis added)
Said BIR ruling clearly states that NPC's
exemption privileges covers (sic) only taxes for
which it is directly liable and does not cover
taxes which are only shifted to it or for indirect
taxes. The BIR, through Ancheta, reversed its
previous position of May 8, 1985 adopted by
Ancheta himself favoring NPC's indirect tax
exemption privilege.
10. Furthermore, "in a BIR Ruling, unnumbered,
"dated June 30, 1986, "addressed to Caltex
(Annex "F"), the BIR Commissioner declared
that PAL's tax exemption is limited to taxes for
which PAL is directly liable, and that the payment
of specific and ad valorem taxes on petroleum
products is a direct liability of the manufacturer
or producer thereof". (par. 51, p. 15, Annex "A")
11. On January 7, 1986, FIRB Resolution No. 1-
86 was issued restoring NPC's tax exemptions
retroactively from July 1, 1985 to a indefinite
period, certified true copy of which is hereto
attached as petitioner's Annex "H".
12. NPC's total refund claim was P468.58 million
but only a portion thereof i.e. the P58,020,110.79
(corresponding to Caltex) was approved and
released by way of a Tax Credit Memo (Annex
"Q") dated July 7, 1986, certified true copy of
which [is) attached hereto as petitioner's Annex
"F," which was assigned by NPC to Caltex. BIR
Commissioner Tan approved the Deed of
Assignment on July 30, 1987, certified true copy
130
of which is hereto attached as petitioner's Annex
"G"). (pars. 26, 52, 53, pp. 9 and 15, Annex "A")
The Deed of Assignment stipulated among
others that NPC is assigning the tax credit to
Caltex in partial settlement of its outstanding
obligations to the latter while Caltex, in turn,
would apply the assigned tax credit against its
specific tax payments for two (2) months. (per
memorandum dated July 28, 1986 of DCIR Villa,
copy attached as petitioner Annex "G")
13. As a result of the favorable action taken by
the BIR in the refund of the P58.0 million tax
credit assigned to Caltex, the NPC reiterated its
request for the release of the balance of its
pending refunds of taxes paid by respondents
Petrophil, Shell and Caltex covering the period
from June 11, 1984 to early part of 1986
amounting to P410.58 million. (The claim of the
first two (2) oil companies covers the period from
June 11, 1984 to early part of 1986; while that of
Caltex starts from July 1, 1985 to early 1986).
This request was denied on August 18, 1986,
under BIR Ruling 152-86 (certified true copy of
which is attached hereto as petitioner's Annex
"I"). The BIR ruled that NPC's tax free privilege
to buy petroleum products covered only the
period from June 11, 1984 up to June 30, 1985.
It further declared that, despite FIRB No. 1-86,
NPC had already lost its tax and duty
exemptions because it only enjoys special
privilege for taxes for which it is directly liable.
This ruling, in effect, denied the P410 Million tax
refund application of NPC (par. 28, p. 9, Annex
"A")
14. NPC filed a motion for reconsideration on
September 18, 1986. Until now the BIR has not
resolved the motion. (Benigna, II 3, Oct. 17,
1988, p. 2; Memorandum for the Complainant,
Oct. 26, 1988, p. 15)." (par. 29, p. 9, Annex "A")
15. On December 22, 1986, in a 2nd
Indorsement to the Hon. Fulgencio S. Factoran,
Jr., BIR Commissioner Tan, Jr. (certified true
copy of which is hereto attached and made a
part hereof as petitioner's Annex "J"), reversed
his previous position and states this time that all
deliveries of petroleum products to NPC are tax
exempt, regardless of the period of delivery.
16. On December 17, 1986, President Corazon
C. Aquino enacted Executive Order No. 93,
entitled "Withdrawing All Tax and Duty
Incentives, Subject to Certain Exceptions,
Expanding the Powers of the Fiscal Incentives
Review Board and Other Purposes."
17. On June 24, 1987, the FIRB issued
Resolution No. 17-87, which restored NPC's tax
exemption privilege and included in the
exemption "those pertaining to its domestic
purchases of petroleum and petroleum products,
and the restorations were made to retroact
effective March 10, 1987, a certified true copy of
which is hereto attached and made a part hereof
as Annex "K".
18. On August 6, 1987, the Hon. Sedfrey A.
Ordoñez, Secretary of Justice, issued Opinion
No. 77, series of 1987, opining that "the power
conferred upon Fiscal Incentives Review Board
by Section 2a (b), (c) and (d) of Executive order
No. 93 constitute undue delegation of legislative
power and, therefore, [are] unconstitutional," a
copy of which is hereto attached and made a
part hereof as Petitioner's Annex "L."
19. On October 5, 1987, respondent Executive
Secretary Macaraig, Jr. in a Memorandum to the
 Chairman of the FIRB a certified true copy of
which is hereto attached and made a part hereof
as petitioner's Annex "M," confirmed and
approved FIRB Res. No. 17-87 dated June 24,
1987, allegedly pursuant to Sections 1 (f) and 2
(e) of Executive Order No. 93.
20. Secretary Vicente Jayme in a reply dated
May 20, 1988 to Secretary Catalino Macaraig,
who by letter dated May 2, 1988 asked him to
rule "on whether or not, as the law now stands,
the National Power Corporation is still exempt
from taxes, duties . . . on its local purchases
of . . . petroleum products . . ." declared that
"NPC under the provisions of its Revised
Charter retains its exemption from duties and
taxes imposed on the petroleum products
purchased locally and used for the generation of
electricity," a certified true copy of which is
attached hereto as petitioner's Annex "N." (par.
30, pp. 9-10, Annex "A")
21. Respondent Executive Secretary came up
likewise with a confirmatory letter dated June 1
5, 1988 but without the usual official form of "By
the Authority of the President," a certified true
copy of which is hereto attached and made a
part hereof as Petitioner's Annex "O".
22. The actions of respondents Finance
Secretary and the Executive Secretary are
based on the RESOLUTION No. 17-87 of FIRB
restoring the tax and duty exemption of the
respondent NPC pertaining to its domestic
purchases of petroleum products (petitioner's
Annex K supra).
23. Subsequently, the newspapers particularly,
the Daily Globe, in its issue of July 11, 1988
reported that the Office of the President and the
Department of Finance had ordered the BIR to
refund the tax payments of the NPC amounting
to Pl.58 Billion which includes the P410 Million
Tax refund already rejected by BIR
Commissioner Tan, Jr., in his BIR Ruling No.
152-86. And in a letter dated July 28, 1988 of
Undersecretary Marcelo B. Fernando to BIR
Commissioner Tan, Jr. the Pl.58 Billion tax
refund was ordered released to NPC (par. 31, p.
1 0, Annex "A")
24. On August 8, 1988, petitioner "wrote both
Undersecretary Fernando and Commissioner
Tan requesting them to hold in abeyance the
release of the Pl.58 billion and await the
outcome of the investigation in regard to Senate
Resolution No. 227," copies attached as
Petitioner's Annexes "P" and "P-1 " (par. 32, p.
10, Annex "A").
Reacting to this letter of the petitioner,
Undersecretary Fernando wrote Commissioner
Tan of the BIR dated August, 1988 requesting
him to hold in abeyance the release of the tax
refunds to NPC until after the termination of the
Blue Ribbon investigation.
25. In the Bureau of Customs, oil companies
import crude oil and before removal thereof from
customs custody, the corresponding customs
duties and ad valorem taxes are paid. Bunker
fuel oil is one of the petroleum products
processed from the crude oil; and same is sold
to NPC. After the sale, NPC applies for tax credit
covering the duties and ad valorem
exemption under its Charter. Such applications
are processed by the Bureau of Customs and
the corresponding tax credit certificates are
issued in favor of NPC which, in turn assigns it
to the oil firm that imported the crude oil. These
131
certificates are eventually used by the assignee-
oil firms in payment of their other duty and tax
liabilities with the Bureau of Customs. (par. 70,
p. 19, Annex "A")
A lesser amount totalling P740 million, covering
the period from 1985 to the present, is being
sought by respondent NPC for refund from the
Bureau of Customs for duties paid by the oil
companies on the importation of crude oil from
which the processed products sold locally by
them to NPC was derived. However, based on
figures submitted to the Blue Ribbon Committee
of the Philippine Senate which conducted an
investigation on this matter as mandated by
Senate Resolution No. 227 of which the herein
petitioner was the sponsor, a much bigger figure
was actually refunded to NPC representing
duties and ad valorem taxes paid to the Bureau
of Customs by the oil companies on the
importation of crude oil from 1979 to 1985.
26. Meantime, petitioner, as member of the
Philippine Senate introduced P.S. Res. No. 227,
entitled:
Resolution Directing the Senate Blue
Ribbon Committee, In Aid of Legislation,
To conduct a Formal and Extensive
Inquiry into the Reported Massive Tax
Manipulations and Evasions by Oil
Companies, particularly Caltex (Phils.)
Inc., Pilipinas Shell and Petrophil, Which
Were Made Possible By Their Availing of
the Non-Existing Exemption of National
Power Corporation (NPC) from Indirect
Taxes, Resulting Recently in Their
Obtaining A Tax Refund Totalling P1.55
Billion From the Department of Finance,
Their Refusal to Pay Since 1976
Customs Duties Amounting to Billions of
Pesos on Imported Crude Oil
Purportedly for the Use of the National
Power Corporation, the Non-Payment of
Surtax on Windfall Profits from
Increases in the Price of Oil Products in
August 1987 amounting Maybe to as
Much as Pl.2 Billion Surtax Paid by
Them in 1984 and For Other Purposes.
27. Acting on the above Resolution, the Blue
Ribbon Committee of the Senate did conduct a
lengthy formal inquiry on the matter, calling all
parties interested to the witness stand including
representatives from the different oil companies,
and in due time submitted its Committee Report
No. 474 . . . — The Blue Ribbon Committee
recommended the following courses of action.
1. Cancel its approval of the tax refund
of P58,020,110.70 to the National Power
Corporation (NPC) and its approval of
Tax Credit memo covering said amount
(Annex "P" hereto), dated July 7, 1986,
and cancel its approval of the Deed of
Assignment (Annex "Q" hereto) by NPC
to Caltex, dated July 28, 1986, and
collect from Caltex its tax liabilities which
were erroneously treated as paid or
settled with the use of the tax credit
certificate that NPC assigned to said
firm.:
1.1. NPC did not have any
indirect tax exemption since
May 27, 1976 when PD 938 was
issued. Therefore, the grant of a
tax refund to NPC in the amount
of P58 million was illegal, and
therefore, null and void. Such
 refund was a nullity right from
the beginning. Hence, it never
transferred any right in favor of
NPC.
2. Stop the processing and/or release of
Pl.58 billion tax refund to NPC and/or oil
companies on the same ground that the
NPC, since May 27, 1976 up to June 17,
1987 was never granted any indirect tax
exemption. So, the P1.58 billion
represent taxes legally and properly paid
by the oil firms.
3. Start collection actions of specific or
excise and ad valorem taxes due on
petroleum products sold to NPC from
May 27, 1976 (promulgation of PD 938)
to June 17, 1987 (issuance of EO 195).
B. For the Bureau of Customs (BOC) to do the
following:
1. Start recovery actions on the illegal duty
refunds or duty credit certificates for purchases
of petroleum products by NPC and allegedly
granted under the NPC charter covering the
years 1978-1988 . . .
28. On March 30, 1989, acting on the request of
respondent Finance Secretary for clearance to
direct the Bureau of Internal Revenue and of
Customs to proceed with the processing of
claims for tax credits/refunds of the NPC,
respondent Executive Secretary rendered his
ruling, the dispositive portion of which reads:
IN VIEW OF THE FOREGOING, the clearance is hereby
GRANTED and, accordingly, unless restrained by proper
authorities, that department and/or its line-tax bureaus
may now proceed with the processing of the claims of
the National Power Corporation for duty and tax free
exemption and/or tax credits/ refunds, if there be any, in
accordance with the ruling of that Department dated May
20,1988, as confirmed by this Office on June 15, 1988 . .
.5
Hence, this petition for certiorari, prohibition
and mandamus with prayer for a writ of preliminary
injunction and/or restraining order, praying among others
that:
1. Upon filing of this petition, a temporary
restraining order forthwith be issued against
respondent FIRB Executive Secretary Macaraig,
and Secretary of Finance Jayme restraining
them and other persons acting for, under, and in
their behalf from enforcing their resolution,
orders and ruling, to wit:
A. FIRB Resolution No. 17-87 dated
June 24, 1987 (petitioner's Annex "K");
B. Memorandum-Order of the Office of
the President dated October 5, 1987
(petitioner's Annex "M");
C. Order of the Executive Secretary
dated June 15, 1988 (petitioner's Annex
"O");
D. Order of the Executive Secretary
dated March 30, l989 (petitioner's Annex
"Q"); and
E. Ruling of the Finance Secretary dated
May 20, 1988 (petitioner's Annex "N").
2. Said temporary restraining order should also
include respondent Commissioners of Customs
Mison and Internal Revenue Ong restraining
them from processing and releasing any pending
claim or application by respondent NPC for tax
and duty refunds.
3. Thereafter, and during the pendency of this
petition, to issue a writ or preliminary injunction
132
against above-named respondents and all
persons acting for and in their behalf.
4. A decision be rendered in favor of the
petitioner and against the respondents:
A. Declaring that respondent NPC did not enjoy
indirect tax exemption privilege since May 27,
1976 up to the present;
B. Nullifying the setting aside the following:
1. FIRB Resolution No. 17-87 dated
June 24, 1987 (petitioner's Annex "K");
2. Memorandum-Order of the Office of
the President dated October 5, 1987
(petitioner's Annex "M");
3. Order of the Executive Secretary
dated June 15, 1988 (petitioner's Annex
"O");
4. Order of the Executive Secretary
dated March 30, 1989 (petitioner's
Annex "Q");
5. Ruling of the Finance Secretary dated
May 20, 1988 (petitioner's Annex "N"
6. Tax Credit memo dated July 7, 1986
issued to respondent NPC representing
tax refund for P58,020,110.79
(petitioner's Annex "F");
7. Deed of Assignment of said tax credit
memo to respondent Caltex dated July
30, 1987 (petitioner's Annex "G");
8. Application of the assigned tax credit
of Caltex in payment of its tax liabilities
with the Bureau of Internal Revenue and
9. Illegal duty and tax refunds issued by
the Bureau of Customs to respondent
NPC by way of tax credit certificates
from 1979 up to the present.
C. Declaring as illegal and null and void the
pending claims for tax and duty refunds by
respondent NPC with the Bureau of Customs
and the Bureau of Internal Revenue;
D. Prohibiting respondents Commissioner of
Customs and Commissioner of Internal Revenue
from enforcing the abovequestioned resolution,
orders and ruling of respondents Executive
Secretary, Secretary of Finance, and FIRB by
processing and releasing respondent NPC's tax
and duty refunds;
E. Ordering the respondent Commissioner of
Customs to deny as being null and void the
pending claims for refund of respondent NPC
with the Bureau of Customs covering the period
from 1985 to the present; to cancel and
invalidate the illegal payment made by
respondents Caltex, Shell and PNOC by using
the tax credit certificates assigned to them by
NPC and to recover from respondents Caltex,
Shell and PNOC all the amounts appearing in
said tax credit certificates which were used to
settle their duty and tax liabilities with the Bureau
of Customs.
F. Ordering respondent Commissioner of Internal
Revenue to deny as being null and void the
pending claims for refund of respondent NPC
with the Bureau of Internal Revenue covering
the period from June 11, 1984 to June 17, 1987.
PETITIONER prays for such other relief and
remedy as may be just and equitable in the
premises.6
The issues raised in the petition are the following:
To determine whether respondent NPC is legally
entitled to the questioned tax and duty refunds,
 this Honorable Court must resolve the following
issues:
Main issue—
Whether or not the respondent NPC has ceased
to enjoy indirect tax and duty exemption with the
enactment of P.D. No. 938 on May 27, 1976
which amended P.D. No. 380, issued on January
11, 1974.
Corollary issues—
1. Whether or not FIRB Resolution No. 10-85
dated February 7, 1985 which restored NPC's
tax exemption privilege effective June 11, 1984
to June 30, 1985 and FIRB Resolution No. 1-86
dated January 7, 1986 restoring NPC's tax
exemption privilege effective July 1, 1985
included the restoration of indirect tax exemption
to NPC and
2. Whether or not FIRB could validly and legally
issue Resolution No. 17-87 dated June 24, 1987
which restored NPC's tax exemption privilege
effective March 10, 1987; and if said Resolution
was validly issued, the nature and extent of the
tax exemption privilege restored to NPC.7
In a resolution dated June 6, 1989, the Court, without
giving due course to the petition, required respondents to
comment thereon, within ten (10) days from notice. The
respondents having submitted their comment, on
October 10, 1989 the Court required petitioner to file a
consolidated reply to the same. After said reply was filed
by petitioner on November 15, 1989 the Court gave due
course to the petition, considering the comments of
respondents as their answer to the petition, and requiring
the parties to file simultaneously their respective
memoranda within twenty (20) days from notice. The
parties having submitted their respective memoranda,
the petition was deemed submitted for resolution.
First the preliminary issues.
Public respondents allege that petitioner does not have
the standing to challenge the questioned orders and
resolution.
In the petition it is alleged that petitioner is "instituting
this suit in his capacity as a taxpayer and a duly-elected
Senator of the Philippines." Public respondent argues
that petitioner must show he has sustained direct injury
as a result of the action and that it is not sufficient for him
to have a mere general interest common to all members
of the public.8
The Court however agrees with the petitioner that as a
taxpayer he may file the instant petition following the
ruling in Lozada when it involves illegal expenditure of
public money. The petition questions the legality of the
tax refund to NPC by way of tax credit certificates and
the use of said assigned tax credits by respondent oil
companies to pay for their tax and duty liabilities to the
BIR and Bureau of Customs.
Assuming petitioner has the personality to file the
petition, public respondents also allege that the proper
remedy for petitioner is an appeal to the Court of Tax
Appeals under Section 7 of R.A. No. 125 instead of this
petition. However Section 11 of said law provides—
Sec. 11. Who may appeal; effect of appeal—Any
person, association or corporation adversely
affected by a decision or ruling of the
Commissioner of Internal Revenue, the Collector
of Customs (Commissioner of Customs) or any
provincial or City Board of Assessment Appeals
may file an appeal in the Court of Tax Appeals
within thirty days after receipt of such decision or
ruling.
From the foregoing, it is only the taxpayer adversely
affected by a decision or ruling of the Commissioner of
Internal Revenue, the Commissioner of Customs or any
133
provincial or city Board of Assessment Appeal who may
appeal to the Court of Tax Appeals. Petitioner does not
fall under this category.
Public respondents also contend that mandamus does
not lie to compel the Commissioner of Internal Revenue
to impose a tax assessment not found by him to be
proper. It would be tantamount to a usurpation of
executive functions.9
Even in Meralco, this Court recognizes the situation
when mandamus can control the discretion of the
Commissioners of Internal Revenue and Customs when
the exercise of discretion is tainted with arbitrariness and
grave abuse as to go beyond statutory authority. 10
Public respondents then assert that a writ of prohibition
is not proper as its function is to prevent an unlawful
exercise of jurisdiction11 or to prevent the oppressive
exercise of legal authority.12 Precisely, petitioner
questions the lawfulness of the acts of public
respondents in this case.
Now to the main issue.
It may be useful to make a distinction, for the purpose of
this disposition, between a direct tax and an indirect tax.
A direct tax is a tax for which a taxpayer is directly liable
on the transaction or business it engages in. Examples
are the custom duties and ad valorem taxes paid by the
oil companies to the Bureau of Customs for their
importation of crude oil, and the specific and ad
valorem taxes they pay to the Bureau of Internal
Revenue after converting the crude oil into petroleum
products.
On the other hand, "indirect taxes are taxes primarily
paid by persons who can shift the burden upon someone
else ."13 For example, the excise and ad valorem taxes
that oil companies pay to the Bureau of Internal Revenue
upon removal of petroleum products from its refinery can
be shifted to its buyer, like the NPC, by adding them to
the "cash" and/or "selling price."
The main thrust of the petition is that under the latest
amendment to the NPC charter by Presidential Decree
No. 938, the exemption of NPC from indirect taxation
was revoked and repealed. While petitioner concedes
that NPC enjoyed broad exemption privileges from both
direct and indirect taxes on the petroleum products it
used, under Section 13 of Republic Act No, 6395 and
more so under Presidential Decree No. 380, however, by
the deletion of the phrases "directly or indirectly" and "on
all petroleum products used by the Corporation in the
generation, transmission, utilization and sale of electric
power" he contends that the exemption from indirect
taxes was withdrawn by P.D. No. 938.
Petitioner further states that the exemption of NPC
provided in Section 13 of Presidential Decree No. 938
regarding the payments of "all forms of taxes, etc."
cannot be interpreted to include indirect tax exemption.
He cites Philippine Aceytelene Co. Inc. vs.
Commissioner of Internal Revenue.14 Petitioner
emphasizes the principle in taxation that the exception
contained in the tax statutes must be strictly construed
against the one claiming the exemption, and that the rule
that a tax statute granting exemption must be strictly
construed against the one claiming the exemption is
similar to the rule that a statute granting taxing power is
to be construed strictly, with doubts resolved against its
existence.15 Petitioner cites rulings of the BIR that the
phrase exemption from "all taxes, etc." from "all forms of
taxes" and "in lieu of all taxes" covers only taxes for
which the taxpayer is directly liable.16
On the corollary issues. First, FIRB Resolution Nos. 10-
85 and 10-86 issued under Presidential Decree No.
1931, the relevant provision of which are to wit:
P.D. No. 1931 provides as follows:
Sec. 1. The provisions of special or general law
to the contrary notwithstanding, all exemptions
 from the payment of duties, taxes . . . heretofore
granted in favor of government-owned or
controlled corporations are hereby withdrawn.
(Emphasis supplied.)
Sec. 2. The President of the Philippines and/or
the Minister of Finance, upon
the recommendation of the Fiscal Incentives
Review Board . . . is hereby empowered to
restore, partially or totally, the exemptions
withdrawn by Section 1 above . . . (Emphasis
supplied.)
The relevant provisions of FIRB resolution Nos. 10-85
and 1-86 are the following:
Resolution. No. 10-85
BE IT RESOLVED AS IT IS HEREBY RESOLVED, That:
1. Effective June 11, 1984, the tax and duty exemption
privileges enjoyed by the National Power Corporation
under C.A. No. 120 as amended are restored up to June
30, 1985.
2. Provided, That to restoration does not apply to the
following:
a. importations of fuel oil (crude equivalent) and
coal as per FIRB Resolution No. 1-84;
b. commercially-funded importations; and
c. interest income derived from any investment
source.
3. Provided further, That in case of importations funded
by international financing agreements, the NPC is
hereby required to furnish the FIRB on a periodic basis
the particulars of items received or to be received
through such arrangements, for purposes of tax and duty
exemptions privileges.17
Resolution No. 1-86
BE IT RESOLVED AS IT IS HEREBY RESOLVED: That:
1. Effective July 1, 1985, the tax and duty exemption
privileges enjoyed by the National Power Corporation
(NPC) under Commonwealth Act No. 120, as amended,
are restored: Provided, That importations of fuel oil
(crude oil equivalent), and coal of the herein grantee
shall be subject to the basic and additional import
duties; Provided, further, that the following shall remain
fully taxable:
a. Commercially-funded importations; and
b. Interest income derived by said grantee from
bank deposits and yield or any other monetary
benefits from deposit substitutes, trust funds and
other similar arrangements.
2. The NPC as a government corporation is exempt from
the real property tax on land and improvements owned
by it provided that the beneficial use of the property is
not transferred to another pursuant to the provisions of
Sec. 10(a) of the Real Property Tax Code, as
amended.18
Petitioner does not question the validity and
enforceability of FIRB Resolution Nos. 10-85 and 1-86.
Indeed, they were issued in compliance with the
requirement of Section 2, P.D. No. 1931, whereby the
FIRB should make the recommendation subject to the
approval of "the President of the Philippines and/or the
Minister of Finance." While said Resolutions do not
appear to have been approved by the President, they
were nevertheless approved by the Minister of Finance
who is also duly authorized to approve the same. In fact
it was the Minister of Finance who signed and
promulgated said resolutions.19
The observation of Mr. Justice Sarmiento in the
dissenting opinion that FIRB Resolution Nos. 10-85 and
1-86 which were promulgated by then Acting Minister of
Finance Alfredo de Roda, Jr. and Minister of Finance
Cesar E.A Virata, as Chairman of FIRB respectively,
should be separately approved by said Minister of
134
Finance as required by P.D. 1931 is, a superfluity. An
examination of the said resolutions which are
reproduced in full in the dissenting opinion show that the
said officials signed said resolutions in the dual capacity
of Chairman of FIRB and Minister of Finance.
Mr. Justice Sarmiento also makes reference to the
case National Power Corporation vs. Province of
Albay,20wherein the Court observed that under P.D. No.
776 the power of the FIRB was only recommendatory
and requires the approval of the President to be valid.
Thus, in said case the Court held that FIRB Resolutions
Nos. 10-85 and 1-86 not having been approved by the
President were not valid and effective while the validity
of FIRB 17-87 was upheld as it was duly approved by
the Office of the President on October 5, 1987.
However, under Section 2 of P.D. No. 1931 of June 11,
1984, hereinabove reproduced, which amended P.D. No.
776, it is clearly provided for that such FIRB resolution,
may be approved by the "President of the Philippines
and/or the Minister of Finance." To repeat, as FIRB
Resolutions Nos. 10-85 and 1-86 were duly approved by
the Minister of Finance, hence they are valid and
effective. To this extent, this decision modifies or
supersedes the Court's earlier decision in Albay afore-
referred to.
Petitioner, however, argues that under both FIRB
resolutions, only the tax and duty exemption privileges
enjoyed by the NPC under its charter, C.A. No. 120, as
amended, are restored, that is, only its direct tax
exemption privilege; and that it cannot be interpreted to
cover indirect taxes under the principle that tax
exemptions are construed stricissimi juris against the
taxpayer and liberally in favor of the taxing authority.
Petitioner argues that the release by the BIR of the
P58.0 million refund to respondent NPC by way of a tax
credit certificate21 which was assigned to respondent
Caltex through a deed of assignment approved by the
BIR22 is patently illegal. He also contends that the
pending claim of respondent NPC in the amount of
P410.58 million with respondent BIR for the sale and
delivery to it of bunker fuel by respondents Petrophil,
Shell and Caltex from July 1, 1985 up to 1986, being
illegal, should not be released.
Now to the second corollary issue involving the validity of
FIRB Resolution No. 17-87 issued on June 24, 1987. It
was issued under authority of Executive Order No. 93
dated December 17, 1986 which grants to the FIRB
among others, the power to recommend the restoration
of the tax and duty exemptions/incentives withdrawn
thereunder.
Petitioner stresses that on August 6, 1987 the Secretary
of Justice rendered Opinion No. 77 to the effect that the
powers conferred upon the FIRB by Section 2(a), (b),
and (c) and (4) of Executive Order No. 93 "constitute
undue delegation of legislative power and is, therefore,
unconstitutional." Petitioner observes that the FIRB did
not merely recommend but categorically restored the tax
and duty exemption of the NPC so that the
memorandum of the respondent Executive Secretary
dated October 5, 1987 approving the same is a
surplusage.
Further assuming that FIRB Resolution No. 17-87 to
have been legally issued, following the doctrine
in Philippine Aceytelene, petitioner avers that the
restoration cannot cover indirect taxes and it cannot
create new indirect tax exemption not otherwise granted
in the NPC charter as amended by Presidential Decree
No. 938.
The petition is devoid of merit.
The NPC is a non-profit public corporation created for
the general good and welfare23 wholly owned by the
government of the Republic of the Philippines.24 From
the very beginning of its corporate existence, the NPC
enjoyed preferential tax treatment25 to enable the
Corporation to pay the indebtedness and obligation and
in furtherance and effective implementation of the policy
enunciated in Section one of "Republic Act No.
6395"26 which provides:
Sec. 1. Declaration of Policy—Congress hereby
declares that (1) the comprehensive
development, utilization and conservation of
Philippine water resources for all beneficial uses,
including power generation, and (2) the total
electrification of the Philippines through the
development of power from all sources to meet
the need of rural electrification are primary
objectives of the nation which shall be pursued
coordinately and supported by all
instrumentalities and agencies of the
government including its financial institutions.
From the changes made in the NPC charter, the
intention to strengthen its preferential tax treatment is
obvious.
Under Republic Act No. 358, its exemption is provided as
follows:
Sec. 2. To facilitate payment of its indebtedness,
the National Power Corporation shall be exempt
from all taxes, duties, fees, imposts, charges,
and restrictions of the Republic of the
Philippines, its provinces, cities and
municipalities."
Under Republic Act No. 6395:
Sec. 13. Non-profit Character of the
Corporation; Exemption from all Taxes, Duties,
Fees, Imposts and other Charges by
Government and Governmental
Instrumentalities.— The Corporation shall be
non-profit and shall devote all its returns from its
capital investment, as well as excess revenues
from its operation, for expansion. To enable the
Corporation to pay its indebtedness and
obligations and in furtherance and effective
implementation of the policy enunciated in
Section one of this Act, the Corporation is
hereby declared exempt:
(a) From the payment of all taxes, duties, fees,
imposts, charges, costs and service fees in any
court or administrative proceedings in which it
may be a party, restrictions and duties to the
Republic of the Philippines, its provinces, cities,
municipalities and other government agencies
and instrumentalities;
(b) From all income taxes, franchise taxes and
realty taxes to be paid to the National
Government, its provinces, cities, municipalities
and other government agencies and
instrumentalities;
(c) From all import duties, compensating taxes
and advanced sales tax, and wharfage fees on
import of foreign goods required for its
operations and projects; and
(d) From all taxes, duties, fees, imposts, and all
other charges imposed by the Republic of the
Philippines, its provinces, cities, municipalities
and other government agencies and
instrumentalities, on all petroleum products used
by the Corporation in the generation,
transmission, utilization, and sale of electric
power. (Emphasis supplied.)
Under Presidential Decree No. 380:
Sec. 13. Non-profit Character of the
Corporation: Exemption from all Taxes, Duties,
Fees, Imposts and other Charges by the
Government and Government Instrumentalities.
— The Corporation shall be non-profit and shall
135
devote all its returns from its capital investment
as well as excess revenues from its operation,
for expansion. To enable the Corporation to pay
its indebtedness and obligations and in
furtherance and effective implementation of the
policy enunciated in Section one of this Act, the
Corporation, including its subsidiaries, is hereby
declared, exempt:
(a) From the payment of all taxes, duties, fees,
imposts, charges, costs and services fees in any
court or administrative proceedings in which it
may be a party, restrictions and duties to the
Republic of the Philippines, its provinces, cities,
municipalities and other government agencies
and instrumentalities;
(b) From all income taxes, franchise taxes and
realty taxes to be paid to the National
Government, its provinces, cities, municipalities
and other governmental agencies and
instrumentalities;
(c) From all import duties, compensating taxes
and advanced sales tax, and wharfage fees on
import of foreign goods required for its operation
and projects; and
(d) From all taxes, duties, fees, imposts, and all
other charges imposed directly or indirectly by
the Republic of the Philippines, its provinces,
cities, municipalities and other government
agencies and instrumentalities, on all petroleum
produced used by the Corporation in the
generation, transmission, utilization, and sale of
electric power. (Emphasis supplied.)
Under Presidential Decree No. 938:
Sec. 13. Non-profit Character of the
Corporation: Exemption from All Taxes, Duties,
Fees, Imposts and Other Charges by the
Government and Government Instrumentalities.
—The Corporation shall be non-profit and shall
devote all its returns from its capital investment
as well as excess revenues from its operation,
for expansion. To enable the Corporation to pay
the indebtedness and obligations and in
furtherance and effective implementation of the
policy enunciated in Section One of this Act, the
Corporation, including its subsidiaries hereby
declared exempt from the payment of all forms
of taxes, duties, fees, imposts as well as costs
and service fees including filing fees, appeal
bonds, supersedeas bonds, in any court or
administrative proceedings. (Emphasis
supplied.)
It is noted that in the earlier law, R.A. No. 358 the
exemption was worded in general terms, as to cover
"all taxes, duties, fees, imposts, charges, etc. . . ."
However, the amendment under Republic Act No. 6395
enumerated the details covered by the exemption.
Subsequently, P.D. No. 380, made even more specific
the details of the exemption of NPC to cover, among
others, both direct and indirect taxes on all petroleum
products used in its operation. Presidential Decree No.
938 amended the tax exemption by simplifying the same
law in general terms. It succinctly exempts NPC from "all
forms of taxes, duties, fees, imposts, as well as costs
and service fees including filing fees, appeal bonds,
supersedeas bonds, in any court or administrative
proceedings."
The use of the phrase "all forms" of taxes demonstrate
the intention of the law to give NPC all the tax
exemptions it has been enjoying before. The rationale for
this exemption is that being non-profit the NPC "shall
devote all its returns from its capital investment as well
as excess revenues from its operation, for expansion. To
enable the Corporation to pay the indebtedness and
obligations and in furtherance and effective
implementation of the policy enunciated in Section one
of this Act, . . ."27
The preamble of P.D. No. 938 states—
WHEREAS, in the application of the tax
exemption provision of the Revised Charter, the
non-profit character of the NPC has not been
fully utilized because of restrictive interpretations
of the taxing agencies of the government on
said provisions. . . . (Emphasis supplied.)
It is evident from the foregoing that the lawmaker did not
intend that the said provisions of P.D. No. 938 shall be
construed strictly against NPC. On the contrary, the law
mandates that it should be interpreted liberally so as to
enhance the tax exempt status of NPC.
Hence, petitioner cannot invoke the rule on strictissimi
juris with respect to the interpretation of statutes granting
tax exemptions to NPC.
Moreover, it is a recognized principle that the rule on
strict interpretation does not apply in the case of
exemptions in favor of a government political subdivision
or instrumentality.28
The basis for applying the rule of strict
construction to statutory provisions granting tax
exemptions or deductions, even more obvious
than with reference to the affirmative or levying
provisions of tax statutes, is to minimize
differential treatment and foster impartiality,
fairness, and equality of treatment among tax
payers.
The reason for the rule does not apply in the
case of exemptions running to the benefit of the
government itself or its agencies. In such case
the practical effect of an exemption is merely to
reduce the amount of money that has to be
handled by government in the course of its
operations. For these reasons, provisions
granting exemptions to government agencies
may be construed liberally, in favor of non tax
liability of such agencies.29
In the case of property owned by the state or a city or
other public corporations, the express exemption should
not be construed with the same degree of strictness that
applies to exemptions contrary to the policy of the state,
since as to such property "exemption is the rule and
taxation the exception."30
The contention of petitioner that the exemption of NPC
from indirect taxes under Section 13 of R.A. No. 6395
and P.D. No. 380, is deemed repealed by P.D. No. 938
when the reference to it was deleted is not well-taken.
Repeal by implication is not favored unless it is manifest
that the legislature so intended. As laws are presumed to
be passed with deliberation and with knowledge of all
existing ones on the subject, it is logical to conclude that
in passing a statute it is not intended to interfere with or
abrogate a former law relating to the same subject
matter, unless the repugnancy between the two is not
only irreconcilable but also clear and convincing as a
result of the language used, or unless the latter Act fully
embraces the subject matter of the earlier.31 The first
effort of a court must always be to reconcile or adjust the
provisions of one statute with those of another so as to
give sensible effect to both provisions.32
The legislative intent must be ascertained from a
consideration of the statute as a whole, and not of an
isolated part or a particular provision alone.33 When
construing a statute, the reason for its enactment should
be kept in mind and the statute should be construed with
reference to its intended scope and purpose34 and the
evil sought to be remedied.35
The NPC is a government instrumentality with the
enormous task of undertaking development of
136
hydroelectric generation of power and production of
electricity from other sources, as well as the
transmission of electric power on a nationwide basis, to
improve the quality of life of the people pursuant to the
State policy embodied in Section E, Article II of the 1987
Constitution.
It is evident from the provision of P.D. No. 938 that its
purpose is to maintain the tax exemption of NPC from all
forms of taxes including indirect taxes as provided for
under R.A. No. 6895 and P.D. No. 380 if it is to attain its
goals.
Further, the construction of P.D. No. 938 by the Office
charged with its implementation should be given
controlling weight.36
Since the May 8, 1985 ruling of Commissioner Ancheta,
to the letter of the Secretary of Finance of June 26, 1985
confirming said ruling, the letters of the BIR of August 18,
1986, and December 22, 1986, the letter of the
Secretary of Finance of February 19, 1987, the
Memorandum of the Executive Secretary of October 9,
1987, by authority of the President, confirming and
approving FIRB Resolution No. 17-87, the letter of the
Secretary of Finance of May 20, 1988 to the Executive
Secretary rendering his opinion as requested by the
latter, and the latter's reply of June 15, 1988, it was
uniformly held that the grant of tax exemption to NPC
under C.A. No. 120, as amended, included exemption
from payment of all taxes relative to NPC's petroleum
purchases including indirect taxes.37 Thus, then
Secretary of Finance Vicente Jayme in his letter of May
20, 1988 to the Executive Secretary Macaraig aptly
stated the justification for this tax exemption of NPC —
The issue turns on the effect to the exemption of
NPC from taxes of the deletion of the phrase
'taxes imposed indirectly on oil products and its
exemption from 'all forms of taxes.' It is
suggested that the change in language
evidenced an intention to exempt NPC only from
taxes directly imposed on or payable by it; since
taxes on fuel-oil purchased by it; since taxes on
fuel-oil purchased by NPC locally are levied on
and paid by its oil suppliers, NPC thereby lost its
exemption from those taxes. The principal
authority relied on is the 1967 case of Philippine
Acetylene Co., Inc. vs. Commissioner of Internal
Revenue, 20 SCRA 1056.
First of all, tracing the changes made through
the years in the Revised Charter, the
strengthening of NPC's preferential tax
treatment was clearly the intention. To the extent
that the explanatory "whereas clauses" may
disclose the intent of the law-maker, the
changes effected by P.D. 938 can only be read
as being expansive rather than restrictive,
including its version of Section 13.
Our Tax Code does not recognize that there are
taxes directly imposed and those imposed
indirectly. The textbook distinction between a
direct and an indirect tax may be based on the
possibility of shifting the incidence of the tax. A
direct tax is one which is demanded from the
very person intended to be the payor, although it
may ultimately be shifted to another. An example
of a direct tax is the personal income tax. On the
other hand, indirect taxes are those which are
demanded from one person in the expectation
and intention that he shall indemnify himself at
the expense of another. An example of this type
of tax is the sales tax levied on sales of a
commodity.
The distinction between a direct tax and one
indirectly imposed (or an indirect tax) is really of
no moment. What is more relevant is that when
 an "indirect tax" is paid by those upon whom the
tax ultimately falls, it is paid not as a tax but as
an additional part of the cost or of the market
price of the commodity.
This distinction was made clear by Chief Justice
Castro in the Philippine Acetylene case, when he
analyzed the nature of the percentage (sales)
tax to determine whether it is a tax on the
producer or on the purchaser of the commodity.
Under out Tax Code, the sales tax falls upon the
manufacturer or producer. The phrase "pass on"
the tax was criticized as being inaccurate.
Justice Castro says that the tax remains on the
manufacturer alone. The purchaser does not pay
the tax; he pays an amount added to the price
because of the tax. Therefore, the tax is not
"passed on" and does not for that reason
become an "indirect tax" on the purchaser. It is
eminently possible that the law maker in
enacting P.D. 938 in 1976 may have used
lessons from the analysis of Chief Justice
Castro in 1967 Philippine Acetylene case.
When P.D. 938 which exempted NPC from "all
forms of taxes" was issued in May 1976, the so-
called oil crunch had already drastically pushed
up crude oil Prices from about $1.00 per bbl in
1971 to about $10 and a peak (as it turned out)
of about $34 per bbl in 1981. In 1974-78, NPC
was operating the Meralco thermal plants under
a lease agreement. The power generated by the
leased plants was sold to Meralco for
distribution to its customers. This lease and sale
arrangement was entered into for the benefit of
the consuming public, by reducing the burden
on the swiftly rising world crude oil prices. This
objective was achieved by the use of NPC's "tax
umbrella under its Revised Charter—the
exemption from specific taxes on locally
purchased fuel oil. In this context, I can not
interpret P.D. 938 to have withdrawn the
exemption from tax on fuel oil to which NPC was
already entitled and which exemption
Government in fact was utilizing to soften the
burden of high crude prices.
There is one other consideration which I
consider pivotal. The taxes paid by oil
companies on oil products sold to NPC, whether
paid to them by NPC or no never entered into
the rates charged by NPC to its customers not
even during those periods of uncertainty
engendered by the issuance of P.D. 1931 and E.
0. 93 on NP/Cs tax status. No tax component on
the fuel have been charged or recovered by
NPC through its rates.
There is an import duty on the crude oil imported
by the local refineries. After the refining process,
specific and ad valorem taxes are levied on the
finished products including fuel oil or residue
upon their withdrawal from the refinery. These
taxes are paid by the oil companies as the
manufacturer thereof.
In selling the fuel oil to NPC, the oil companies
include in their billings the duty and tax
component. NPC pays the oil companies'
invoices including the duty component but net of
the tax component. NPC then applies for
drawback of customs duties paid and for a credit
in amount equivalent to the tax paid (by the oil
companies) on the products purchased. The tax
credit is assigned to the oil companies—as
payment, in effect, of the tax component shown
in the sales invoices. (NOTE: These procedures
varied over time—There were instances when
NPC paid the tax component that was shifted to
137
it and then applied for tax credit. There were
also side issues raised because of P.D. 1931
and E.O. 93 which withdrew all exemptions of
government corporations. In these latter
instances, the resolutions of the Fiscal
Incentives Review Board (FIRB) come into play.
These incidents will not be touched upon for
purposes of this discussion).
NPC rates of electricity are structured such that
changes in its cost of fuel are automatically
(without need of fresh approvals) reflected in the
subsequent months billing rates.
This Fuel Cost Adjustment clause protects
NPC's rate of return. If NPC should ever accept
liability to the tax and duty component on the oil
products, such amount will go into its fuel cost
and be passed on to its customers through
corresponding increases in rates. Since 1974,
when NPC operated the oil-fired generating
stations leased from Meralco (which plants it
bought in 1979), until the present time, no tax on
fuel oil ever went into NPC's electric rates.
That the exemption of NPC from the tax on fuel
was not withdrawn by P.D. 938 is impressed
upon me by yet another circumstance. It is
conceded that NPC at the very least, is exempt
from taxes to which it is directly liable. NPC
therefore could very well have imported its fuel
oil or crude residue for burning at its thermal
plants. There would have been no question in
such a case as to its exemption from all duties
and taxes, even under the strictest interpretation
that can be put forward. However, at the time
P.D. 938 was issued in 1976, there were already
operating in the Philippines three oil refineries.
The establishment of these refineries in the
Philippines involved heavy investments, were
economically desirable and enabled the country
to import crude oil and process / refine the same
into the various petroleum products at a savings
to the industry and the public. The refining
process produced as its largest output, in
volume, fuel oil or residue, whose conventional
economic use was for burning in electric or
steam generating plants. Had there been no use
locally for the residue, the oil refineries would
have become largely unviable.
Again, in this circumstances, I cannot accept
that P.D. 938 would have in effect forced NPC to
by-pass the local oil refineries and import its
fossil fuel requirements directly in order to avail
itself of its exemption from "direct taxes." The oil
refineries had to keep operating both for
economic development and national security
reasons. In fact, the restoration by the FIRB of
NPC's exemption after P.D. 1931 and E.O. 93
expressly excluded direct fuel oil importations,
so as not to prejudice the continued operations
of the local oil refineries.
To answer your query therefore, it is the opinion
of this Department that NPC under the
provisions of its Revised Charter retains its
exemption from duties and taxes imposed on
the petroleum products purchased locally and
used for the generation of electricity.
The Department in issuing this ruling does so
pursuant to its power and function to supervise
and control the collection of government
revenues by the application and implementation
of revenue laws. It is prepared to take the
measures supplemental to this ruling necessary
to carry the same into full effect.
 As presented rather extensively above, the NPC
electric power rates did not carry the taxes and
duties paid on the fuel oil it used. The point is
that while these levies were in fact paid to the
government, no part thereof was recovered from
the sale of electricity produced. As a
consequence, as of our most recent information,
some P1.55 B in claims represent amounts for
which the oil suppliers and NPC are "out-of-
pocket. There would have to be specific order to
the Bureaus concerned for the resumption of the
processing of these claims."38
In the latter of June 15, 1988 of then Executive Secretary
Macaraig to the then Secretary of Finance, the said
opinion ruling of the latter was confirmed and its
implementation was directed.39
The Court finds and so holds that the foregoing reasons
adduced in the aforestated letter of the Secretary of
Finance as confirmed by the then Executive Secretary
are well-taken. When the NPC was exempted from all
forms of taxes, duties, fees, imposts and other charges,
under P.D. No. 938, it means exactly what it says, i.e., all
forms of taxes including those that were imposed directly
or indirectly on petroleum products used in its operation.
Reference is made in the dissenting opinion to contrary
rulings of the BIR that the exemption of the NPC extends
only to taxes for which it is directly liable and not to taxes
merely shifted to it. However, these rulings are
predicated on Philippine Acytelene.
The doctrine in Philippine Acytelene decided in 1967 by
this Court cannot apply to the present case. It involved
the sales tax of products the plaintiff sold to NPC from
June 2, 1953 to June 30,1958 when NPC was enjoying
tax exemption from all taxes under Commonwealth Act
No. 120, as amended by Republic Act No. 358 issued on
June 4, 1949 hereinabove reproduced.
In said case, this Court held, that the sales tax is due
from the manufacturer and not the buyer, so plaintiff
cannot claim exemptions simply because the NPC, the
buyer, was exempt.
However, on September 10, 1971, Republic Act No.
6395 was passed as the revised charter of NPC whereby
Section 13 thereof was amended by emphasizing its
non-profit character and expanding the extent of its tax
exemption.
As petitioner concedes, Section 13(d) aforestated of this
amendment under Republic Act No. 6345 spells out
clearly the exemption of the NPC from indirect taxes.
And as hereinabove stated, in P.D. No. 380, the
exemption of NPC from indirect taxes was emphasized
when it was specified to include those imposed "directly
and indirectly."
Thereafter, under P.D. No. 938 the tax exemption of NPC
was integrated under Section 13 defining the same in
general terms to cover "all forms of taxes, duties, fees,
imposts, etc." which, as hereinabove discussed, logically
includes exemption from indirect taxes on petroleum
products used in its operation.
This is the status of the tax exemptions the NPC was
enjoying when P.D. No. 1931 was passed, on the
authority of which FIRB Resolution Nos. 10-85 and 1-86
were issued, and when Executive Order No. 93 was
promulgated, by which FIRB Resolution 17-87 was
issued.
Thus, the ruling in Philippine Acetylene cannot apply to
this case due to the different environmental
circumstances. As a matter of fact, the amendments of
Section 13, under R.A. No. 6395, P.D. No, 380 and P.D.
No. 838 appear to have been brought about by the
earlier inconsistent rulings of the tax agencies due to the
doctrine in Philippine Acetylene, so as to leave no doubt
as to the exemption of the NPC from indirect taxes on
petroleum products it uses in its operation. Effectively,
138
said amendments superseded if not abrogated the ruling
in Philippine Acetylene that the tax exemption of NPC
should be limited to direct taxes only.
In the light of the foregoing discussion the first corollary
issue must consequently be resolved in the affirmative,
that is, FIRB Resolution No. 10-85 dated February 7,
1985 and FIRB Resolution No. 1-86 dated January 7,
1986 which restored NPC's tax exemption privileges
included the restoration of the indirect tax exemption of
the NPC on petroleum products it used.
On the second corollary issue as to the validity of FIRB
resolution No. 17-87 dated June 24, 1987 which restored
NPC's tax exemption privilege effective March 10, 1987,
the Court finds that the same is valid and effective.
It provides as follows:
BE IT RESOLVED, AS IT IS HEREBY
RESOLVED, That the tax and duty exemption
privileges of the National Power Corporation,
including those pertaining to its domestic
purchases of petroleum and petroleum products,
granted under the terms and conditions of
Commonwealth Act No. 120 (Creating the
National Power Corporation, defining its powers,
objectives and functions, and for other
purposes), as amended, are restored effective
March 10, 1987, subject to the following
conditions:
1. The restoration of the tax and duty exemption
privileges does not apply to the following:
1.1. Importation of fuel oil (crude
equivalent) and coal;
1.2. Commercially-funded importations
(i.e., importations which include but are
not limited to those financed by the
NPC's own internal funds, domestic
borrowings from any source whatsoever,
borrowing from foreign-based private
financial institutions, etc.); and
1.3. Interest income derived from any
source.
2. The NPC shall submit to the FIRB a report of
its expansion program, including details of
disposition of relieved tax and duty payments for
such expansion on an annual basis or as often
as the FIRB may require it to do so. This report
shall be in addition to the usual FIRB reporting
requirements on incentive availment.40
Executive Order No. 93 provides as follows—
Sec. 1. The provisions of any general or special
law to the contrary notwithstanding, all tax and
duty incentives granted " to government and
private entities are hereby withdrawn, except:
a) those covered by the non-impairment
clause of the Constitution;
b) those conferred by effective
international agreements to which the
Government of the Republic of the
Philippines is a signatory;
c) those enjoyed-by enterprises
registered with:
(i) the Board of Investments
pursuant to Presidential Decree
No. 1789, as amended;
(ii) the Export Processing Zone
Authority, pursuant to
Presidential Decree No. 66, as
amended;
(iii) the Philippine Veterans
Investment Development
Corporation Industrial Authority
 pursuant to Presidential Decree
No. 538, as amended;
d) those enjoyed by the copper mining
industry pursuant to the provisions of
Letter of Instruction No. 1416;
e) those conferred under the four basic
codes namely:
(i) the Tariff and Customs Code,
as amended;
(ii) the National Internal
Revenue Code, as amended;
(iii) the Local Tax Code, as
amended;
(iv) the Real Property Tax Code,
as amended;
f) those approved by the President upon
the recommendation of the Fiscal
Incentives Review Board.
Sec. 2. The Fiscal Incentives Review Board
created under Presidential Decree No. 776, as
amended, is hereby authorized to:
a) restore tax and/or duty exemptions
withdrawn hereunder in whole or in part;
b) revise the scope and coverage of tax
and/of duty exemption that may be
restored.
c) impose conditions for the restoration
of tax and/or duty exemption;
d) prescribe the date or period of
effectivity of the restoration of tax and/or
duty exemption;
e) formulate and submit to the President
for approval, a complete system for the
grant of subsidies to deserving
beneficiaries, in lieu of or in combination
with the restoration of tax and duty
exemptions or preferential treatment in
taxation, indicating the source of funding
therefor, eligible beneficiaries and the
terms and conditions for the grant
thereof taking into consideration the
international commitments of the
Philippines and the necessary
precautions such that the grant of
subsidies does not become the basis for
countervailing action.
Sec. 3. In the discharge of its authority
hereunder, the Fiscal Incentives Review Board
shall take into account any or all of the following
considerations:
a) the effect on relative price levels;
b) relative contribution of the beneficiary
to the revenue generation effort;
c) nature of the activity the beneficiary is
engaged;
d) in general, the greater national
interest to be served.
True it is that the then Secretary of Justice in Opinion
No. 77 dated August 6, 1977 was of the view that the
powers conferred upon the FIRB by Sections 2(a), (b),
(c), and (d) of Executive Order No. 93 constitute undue
delegation of legislative power and is therefore
unconstitutional. However, he was overruled by the
respondent Executive Secretary in a letter to the
Secretary of Finance dated March 30, 1989. The
Executive Secretary, by authority of the President, has
the power to modify, alter or reverse the construction of a
statute given by a department secretary.41
A reading of Section 3 of said law shows that it set the
policy to be the greater national interest. The standards
of the delegated power are also clearly provided for.
139
The required "standard" need not be expressed. In Edu
vs. Ericta42 and in De la Llana vs. Alba43 this Court held:
"The standard may be either express or implied. If the
former, the non-delegated objection is easily met. The
standard though does not have to be spelled out
specifically. It could be implied from the policy and
purpose of the act considered as a whole."
In People vs. Rosenthal44 the broad standard of "public
interest" was deemed sufficient. In Calalang vs.
Williams,45, it was "public welfare" and in Cervantes vs.
Auditor General,46 it was the purpose of promotion of
"simplicity, economy and efficiency." And, implied from
the purpose of the law as a whole, "national security"
was considered sufficient standard47 and so was
"protection of fish fry or fish eggs.48
The observation of petitioner that the approval of the
President was not even required in said Executive Order
of the tax exemption privilege approved by the FIRB
unlike in previous similar issuances, is not well-taken. On
the contrary, under Section l(f) of Executive Order No.
93, aforestated, such tax and duty exemptions extended
by the FIRB must be approved by the President. In this
case, FIRB Resolution No. 17-87 was approved by the
respondent Executive Secretary, by authority of the
President, on October 15, 1987.49
Mr. Justice Isagani A. Cruz commenting on the
delegation of legislative power stated —
The latest in our jurisprudence indicates that
delegation of legislative power has become the
rule and its non-delegation the exception. The
reason is the increasing complexity of modern
life and many technical fields of governmental
functions as in matters pertaining to tax
exemptions. This is coupled by the growing
inability of the legislature to cope directly with
the many problems demanding its attention. The
growth of society has ramified its activities and
created peculiar and sophisticated problems that
the legislature cannot be expected reasonably to
comprehend. Specialization even in legislation
has become necessary. To many of the
problems attendant upon present day
undertakings, the legislature may not have the
competence, let alone the interest and the time,
to provide the required direct and efficacious, not
to say specific solutions.50
Thus, in the case of Tablarin vs. Gutierrez,51 this Court
enunciated the rationale in favor of delegation of
legislative functions—
One thing however, is apparent in the
development of the principle of separation of
powers and that is that the maxim of delegatus
non potest delegare or delegati potestas non
potest delegare, adopted this practice
(Delegibus et Consuetudiniis Anglia edited by
G.E. Woodline, Yale University Press, 1922, Vol.
2, p. 167) but which is also recognized in
principle in the Roman Law d. 17.18.3) has been
made to adapt itself to the complexities of
modern government, giving rise to the adoption,
within certain limits, of the principle of
subordinate legislation, not only in the United
States and England but in practically all modern
governments. (People vs. Rosenthal and
Osmeña, 68 Phil. 318, 1939). Accordingly, with
the growing complexities of modern life, the
multiplication of the subjects of governmental
regulation, and the increased difficulty of
administering the laws, there is a constantly
growing tendency toward the delegation of
greater power by the legislative, and toward the
approval of the practice by the Courts.
(Emphasis supplied.)
The legislative authority could not or is not expected to
state all the detailed situations wherein the tax
exemption privileges of persons or entities would be
restored. The task may be assigned to an administrative
body like the FIRB.
Moreover, all presumptions are indulged in favor of the
constitutionality and validity of the statute. Such
presumption can be overturned if its invalidity is proved
beyond reasonable doubt. Otherwise, a liberal
interpretation in favor of constitutionality of legislation
should be adopted.52
E.O. No. 93 is complete in itself and constitutes a valid
delegation of legislative power to the FIRB And as above
discussed, the tax exemption privilege that was restored
to NPC by FIRB Resolution No. 17-87 of June 1987
includes exemption from indirect taxes and duties on
petroleum products used in its operation.
Indeed, the validity of Executive Order No. 93 as well as
of FIRB Resolution No. 17-87 has been upheld
in Albay.53
In the dissenting opinion of Mr. Justice Cruz, it is stated
that P.D. Nos. 1931 and 1955 issued by President
Marcos in 1984 are invalid as they were presumably
promulgated under the infamous Amendment No. 6 and
that as they cover tax exemption, under Section 17(4),
Article VIII of the 1973 Constitution, the same cannot be
passed "without the concurrence of the majority of all the
members of the Batasan Pambansa." And, even
conceding that the reservation of legislative power in the
President was valid, it is opined that it was not validly
exercised as there is no showing that such presidential
encroachment was justified under the conditions then
existing. Consequently, it is concluded that Executive
Order No. 93, which was intended to implement said
decrees, is also illegal. The authority of the President to
sub-delegate to the FIRB powers delegated to him is
also questioned.
In Albay,54 as above stated, this Court upheld the validity
of P.D. Nos. 776 and 1931. The latter decree withdrew
tax exemptions of government-owned or controlled
corporations including their subsidiaries but authorized
the FIRB to restore the same. Nevertheless, in Albay, as
above-discussed, this Court ruled that the tax
exemptions under FIRB Resolution Nos. 10-85 and 1-86
cannot be enforced as said resolutions were only
recommendatory and were not duly approved by the
President of the Philippines as required by P.D. No.
776.55 The Court also sustained in Albaythe validity of
Executive Order No. 93, and of the tax exemptions
restored under FIRB Resolution No. 17-87 which was
issued pursuant thereto, as it was duly approved by the
President as required by said executive order.
Moreover, under Section 3, Article XVIII of the Transitory
Provisions of the 1987 Constitution, it is provided that:
All existing laws, decrees, executive orders,
proclamation, letters of instructions, and other
executive issuances not inconsistent with this
constitution shall remain operative until
amended, repealed or revoked.
Thus, P.D. Nos. 776 and 1931 are valid and operative
unless it is shown that they are inconsistent with the
Constitution.1âwphi1
Even assuming arguendo that P.D. Nos. 776, 1931 and
Executive Order No. 93 are not valid and are
unconstitutional, the result would be the same, as then
the latest applicable law would be P.D. No. 938 which
amended the NPC charter by granting exemption to NPC
from all forms of taxes. As above discussed, this
exemption of NPC covers direct and indirect taxes on
petroleum products used in its operation. This is as it
should be, if We are to hold as invalid and inoperative
the withdrawal of such tax exemptions under P.D. No.
1931 as well as under Executive Order No. 93 and the
140
delegation of the power to restore these exemptions to
the FIRB.
The Court realizes the magnitude of the consequences
of this decision. To reiterate, in Albay this Court ruled
that the NPC is liable for real estate taxes as of June 11,
1984 (the date of promulgation of P.D. No. 1931) when
NPC had ceased to enjoy tax exemption privileges since
FIRB Resolution Nos. 1085 and 1-86 were not validly
issued. The real estate tax liability of NPC from June 11,
1984 to December 1, 1990 is estimated to amount to
P7.49 billion plus another P4.76 billion in fuel import
duties the firm had earlier paid to the government which
the NPC now proposed to pass on to the consumers by
another 33-centavo increase per kilowatt hour in power
rates on top of the 17-centavo increase per kilowatt hour
that took effect just over a week ago.,56 Hence, another
case has been filed in this Court to stop this proposed
increase without a hearing.
As above-discussed, at the time FIRB Resolutions Nos.
10-85 and 1-86 were issued, P.D. No. 776 dated August
24, 1975 was already amended by P.D. No. 1931 ,
57
wherein it is provided that such FIRB resolutions may
be approved not only by the President of the Philippines
but also by the Minister of Finance. Such resolutions
were promulgated by the Minister of Finance in his own
right and also in his capacity as FIRB Chairman. Thus, a
separate approval thereof by the Minister of Finance or
by the President is unnecessary.
As earlier stated a reexamination of the ruling
in Albay on this aspect is therefore called for and
consequently, Albaymust be considered superseded to
this extent by this decision. This is because P.D. No. 938
which is the latest amendment to the NPC charter
granting the NPC exemption from all forms of
taxes certainly covers real estate taxes which are direct
taxes.
This tax exemption is intended not only to insure that the
NPC shall continue to generate electricity for the country
but more importantly, to assure cheaper rates to be paid
by the consumers.
The allegation that this is in effect allowing tax evasion
by oil companies is not quite correct.1a\^/phi1 There are
various arrangements in the payment of crude oil
purchased by NPC from oil companies. Generally, the
custom duties paid by the oil companies are added to
the selling price paid by NPC. As to the specific and ad
valorem taxes, they are added a part of the seller's price,
but NPC pays the price net of tax, on condition that NPC
would seek a tax refund to the oil companies. No tax
component on fuel had been charged or recovered by
NPC from the consumers through its power
rates.58 Thus, this is not a case of tax evasion of the oil
companies but of tax relief for the NPC. The billions of
pesos involved in these exemptions will certainly inure to
the ultimate good and benefit of the consumers who are
thereby spared the additional burden of increased power
rates to cover these taxes paid or to be paid by the NPC
if it is held liable for the same.
The fear of the serious implication of this decision in that
NPC's suppliers, importers and contractors may claim
the same privilege should be dispelled by the fact that
(a) this decision particularly treats of only the exemption
of the NPC from all taxes, duties, fees, imposts and all
other charges imposed by the government on the
petroleum products it used or uses for its operation; and
(b) Section 13(d) of R.A. No. 6395 and Section 13(d) of
P.D. No. 380, both specifically exempt the NPC from all
taxes, duties, fees, imposts and all other charges
imposed by the government on all petroleum products
used in its operation only, which is the very exemption
which this Court deems to be carried over by the
passage of P.D. No. 938. As a matter of fact in Section
13(d) of P.D. No. 380 it is specified that the aforesaid
exemption from taxes, etc. covers those "directly or
indirectly" imposed by the "Republic of the Philippines,
its provincies, cities, municipalities and other government
agencies and instrumentalities" on said petroleum
products. The exemption therefore from direct and
indirect tax on petroleum products used by NPC cannot
benefit the suppliers, importers and contractors of NPC
of other products or services.
The Court realizes the laudable objective of petitioner to
improve the revenue of the government. The amount of
revenue received or expected to be received by this tax
exemption is, however, not going to any of the oil
companies. There would be no loss to the government.
The said amount shall accrue to the benefit of the NPC,
a government corporation, so as to enable it to sustain
its tremendous task of providing electricity for the country
and at the least cost to the consumers. Denying this tax
exemption would mean hampering if not paralyzing the
operations of the NPC. The resulting increased revenue
in the government will also mean increased power rates
to be shouldered by the consumers if the NPC is to
survive and continue to provide our power
requirements.59 The greater interest of the people must
be paramount.
WHEREFORE, the petition is DISMISSED for lack of
merit. No pronouncement as to costs.
SO ORDERED.
MACEDA vs. MACARAIG, JR.
197 SCRA 771
GR No. 88291 May 31, 1991
"A taxpayer may question the legality of a law or regulation
when it involves illegal expenditure of public money."
FACTS: Senator Ernesto Maceda sought to nullify certain
decisions, orders, rulings, and resolutions of respondents
Executive Secretary, Secretary of Finance, Commissioner of
Internal Revenue, Commissioner of Customs and the Fiscal
Incentives Review Board FIRB for exempting the National
Power Corporation (NPC) from indirect tax and duties. RA
358, RA 6395 and PD 380 expressly grant NPC exemptions
from all taxes whether direct or indirect. In 1984, however, PD
1931 and EO 93 withdrew all tax exemptions granted to all
GOCCs including the NPC but granted the President and/or
the Secretary of Finance by recommendation of the FIRB the
power to restore certain tax exemptions. Pursuant to the latter
law, FIRB issued a resolution restoring the tax and duty
exemption privileges of the NPC. The actions of the
respondents were thus questioned by the petitioner by this
petition for certiorari, prohibition and mandamus with prayer
for a writ of preliminary injunction and/or restraining order. To
which public respondents argued, among others, that petitioner
does not have the standing to challenge the questioned orders
and resolution because he was not in any way affected by such
grant of tax exemptions.
ISSUE: Has a taxpayer the capacity to question the legality of
the resolution issued by the FIRB restoring the tax
exemptions?
HELD: Yes. In this petition it is alleged that petitioner is
"instituting this suit in his capacity as a taxpayer and a duly-
elected Senator of the Philippines." Public respondent argues
that petitioner must show that he has sustained direct injury as
a result of the action and that it is not sufficient for him to
have a mere general interest common to all members of the
public. The Court however agrees with the petitioner that as a
taxpayer he may file the instant petition following the ruling in
Lozada when it involves illegal expenditure of public money.
The petition questions the legality of the tax refund to NPC by
way of tax credit certificates and the use of said assigned tax
credits by respondent oil companies to pay for their tax and
duty liabilities to the BIR and Bureau of Customs.
G.R. No. 231671
141
ALEXANDER A. PADILLA, RENE A.V. SAGUISAG,
CHRISTIAN S. MONSOD, LORETTA ANN P.
ROSALES, RENE B. GOROSPE, and SENATOR
LEILA M. DE LIMA, Petitioners
vs.
CONGRESS OF THE PHILIPPINES, consisting of the
SENATE OF THE PHILIPPINES, as represented by
Senate President Aquilino "Koko" Pimentel III, and
the HOUSE OF REPRESENTATIVES, as represented
by House Speaker Pantaleon D. Alvarez,
Respondents
x-----------------------x
G.R. No. 231694
FORMER SEN. WIGBERTO E. TANADA, BISHOP
EMERITUS DEOGRACIAS S. INIGUEZ, BISHOP
BRODERICK PABILLO, BISHOP ANTONIO R.
TOBIAS, MO. ADELAIDA YGRUBAY, SHAMAH
BULANGIS and CASSANDRA D.
DELURIA, Petitioners,
vs.
CONGRESS OF THE PHILIPPINES, CONSISTING OF
THE SENATE AND THE HOUSE OF
REPRESENTATIVES, AQUILINO "KOKO" PIMENTEL
III, President, Senate of the Philippines, and
PANTALEON D. ALVAREZ, Speaker, House of the
Representatives, Respondents
DECISION
LEONARDO-DE CASTRO, J.:
These consolidated petitions under consideration
essentially assail the failure and/or refusal of respondent
Congress of the Philippines (the Congress), composed
of the Senate and the House of Representatives, to
convene in joint session and therein deliberate on
Proclamation No. 216 issued on May 23, 201 7 by
President Rodrigo Roa Duterte (President Duterte).
Through Proclamation No. 216, President Duterte
declared a state of martial law and suspended the
privilege of the writ of habeas corpus in the whole of
Mindanao for a period not e:xceeding sixty (60) days
effective from the date of the proclamation's issuance.
In the Petition for Mandamus of Alex.antler A. Padilla
(Padilla), Rene A.V. Saguisag (Saguisag), Christian S.
Monsod (Monsod), Loretta Ann P. Rosales (Rosales),
Rene B. Gorospe (Gorospe), and Senator Leila M. De
Lima (Senator De Lima), filed on June 6, 2017 and
docketed as G.R. No. 231671 (the Padilla Petition),
petitioners seek a ruling from the Court directing the
Congress to convene in joint session to deliberate on
Presidential Proclamation No. 216, and to vote thereon. 1
In the Petition for Certiorari and Mandamus of former
Senator Wigberto E. Tanada (Tanada), Bishop Emeritus
Deogracias Iniguez (Bishop Iniguez), Bishop Broderick
Pabillo (Bishop Pabillo ), Bishop Antonio Tobias (Bishop
Tobias), Mo. Adelaida Ygrubay (Mo. Y grubay), Shamah
Bulangis (Bulangis), and Cassandra D. Deluria (Deluria),
filed on June 7, 2017 and docketed as G.R. No. 231694
(the Tañada Petition), petitioners entreat the Court to: (a)
declare the refusal of the Congress to convene in joint
session for the purpose of considering Proclamation No.
216 to be in grave abuse of discretion amounting to a
lack or excess of jurisdiction; and (b) issue a writ
of mandamus directing the Congress to convene in joint
session for the aforementioned purpose.2
Respondent Congress, represented by the Office of the
Solicitor General (OSG), filed its Consolidated
Comment on June 27, 2017. Respondents Senate of the
Philippines and Senate President Aquilino "Koko"
Pimentel III (Senate President Pimentel), through the
Office of the Senate Legal Counsel, separately filed
their Consolidated Comment (Ex Abudanti Cautela) on
June 29, 2017.
ANTECEDENT FACTS
On May 23, 2017, President Duterte issued
Proclamation No. 216, declaring a state of martial law
and suspending the privilege of the writ of habeas
corpus in the Mindanao group of islands on the grounds
of rebellion and necessity of public safety pursuant to
Article VII, Section 18 of the 1987 Constitution.
Within forty-eight (48) hours after the proclamation, or on
May 25, 2017, and while the Congress was in session,
President Duterte transmitted his "Report relative to
Proclamation No. 216 dated 23 May 2017" (Report) to
the Senate, through Senate President Pimentel, and the
House of Representatives, through House Speaker
Pantaleon D. Alvarez (House Speaker Alvarez).
According to President Duterte's Proclamation No. 216
and his Report to the Congress, the declaration of a
state of martial law and the suspension of the privilege of
the writ of habeas corpus in the whole of Mindanao
ensued from the series of armed attacks, violent acts,
and atrocities directed against civilians and government
authorities, institutions, and establishments perpetrated
by the Abu Sayyaf and Maute terrorist groups, in
complicity with other local and foreign armed affiliates,
who have pledged allegiance to the Islamic State of Iraq
and Syria (ISIS), to sow lawless violence, terror, and
political disorder over the said region for the ultimate
purpose of establishing a DAESH wilayah or Islamic
Province in Mindanao.
Representatives from the Executive Department, the
military, and other security officials of the government
were thereafter invited, on separate occasions, by the
Senate and the House of Representatives for a
conference briefing regarding the circumstances, details,
and updates surrounding the President's proclamation
and report.
On May 29, 2017, the briefing before the Senate was
conducted, which lasted for about four (4) hours, by
Secretary of National Defense Delfin N. Lorenza
(Secretary Lorenzana), National Security Adviser and
Director General of the National Security Council
Hermogenes C. Esperon, Jr. (Secretary Esperon), and
Chief of Staff of the Armed Forces of the Philippines
(AFP) General Eduardo M. Afio (General Año). The
following day, May 30, 2017, the Senate deliberated on
these proposed resolutions: (a) Proposed Senate (P.S.)
Resolution No. 388,3 which expressed support for
President Duterte's Proclamation No. 216; and (b) P.S.
Resolution No. 390,4 which called for the convening in
joint session of the Senate and the House of
Representatives to deliberate on President Duterte's
Proclamation No. 216.
P.S. Resolution No. 388 was approved, after receiving
seventeen (17) affirmative votes as against five (5)
negative votes, and was adopted as Senate Resolution
No. 495 entitled "Resolution Expressing the Sense of the
Senate Not to Revoke, at this Time, Proclamation No.
216, Series of 2017, Entitled 'Declaring a State of Martial
Law and Suspending the Privilege of the Writ of Habeas
Corpus in the Whole of Mindanao.’"6
P.S. Resolution No. 390, on the other hand, garnered
only nine (9) votes from the senators who were in favor
of it as opposed to twelve (12) votes from the senators
who were against its approval and adoption.7
On May 31, 201 7, the House of Representatives, having
previously constituted itself as a Committee of the Whole
House,8 was briefed by Executive Secretary Salvador C.
Medialdea (Executive Secretary Medialdea), Secretary
Lorenzana, and other security officials for about six (6)
hours. After the closed-door briefing, the House of
Representatives resumed its regular meeting and
deliberated on House Resolution No. 1050
entitled "Resolution Expressing the Full Support of the
House of Representatives to President Rodrigo Duterte
as it Finds No Reason to Revoke Proclamation No. 216,
142
Entitled 'Declaring a State of Martial Law and
Suspending the Privilege of the Writ of Habeas Corpus
in the Whole of Mindanao.'"9 The House of
Representatives proceeded to divide its members on the
matter of approving said resolution through viva
voce voting. The result shows that the members who
were in favor of passing the subject resolution secured
the majority vote.10
The House of Representatives also purportedly
discussed the proposal calling for a joint session of the
Congress to deliberate and vote on President Duterte's
Proclamation No. 216. After the debates, however, the
proposal was rejected.11
These series of events led to the filing of the present
consolidated petitions.
THE PARTIES' ARGUMENTS
The Padilla Petition
Petitioners in G.R. No. 231671 raise the question of
"[w]hether Congress is required to convene in joint
session, deliberate, and vote jointly under Article VII,
[Section] 18 of the Constitution" and submit the following
arguments in support of their petition:
[I] THE PETITION SATISFIES THE REQUISITES FOR
THE EXERCISE OF THE HONORABLE COURT'S
POWER OF JUDICIAL REVIEW.
[i] THERE IS AN ACTUAL CASE OR CONTROVERSY.
[ii] PETITIONERS, AS PART OF THE PUBLIC AND AS
TAXPAYERS, POSSESS LEGAL STANDING TO FILE
THIS PETITION.
[iii] PETITIONER [DE LIMA], AS MEMBER OF
CONGRESS, HAS LEGAL STANDING TO FILE THIS
PETITION.
[iv] THE CASE AND THE ISSUE INVOLVED ARE RIPE
FOR JUDICIAL DETERMINATION.
[II] THE PLAIN TEXT OF THE CONSTITUTION,
SUPPORTED BY THE EXPRESS INTENT OF THE
FRAMERS, AND CONFIRMED BY THE SUPREME
COURT, REQUIRES THAT CONGRESS CONVENE IN
JOINT SESSION TO DELIBERATE AND VOTE AS A
SINGLE DELIBERATIVE BODY.
[i] THE PLAIN TEXT OF THE CONSTITUTION
REQUIRES THAT CONGRESS CONVENE IN JOINT
SESSION.
[ii] THE EXPRESS INTENT OF THE FRAMERS IS FOR
CONGRESS TO CONVENE IN JOINT SESSION TO
DELIBERATE AND VOTE AS A SINGLE DELIBERATIVE
BODY.
[iii] THE SUPREME COURT CONFIRMED IN FORTUN
v. GMA THAT CONGRESS HAS THE "AUTOMATIC
DUTY" TO CONVENE IN JOINT SESSION.
[iv] LEGISLATIVE PRECEDENT ALSO RECOGNIZES
CONGRESS' DUTY TO CONVENE IN JOINT SESSION.
[III] THE REQUIREMENT TO ACT AS A SINGLE
DELIBERATIVE BODY UNDER ARTICLE VII,
[SECTION] 18 OF THE CONSTITUTION IS A
MANDATORY, MINISTERIAL CONSTITUTIONAL DUTY
OF CONGRESS, WHICH CAN BE COMPELLED
BY MANDAMUS.12
Petitioners claim that there is an actual case or
controversy in this instance and that their case is ripe for
adjudication. According to petitioners, the resolutions
separately passed by the Senate and the House of
Representatives, which express support as well as the
intent not to revoke President Duterte's Proclamation No.
216, injure their rights "to a proper [and] mandatory
legislative review of the declaration of martial law" and
that the continuing failure of the Congress to convene in
joint session similarly causes a continuing injury to their
rights.13
Petitioners also allege that, as citizens and taxpayers,
they all have locus standi in their "assertion of a public
right" which they have been deprived of when the
Congress refused and/or failed to convene in joint
session to deliberate on President Duterte's
Proclamation No. 216. Senator De Lima adds that she,
together with the other senators who voted in favor of the
resolution to convene the Congress jointly, were even
effectively denied the opportunity to perform their
constitutionally-mandated duty, under Article VII, Section
18 of the Constitution, to deliberate on the said
proclamation of the President in a joint session of the
Congress.14
On the propriety of resorting to the remedy
of mandamus, petitioners posit that ''the duty of
Congress to convene in joint session upon the
proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus does not require
the exercise of discretion." Such mandate upon the
Congress is allegedly a purely ministerial act which can
be compelled through a writ of mandamus.15
As for the substantive issue, it is the primary contention
of petitioners that a plain reading of Article VII, Section
18 of the Constitution shows that the Congress is
required to convene in joint session to review
Proclamation No. 216 and vote as a single deliberative
body. The performance of the constitutional obligation is
allegedly mandatory, not discretionary.16
According to petitioners, the discretionary nature of the
phrase "may revoke such proclamation or suspension"
under Article VII, Section 18 of the Constitution allegedly
pertain to the power of the Congress to revoke but not to
its obligation to jointly convene and vote - which, they
stress, is mandatory. To require the Congress to
convene only when it exercises the power to revoke is
purportedly absurd since the Congress, without
convening in joint session, cannot know beforehand
whether a majority vote in fact exists to effect a
revocation.17
Petitioners claim that in Fortun v. Macapagal-
Arroyo,18 this Court described the "duty" of the Congress
to convene in joint session as "automatic." The
convening of the Congress in joint session when former
President Gloria Macapagal-Arroyo (President
Macapagal-Arroyo) declared martial law and suspended
the privilege of the writ of habeas corpus in
Maguindanao was also a legislative precedent where the
Congress clearly recognized its duty to convene in joint
session.19
The mandate upon the Congress to convene jointly is
allegedly intended by the 1986 Constitutional
Commission (ConCom) to serve as a protection against
potential abuses in the exercise of the President's power
to declare martial law and suspend the privilege of the
writ of habeas corpus. It is "a mechanism purposely
designed by the Constitution to compel Congress to
review the propriety of the President's action x x x [and]
meant to contain martial law powers within a democratic
framework for the preservation of democracy, prevention
of abuses, and protection of the people." 20
The Tañada Petition
The petitioners in G.R. No. 231694 chiefly opine that:
I. A PLAIN READING OF THE 1987 CONSTITUTION
LEADS TO THE INDUBITABLE CONCLUSION THAT A
JOINT SESSION OF CONGRESS TO REVIEW A
DECLARATION OF MARTIAL LAW BY THE
PRESIDENT IS MANDATORY.
II. FAIL URE TO CONVENE A JOINT SESSION
DEPRIVES LAWMAKERS OF A DELIBERATIVE AND
INTERROGATORY PROCESS TO REVIEW MARTIAL
LAW.
III. FAIL URE TO CONVENE A JOINT SESSION
DEPRIVES THE PUBLIC OF TRANSPARENT
PROCEEDINGS WITHIN WHICH TO BE INFORMED
143
OF THE FACTUAL BASES OF MARTIAL LAW AND THE
INTENDED PARAMETERS OF ITS IMPLEMENTATION.
IV. THE FRAMERS OF THE CONSTITUTION
INTENDED THAT A JOINT SESSION OF CONGRESS
BE CONVENED IMMEDIATELY AFTER THE
DECLARATION OF MARTIAL LAW.21
Similar to the contentions in the Padilla Petition,
petitioners maintain that they have sufficiently shown all
the essential requisites in order for this Court to exercise
its power of judicial review, in that: (1) an actual case or
controversy exists; (2) they possess the standing to file
this case; (3) the constitutionality of a governmental act
has been raised at the earliest possible opportunity; and
(4) the constitutionality of the said act is the very lis
mota of the petition.
According to petitioners, there is an actual case or
controversy because the failure and/or refusal of the
Congress to convene jointly deprived legislators of a
venue within which to raise a motion for revocation (or
even extension) of President Duterte's Proclamation No.
216 and the public of an opportunity to be properly
informed as to the bases and particulars thereof.22
Petitioners likewise claim to have legal standing to sue
as citizens and taxpayers. Nonetheless, they submit that
the present case calls for the Court's liberality in the
appreciation of their locus standi given the fact that their
petition presents "a question of first impression - one of
paramount importance to the future of our democracy -
as well as the extraordinary nature of Martial Law
itself."23
Petitioners contend that the convening of the Congress
in joint session, whenever the President declares martial
law or suspends the privilege of the writ of habeas
corpus, is a public right and duty mandated by the
Constitution. The writ of mandamus is, thus, the "proper
recourse for citizens who seek to enforce a public right
and to compel the performance of a public duty,
especially when the public right involved is mandated by
the Constitution."24
For this group of petitioners, the Members of the
Congress gravely abused their discretion for their refusal
to convene in joint session, underscoring that "[w]hile a
writ of mandamus will not generally lie from one branch
of the government to a coordinate branch, or to compel
the performance of a discretionary act, this admits of
certain exceptions, such as in instances of gross abuse
of discretion, manifest injustice, or palpable excess of
authority, when there is no other plain, speedy and
adequate remedy."25
As to the merits, petitioners assert that the convening of
the Congress in joint session after the declaration of
martial law is mandatory under Article VII, Section 18 of
the Constitution, whether or not the Congress is in
session or there is intent to revoke. It is their theory that
a joint session should be a deliberative process in which,
after debate and discussion, legislators can come to an
informed decision as to the factual and legal bases for
the declaration of martial law. Moreover, "legislators who
wish to revoke the martial law proclamation should have
the right to put that vote on historical record in joint
session - and, in like manner, the public should have the
right to know the position of their legislators with respect
to this matter of the highest national interest." 26
Petitioners add that a public, transparent, and
deliberative process is purportedly necessary to allay the
people's fears against "executive overreach." This
concern allegedly cannot be addressed by briefings in
executive sessions given by representatives of the
Executive Branch to both Houses of the Congress. 27
Petitioners further postulate that, based on the
deliberations of the Members of the ConCom, the phrase
"voting jointly" under Article VII, Section 18 was intended
to mean that a joint session is a procedural requirement,
necessary for the Congress to decide whether to revoke,
affirm, or even extend the declaration of martial law. 28
Consolidation of Respondents' Comments
Respondents assert firmly that there is no mandatory
duty on their part to "vote jointly," except in cases of
revocation or extension of the proclamation of martial
law or the suspension of the privilege of the writ
of habeas corpus.29 In the absence of such duty, the
non-convening of the Congress in joint session does not
pose any actual case or controversy that may be the
subject of judicial review.30 Additionally, respondents
argue that the petitions raise a political question over
which the Court has no jurisdiction.
Petitioners' avowal that they are citizens and taxpayers
is allegedly inadequate to clothe them with locus
standi. Generalized interests, albeit accompanied by the
assertion of a public right, do not establish locus
standi. Petitioners must show that they have a direct and
personal interest in the Congress' failure to convene in
joint session, which they failed to present herein. A
taxpayer's suit is likewise proper only when there is an
exercise of the spending or taxing power of the
Congress. However, in these cases, the funds used in
the implementation of martial law in Mindanao are taken
from those funds already appropriated by the Congress.
Senator De Lima's averment of her locus standi as an
incumbent member of the legislature similarly lacks
merit. Insofar as the powers of the Congress are not
impaired, there is no prejudice to each Member thereof;
and even assuming arguendo that the authority of the
Congress is indeed compromised, Senator De Lima still
does not have standing to file the present petition
for mandamus because it is not shown that she has
been allowed to participate in the Senate sessions
during her incarceration. She cannot, therefore, claim
that she has suffered any direct injury from the non-
convening of the Congress in joint session.31
Respondents further contend that the constitutional right
to information, as enshrined under Article III, Section 7 of
the Constitution, is not absolute. Matters affecting
national security are considered as a valid exception to
the right to information of the public. For this reason, the
petitioners' and the public's right to participate in the
deliberations of the Congress regarding the factual basis
of a martial law declaration may be restricted in the
interest of national security and public safety. 32
Respondents allege that petitioners failed to present an
appropriate case for mandamus to lie. Mandamus will
only issue when the act to be compelled is a clear legal
duty or a ministerial duty imposed by law upon the
defendant or respondent to perform the act required that
the law specifically enjoins as a duty resulting from
office, trust, or station.33
According to respondents, it is erroneous to assert that it
is their ministerial duty to convene in joint session
whenever martial law is proclaimed or the privilege of the
writ of habeas corpus is suspended in the absence of a
clear and specific constitutional or legal provision. In fact,
Article VII, Section 18 does not use the words ''joint
session" at all, much less impose the convening of such
joint session upon the proclamation of martial law or the
suspension of the privilege of the writ of habeas
corpus. What the Constitution requires is joint voting
when the action of the Congress is to revoke or extend
the proclamation or suspension.34
Indeed, prior concurrence of the Congress is not
constitutionally required for the effectivity of the
proclamation or suspension. Quoting from the
deliberations of the framers of the Constitution pertaining
to Article VII, Section 18, the Congress points out that it
was the intention of the said framers to grant the
President the power to declare martial law or suspend
the privilege of the writ of habeas corpus for a period not
144
exceeding sixty (60) days without the concurrence of the
Congress. There is absolutely nothing under the
Constitution that mandates the Congress to convene in
joint session when their intention is merely to discuss,
debate, and/or review the factual and legal basis for the
proclamation. That is why the phrase "voting jointly" is
limited only in case the Congress intends to revoke the
proclamation.35 In a situation where the Congress is not
in session, the Constitution simply provides that the
Congress must convene in accordance with its rules but
does not state that it must convene in joint session.
Respondents further refer to the proper procedure for the
holding of joint sessions.
Respondents brush aside as mere obiter dictum the
Court's pronouncement in the Fortun case that it is the
duty of the Congress to convene upon the declaration of
martial law. That whether or not the Congress should
convene in joint session in instances where it is not
revoking the proclamation was not an issue in that case.
Moreover, the factual circumstances in the Fortun case
are entirely different from the present cases. The
Congress then issued a concurrent resolution calling for
the convening of a joint session as the intention - at least
as far as the Senate was concerned - was to revoke the
proclamation of martial law and the suspension of the
privilege of the writ of habeas corpus in Maguindanao.
The Fortun case then cannot be considered a legislative
precedent of an "automatic convening of a joint session
by the Congress upon the President's proclamation of
martial law."36
Respondents argue that the remedy of certiorari is
likewise unavailing. To justify judicial intervention, the
abuse of discretion must be so patent and gross as to
amount to an evasion of a positive duty or to a virtual
refusal to perform a duty enjoined by law or to act at all
in contemplation of law, as where the power is exercised
in an arbitrary and despotic manner by reason of passion
or hostility.37 The Congress has the duty to convene and
vote jointly only in two (2) instances, as respondents
have already explained. The Congress had even issued
their respective resolutions expressing their support to,
as well as their intent not to revoke, President Duterte's
Proclamation No. 216. There then can be no evasion of
a positive duty or a virtual refusal to perform a duty on
the part of the Congress if there is no duty to begin
with.38
Respondents respectfully remind the Court to uphold the
"constitutional demarcation of the three fundamental
powers of government."39 The Court may not intervene in
the internal affairs of the Legislature and it is not within
the province of the courts to direct the Congress how to
do its work. Respondents stress that this Court cannot
direct the Congress to convene in joint session without
violating the basic principle of the separation of powers. 40
Subsequent Events
On July 14, 2017, petitioners in G.R. No. 231671, the
Padilla Petition, filed a Manifestation, calling the attention
of the Court to the imminent expiration of the sixty (60)-
day period of validity of Proclamation No. 216 on July 22,
2017. Despite the lapse of said sixty (60)-day period,
petitioners exhort the Court to still resolve the instant
cases for the guidance of the Congress, State actors,
and all Filipinos.
On July 22, 2017, the Congress convened in joint
session and, with two hundred sixty-one (261) votes in
favor versus eighteen (18) votes against, overwhelmingly
approved the extension of the proclamation of martial
law and the suspension of the privilege of the writ
of habeas corpus in Mindanao until December 31, 2017.
STATEMENT OF THE ISSUES
After a meticulous consideration of the parties'
submissions, we synthesize them into the following
fundamental issues:
I. Whether or not the Court has jurisdiction over the
subject matter of these consolidated petitions;
II. Whether or not the petitions satisfy the requisites for
the Court's exercise of its power of judicial review;
III. Whether or not the Congress has the mandatory duty
to convene jointly upon the President's proclamation of
martial law or the suspension of the privilege of the writ
of habeas corpus under Article VII, Section 18 of the
1987 Constitution; and
IV. Whether or not a writ of mandamus or certiorari may
be issued in the present cases.
THE COURT'S RULING
The Court's jurisdiction over these
consolidated petitions
The principle of separation of powers
The separation of powers doctrine is the backbone of our
tripartite system of government. It is implicit in the
manner that our Constitution lays out in separate and
distinct Articles the powers and prerogatives of each co-
equal branch of government. In Belgica v. Ochoa,41 this
Court had the opportunity to restate:
The principle of separation of powers refers to the
constitutional demarcation of the three fundamental
powers of government. In the celebrated words of
Justice Laurel in Angara v. Electoral Commission, it
means that the "Constitution has blocked out with deft
strokes and in bold lines, allotment of power to the
executive, the legislative and the judicial departments of
the government." To the legislative branch of
government, through Congress, belongs the power to
make laws; to the executive branch of government,
through the President, belongs the power to enforce
laws; and to the judicial branch of government, through
the Court, belongs the power to interpret laws. Because
the three great powers have been, by constitutional
design, ordained in this respect, "[ e ]ach department of
the government has exclusive cognizance of matters
within its jurisdiction, and is supreme within its own
sphere." Thus, "the legislature has no authority to
execute or construe the law, the executive has no
authority to make or construe the law, and the judiciary
has no power to make or execute the law." The principle
of separation of powers and its concepts of autonomy
and independence stem from the notion that the powers
of government must be divided to avoid concentration of
these powers in any one branch; the division, it is hoped,
would avoid any single branch from lording its power
over the other branches or the citizenry. To achieve this
purpose, the divided power must be wielded by co-equal
branches of government that are equally capable of
independent action in exercising their respective
mandates. Lack of independence would result in the
inability of one branch of government to check the
arbitrary or self-interest assertions of another or others.
(Emphases supplied, citations omitted.)
Contrary to respondents' protestations, the Court's
exercise of jurisdiction over these petitions cannot be
deemed as an unwarranted intrusion into the exclusive
domain of the Legislature. Bearing in mind that the
principal substantive issue presented in the cases at bar
is the proper interpretation of Article VII, Section 18 of
the 1987 Constitution, particularly regarding the duty of
the Congress to vote jointly when the President declares
martial law and/or suspends the privilege of the writ
of habeas corpus, there can be no doubt that the Court
may take jurisdiction over the petitions. It is the
prerogative of the Judiciary to declare "what the law
is."42 It is worth repeating here that:
[W]hen the judiciary mediates to allocate constitutional
boundaries, it does not assert any superiority over the
other departments; it does not in reality nullify or
invalidate an act of the legislature, but only asserts the
solemn and sacred obligation assigned to it by the
145
Constitution to determine conflicting claims of authority
under the Constitution and to establish for the parties in
an actual controversy the rights which that instrument
secures and guarantees to them.43 (Emphases supplied.)
Political question doctrine
Corollary to respondents' invocation of the principle of
separation of powers, they argue that these petitions
involve a political question in which the Court may not
interfere. It is true that the Court continues to recognize
questions of policy as a bar to its exercise of the power
of judicial review.44 However, in a long line of cases,45 we
have given a limited application to the political question
doctrine.
In The Diocese of Bacolod v. Commission on
Elections,46 we emphasized that the Court's judicial
power as conferred by the Constitution has been
expanded to include "the duty of the courts of justice to
settle actual controversies involving rights which are
legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of the
Government." Further, in past cases, the Court has
exercised its power of judicial review noting that the
requirement of interpreting the constitutional provision
involved the legality and not the wisdom of a manner by
which a constitutional duty or power was exercised.47
In Association of Medical Clinics for Overseas Workers,
Inc. (AMCOW) v. GCC Approved Medical Centers
Association, Inc.,48 we explained the rationale behind the
Court's expanded certiorari jurisdiction. Citing former
Chief Justice and Constitutional Commissioner Roberto
R. Concepcion in his sponsorship speech for Article VIII,
Section 1 of the Constitution, we reiterated that the
courts cannot hereafter evade the duty to settle matters,
by claiming that such matters constitute a political
question.
Existence of the requisites for judicial review
Petitioners' legal standing
Petitioners in G.R. No. 231671 allege that they are suing
in the following capacities: (1) Padilla as a member of
the legal profession representing victims of human rights
violations, and a taxpayer; (2) Saguisag as a human
rights lawyer, former member of the Philippine Senate,
and a taxpayer; (3) Monsod as a framer of the Philippine
Constitution and member of the 1986 Con Com, and a
taxpayer; (4) Rosales as a victim of human rights
violations committed under martial law declared by then
President Ferdinand E. Marcos, and a taxpayer; (5)
Gorospe as a lawyer and a taxpayer; and (6) Senator De
Lima as an incumbent Member of the Philippine Senate,
a human rights advocate, a former Secretary of Justice,
Chairperson of the Commission on Human Rights, and a
taxpayer.
On the other hand, in G.R. No. 231694, while petitioner
Tañada sues in his capacity as a Filipino citizen and
former legislator, his co-petitioners (Bishop Iniguez,
Bishop Pabillo, Bishop Tobias, Mo. Ygrubay, Bulangis,
and Deluria) all sue in their capacity as Filipino citizens.
Respondents insist that none of the petitioners have
legal standing, whether as a citizen, taxpayer, or
legislator, to file the present cases.1avvphi1
The Court has consistently held that locus standi is a
personal and substantial interest in a case such that the
party has sustained or will sustain direct injury as a result
of the challenged governmental act. The question is
whether the challenging party alleges such personal
stake in the outcome of the controversy so as to assure
the existence of concrete adverseness that would
sharpen the presentation of issues and illuminate the
court in ruling on the constitutional question posed. 49
Petitioners satisfy these standards.
The Court has recognized that every citizen has the
right, if not the duty, to interfere and see that a public
offense be properly pursued and punished, and that a
public grievance be remedied.50 When a citizen
exercises this "public right" and challenges a supposedly
illegal or unconstitutional executive or legislative action,
he represents the public at large, thus, clothing him with
the requisite locus standi. He may not sustain an injury
as direct and adverse as compared to others but it is
enough that he sufficiently demonstrates in his petition
that he is entitled to protection or relief from the Court in
the vindication of a public right.51
Verily, legal standing is grounded on the petitioner's
personal interest in the controversy. A citizen who files a
petition before the court asserting a public right satisfies
the requirement of personal interest simply because the
petitioner is a member of the general public upon which
the right is vested.52 A citizen's personal interest in a
case challenging an allegedly unconstitutional act lies in
his interest and duty to uphold and ensure the proper
execution of the law.53
The present petitions have been filed by individuals
asserting that the Senate and the House of
Representatives have breached an allegedly
constitutional duty to convene in joint session to
deliberate on Presidential Proclamation No. 216. The
citizen-petitioners' challenge of a purportedly
unconstitutional act in violation of a public right, done in
behalf of the general public, gives them legal standing.
On the other hand, Senator De Lima questions the
Congress' failure to convene in joint session to
deliberate on Proclamation No. 216, which, according to
the petitioners, is the legislature's constitutional duty.
We have ruled that legislators have legal standing to
ensure that the constitutional prerogatives, powers, and
privileges of the Members of the Congress remain
inviolate.54 Thus, they are allowed to question the validity
of any official action - or in these cases, inaction -
which, to their mind, infringes on their prerogatives as
legislators.55
Actual case or controversy
It is long established that the power of judicial review is
limited to actual cases or controversies. There is an
actual case or controversy where there is a conflict of
legal rights, an assertion of opposite legal claims, where
the contradiction of the rights can be interpreted and
enforced on the basis of existing law and
jurisprudence.56
There are two conflicting claims presented before the
Court: on the one hand, the petitioners' assertion that the
Congress has the mandatory duty to convene in joint
session to deliberate on Proclamation No. 216; and, on
the other, the respondents' view that so convening in
joint session is discretionary on the part of the
Congress.
Petitioners seek relief through a writ
of mandamus and/or certiorari. Mandamus is a remedy
granted by law when any tribunal, corporation, board,
officer, or person unlawfully neglects the performance of
an act which the law specifically enjoins as a duty
resulting from an office, trust, or station, or unlawfully
excludes another from the use or enjoyment of a right or
office to which such other is entitled.57 Certiorari, as a
special civil action, is available only if: (1) it is directed
against a tribunal, board, or officer exercising judicial or
quasi-judicial functions; (2) the tribunal, board, or officer
acted without or in excess of jurisdiction or with grave
abuse of discretion amounting to lack or excess of
jurisdiction; and (3) there is no appeal nor any plain,
speedy, and adequate remedy in the ordinary course of
law.58 With respect to the Court, however, certiorari is
broader in scope and reach, and it may be issued to
correct errors of jurisdiction committed not only by a
146
tribunal, corporation, board, or officer exercising judicial,
quasi-judicial, or ministerial functions, but also to set
right, undo, and restrain any act of grave abuse of
discretion amounting to lack or excess of jurisdiction by
any branch or instrumentality of the Government, even if
the latter does not exercise judicial, quasi-judicial or
ministerial functions.59
As the present petitions allege an omission on the part
of the Congress that constitutes neglect of their
constitutional duties, the petitions make a prima
facie case for mandamus, and an actual case or
controversy ripe for adjudication exists. When an act or
omission of a branch of government is seriously alleged
to have infringed the Constitution, it becomes not only
the right but, in fact, the duty of the judiciary to settle the
dispute.60
Respondents aver that the Congress cannot be
compelled to do something that is discretionary on their
part nor could they be guilty of grave abuse of discretion
in the absence of any mandatory obligation to jointly
convene on their part to affirm the President's
proclamation of martial law. Thus, petitioners are not
entitled to the reliefs prayed for in their petitions
for mandamus and/or certiorari; consequently, no actual
case or controversy exists.
There is no merit to respondents' position.
For the Court to exercise its power of judicial review and
give due course to the petitions, it is sufficient that the
petitioners set forth their material allegations to make out
a prima facie case for mandamus or certiorari.61 Whether
the petitioners are actually and ultimately entitled to the
reliefs prayed for is exactly what is to be determined by
the Court after careful consideration of the parties'
pleadings and submissions.
Liberality in cases of transcendental importance
In any case, it is an accepted doctrine that the Court may
brush aside procedural technicalities and, nonetheless,
exercise its power of judicial review in cases of
transcendental importance.
There are marked differences between the Chief
Executive's military powers, including the power to
declare martial law, as provided under the present
Constitution, in comparison to that granted in the 1935
Constitution. Under the 1935 Constitution,62 such powers
were seemingly limitless, unrestrained, and purely
subject to the President's wisdom and discretion.
At present, the Commander-in-Chief still possesses the
power to suspend the privilege of the writ of habeas
corpus and to proclaim martial law. However, these
executive powers are now subject to the review of both
the legislative and judicial branches. This check-and-
balance mechanism was installed in the 1987
Constitution precisely to prevent potential abuses of
these executive prerogatives.
Inasmuch as the present petitions raise issues
concerning the Congress' role in our government's
system of checks and balances, these are matters of
paramount public interest or issues of transcendental
importance deserving the attention of the Court in view
of their seriousness, novelty, and weight as precedents. 63
Mootness
The Court acknowledges that the main relief prayed for
in the present petitions (i.e., that the Congress be
directed to convene in joint session and therein
deliberate whether to affirm or revoke Proclamation No.
216) may arguably have been rendered moot by: (a) the
lapse of the original sixty (60) days that the President's
martial law declaration and suspension of the privilege of
the writ of habeas corpus were effective under
Proclamation No. 216; (b) the subsequent extension by
the Congress of the proclamation of martial law and the
suspension of the privilege of the writ of habeas
corpus over the whole of Mindanao after convening in
joint session on July 22, 2017; and (c) the Court's own
decision in Lagman v. Medialdea,64 wherein we ruled on
the sufficiency of the factual bases for Proclamation No.
216 under the original period stated therein.
In David v. Macapagal-Arroyo, the jurisprudential rules
regarding mootness were succinctly summarized, thus:
A moot and academic case is one that ceases to present
a justiciable controversy by virtue of supervening events,
so that a declaration thereon would be of no practical
use or value. Generally, courts decline jurisdiction over
such case or dismiss it on ground of mootness.
xxxx
The "moot and academic" principle is not a magical
formula that can automatically dissuade the courts in
resolving a case. Courts will decide cases, otherwise
moot and academic, if: first, there is a grave violation of
the Constitution; second, the exceptional character of
the situation and the paramount public interest is
involved; third, when constitutional issue raised requires
formulation of controlling principles to guide the bench,
the bar, and the public; and fourth, the case is capable of
repetition yet evading review.65 (Emphasis supplied,
citations omitted.)
It cannot be gainsaid that there are compelling and
weighty reasons for the Court to proceed with the
resolution of these consolidated petitions on the merits.
As explained in the preceding discussion, these cases
involve a constitutional issue of transcendental
significance and novelty. A definitive ruling from this
Court is imperative not only to guide the Bench, the Bar,
and the public but, more importantly, to clarify the
parameters of congressional conduct required by the
1987 Constitution, in the event of a repetition of the
factual precedents that gave rise to these cases.
The duty of the Congress to vote jointly
under Article VII, Section 18
We now come to the crux of the present petitions - the
issue of whether or not under Article VII, Section 18 of
the 1987 Constitution, it is mandatory for the Congress
to automatically convene in joint session in the event that
the President proclaims a state of martial law and/or
suspends the privilege of the writ of habeas corpus in
the Philippines or any part thereof.
The Court answers in the negative. The Congress is not
constitutionally mandated to convene in joint session
except to vote jointly to revoke the President's
declaration or suspension.
By the language of Article VII, Section 18
of the 1987 Constitution, the Congress is
only required to vote jointly to revoke the
President's proclamation of martial law
and/or suspension of the privilege of the writ
of habeas corpus.
Article VII, Section 18 of the 1987 Constitution fully
reads:
Sec. 18. The President shall be the Commander-in-Chief
of allarmed forces of the Philippines and whenever it
becomes necessary, he may call out such armed forces
to prevent or suppress lawless violence, invasion or
rebellion. In case of invasion or rebellion, when the
public safety requires it, he may, for a period not
exceeding sixty days, suspend the privilege of the writ
of habeas corpus or place the Philippines or any part
thereof under martial law. Within forty-eight hours from
the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus, the President shall
submit a report in person or in writing to the Congress.
The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session,
may revoke such proclamation or suspension which
revocation shall not be set aside by the President. Upon
the initiative of the President, the Congress may, in the
same manner, extend such proclamation or suspension
147
for a period to be determined by the Congress, if the
invasion or rebellion shall persist and public safety
requires it.
The Congress, if not in session, shall, within twenty-four
hours following such proclamation or suspension,
convene in accordance with its rules without need of a
call.
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies, nor authorize the
conferment of jurisdiction on military courts and agencies
over civilians where civil courts are able to function, nor
automatically suspend the privilege of the writ.
The suspension of the privilege of the writ shall apply
only to persons judicially charged for rebellion or
offenses inherent in or directly connected with invasion.
During the suspension of the privilege of the writ, any
person thus arrested or detained shall be judicially
charged within three days, otherwise he shall be
released. (Emphasis supplied.)
Outside explicit constitutional limitations, the
Commander-in-Chief clause in Article VII, Section 18 of
the 1987 Constitution vests on the President, as
Commander-in-Chief, absolute authority over the
persons and actions of the members of the armed
forces,66 in recognition that the President, as Chief
Executive, has the general responsibility to promote
public peace, and as Commander-in-Chief, the more
specific duty to prevent and suppress rebellion and
lawless violence.67 However, to safeguard against
possible abuse by the President of the exercise of his
power to proclaim martial law and/or suspend the
privilege of the writ of habeas corpus, the 1987
Constitution, through the same provision,
institutionalized checks and balances on the President's
power through the two other co-equal and independent
branches of government, i.e., the Congress and the
Judiciary. In particular, Article VII, Section 18 of the 1987
Constitution requires the President to submit a report to
the Congress after his proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus and grants the Congress the power to revoke, as
well as extend, the proclamation and/or suspension; and
vests upon the Judiciary the power to review the
sufficiency of the factual basis for such proclamation
and/or suspension.
There are four provisions in Article VII, Section 18 of the
1987 Constitution specifically pertaining to the role of the
Congress when the President proclaims martial law
and/or suspends the privilege of the writ of habeas
corpus, viz.:
a. Within forty-eight (48) hours from the proclamation of
martial law or the suspension of the privilege of the writ
of habeas corpus, the President shall submit a report in
person or in writing to the Congress;
b. The Congress, voting jointly, by a vote of at least a
majority of all its Members in regular or special session,
may revoke such proclamation or suspension, which
revocation shall not be set aside by the President;
c. Upon the initiative of the_ President, the Congress
may, in the same manner. extend such proclamation or
suspension for a period to be determined by the
Congress, if the invasion or rebellion shall persist; and
d. The Congress, if not in session, shall within twenty-
four hours (24) following such proclamation or
suspension, convene in accordance with its rules without
need of call.
There is no question herein that the first provision was
complied with, as within forty-eight (48) hours from the
issuance on May 23, 2017 by President Duterte of
Proclamation No. 216, declaring a state of martial law
and suspending the privilege of the writ of habeas
corpus in Mindanao, copies of President Duterte's
Report relative to Proclamation No. 216 was transmitted
to and received by the Senate and the House of
Representatives on May 25, 2017.
The Court will not touch upon the third and fourth
provisions as these concern factual circumstances which
are not availing in the instant petitions. The petitions at
bar involve the initial proclamation of martial law and
suspension of the privilege of the writ of habeas
corpus, and not their extension; and the 17th Congress
was still in session68 when President Duterte issued
Proclamation No. 216 on May 23, 2017.
It is the second provision that is under judicial scrutiny
herein: "The Congress, voting jointly, by a vote of at least
a majority of all its Members in regular or special
session, may revoke such proclamation or suspension,
which revocation shall not be set aside by the
President."
A cardinal rule in statutory construction is that when the
law is clear and free from any doubt or ambiguity, there
is no room for construction or interpretation. There is
only room for application. According to the plain-meaning
rule or verba legis, when the statute is clear, plain, and
free from ambiguity, it must be given its literal meaning
and applied without attempted interpretation. It is
expressed in the maxims index animi sermo or "speech
is the index of intention[,]" and verba legis non est
recedendum or "from the words of a statute there should
be no departure."69
In Funa v. Chairman Villar,70 the Court also applied
the verba legis rule in constitutional construction, thus:
The rule is that if a statute or constitutional provision is
clear, plain and free from ambiguity, it must he given its
literal meaning and applied without attempted
interpretation. This is known as the plain meaning rule
enunciated by the maxim verba legis non est
recedendum, or from the words of a statute there should
be no departure.
The primary source whence to ascertain constitutional
intent or purpose is the language of the provision itself. If
possible, the words in the Constitution must be given
their ordinary meaning, save where technical terms are
employed. J.M. Tuason & Co., Inc. v. Land Tenure
Administration illustrates the verbal legis rule in this
wise:
We look to the language of the document itself in our
search for its meaning. We do not of course stop there,
but that is where we begin. It is to he assumed that the
words in which constitutional provisions arc couched
express the objective sought to be attained. They are to
be given their ordinary meaning except where technical
terms are employed in which case the significance thus
attached to them prevails. As the Constitution is not
primarily a lawyer's document, it being essential for the
rule of law to obtain that it should ever be present in the
people's consciousness, its language as much as
possible should be understood in the sense they have in
common use. What it says according to the text of the
provision to be construed compels acceptance and
negates the power of the courts to alter it. based on the
postulate that the framers and the people mean what
they say. Thus there are cases where the need for
construction is reduced to a minimum. (Emphases
supplied.)
The provision in question is clear, plain, and
unambiguous. In its literal and ordinary meaning, the
provision grants the Congress the power to revoke the
President's proclamation of martial law or the
148
suspension of the privilege of the writ of habeas
corpus and prescribes how the Congress may exercise
such power, i.e., by a vote of at least a majority of all its
Members, voting jointly, in a regular or special session.
The use of the word "may" in the provision - such that
"[t]he Congress x x x may revoke such proclamation or
suspension x x x" - is to be construed as permissive and
operating to confer discretion on the Congress on
whether or not to revoke,71 but in order to revoke, the
same provision sets the requirement that at least a
majority of the Members of the Congress, voting jointly,
favor revocation.
It is worthy to stress that the provision does not actually
refer to a "joint session." While it may be conceded,
subject to the discussions below, that the phrase "voting
jointly" shall already be understood to mean that the joint
voting will be done "in joint session," notwithstanding the
absence of clear language in the Constitution, 72 still, the
requirement that "[t]he Congress, voting jointly, by a
vote of at least a majority of all its Members in regular or
special session, x x x" explicitly applies only to the
situation when the Congress revokes the President's
proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus. Simply put, the
provision only requires Congress to vote jointly on the
revocation of the President's proclamation and/or
suspension.
Hence, the plain language of the subject constitutional
provision does not support the petitioners' argument that
it is obligatory for the Congress to convene in joint
session following the President's proclamation of martial
law and/or suspension of the privilege of the writ
of habeas corpus, under all circumstances.
The deliberations of the 1986 ConCom reveal the
framers' specific intentions to (a) remove the
requirement of prior concurrence of the Congress for the
effectivity of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas
corpus; and (b) grant to the Congress the discretionary
power to revoke the President's proclamation and/or
suspension by a vote of at least a majority of its
Members, voting jointly.
The Court recognized in Civil Liberties Union v. The
Executive Secretary73 that:
A foolproof yardstick in constitutional construction is the
intention underlying the provision under consideration.
Thus, it has been held that the Court in construing a
Constitution should bear in mind the object sought to be
accomplished by its adoption, and the evils, if any,
sought to be prevented or remedied. A. doubtful
provision will be examined in the light of the history of
the times, and the condition and circumstances under
which the Constitution was framed. The object is to
ascertain the reason which induced· the framers of the
Constitution to enact the particular provision and the
purpose sought to be accomplished thereby, in order to
construe the whole as to make the words consonant to
that reason and calculated to effect that purpose.
However, in the same Decision, the Court issued the
following caveat:
While it is permissible in this jurisdiction to consult the
debates and proceedings of the constitutional convention
in order to arrive at the reason and purpose of the
resulting Constitution, resort thereto may be had only
when other guides fail as said proceedings are
powerless to vary the terms of the Constitution when the
meaning is clear. Debates in the constitutional
convention "are of value as showing the views of the
individual members, and as indicating the reasons for
their votes, but they give US no light as to the views. of
the large majority who did not talk, much less of the
mass of our fellow citizens whose votes at the polls gave
that instrument the force of fundamental law. We think it
safer to construe the constitution from what appears
upon its face.'' The proper interpretation therefore
depends more on how it was understood by the people
adopting it than in the framer's understanding
thereof.74 (Emphasis supplied.)
As the Court established in its preceding discussion, the
clear meaning of the relevant provision in Article VU,
Section 18 of the 1987 Constitution is that the Congress
is only required to vote jointly on the revocation of the
President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
co1pus. Based on the Civil Liberties Union case, there is
already no need to look beyond the plain language of the
provision and decipher the intent of the framers of the
1987 Constitution. Nonetheless, the deliberations on
Article VII, Section 18 of the 1986 ConCom does not
reveal a manifest intent of the framers to make it
mandatory for the Congress to convene in joint session
following the President's proclamation and/or
suspension, so it could deliberate as a single body,
regardless of whether its Members will concur in or
revoke the President's proclamation and/or suspension.
What is evident in the deliberations of the 1986 ConCom
were the framers' intentions to (a) remove the
requirement of prior concurrence by the Congress for the
effectivity of the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas
corpus; and (b) grant to the Congress the discretionary
power to revoke the President's proclamation and/or
suspension by a vote of at least a majority of its
Members, voting jointly.
As the Commander-in-Chief clause was initially drafted,
the President's suspension of the privilege of the writ
of habeas corpus required the prior concurrence of at
least a majority of all the members of the Congress to be
effective. The first line read, "The President shall be the
commander-in-chief of all the armed forces of the
Philippines and, whenever it becomes necessary, he
may call out such armed forces to prevent or suppress
lawless violence, invasion or rebellion[;]" and the next
line, "In case of invasion or rebellion, when the public
safety requires it, he may, for a period not exceeding
sixty days, and, with the concurrence of at least a
majority of all the members of the Congress, suspend
the privilege of the writ of habeas corpus."75
The Commissioners, however, extensively debated on
whether or not there should be prior concurrence by the
Congress, and the exchanges below present the
considerations for both sides:
MR. NATIVIDAD. First and foremost, we agree with the
Commissioner's thesis that in the first imposition of
martial law there is no need for concurrence of the
majority of the Members of Congress because the
provision says "in case of actual invasion and rebellion."
If there is actual invasion and rebellion, as
Commissioner Crispino de Castro said, there is need for
immediate response because there is an attack. Second,
the fact of securing a concurrence may be impractical
because the roads might be blocked or barricaded. They
say that in case of rebellion, one cannot even take his
car and go to the Congress, which is possible because
the roads are blocked or barricaded. And maybe if the
revolutionaries are smart they would have an individual
team for each and every Member of the Congress so he
would not be able to respond to a call for a session. So
the requirement of an initial concurrence of the majority
of all the Members of the Congress in case of an
invasion or rebellion might be impractical as I can see it.
Second, Section l5states that the Congress may revoke
the declaration or lift the suspension.
And third, the matter of declaring martial law is already a
justiciable question and no longer a political one in that it
is subject to judicial review at any point in time. So on
149
that basis, I agree that there is no need for concurrence
as aprerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x
xxxx
MR. SUAREZ. x x x
The Commissioner is suggesting that in connection with
Section 15, we delete the phrase "and, with the
concurrence of at least a majority of all the Members of
the Congress..."
MR. PADILLA. That is correct especially for the initial
suspension of the privilege of the writ of habeas
corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner
is suggesting that .this would be an exclusive prerogative
of the President?
MR. PADILLA. At least initially, for a period of 60 days.
But even that period of 60 days may be shortened by the
Congress or the Senate because the next sentence says
that the Congress or the Senate may even revoke the
proclamation.
xxxx
MR. MONSOD. x x x
We are back to Section 15, page 7, lines 1 and 2. I just
want to reiterate my previous proposal to amend by
deletion the phrase "and, with the concurrence of at least
a majority of all the members of Congress."
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial
amendment because this means that he is vesting
exclusively unto the President the right to determine the
factors which may lead to the declaration of martial law
and the suspension of the writ of habeas corpus. I
suppose he has strong and compelling reasons in
seeking to delete this particular phrase. May we be
informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion
or rebellion. And in previous interpellatioi1s regarding
this phrase, even during the discussions on the Bill of
Rights, as I understand it, the interpretation is a situation
of actual invasion or rebellion. In these situations, the
President has to act quickly. Secondly, this declaration
has a time fuse. It is only good for a maximum of 60
days. At the end of 60 days, it automatically terminates.
Thirdly, the right of the judiciary to inquire into the
sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
MR. SUAREZ. Given cur traumatic experience during
the past administration, if we give exclusive right to the
President to determine these factors, especially the
existence of an invasion or rebellion and the second
factor of determining whether the public safety requires it
or not, may I call the attention of the Gentleman to what
happened to us during the past ac ministration.
Proclamation No. 1081 was issued by Ferdinand E.
Marcos in his capacity as President of the Philippines by
virtue of the powers vested upon him purportedly under
Article VII, Section 10(2) of the Constitution, wherein he
made this predicate under the "Whereas" provision.
Whereas, the rebellion and armed action undertaken by
these lawless elements of the Communists and other
armed aggrupations organized to overthrow the Republic
of the Philippines by armed violence and force, have
assumed the magnitude of an actual state of war against
our people and the Republic of the Philippines.
And may I also call the attention of the Gentleman to
General Order No. 3, also promulgated by Ferdinand E.
Marcos, in his capacity as Commander-in-Chief of all the
Armed Forces of the Philippines and pursuant to
Proclamation No. 1081 dated September 21, 1972
wherein he said, among other things:
Whereas, martial law having been declared because of
wanton destruction of lives and properties, widespread
lawlessness and anarchy and chaos and disorder now
prevailing throughout the country, which condition has
been brought about by groups of men who are actively
engaged in a criminal conspiracy to seize political and
state power in the Philippines in order to take over the
government by force and violence, the extent of which
has now assumed the proportion of an actual war
against our people and the legitimate government...
And he gave all reasons in order to suspend the privilege
of the writ of habeas corpus and declare martial law in
our country without justifiable reason. Would the
Gentleman still insist on the deletion of the phrase "and,
with the concurrence of at least a majority of all the
members of the Congress"?
MR. MONSOD. Yes, Madam President, in the case of
Mr. Marcos he is undoubtedly an aberration in our history
and national consciousness. But given the possibility that
there would be another Marcos, our Constitution now
has sufficient safeguards. As I said, it is not really true,
as the Gentleman has mentioned, that there is an
exclusive right to determine the factual bases because
the paragraph beginning on line 9 precisely tells us that
the Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof and must promulgate its decision on the same
within 30 days from its filing.
I believe that there are enough safeguards. The
Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public
interest in case of invasion or rebellion as against the
rights of citizens. And I am saying that there are enough
safeguards, unlike in 1972 when Mr. Marcos was able to
do all those things mentioned.
MR. SUAREZ. Will that prevent a future President from
doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world,
and there may be another Marcos. What we are looking
for are safeguards that are reasonable and, I believe,
adequate at this point. On the other hand, in case of
invasion or rebellion, even during the first 60 days when
the intention here is to protect the country in that
situation, it would be unreasonable to ask that there
should be a concurrence on the part of the Congress,
which situation is automatically terminated at the end of
such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more
comfortable if we provide for a legislative check on this
awesome power of the Chief Executive acting as
Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a
presidency that cannot act under those conditions.
MR. SUAREZ. But he can act with the concurrence of
the proper or appropriate authority.
MR. MONSOD. Yes. But when those situations arise, it is
very unlikely that the concurrence of Congress would be
available; and, secondly, the President will be able to act
quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual
circumstances to expediency.
MR. MONSOD. I do not believe it is expediency when
one is trying to protect the country in the event of an
invasion or a rebellion.
MR. SUAREZ. No. But in both instances, we would be
seeking to protect not only the country but the rights of
simple citizens. We have to balance these interests
without sacrificing the security of the State.
150
MR. MONSOD. I agree with the Gentleman that is why in
the Article on the Bill of Rights, which was approved on
Third Reading, the safeguards and the protection of the
citizens have been strengthened. And on line 21 of this
paragraph, I endorsed the proposed amendment of
Commissioner Padilla. We are saying that those who are
arrested should be judicially charged within five days;
otherwise, they shall be released. So, there are enough
safeguards.
MR. SUAREZ. These are safeguards after the
declaration of martial law and after the suspension of the
writ of habeas corpus.
MR. MONSOD. That is true.76 (Emphases supplied.)
Ultimately, twenty-eight (28) Commissioners voted to
remove the requirement for prior concurrence by the
Congress for the effectivity of the President's
proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus, against only
twelve (12) Commissioners who voted to retain it.
As the result of the foregoing, the 1987 Constitution does
not provide at all for the manner of determination and
expression of concurrence (whether prior or subsequent)
by the Congress in the President's proclamation of
martial law and/or suspension of the privilege of the writ
of habeas corpus. In the instant cases, both Houses of
the Congress separately passed resolutions, in
accordance with their respective rules of procedure,
expressing their support for President Duterte's
Proclamation No. 216.
In contrast, being one of the constitutional safeguards
against possible abuse by the President of his power to
proclaim martial law and/or suspend the privilege of the
writ of habeas corpus, the 1987 Constitution explicitly
provides for how the Congress may exercise its
discretionary power to revoke the President's
proclamation and/or suspension, that is, "voting jointly,
by a vote of at least a majority of all its Members in
regular or special session."
The ConCom deliberations on this particular provision
substantially revolved around whether the two Houses
will have to vote jointly or separately to revoke the
President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus; but as the Court reiterates, it is undisputedly for
the express purpose of revoking the President's
proclamation and/or suspension.
Based on the ConCom deliberations, pertinent portions
of which are reproduced hereunder, the underlying
reason for the requirement that the two Houses of the
Congress will vote jointly is to avoid the possibility of a
deadlock and to facilitate the process of revocation of the
President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus:
MR. MONSOD. Madam President, I want to ask the
Committee a clarifying question on line 4 of page 7 as to
whether the meaning here is that the majority of all the
Members of each House vote separately. Is that the
intent of this phrase?
xxxx
FR. BERNAS. We would like a little discussion on that
because yesterday we already removed the necessity for
concurrence of Congress for the initial imposition of
martial law. If we require the Senate and the House of
Representatives to vote separately for purposes of
revoking the imposition of martial law, that will make it
very difficult for Congress to revoke the imposition of
martial law and the suspension of the privilege of the writ
of habeas corpus. That is just thinking aloud. To balance
the fact that the President acts unilaterally, then the
Congress voting as one body and not separately can
revoke the declaration of martial law or the suspension
of the privilege of the writ of habeas corpus.
MR. MONSOD. In other words, voting jointly.
FR. BERNAS. Jointly, yes.
xxxx
MR. RODRIGO. May I comment on the statement made
by Commissioner Bernas? I was a Member of the
Senate for 12 years. Whenever a bicameral Congress
votes, it is always separately.
For example, bills coming. from the Lower House are
voted upon by the Members of the House. Then they go
up to the Senate and voted upon separately. Even on
constitutional amendments, where Congress meets in
joint session, the two Houses vote separately.
Otherwise, the Senate will be useless; it will be sort of
absorbed by the House considering that the Members of
the Senate are completely outnumbered by the Members
of the House. So, I believe that whenever Congress acts,
it must be the two Houses voting separately.
If the two Houses vote "jointly," it would mean mixing the
24 Senators with 250 Congressmen. This would result in
the Senate being absorbed and controlled by the House.
This violates the purpose of having a Senate.
FR. BERNAS. I quite realize that that is the practice and,
precisely, in proposing this, I am consciously proposing
this as an exception to this practice because of the
tremendous effect on the nation when the privilege of the
writ of habeas corpus is suspended and then martial law
is imposed. Since we have allowed the President to
impose martial law and suspend the privilege of the writ
of habeas corpus unilaterally, we should make it a little
more easy for Congress to reverse such actions for
the sake of protecting the rights of the people.
MR. RODRIGO. Maybe the way it can be done is to vest
this function in just one of the Chambers - to the House
alone or to the Senate alone. But to say, "by Congress,"
both House and Senate "voting" jointly is practically a
vote by the House.
FR. BERNAS. I would be willing to say just the vote of
the House.
MR. RODRIGO. That is less insulting to the Senate.
However, there are other safeguards. For example, if,
after 60 days the Congress does not act, the
effectiveness of the declaration of martial law or the
suspension of the privilege of the writ ceases.
Furthermore, there is recourse to the Supreme Court.
FR. BERNAS. I quite realize that there is this recourse to
the Supreme Court and there is a time limit, but at the
same time because of the extraordinary character of this
event when martial law is imposed, I would like to make
it easier for the representatives of the people to review
this very significant action taken by the President.
MR. RODRIGO. Between the Senate being absorbed
and controlled by the House numerically and the House
voting alone, the lesser of two evils is the latter.
xxxx
MR. GUINGONA. x x x
In connection with the inquiry of Commissioner Monsod,
and considering the statements made by Commissioner
Rodrigo, I would like to say, in reply to Commissioner
Bernas, that perhaps because of necessity, we might
really have to break tradition. Perhaps it would be better
to give this function of revoking the proclamation of
martial law or the suspension of the writ or extending the
same to the House of Representatives, instead of to the
Congress. I feel that even the Senators would welcome
this because they would feel frustrated by the imbalance
in the number between the Senators and the Members
of the House of Representatives.
Anyway, Madam President, we have precedents or
similar cases. For example, under Section 24 of the
committee report on the Legislative, appropriation,
revenue or tariff bills, and bills authorizing increase of
public debt are supposed to originate exclusively in the
House of Representatives. Besides, we have always
151
been saying that it is the Members of the House of
Representatives who are mostly in touch with the people
since they represent the various districts of our country.
xxxx
MR. MONSOD. I would prefer to have the vote of both
Houses because this is a very serious question that must
be fully discussed. By limiting it alone to the House of
Representatives, then we lose the benefit of the advice
and opinion of the Members of the Senate. I would prefer
that they would be in joint session, but I would agree
with Father Bernas that they should not be voting
separately as part of the option. I think they should be
voting jointly, so that, in effect, the Senators will have
only one vote. But at least we have the benefit of their
advice.
xxxx
MR. RODRIGO. I was the one who proposed that the
two Houses vote separately because if they vote jointly,
the Senators are absolutely outnumbered. It is insulting
to the intelligence of the Senators to join a session
where they know they are absolutely outnumbered.
Remember that the Senators are elected at large by the
whole country. The Senate is a separate Chamber. The
Senators have a longer term than the Members of the
House; they have a six-year term. They are a continuing
Senate. Out of 24, twelve are elected every year. So, if
they will participate at all, the Senate must vote
separately. That is the practice everywhere where there
are two chambers. But as I said, between having a joint
session of the Senate and the House voting jointly where
it is practically the House that will decide alone, the
lesser of two evils is just to let the House decide alone
instead of insulting the Senators by making them
participate in a charade.
MR. REGALADO. May the Committee seek this
clarification from Commissioner Rodrigo? This vC1ting
is supposed to revoke the proclamation of martial
Jaw. If the two Houses vote separately and a majority is
obtained in the House of Representatives for the
revocation of the proclamation of martial law but that
same majority cannot be obtained in the Senate voting
separately, what would be the situation?
MR. RODRIGO. Then the proclamation of martial law or
the suspension continues for almost two months. After
two months, it stops. Besides, there is recourse to the
Supreme Court.
MR. REGALADO. Therefore, that arrangement would be
very difficult for the legislative since they are voting
separately and, for lack of majority in one of the Houses
they are precluded from revoking that proclamation.
They will just, therefore, have to wait until the lapse of 60
days.
MR. RODRIGO. It might be difficult, yes. But remember,
we speak of the Members of Congress who are elected
by the people. Let us not forget that the President is also
elected by the people. Are we forgetting that the
President is elected by the people? We seem to distrust
all future Presidents just because one President
destroyed our faith by his declaration of martial law. I
think we are overreacting. Let us not judge all Presidents
who would henceforth be elected by the Filipino people
on the basis of the abuses made by that one President.
Of course, we must be on guard; but let us not overreact.
Let me make my position clear. I am against the
proposal to make the House and the Senate vote jointly.
That is an insult to the Senate.
xxxx
MR. RODRIGO. Will the Gentleman yield to a question?
MR. MONSOD. Yes, Madam President.
MR. RODRIGO. So, in effect, if there is a joint
session composed of 250 Members of the House plus
24 Members of the Senate, the total would be 274. The
majority would be one-half plus one.
MR. MONSOD. So, 148 votes.
MR. RODRIGO. And the poor Senators would be
absolutely absorbed and outnumbered by the 250
Members of the House. Is that it?
MR. MONSOD. Yes, that is one of the implications of the
suggestion and the amendment is being made
nonetheless because there is a higher objective or value
which is to prevent a deadlock that would enable the
President to continue the full 60 days in case one House
revokes and the other House does not.
The proposal also allows the Senators to participate fully
in the discussions and whether we like it or not, the
Senators have very large persuasive powers because of
their prestige and their national vote.
MR. RODRIGO. So, the Senators will have the "quality
votes" but Members of the House will have the "quantity
votes." Is that it?
MR. MONSOD. The Gentleman is making an
assumption that they will vote against each other. I
believe that they will discuss, probably in joint session
and vote on it; then the consensus will be clear.
xxxx
MR. NOLLEDO. Madam President, the purpose of the
amendment is really to set forth a limitation because we
have to avoid a stalemate. For example, the Lower
House decides that the declaration of martial law should
be revoked, and that later on, the Senate sitting
separately decides that it should not be revoked. It
becomes inevitable that martial law shall continue even if
there should be no factual basis for it.
MR. OPLE. Madam President, if this amendment is
adopted, we will be held responsible for a glaring
inconsistency in the Constitution to a degree that it
distorts the bicameral system that we have agreed to
adopt. I reiterate: If there are deadlocks, it is the
responsibility of the presidential leadership, together with
the leaders of both Houses, to overcome
them.77 (Emphases supplied.)
When the matter was put to a vote, twenty-four (24)
Commissioners voted for the two Houses of the
Congress "voting jointly" in the revocation of the
President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus, and thirteen (13) Commissioners opted for the
two Houses "voting separately."
Yet, there was another attempt to amend the provision
by requiring just the House of Representatives, not the
entire Congress, to vote on the revocation of the
President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas corpus:
MR. RODRIGO. Madam President, may I propose an
amendment?
xxxx
MR. RODRIGO. On Section 15, page 7, line 4, I propose
to change the word "Congress" to HOUSE OF
REPRESENTATIVES so that the sentence will read:
"The HOUSE OF REPRESENTATIVES, by a vote of at
least a majority of all its Members in regular or special
session, may revoke such proclamation or suspension or
extend the same if the invasion or rebellion shall persist
and public safety requires it."
FR. BERNAS. Madam President, the proposed
amendment is really a motion for reconsideration. We
have already decided that both Houses will vote jointly.
Therefore, the proposed amendment, in effect, asks for a
reconsideration of that vote in order to give it to the
House of Representatives.
MR. RODRIGO. Madam President, the opposite of
voting jointly is voting separately. If my amendment were
152
to vote separately, then, yes, it is a motion for
reconsideration. But this is another formula.
xxxx
MR. DE CASTRO. What is the rationale of the
amendment?
MR. RODRIGO. It is intended to avoid that very
extraordinary and awkward provision which would make
the 24 Senators meet jointly with 250 Members of the
House and make them vote jointly. What I mean is, the
24 Senators, like a drop in the bucket, are absorbed
numerically by the 250 Members of the House.
xxxx
MR. SARMIENTO. Madam President, we need the
wisdom of the Senators. What is at stake is the future of
our country - human rights and civil liberties. If we
separate the Senators, then we deprive the
Congressmen of the knowledge and experience of these
24 men. I think we should forget the classification of
"Senators" or "Congressmen." We should all work
together to restore democracy in our country. So we
need the wisdom of 24 Senators.
MR. RODRIGO. Madam President, may I just answer.
This advice of the 24 Senators can be sought because
they are in the same building. Anyway, the provision,
with the amendment of Commissioner Monsod, does not
call for a joint session. It only says: "the Congress, by a
vote of at least a majority of all its Members in regular or
special session" - it does not say "joint session." So, I
believe that if the Members of the House need the
counsel of the Senators, they can always call on them,
they can invite them.78 (Emphasis supplied.)
The proposed amendment was not adopted, however, as
only five (5) Commissioners voted in its favor and
twenty-five (25) Commissioners voted against it. Thus,
the power to revoke the President's proclamation of
martial law and/or suspension of the privilege of the writ
of habeas corpus still lies with both Houses of the
Congress, voting jointly, by a vote of at least a majority of
all its Members.
Significantly, the Commissioners only settled the manner
of voting by the Congress, i.e., "voting jointly, by a vote
of at least a majority of all its Members," in order to
revoke the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus, but they did not directly take up and specify in
Article VII, Section 18 of the 1987 Constitution that the
voting shall be done during a joint session of both
Houses of the Congress. In fact, Commissioner
Francisco A. Rodrigo expressly observed that the
provision does not call for a joint session. That the
Congress will vote on the revocation of the President's
proclamation and/or suspension in a joint session can
only be inferred from the arguments of the
Commissioners who pushed for the "voting jointly"
amendment that the Members of the House of
Representatives will benefit from the advice, opinion,
and/or wisdom of the Senators, which will be presumably
shared during a joint session of both Houses. Such
inference is far from a clear mandate for the
Congress to automatically convene in joint session,
under all circumstances, when the President proclaims
martial law and/or suspends the privilege of the writ
of habeas corpus, even when Congress does not intend
to revoke the President's proclamation and/or
suspension.
There was no obligation on the part of the Congress
herein to convene in joint session as the provision on
revocation under Article VII, Section 18 of the 1987
Constitution did not even come into operation in light of
the resolutions, separately adopted by the two Houses of
the Congress in accordance with their respective rules of
procedure, expressing support for President Duterte's
Proclamation No. 216.
The provision in Article VII, Section 18 of the 1987
Constitution requiring the Congress to vote jointly in a
joint session is specifically for the purpose of revocation
of the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus. In the petitions at bar, the Senate and House of
Representatives already separately adopted resolutions
expressing support for President Duterte's Proclamation
No. 216. Given the express support of both Houses of
the Congress for Proclamation No. 216, and their
already evident lack of intent to revoke the same, the
provision in Article VII, Section 18 of the 1987
Constitution on revocation did not even come into
operation and, therefore, there is no obligation on the
part of the Congress to convene in joint session.
Practice and logic dictate that a collegial body will first
hold a meeting among its own members to get a sense
of the opinions of its individual members and, if possible
and necessary, reach an official stance, before
convening with another collegial body. This is exactly
what the two Houses of the Congress did in these cases.
The two Houses of the Congress, the Senate and the
House of Representatives, immediately took separate
actions on President Duterte's proclamation of martial
law and suspension of the privilege of the writ of habeas
corpus in Mindanao through Proclamation No. 216, in
accordance with their respective rules of procedure.
The Consolidated Comment (Ex Abudanti Cautela), filed
by the Senate and Senate President Pimentel, recounted
in detail the steps undertaken by both Houses of the
Congress as regards Proclamation No. 216, to wit:
2. On the date of the President's declaration of martial
law and the suspension of the privilege of the writ
of habeas corpus, Congress was in session (from May 2,
to June 2, 2017), in its First Regular Session of the
17th Congress, as evidenced by its Legislative Calendar,
otherwise known as Calendar of Session as contained in
Concurrent Resolution No. 3 of both the Senate and the
House of Representatives.x x x
3. During the plenary session of the Senate on the
following day, 24 May 2017, privilege speeches and
discussions had already been made about the
declaration of martial law and the suspension of the
privilege of the writ of habeas corpus. This prompted
Senator Franklin M. Drilon to move to invite the
Secretary of National Defense, the National Security
Adviser and the Chief of Staff of the Armed Forces of the
Philippines to brief the senators in closed session on
what transpired in Mindanao. Submitted to a vote and
there being no objection, the Senate approved the
motion. x x x
4. On 25 May 2017, the President furnished the Senate
and the House of Representatives, through Senate
President Aquilino "Koko" Pimentel III and Speaker
Pantaleon D. Alvarez, respectively, with copies of his
report (hereinafter, the "Report") detailing the factual and
legal basis for his declaration of martial law and the
suspension of the privilege of the writ of habeas
corpus in Mindanao.
5. On or about 25 May 2017, invitation letters were
issued and sent by the Senate Secretary, Atty. Lutgardo
B. Barbo to the following officials requesting them to
attend a briefing for the Senators on 29 May 2017 at
3:00 p.m. at the Senators' Lounge at the Senate in a
closed door session to describe what transpired in
Mindanao which was the basis of the declaration of
martial law in Mindanao: (a) Secretary Delfin N.
Lorenzana, Secretary of National Defense (hereinafter,
"Secretary Lorenzana"); (b) Secretary Hermogenes C.
Esperon, Jr., National Security Adviser and Director
General of the National Security Council (hereinafter,
"Secretary Esperon"); and (c) General Eduardo M. Año,
Chief of Staff of the Armed Forces of the Philippines
(hereinafter, "Gen. Año"). The said letters stated that the
153
Senators requested that the President's Report be
explained and that more details be given about the
same. Xxx
6. On 29 May 2017, about 3:30 p.m., a closed door
briefing was conducted by Secretary Lorenzana,
Secretary Esperon and other security officials for the
Senators to brief them about the circumstances
surrounding the declaration of martial law and to inform
them about details about the President's Report. The
briefing lasted for about four (4) hours. After the briefing,
the Senators had a caucus to determine what could be
publicly revealed.
7. On the same day, 29 May 2017, the House of
Representatives resolved to constitute itself as a
Committee of the Whole on 31 May 2017 to consider the
President's Report.
8. On 30 May 2017, two (2) resolutions were introduced
in the Senate about the proclamation of martial law. The
first one was P.S. Resolution No. 388 (hereinafter,
"P.S.R. No. 388") introduced by Senators Sotto,
Pimentel, Recto, Angara, Binay, Ejercito, Gatchalian,
Gordon, Honasan, Lacson, Legarda, Pacquiao,
Villanueva, Villar and Zubiri which was entitled,
"Expressing the Sense of the Senate, Supporting the
Proclamation No. 216 dated May 23, 2017, entitled
"Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao" and Finding no Cause to revoke the Same."
The second one was P.S. Resolution No. 390
(hereinafter, "P.S.R. No. 390") introduced by Senators
Pangilinan, Drilon, Hontiveros, Trillanes, Aquino and De
Lima which was entitled, "Resolution to Convene
Congress in Joint Session and Deliberate on
Proclamation No. 216 dated 23 May 2017 entitled,
"Declaring a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Whole of
Mindanao." x x x
9. Discussions were made on the two (2) proposed
resolutions during the plenary deliberations of the
Senate on 30 May 2017. The first resolution to be
discussed was P.S.R. No. 388. During the deliberations,
amendments were introduced to it and after the
amendments and the debates, P.S.R. No. 388 was voted
upon and it was adopted by a vote of seventeen (17)
affirmative votes and five (5) negative votes. The
amended, substituted and approved version of P.S.R.
No. 388, which was then renamed Resolution No. 49,
states as follows:
RESOLUTION NO. 49
RESOLUTION EXPRESSING THE SENSE OF THE
SENATE NOT TO REVOKE, AT THIS TIME,
PROCLAMATION NO. 216, SERIES OF 2017,
ENTITLED, "DECLARING A STATE OF MARTIAL LAW
AND SUSPENDING THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS IN THE WHOLE OF
MINDANAO."
WHEREAS, the 1987 Philippine Constitution, Article VII,
Section 18, provides that:
"... in case of invasion or rebellion, when the public
safety requires it, he (President) may, for a period not
exceeding sixty days, suspend the privilege of the writ of
habeas corpus or place the Philippines or any part
thereof under martial law...";
WHEREAS, President Rodrigo Roa Duterte issued
Proclamation No. 216, series of 2017, entitled "Declaring
a State of Martial Law and Suspending the Privilege of
the Writ of Habeas Corpus in the Whole of Mindanao,"
on May 23, 2017 (the "Proclamation");
WHEREAS, pursuant to his duty under the Constitution,
on May 25, 2017, and within forth-eight hours after the
issua.11ce of the Proclamation, President Duterte
submitted to the Senate his report on the factual and
legal basis of the Proclamation;
WHEREAS, on May 29, 2017, the Senators were briefed
by the Department of National Defense (DND), the
Armed Forces of the Philippines (AFP), and by the
National Security Council (NSC) on the factual
circumstances surrounding the Proclamation as well as
the updates on the situation in Mindanao;
WHEREAS, on the basis of the information received by
the Senators, the Senate is convinced that President
Duterte declared martial law and suspended the privilege
of the writ of habeas corpus in the whole of Mindanao
because actual rebellion exists and that the public safety
requires it;
WHEREAS, the Senate, at this time, agrees that there is
no compelling reason to revoke Proclamation No. 216,
series of 2017;
WHEREAS, the Proclamation does not suspend the
operation of the Constitution, which among others,
guarantees respect for human rights and guards against
any abuse or violation thereof: Now, therefore, be it
Resolved, as it is hereby resolved, To express the sense
of the Senate, that there is no compelling reason to
revoke Proclamation No. 216, series of 2017 at this time.
Adopted. x x x"
xxxx
10. Immediately thereafter, P.S.R. No. 390 was also
deliberated upon. After a prolonged discussion, a vote
was taken on it and nine (9) senators were in favor and
twelve (12) were against. As such, P.S.R. No. 390 calling
for a joint session of Congress was not adopted. x x x
11. In the meantime, on 31 May 2017, the House of
Representatives acting as a Committee of the Whole
was briefed for about six (6) hours by officials of the
government led by Executive Secretary Salvador C.
Medialdea (hereinafter, "Executive Secretary
Medialdea"), Secretary Lorenzana and other security
officials on the factual circumstances surrounding the
President's declaration of martial law and on the
statements contained in the President's Report. During
the evening of the same day, a majority of the House of
Representatives passed Resolution No. 1050 entitled,
"'Resolution Expressing the Full Support of the House of
Representatives to President Rodrigo Roa Duterte As It
Finds No Reason to Revoke Proclamation No. 216
Entitled, 'Declaring A State of Martial Law and
Suspending the Privilege of the Writ of Habeas Corpus
in the Whole of Mindanao."' In the same deliberations, it
was likewise proposed that the House of
Representatives call for a joint session of Congress to
deliberate and vote on the President's declaration of
martial law and the suspension of the privilege of the writ
of habeas corpus. However, after debates, the proposal
was not carried. x x x.79
It cannot be disputed then that the Senate and House of
Representatives placed President Duterte's
Proclamation No. 216 under serious review and
consideration, pursuant to their power to revoke such a
proclamation vested by the Constitution on the
Congress. Each House timely took action by accepting
and assessing the President's Report, inviting over and
interpellating executive officials, and deliberating
amongst their fellow Senators or Representatives, before
finally voting in favor of expressing support for President
Duterte's Proclamation No. 216 and against calling for a
joint session with the other House. The prompt actions
separately taken by the two Houses of the Congress on
President Duterte's Proclamation No. 216 belied all the
purported difficulties and delays such procedures would
cause as raised in the Concurring and Dissenting
Opinion of Associate Justice Marvic M.V.F. Leonen
(Justice Leonen). As earlier pointed out, there is no
constitutional provision governing concurrence by the
Congress in the President's proclamation of martial law
and/or suspension of the privilege of the writ of habeas
154
corpus, and absent a specific mandate for the Congress
to hold a joint session in the event of concurrence, then
whether or not to hold a joint session under such
circumstances is completely within the discretion of the
Congress.
The Senate and Senate President Pimentel explained in
their Consolidated Comment (Ex Abudanti Cautela), that,
by practice, the two Houses of the Congress must adopt
a concurrent resolution to hold a joint session, and only
thereafter can the Houses adopt the rules to be
observed for that particular joint session:
It must be stated that the Senate and the House of
Representatives have their own respective
Rules, i.e., the Rules of the Senate and the Rules of the
House of Representatives. There is no general body of
Rules applicable to a joint session of Congress. Based
on parliamentary practice and procedure, the Senate
and House of Representatives only adopt Rules for a
joint session on an ad hoc basis but only after both
Houses have already agreed to convene in a joint
session through a Concurrent Resolution. The Rules for
a Joint Session for a particular purpose become functus
officio after the purpose of the joint session has been
achieved. Examples of these Rules for a Joint Session
are (1) the Rules of the Joint Public Session of Congress
on Canvassing the Votes Cast for Presidential and Vice-
Presidential Candidates in the May 9, 2016 Election
adopted on 24 May 2016; and (2) the Rules of the Joint
Session of Congress on Proclamation No. 1959
(Proclaiming a State of Martial Law and Suspending the
Privilege of the Writ of Habeas Corpus in the Province of
Maguindanao, Except for Certain Areas) adopted on 09
December 2009. The only time that the Senate and the
House of Representatives do not adopt Rules for a joint
session is when they convene on the fourth Monday of
July for its regular session to receive or listen to the
State of the Nation Address of the President and even
then, they adopt a Concurrent Resolution to do so.
The usual procedure for having a joint session is for both
Houses to first adopt a Concurrent Resolution to hold a
joint session. This is achieved by either of two (2) ways:
(1) both the Senate and the House of Representatives
simultaneously adopting the Concurrent Resolution - an
example would be when the two (2) Houses inform the
President that they are ready to receive his State of the
Nation Address or (2) For one (1) House to pass its own
resolution and to send it to the other House for the
latter's concurrence. Once the joint session of both
Houses is actually convened, it is only then that the
Senate and the House of Representatives jointly adopt
the Rules for the joint session. x x x80 (Emphases
supplied.)
With neither Senate nor the House of Representatives
adopting a concurrent resolution, no joint session by the
two Houses of the Congress can be had in the present
cases.
The Court is bound to respect the rules of the Congress,
a co-equal and independent branch of government.
Article VI, Section 16(3) of the 1987 Constitution states
that "[e]ach House shall determine the rules of its
proceedings." The provision has been traditionally
construed as a grant of full discretionary authority to the
Houses of Congress in the formulation, adoption, and
promulgation of its rules; and as such, the exercise of
this power is generally exempt from judicial supervision
and interference.81 Moreover, unless there is a clear
showing by strong and convincing reasons that they
conflict with the Constitution, "all legislative acts are
clothed with an armor of constitutionality particularly
resilient where such acts follow a long-settled and well-
established practice by the Legislature."82Nothing in this
Decision should be presumed to give precedence to the
rules of the Houses of the Congress over the provisions
of the Constitution. This Court simply holds that since the
Constitution does not regulate the manner by which the
Congress may express its concurrence to a Presidential
proclamation of martial law and/or suspension of the
privilege of the writ of habeas corpus, the Houses of the
Congress have the discretion to adopt rules of procedure
as they may deem appropriate for that purpose.
The Court highlights the particular circumstance herein
that both Houses of Congress already separately
expressed support for President Duterte's
Proclamation No. 216, so revocation was not even a
possibility and the provision on revocation under Article
VII, Section 18 of the 1987 Constitution requiring the
Congress to vote jointly in a joint session never came
into operation. It will be a completely different scenario if
either of the Senate or the House of Representatives,
or if both Houses of the Congress, resolve/s to
revoke the President's proclamation of martial law
and/or suspension of the privilege of the writ
of habeas corpus, in which case, Article VII, Section 18
of the 1987 Constitution shall apply and the Congress
must convene in joint session to vote jointly on the
revocation of the proclamation and/or suspension. Given
the foregoing parameters in applying Article VII, Section
18 of the 1987 Constitution, Justice Leonen's concern,
expressed in his Concurring and Dissenting Opinion, that
a deadlock may result in the future, is completely
groundless.
The legislative precedent referred to by petitioners
actually supports the position of the Court in the instant
cases. On December 4, 2009, then President
Macapagal-Arroyo issued Proclamation No. 1959,
entitled "Proclaiming a State of Martial law and
Suspending the Privilege of the Writ of Habeas Corpus
in the Province of Maguindanao, except for Certain
Areas." The Senate, on December 14, 2009, adopted
Resolution No. 217, entitled "Resolution Expressing the
Sense of the Senate that the Proclamation of Martial
Law in the Province of Maguindanao is Contrary to the
Provisions of the 1987 Constitution." Consequently, the
Senate and the House of Representatives adopted
Concurrent Resolutions, i.e., Senate Concurrent
Resolution No. 14 and House Concurrent Resolution No.
33, calling both Houses of the Congress to convene in
joint session on December 9, 2009 at 4:00 p.m. at the
Session Hall of the House of Representatives to
deliberate on Proclamation No. 1959. It appears then
that the two Houses of the Congress in 2009 also initially
took separate actions on President Macapagal-Arroyo's
Proclamation No. 1959, with the Senate eventually
adopting Resolution No. 217, expressing outright its
sense that the proclamation of ma11ial law was
unconstitutional and necessarily implying that such
proclamation should be revoked. With one of the Houses
favoring revocation, and in observation of the
established practice of the Congress, the two Houses
adopted concurrent resolutions to convene in joint
session to vote on the revocation of Proclamation No.
1959.
For the same reason, the Fortun case cannot be
deemed a judicial precedent for the present cases. The
factual background of the Fortun case is not on all fours
with these cases. Once more, the Court points out that in
the Fortun case, the Senate expressed through
Resolution No. 217 its objection to President Macapagal-
Arroyo's Proclamation No. 1959 for being
unconstitutional, and both the Senate and the House of
Representatives adopted concurrent resolutions to
convene in joint session for the purpose of revoking said
proclamation; while in the cases at bar, the Senate and
the House of Representatives adopted Senate
Resolution No. 49 and House Resolution No. 1050,
respectively, which expressed support for President
Duterte's Proclamation No. 216, and both Houses of the
Congress voted against calling for a joint session. In
155
addition, the fundamental issue in the Fortun case was
whether there was factual basis for Proclamation No.
1959 and not whether it was mandatory for the Congress
to convene in joint session; and even before the
Congress could vote on the revocation of Proclamation
No. 1959 and the Court could resolve the Fortun case,
President Macapagal-Arroyo already issued
Proclamation No. 1963 on December 12, 2009,
entitled "Proclaiming the Termination of the State of
Martial Law and the Restoration of the Privilege of the
Writ of Habeas Corpus in the Province of
Maguindanao." Furthermore, the word "automatic" in
the Fortun case referred to the duty or power of the
Congress to review the proclamation of martial law
and/or suspension of the privilege of the writ of habeas
corpus, rather than the joint session of Congress.83
Petitioners invoke the following provision also in Article
VII, Section 18 of the 1987 Constitution: "The Congress,
if not in session, shall, within twenty-four hours following
such proclamation or suspension convene in accordance
with its rules without call." Petitioners reason that if the
Congress is not in session, it is constitutionally
mandated to convene within twenty-four (24) hours from
the President's proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus, then it is with all the more reason required to
convene immediately if in session.
The Court is not persuaded.
First, the provision specially addresses the situation
when the President proclaims martial law and/or
suspends the privilege of the writ of habeas corpus while
the Congress is in recess. To ensure that the Congress
will be able to act swiftly on the proclamation and/or
suspension, the 1987 Constitution provides that it should
convene within twenty-four (24) hours without need for
call. It is a whole different situation when the Congress is
still in session as it can readily take up the proclamation
and/or suspension in the course of its regular sessions,
as what happened in these cases. Second, the provision
only requires that the Congress convene without call, but
it does not explicitly state that the Congress shall already
convene in joint session. In fact, the provision actually
states that the Congress "convene in accordance with its
rules," which can only mean the respective rules of each
House as there are no standing rules for joint sessions.
And third, it cannot be said herein that the Congress
failed to convene immediately to act on Proclamation No.
216. Both Houses of the Congress promptly took action
on Proclamation No. 216, with the Senate already
issuing invitations to executive officials even prior to
receiving President Duterte's Report, except that the two
Houses of the Congress acted separately. By initially
undertaking separate actions on President Duterte's
Proclamation No. 216 and making their respective
determination of whether to support or revoke said
Proclamation, the Senate and the House of
Representatives were only acting in accordance with
their own rules of procedure and were not in any way
remiss in their constitutional duty to guard against a
baseless or unjustified proclamation of martial law and/or
suspension of the privilege of the writ of habeas
corpus by the President.
There is likewise no basis for petitioners' assertion that
without a joint session, the public cannot hold the
Senators and Representatives accountable for their
respective positions on President Duterte's Proclamation
No. 216. Senate records completely chronicled the
deliberations and the voting by the Senators on Senate
Resolution No. 49 (formerly P.S. Resolution No. 388)
and P.S. Resolution No. 390. While it is true that the
House of Representatives voted on House Resolution
No. 1050 viva voce, this is only in accordance with its
rules. Per the Rules of the House of Representatives:
RULE XV
 Voting
Sec. 115. Manner of Voting. -The Speaker shall rise and
state the motion or question that is being put to a vote in
clear, precise and simple language. The Speaker shall
say "as many as are in favor, (as the question may
be) say 'aye'". After the affirmative vote is counted, the
Speaker shall say "as many as are opposed, (as the
question may be) say 'nay"'.
If the Speaker doubts the result of the voting or a motion
to divide the House is Carried, the House shall divide.
The Speaker shall ask those in favor to rise, to be
followed by those against. If still in doubt of the outcome
or a count by tellers is demanded, the Speaker shall
name one (1) Member from each side of the question to
count the Members in the affirmative and those in the
negative. After the count is reported, the Speaker shall
announce the result.
An abstention shall not be counted as a vote. Unless
otherwise provided by the Constitution or by these rules,
a majority of those voting, there being a quorum, shall
decide the issue.
Sec. 116. Nominal Voting. - Upon motion of a Member,
duly approved by one-fifth (1/5) of the Members present,
there being a quorum, nominal voting on any question
may be called. In case of nominal voting, the Secretary
General shall call, in alphabetical order, the nan1es of
the Members who shall state their vote as their names
are called.
Sec. 117. Second Call on Nominal Voting. - A second
call on nominal voting shall be made to allow Members
who did not vote during the first call to
vote.1avvphi1 Members who fail to vote during the
second call shall no longer be allowed to vote.
Since no one moved for nominal voting on House
Resolution No. 1050, then the votes of the individual
Representatives cannot be determined. It does not
render though the proceedings unconstitutional or
invalid.
The Congress did not violate the right of the
public to information when it did not
convene in joint session.
The Court is not swayed by petitioners' argument that by
not convening in joint session, the Congress violated the
public's right to information because as records show,
the Congress still conducted deliberations on President
Duterte's Proclamation No. 216, albeit separately; and
the public's right to information on matters of national
security is not absolute. When such matters are being
taken up in the Congress, whether in separate or joint
sessions, the Congress has discretion in the manner the
proceedings will be conducted.
Petitioners contend that the Constitution requires a
public deliberation process on the proclamation of
martial law: one that is conducted via a joint session and
by a single body. They insist that the Congress must be
transparent, such that there is an "open and robust
debate," where the evaluation of the proclamation's
factual bases and subsequent implementation shall be
openly discussed and where each member's position on
the issue is heard and made known to the public.
The petitioners' insistence on the conduct of a "joint
session" contemplates a mandatory joint Congressional
session where public viewing is allowed.
However, based on their internal rules, each House has
the discretion over the manner by which Congressional
proceedings are to be conducted. Verily, sessions are
generally open to the public,84 but each House may
decide to hold an executive session due to the
confidential nature of the subject matter to be discussed
and deliberated upon.
Rule XI of the Rules of the House of Representatives
provides:
156
Section 82. Sessions Open to the Public. - Sessions
shall be open to the public. However, when the security
of the State or the dignity of the House or any of its
Members are affected by any motion or petition being
considered, the House may hold executive sessions.
Guests and visitors in the galleries are prohibited from
using their cameras and video recorders. Cellular
phones and other similar electronic devices shall be put
in silent mode.
Section 83. Executive Sessions. - When the House
decides to hold an executive session, the Speaker shall
direct the galleries and hallways to be cleared and the
doors closed. Only the Secretary General, the Sergeant-
at- Arms and other persons specifically authorized by the
House shall be admitted to the executive session. They
shall preserve the confidentiality of everything read or
discussed in the session. (Emphasis supplied.)
Rule XLVII of the Rules of the Senate similarly sets forth
the following:
SEC. 126. The executive sessions of the Senate shall be
held always behind closed doors. In such sessions, only
the Secretary, the Sergeant-at-Arms, and/or such other
persons as may be authorized by the Senate may be
admitted to the session hall.
SEC. 127. Executive sessions shall be held whenever a
Senator so requests it and his petition has been duly
seconded, or when the security of the State or public
interest so requires. Thereupon, the President shall
order that the public be excluded from the gallery and
the doors of the session hall be closed.
The Senator who presented the motion shall then
explain the reasons which he had for submitting the
same.
The minutes of the executive sessions shall be recorded
m a separate book. (Emphasis supplied)
From afore-quoted rules, it is clear that matters affecting
the security of the state are considered confidential and
must be discussed and deliberated upon in an executive
session, excluding the public therefrom.
That these matters are considered confidential is in
accordance with settled jurisprudence that, in the
exercise of their right to information, the government
may withhold certain types of information from the public
such as state secrets regarding military, diplomatic, and
other national security matters.85 The Court has also
ruled that the Congress' deliberative process, including
information discussed and deliberated upon in an
executive session,86may be kept out of the public's
reach.
The Congress not only recognizes the sensitivity of
these matters but also endeavors to preserve their
confidentiality. In fact, Rule XL VII, Section 128 87 of the
Rules of the Senate expressly establishes a secrecy ban
prohibiting all its members, including Senate officials and
employees, from divulging any of the confidential matters
taken up by the Senate. A Senator found to have violated
this ban faces the possibility of expulsion from his
office.88This is consistent with the Ethical Standards
Act89 that prohibits public officials and employees from
using or divulging "confidential or classified information
officially known to them by reason of their office and not
made available to the public."90
Certainly, the factual basis of the declaration of martial
law involves intelligence information, military tactics, and
other sensitive matters that have an undeniable effect on
national security. Thus, to demand Congress to hold a
public session during which the legislators shall openly
discuss these matters, all the while under public scrutiny,
is to effectively compel them to make sensitive
information available to everyone, without exception, and
to breach the recognized policy of preserving these
matters' confidentiality, at the risk of being sanctioned,
penalized, or expelled from Congress altogether.
That these are the separate Rules of the two Houses of
the Congress does not take away from their
persuasiveness and applicability in the event of a joint
session.1âwphi1 Since both Houses separately
recognize the policy of preserving the confidentiality of
national security matters, then in all likelihood, they will
consistently observe the same in a joint session. The
nature of these matters as confidential is not affected by
the composition of the body that will deliberate upon it -
whether it be the two Houses of the Congress separately
or in joint session.
Also, the petitioners' theory that a regular session must
be preferred over a mere briefing for purposes of
ensuring that the executive and military officials are
placed under oath does not have merit. The Senate
Rules of Procedure Governing Inquiries In Aid of
Legislation91 require that all witnesses at executive
sessions or public hearings who testify as to matters of
fact shall give such testimony under oath or affirmation.
The proper implementation of this rule is within the
Senate's competence, which is beyond the Court's
reach.
Propriety of the issuance of a writ of
mandamus or certiorari
For mandamus to lie, there must be compliance with
Rule 65, Section 3, Rules of Court, to wit:
SECTION 3. Petition for mandamus. - When any
tribunal, corporation, board, officer or person unlawfully
neglects the perfom1ance of an act which the law
specifically enjoins as a duty resulting from an office,
trust, or station, or unlawfully excludes another from the
use and enjoyment of a right or office to which such
other is entitled, and there is no other plain, speedy and
adequate remedy in the ordinary course of law, the
person aggrieved thereby may file a verified petition in
the proper court, alleging the facts with certainty and
praying that judgment be rendered commanding the
respondent, immediately or at some other time to be
specified by the court, to do the act required to be done
to protect the rights of the petitioner, and to pay the
damages sustained by the petitioner by reason of the
wrongful acts of the respondent,
Jurisprudence has laid down the following requirements
for a petition for mandamus to prosper:
[T]hus, a petition for mandamus will prosper if it is shown
that the subject thereof is a ministerial act or duty, and
not purely discretionary on the part of the board, officer
or person, and that the petitioner has a well-defined,
clear and certain right to warrant the grant thereof.
The difference between a ministerial and discretionary
act has long been established. A purely ministerial act or
duty is one which an officer or tribunal performs in a
given state of facts, in a prescribed manner, in
obedience to the mandate of a legal authority, without
regard to or the exercise of his own judgment upon the
propriety or impropriety of the act done. If the law
imposes a duty upon a public officer and gives him the
right to decide how or when the duty shall be performed,
such duty is discretionary and not ministerial. The duty is
ministerial only when the discharge of the same requires
neither the exercise of official discretion or
judgment.92 (Emphases added.)
It is essential to the issuance of a writ of mandamus that
petitioner should have a clear legal right to the thing
demanded and it must be the imperative duty of the
respondent to perform the act
required. Mandamus never issues in doubtful cases.
While it may not be necessary that the ministerial duty
be absolutely expressed, it must however, be clear. The
writ neither confers powers nor imposes duties. It is
simply a command to exercise a power already
possessed and to perform a duty already imposed.93
157
Although there are jurisprudential examples of the Court
issuing a writ of mandamus to compel the fulfillment of
legislative duty,94 we must distinguish the present
controversy with those previous cases. In this particular
instance, the Court has no authority to compel the
Senate and the House of Representatives to convene in
joint session absent a clear ministerial duty on its part to
do so under the Constitution and in complete disregard
of the separate actions already undertaken by both
Houses on Proclamation No. 216, including their
respective decisions to no longer hold a joint session,
considering their respective resolutions not to revoke
said Proclamation.
In the same vein, there is no cause for the Court to grant
a writ of certiorari.
As earlier discussed, under the Court's expanded
jurisdiction, a petition for certiorari is a proper remedy to
question the act of any branch or instrumentality of the
government on the ground of grave abuse of discretion
amounting to lack or excess of jurisdiction by any branch
or instrumentality of the government, even if the latter
does not exercise judicial, quasi-judicial or ministerial
functions.95 Grave abuse of discretion implies such
capricious and whimsical exercise of judgment as to be
equivalent to lack or excess of jurisdiction; in other
words, power is exercised in an arbitrary or despotic
manner by reason of passion, prejudice, or personal
hostility; and such exercise is so patent or so gross as to
amount to an evasion of a positive duty or to a virtual
refusal either to perform the duty enjoined or to act at all
in contemplation of law.96 It bears to mention that to pray
in one petition for the issuance of both a writ
of mandamus and a writ of certiorari for the very same
act - which, in the Tañada Petition, the non-convening by
the two Houses of the Congress in joint session - is
contradictory, as the former involves a mandatory duty
which the government branch or instrumentality must
perform without discretion, while the latter recognizes
discretion on the part of the government branch or
instrumentality but which was exercised arbitrarily or
despotically. Nevertheless, if the Court is to adjudge the
petition for certiorari alone, it still finds the same to be
without merit. To reiterate, the two Houses of the
Congress decided to no longer hold a joint session only
after deliberations among their Members and putting the
same to vote, in accordance with their respective rules of
procedure. Premises considered, the Congress did not
gravely abuse its discretion when it did not jointly
convene upon the President's issuance of Proclamation
No. 216 prior to expressing its concurrence thereto.
WHEREFORE, the petitions are DISMISSED for lack of
merit.
SO ORDERED.
G.R. No. 231658
REPRESENTATIVES EDCEL C. LAGMAN, TOMASITO
S. VILLARIN, GARY C. ALEJANO, EMMANUEL A.
BILLONES, AND TEDDY BRAWNER BAGUILAT,
JR., Petitioners
vs.
HON. SALVADOR C. MEDIALDEA, EXECUTIVE
SECRETARY; HON. DELFIN N. LORENZANA,
SECRETARY OF THE DEPARTMENT OF NATIONAL
DEF'ENSE AND MARTIAL LAW ADMINISTRATOR;
AND GEN. EDUARDO ANO, CHIEF OF STAFF OF
THE ARMED FORCES OF THE PHILIPPINES AND
MARTIAL LAW IMPLEMENTOR, Respondents
x-----------------------x
G.R. No. 231771
EUFEMIA CAMPOS CULLAMAT, VIRGILIO T. LIN
CUNA, ATELIANA U. HIJOS, ROLAND A. COBRADO,
CARL ANTHONY D. OLALO, ROY JIM BALANGIDG,
RENATO REYES, JR., CRISTIN A E. PALABAY,
AMARYLLIS H. ENRIQUEZ, ACT TEACHERS'
REPRESENTATIVE ANTONIO L. TINIO, GABRIELA
WOMEN'S PARTY REPRESENTATIVE
i\RLENED.BROSAS,KABATAAN PARTY-LIST
REPRESENTATIVE SARAH JANE I. ELAGO, MAE
PANER, GABRIELA KRISTA DALENA, ANNA
ISABELLE ESTEIN, MARK VINCENT D. LIM, VENCER
MARI CRISOSTOMO, JOVITA MONTES, Petitioners,
vs.
PRESIDENT RODRIGO DUTERTE, EXECUTIVE
SECRETARY SALVADOR MEDIALDEA, DEFENSE
SECRETARY DELFIN LORENZANA, ARMED FORCES
OF THE PHILIPPINES CHIEF OF STAFF LT.
GENERAL EDUARDO ANO, PHILIPPINE NATIONAL
POLICE DIRECTOR-GENERAL RONALD DELA
ROSA, Respondents
x-----------------------x
G.R. No. 231774
NORKAYA S. MOHAMAD, SITTIE NUR DYHANNA S.
MOHAMAD, NORAISAH S. SANI, ZAHRIA P. MUTI-
MAPANDI, Petitioners,
vs.
EXECUTIVE SECRETARY SALVADOR C.
MEDIALDEA, DEPARTMENT OF NATIONAL
DEFENSE (DND) SECRETARY DELFIN N.
LORENZANA, DEPARTMENT OF THE INTERIOR AND
LOCAL GOVERNMENT (DILG) SECRETARY
(OFFICER-INCHARGE) CATALINO S. CUY, ARMED
FORCES OF THE PHILIPPINES (AFP) CHEF OF
STAFF GEN. EDUARDO M. AÑO, PHILIPPINE
NATIONAL POLICE (PNP) CHIEF DIRECTOR
GENERAL RONALD M. DELA ROSA, NATIONAL
SECURITY ADVISER HERMOGENES C. ESPERON,
JR., Respondents.
DECISION
DEL CASTILLO, J.:
Effective May 23, 2017, and for a period not exceeding
60 days, President Rodrigo Roa Duterte issued
Proclamation No. 216 declaring a state of martial law
and suspending the privilege of the writ of habeas
corpus in the whole of Mindanao.
The full text of Proclamation No. 216 reads as follows:
WHEREAS, Proclamation No. 55, series of 2016, was
issued on 04 September 2016 declaring a state of
national emergency on account of lawless violence in
Mindanao;
WHEREAS, Section 18, Article VII of the Constitution
provides that 'x x x In case of invasion or rebellion, when
the public safety requires it, he (the President) may, for a
period not exceeding sixty days, suspend the privilege of
the writ of habeas corpus or place the Philippines or any
part thereof under martial law x x x';
WHEREAS, Article 134 of the Revised Penal Code, as
amended by R.A. No. 6968, provides that 'the crime of
rebellion or insurrection is committed by rising and taking
arms against the Government for the purpose of
removing from the allegiance to said Government or its
laws, the territory of the Republic of the Philippines or
any part thereof, of any body of land, naval or other
armed forces, or depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or
prerogatives';
WHEREAS, part of the reasons for the issuance of
Proclamation No. 55 was the series of violent acts
committed by the Maute terrorist group such as the
attack on the military outpost in Butig, Lanao del Sur in
February 2016, killing and wounding several soldiers,
and the mass jailbreak in Marawi City in August 2016,
freeing their arrested comrades and other detainees;
WHEREAS, today 23 May 2017, the same Maute
terrorist group has taken over a hospital in Marawi City,
Lanao del Sur, established several checkpoints within
the City, burned down certain government and private
158
facilities and inflicted casualties on the part of
Government forces, and started flying the flag of the
Islamic State of Iraq and Syria (ISIS) in several areas,
thereby openly attempting to remove from the allegiance
to the Philippine Government this part of Mindanao and
deprive the Chief Executive of his powers and
prerogatives to enforce the laws of the land and to
maintain public order and safety in Mindanao,
constituting the crime of rebellion; and
WHEREAS, this recent attack shows the capability of the
Maute group and other rebel groups to sow terror, and
cause death and damage to property not only in Lanao
del Sur but also in other parts of Mindanao.
NOW, THEREFORE, I, RODRIGO ROA DUTERTE,
President of the Republic of the Philippines, by virtue of
the powers vested in me by the Constitution and by law,
do hereby proclaim as follows:
SECTION 1. There is hereby declared a state of martial
law in the Mindanao group of islands for a period not
exceeding sixty days, effective as of the date hereof.
SECTION 2. The privilege of the writ of habeas corpus
shall likewise be suspended in the aforesaid area for the
duration of the state of martial law.
DONE in the Russian Federation, this 23rd day of May in
the year of our Lord, Two Thousand and Seventeen.
Within the timeline set by Section 18, Article VII of the
Constitution, the President submitted to Congress on
May 25, 2017, a written Report on the factual basis of
Proclamation No. 216.
The Report pointed out that for decades, Mindanao has
been plagued with rebellion and lawless violence which
only escalated and worsened with the passing of time.
Mindanao has been the hotbed of violent extremism and
a brewing rebellion for decades. In more recent years,
we have witnessed the perpetration of numerous acts of
violence challenging the authority of the duly constituted
authorities, i.e., the Zamboanga siege, the Davao
bombing, the Mamasapano carnage, and the bombings
in Cotabato, Sultan Kudarat, Sulu, and Basilan, among
others. Two armed groups have figured prominently in all
these, namely, the Abu Sayaff Group (ASG) and the
ISIS-backed Maute Group.1
The President went on to explain that on May 23, 2017,
a government operation to capture the high-ranking
officers of the Abu Sayyaf Group (ASG) and the Maute
Group was conducted. These groups, which have been
unleashing havoc in Mindanao, however, confronted the
government operation by intensifying their efforts at
sowing violence aimed not only against the government
authorities and its facilities but likewise against civilians
and their properties. As narrated in the President's
Report:
On 23 May 2017, a government operation to capture
Isnilon Hapilon, a senior leader of the ASG, and Maute
Group operational leaders, Abdullah and Omarkhayam
Maute, was confronted with armed resistance which
escalated into open hostility against the government.
Through these groups' armed siege and acts of violence
directed towards civilians and government authorities,
institutions and establishments, they were able to take
control of major social, economic, and political
foundations of Marawi City which led to its paralysis.
This sudden taking of control was intended to lay the
groundwork for the eventual establishment of a
DAESH wilayat or province in Mindanao.
Based on verified intelligence reports, the Maute Group,
as of the end of 2016, consisted of around two hundred
sixty-three (263) members, fully armed and prepared to
wage combat in furtherance of its aims. The group
chiefly operates in the province of Lanao del Sur, but has
extensive networks and linkages with foreign and local
armed groups such as the Jemaah Islamiyah, Mujahidin
Indonesia Timur and the ASG. It adheres to the ideals
being espoused by the DAESH, as evidenced by, among
others, its publication of a video footage declaring its
allegiance to the DAESH. Reports abound that foreign-
based terrorist groups, the ISIS (Islamic State of Iraq and
Syria) in particular, as well as illegal drug money, provide
financial and logistical support to the Maute Group.
The events commencing on 23 May 2017 put on public
display the groups' clear intention to establish an Islamic
State and their capability to deprive the duly constituted
authorities - the President, foremost - of their powers and
prerogatives.2
In particular, the President chronicled in his Report the
events which took place on May 23, 2017 in Marawi City
which impelled him to declare a state of martial law and
suspend the privilege of writ of habeas corpus, to wit:
• At 1400H members of the Maute Group and ASG,
along with their sympathizers, commenced their attack
on various facilities - government and privately owned -
in the City of Marawi.
• At 1600H around fifty (50) armed criminals assaulted
Marawi City Jail being manage by the Bureau of Jail
Management and Penology (BJMP).
• The Maute Group forcibly entered the jail facilities,
destroyed its main gate, and assaulted on-duty
personnel. BJMP personnel were disarmed, tied, and/or
locked inside the cells.
• The group took cellphones, personnel-issued firearms,
and vehicles (i.e., two [2] prisoner vans and private
vehicles).
• By 1630H, the supply of power into Marawi City had
been interrupted, and sporadic gunfights were heard and
felt everywhere. By evening, the power outage had
spread citywide. (As of 24 May 2017, Marawi City's
electric supply was still cut off, plunging the city into total
black-out.)
• From 1800H to 1900H, the same members of the
Maute Group ambushed and burned the Marawi Police
Station. A patrol car of the Police Station was also taken.
• A member of the Provincial Drug Enforcement Unit was
killed during the takeover of the Marawi City Jail. The
Maute Group facilitated the escape of at least sixty-eight
(68) inmates of the City Jail.
• The BJMP directed its personnel at the Marawi City Jail
and other affected areas to evacuate.
• By evening of 23 May 2017, at least three (3) bridges in
Lanao del Sur, namely, Lilod, Bangulo, and Sauiaran, fell
under the control of these groups. They threatened to
bomb the bridges to pre-empt military reinforcement.
• As of 2222H, persons connected with the Maute Group
had occupied several areas in Marawi City, including
Naga Street, Bangolo Street, Mapandi, and Camp
Keithly, as well as the following barangays: Basak
Malutlot, Mapandi, Saduc, Lilod Maday, Bangon, Saber,
Bubong, Marantao, Caloocan, Banggolo, Barionaga, and
Abubakar.
• These lawless armed groups had likewise set up road
blockades and checkpoints at the Iligan City-Marawi City
junction.
• Later in the evening, the Maute Group burned
Dansalan College Foundation, Cathedral of Maria
Auxiliadora, the nun's quarters in the church, and the
Shia Masjid Moncado Colony. Hostages were taken from
the church.
• About five (5) faculty members of Dansalan College
Foundation had been reportedly killed by the lawless
groups.
• Other educational institutions were also burned,
namely, Senator Ninoy Aquino College Foundation and
the Marawi Central Elementary Pilot School.
• The Maute Group also attacked Amai Pakpak Hospital
and hoisted the DAESH flag there, among other several
159
locations. As of 0600H of 24May 2017, members of the
Maute Group were seen guarding the entry gates of
Amai Pakpak Hospital. They held hostage the
employees of the Hospital and took over the PhilHealth
office located thereat.
• The groups likewise laid siege to another hospital,
Filipino-Libyan Friendship Hospital, which they later set
ablaze.
• Lawless armed groups likewise ransacked the
Landbank of the Philippines and commandeered one of
its armored vehicles.
• Latest information indicates that about seventy-five
percent (75%) of Marawi City has been infiltrated by
lawless armed groups composed of members of the
Maute Group and the ASG. As of the time of this Report,
eleven (11) members of the Armed Forces and the
Philippine National Police have been killed in action,
while thirty-five (35) others have been seriously
wounded.
• There are reports that these lawless armed groups are
searching for Christian communities in Marawi City to
execute Christians. They are also preventing Maranaos
from leaving their homes and forcing young male
Muslims to join their groups.
• Based on various verified intelligence reports from the
AFP and the PNP, there exists a strategic mass action of
lawless armed groups in Marawi City, seizing public and
private facilities, perpetrating killings of government
personnel, and committing armed uprising against and
open defiance of the government.3
The unfolding of these events, as well as the classified
reports he received, led the President to conclude that -
These activities constitute not simply a display of force,
but a clear attempt to establish the groups' seat of power
in Marawi City for their planned establishment of a
DAESH wilayat or province covering the entire
Mindanao.
The cutting of vital lines for transportation and power; the
recruitment of young Muslims to further expand their
ranks and strengthen their force; the armed
consolidation of their members throughout Marawi City;
the decimation of a segment of the city population who
resist; and the brazen display of DAESH flags constitute
a clear, pronounced, and unmistakable intent to remove
Marawi City, and eventually the rest of Mindanao, from
its allegiance to the Government.
There exists no doubt that lawless armed groups are
attempting to deprive the President of his power,
authority, and prerogatives within Marawi City as a
precedent to spreading their control over the entire
Mindanao, in an attempt to undermine his control over
executive departments, bureaus, and offices in said
area; defeat his mandate to ensure that all laws are
faithfully executed; and remove his supervisory powers
over local govemments.4
According to the Report, the lawless activities of the
ASG, Maute Group, and other criminals, brought about
undue constraints and difficulties to the military and
government personnel, particularly in the performance of
their duties and functions, and untold hardships to the
civilians, viz.:
Law enforcement and other government agencies now
face pronounced difficulty sending their reports to the
Chief Executive due to the city-wide power outages.
Personnel from the BJMP have been prevented from
performing their functions. Through the attack and
occupation of several hospitals, medical services in
Marawi City have been adversely affected. The bridge
and road blockades set up by the groups effectively
deprive the government of its ability to deliver basic
services to its citizens. Troop reinforcements have been
hampered, preventing the government from restoring
peace and order in the area. Movement by both civilians
and government personnel to and from the city is
likewise hindered.
The taking up of arms by lawless armed groups in the
area, with support being provided by foreign-based
terrorists and illegal drug money, and their blatant acts of
defiance which embolden other armed groups in
Mindanao, have resulted in the deterioration of public
order and safety in Marawi City; they have likewise
compromised the security of the entire Island of
Mindanao.5
The Report highlighted the strategic location of Marawi
City and the crucial and significant role it plays in
Mindanao, and the Philippines as a whole. In addition,
the Report pointed out the possible tragic repercussions
once Marawi City falls under the control of the lawless
groups.
The groups' occupation of Marawi City fulfills a strategic
objective because of its terrain and the easy access it
provides to other parts of Mindanao. Lawless armed
groups have historically used provinces adjoining Marawi
City as escape routes, supply lines, and backdoor
passages.
Considering the network and alliance-building activities
among terrorist groups, local criminals, and lawless
armed men, the siege of Marawi City is a vital cog in
attaining their long-standing goal: absolute control over
the entirety of Mindanao. These circumstances demand
swift and decisive action to ensure the safety and
security of the Filipino people and preserve our national
integrity.6
The President ended his Report in this wise:
While the government is presently conducting legitimate
operations to address the on-going rebellion, if not the
seeds of invasion, public safety necessitates the
continued implementation of martial law and the
suspension of the privilege of the writ of habeas
corpus in the whole of Mindanao until such time that the
rebellion is completely quelled.7
In addition to the Report, representatives from the
Executive Department, the military and police authorities
conducted briefings with the Senate and the House of
Representatives relative to the declaration of martial law.
After the submission of the Report and the briefings, the
Senate issued P.S. Resolution No. 3888 expressing full
support to the martial law proclamation and finding
Proclamation No. 216 "to be satisfactory, constitutional
and in accordance with the law". In the same Resolution,
the Senate declared that it found "no compelling reason
to revoke the same". The Senate thus resolved as
follows:
NOW, THEREFORE, BE IT RESOLVED, as it is hereby
resolved, by way of the sense of the Senate, that the
Senate finds the issuance of Proclamation No. 216 to be
satisfactory, constitutional and in accordance with the
law. The Senate hereby supports fully Proclamation No.
216 and finds no compelling reason to revoke the sarne. 9
The Senate's counterpart in the lower house shared the
same sentiments. The House of Representatives
likewise issued House Resolution No.
105010 "EXPRESSING THE FULL SUPPORT OF THE
HOUSE OF REPRESENTATIVES TO PRESIDENT
RODRIGO DUTERTE AS IT FINDS NO REASON TO
REVOKE PROCLAMATION NO. 216,
ENTITLED 'DECLARING A STATE OF MARTIAL LAW
AND SUSPENDING THE PRIVILEGE OF THE WRIT
OF HABEAS CORPUS IN THE WHOLE OF
MINDANAO"'.
The Petitions
A) G.R. No. 231658 (Lagman Petition)
On June 5, 2017, Representatives Edcel C. Lagman,
Tomasito s. Villarin, Gary C. Alejano, Emmanuel A.
Billones, and Teddy Brawner Baguilat, Jr. filed
160
a Petition11 Under the Third Paragraph of Section 18 of
Article VII of the 1987 Constitution.
First, the Lagman Petition claims that the declaration of
martial law has no sufficient factual basis because there
is no rebellion or invasion in Marawi City or in any part of
Mindanao. It argues that acts of terrorism in Mindanao
do not constitute rebellion12 since there is no proof that
its purpose is to remove Mindanao or any part thereof
from allegiance to the Philippines, its laws, or its
territory.13 It labels the flying of ISIS flag by the Maute
Group in Marawi City and other outlying areas as mere
propaganda114 and not an open attempt to remove such
areas from the allegiance to the Philippine Government
and deprive the Chief Executive of the assertion and
exercise of his powers and prerogatives therein. It
contends that the Maute Group is a mere private army,
citing as basis the alleged interview of Vera Files with
Joseph Franco wherein the latter allegedly mentioned
that the Maute Group is more of a "clan's private militia
latching into the IS brand theatrically to inflate perceived
capability".15 The Lagman Petition insists that during the
briefing, representatives of the military and defense
authorities did not categorically admit nor deny the
presence of an ISIS threat in the country but that they
merely gave an evasive answer16 that "there is ISIS in
the Philippines".17 The Lagman Petition also avers that
Lt. Gen. Salvador Mison, Jr. himself admitted that the
current armed conflict in Marawi City was precipitated or
initiated by the government in its bid to capture
Hapilon.18Based on said statement, it concludes that the
objective of the Maute Group's armed resistance was
merely to shield Hapilon and the Maute brothers from the
government forces, and not to lay siege on Marawi City
and remove its allegiance to the Philippine Republic. 19 It
then posits that if at all, there is only a threat of rebellion
in Marawi City which is akin to "imminent danger" of
rebellion, which is no longer a valid ground for the
declaration of martial law.20
Second, the Lagman Petition claims that the declaration
of martial law has no sufficient factual basis because the
President's Report containef "false, inaccurate, contrived
and hyperbolic accounts".21
It labels as false the claim in the President's Report that
the Maute Group attacked Amai Pakpak Medical Center.
Citing online reports on the interview of Dr. Amer Saber
(Dr. Saber), the hospital's Chief, the Lagman Petition
insists that the Maute Group merely brought an injured
member to the hospital for treatment but did not overrun
the hospital or harass the hospital personnel. 22 The
Lagman Petition also refutes the claim in the President's
Report that a branch of the Landbank of the Philippines
was ransacked and its armored vehicle commandeered.
It alleges that the bank employees themselves clarified
that the bank was not ransacked while the armored
vehicle was owned by a third party and was empty at the
time it was commandeered.23 It also labels as false the
report on the burning of the Senator Ninoy Aquino
College Foundation and the Marawi Central Elementary
Pilot School. It avers that the Senator Ninoy Aquino
College Foundation is intact as of May 24, 2017 and that
according to Asst. Superintendent Ana Alonto, the
Marawi Central Elementary Pilot School was not burned
by the terrorists.24 Lastly, it points out as false the report
on the beheading of the police chief of Malabang, Lanao
del Sur, and the occupation of the Marawi City Hall and
part of the Mindanao State University.25
Third, the Lagman Petition claims that the declaration of
martial law has no sufficient factual basis since the
President's Report mistakenly included the attack on the
military outpost in Butig, Lanao del Sur in February 2016,
the mass jail break in Marawi City in August 2016, the
Zamboanga siege, the Davao market bombing, the
Mamasapano carnage and other bombing incidents in
Cotabato, Sultan Kudarat, and Basilan, as additional
factual bases for the proclamation of martial law. It
contends that these events either took place long before
the conflict in Marawi City began, had long been
resolved, or with the culprits having already been
arrested.26
Fourth, the Lagman Petition claims that the declaration
of martial law has no sufficient factual basis considering
that the President acted alone and did not consult the
military establishment or any ranking official27 before
making the proclamation.
Finally, the Lagman Petition claims that the President's
proclamation of martial law lacks sufficient factual basis
owing to the fact that during the presentation before the
Committee of the Whole of the House of
Representatives, it was shown that the military was even
successful in pre-empting the ASG and the Maute
Group's plan to take over Marawi City and other parts of
Mindanao; there was absence of any hostile plan by the
Moro Islamic Liberation Front; and the number of foreign
fighters allied with ISIS was "undetermined"28 which
indicates that there are only a meager number of foreign
fighters who can lend support to the Maute Group. 29
Based on the foregoing argumentation, the Lagman
Petition asks the Court to: (1)"exercise its specific and
special jurisdiction to review the sufficiency of the factual
basis of Proclamation No. 216"; and (2) render "a
Decision voiding and nullifying Proclamation No. 216" for
lack of sufficient factual basis.30
In a Resolution31 dated June 6, 2017, the Court required
respondents to comment on the Lagman Petition and set
the case for oral argument on June 13, 14, and 15, 2017.
On June 9, 2017, two other similar petitions docketed as
G.R. Nos. 231771 and 231774 were filed and eventually
consolidated with G.R. No. 231658.32
B) G.R. No. 231771 (Cullamat Petition)
The Cullamat Petition, "anchored on Section 18, Article
VII"33 of the Constitution, likewise seeks the nullification
of Proclamation No. 216 for being unconstitutional
because it lacks sufficient factual basis that there is
rebellion in Mindanao and that public safety warrants its
declaration. 34
In particular, it avers that the supposed rebellion
described in Proclamation No. 216 relates to events
happening in Marawi City only an not in the entire region
of Mindanao. It concludes that Proclamation No 216
"failed to show any factual basis for the imposition of
martial law in the entire Mindanao,"35 "failed to allege any
act of rebellion outside Marawi City, much less x x x
allege that public safety requires the imposition o martial
law in the whole of Mindanao".36
The Cullamat Petition claims that the alleged "capability
of the Maute Group and other rebel groups to sow terror
and cause death and damage to property"37 does not
rise to the level of rebellion sufficient to declare martial
law in the whole of Mindanao.38 It also posits that there is
no lawless violence in other parts of Mindanao similar to
that in Marawi City.39
Moreover, the Cullamat Petition assails the inclusion of
the phrase "other rebel groups" in the last Whereas
Clause of Proclamation No. 216 for being vague as it
failed to identify these rebel groups and specify the acts
of rebellion that they were supposedly waging.40
In addition, the Cullamat Petition cites alleged
inaccuracies, exaggerations, and falsities in the Report
of the President to Congress, particularly the attack at
the Amai Pakpak Hospital, the ambush and burning of
the Marawi Police Station, the killing of five teachers of
Dansalan College Foundation, and the attacks on
various government facilities.41
In fine, the Cullamat Petition prays for the Court to
declare Proclamation No. 216 as unconstitutional or in
the alternative, should the Court find justification for the
161
declaration of martial law and suspension of the privilege
of the writ of habeas corpus in Marawi City, to declare
the same as unconstitutional insofar as its inclusion of
the other parts of Mindanao.42
C) G.R. No. 231774 (Mohamad Petition)
The Mohamad Petition, denominated as a "Petition for
Review of the Sufficiency of [the] Factual Basis of [the]
Declaration of Martial Law and [the] Suspension of the
Privilege of the Writ of Habeas Corpus,"43 labels itself as
"a special proceeding"44 or an "appropriate proceeding
filed by any citizen"45 authorized under Section 18,
Article VII of the Constitution.
The Mohamad Petition posits that martial law is a
measure of last resort46 and should be invoked by the
President only after exhaustion of less severe
remedies.47 It contends that the extraordinary powers of
the President should be dispensed sequentially, i.e., first,
the power to call out the armed forces; second, the
power to suspend the privilege of the writ of habeas
corpus; and finally, the power to declare martial law.48 It
maintains that the President has no discretion to choose
which extraordinary power to use; moreover, his choice
must be dictated only by, and commensurate to, the
exigencies of the situation.49
According to the Mohamad Petition, the factual situation
in Marawi is not so grave as to require the imposition of
martial law.50 It asserts that the Marawi incidents "do not
equate to the existence of a public necessity brought
about by an actual rebellion, which would compel the
imposition of martial law or the suspension of the
privilege of the writ of habeas corpus".51 It proposes that
"[m]artial law can only be justified if the rebellion or
invasion has reached such gravity that [its] imposition x x
x is compelled by the needs of public safety"52 which, it
believes, is not yet present in Mindanao.
Moreover, it alleges that the statements contained in the
President's Report to the Congress, to wit: that the
Maute Group intended to establish an Islamic State; that
they have the capability to deprive the duly constituted
authorities of their powers and prerogatives; and that the
Marawi armed hostilities is merely a prelude to a grander
plan of taking over the whole of Mindanao, are
conclusions bereft of substantiation.53
The Mohamad Petition posits that immediately after the
declaration of martial law, and without waiting for a
congressional action, a suit may already be brought
before the Court to assail the sufficiency of the factual
basis of Proclamation No. 216.
Finally, in invoking this Court's power to review the
sufficiency ofthe factual basis for the declaration of
martial law and the suspension of the privilege of the writ
of habeas corpus, the Mohamad Petition insists that the
Court may "look into the wisdom of the [President's]
actions, [and] not just the presence of
arbitrariness".54 Further, it asserts that since it is making
a negative assertion, then the burden to prove the
sufficiency of the factual basis is shifted to and lies on
the respondents.55 It thus asks the Court "to compel the
[r]espondents to divulge relevant information" 56in order
for it to review the sufficiency of the factual basis.
In closing, the Mohamad Petition prays for the Court to
exercise its power to review, "compel respondents to
present proof on the factual basis [of] the declaration of
martial law and the suspension of the privilege of the writ
of habeas corpus in Mindanao"57 and declare as
unconstitutional Proclamation No. 216 for lack of
sufficient factual basis.
The Consolidated Comment
The respondents' Consolidated Comment58 was filed on
June 12, 2017, as required by the Court. Noting that the
same coincided with the celebration of the 119th
anniversary of the independence of this Republic, the
Office of the Solicitor General (OSG) felt that "defending
the constitutionality of Proclamation No. 216" should
serve as "a rallying call for every Filipino to unite behind
one true flag and defend it against all threats from within
and outside our shores".59
The OSG acknowledges that Section 18, Article VII of
the Constitution vests the Court with the authority or
power to review the sufficiency of the factual basis of the
declaration of martial law.60 The OSG, however, posits
that although Section 18, Article VII lays the basis for the
exercise of such authority or power, the same
constitutional provision failed to specify the vehicle,
mode or remedy through which the "appropriate
proceeding" mentioned therein may be resorted to. The
OSG suggests that the "appropriate proceeding" referred
to in Section 18, Article VII may be availed of using the
vehicle, mode or remedy of a certiorari petition, either
under Section 1 or 5, of Article VIII.61Corollarily, the OSG
maintains that the review power is not mandatory, but
discretionary only, on the part of the Court. 62 The Court
has the discretion not to give due course to the petition. 63
Prescinding from the foregoing, the OSG contends that
the sufficiency of the factual basis of Proclamation No.
216 should be reviewed by the Court "under the lens of
grave abuse of discretion"64 and not the yardstick of
correctness of the facts.65 Arbitrariness, not correctness,
should be the standard in reviewing the sufficiency of
factual basis.
The OSG maintains that the burden lies not with the
respondents but with the petitioners to prove that
Proclamation No. 216 is bereft of factual basis.1âwphi1 It
thus takes issue with petitioners' attempt to shift the
burden of proof when they asked the Court "to compel
[the] respondents to present proof on the factual
basis"66 of Proclamation No. 216. For the OSG, "he who
alleges must prove"67 and that governmental actions are
presumed to be valid and constitutional.68
Likewise, the OSG posits that the sufficiency of the
factual basis must be assessed from the trajectory or
point of view of the President and base on the facts
available to him at the time the decision was made.69 It
argues that the sufficiency of the factual basis should be
examined not based on the facts discovered after the
President had made his decision to declare martial law
because to do so would subject the exercise of the
President's discretion to an impossible standard.70 It
reiterates that the President's decision should be guided
only by the information and data available to him at the
time he made the determination.71 The OSG thus asserts
that facts that were established after the declaration of
martial law should not be considered in the review of the
sufficiency of the factual basis of the proclamation of
martial law. The OSG suggests that the assessment of
after-proclamation facts lies with the President and
Congress for the purpose of determining the propriety of
revoking or extending the martial law. The OSG fears
that if the Court considers after-proclamation-facts in its
review of the sufficiency of the factual basis for the
proclamation, it would in effect usurp the powers of the
Congress to determine whether martial law should be
revoked or extended.72
It is also the assertion of the OSG that the President
could validly rely on intelligence reports coming from the
Armed Forces of the Philippines;73 and that he could not
be expected to personally determine the veracity of
thecontents of the reports.74 Also, since the power to
impose martial law is vested solely on the President as
Commander-in-Chief, the lack of recommendation from
the Defense Secretary, or any official for that matter, will
not nullify the said declaration, or affect its validity, or
compromise the sufficiency of the factual basis.
Moreover, the OSG opines that the petitioners miserably
failed to validly refute the facts cited by the President in
Proclamation No. 216 and in his Report to the Congress
by merely citing news reports that supposedly contradict
162
the facts asserted therein or by criticizing in piecemeal
the happenings in Marawi. For the OSG, the said news
articles are "hearsay evidence, twice removed," 75 and
thus inadmissible and without probative value, and could
not overcome the "legal presumption bestowed on
governmental acts".76
Finally, the OSG points out that it has no duty or burden
to prove that Proclamation No. 216 has sufficient factual
basis. It maintains that the burden rests with the
petitioners. However, the OSG still endeavors to lay out
the factual basis relied upon by the President "if only to
remove any doubt as to the constitutionality of
Proclamation No. 216".77
The facts laid out by the OSG in its Consolidated
Comment will be discussed in detail in the Court's
Ruling.
ISSUES
The issues as contained in the revised Advisory78 are as
follows:
1. Whether or not the petitions docketed as G.R. Nos.
231658, 231771, and 231774 are the "appropriate
proceeding" covered by Paragraph 3, Section 18, Article
VII of the Constitution sufficient to invoke the mode of
review required of this Court when a declaration of
martial law or the suspension of the privilege of the writ
of habeas corpus is promulgated;
2. Whether or not the President in declaring martial law
and suspending the privilege of the writ of habeas
corpus:
a. is required to be factually correct or only not arbitrary
in his appreciation of facts;
b. is required to obtain the favorable recommendation
thereon of the Secretary of National Defense;
c. is required to take into account only the situation at the
time of the proclamation, even if subsequent events
prove the situation to have not been accurately reported;
3. Whether or not the power of this Court to review the
sufficiency of the factual basis [of] the proclamation of
martial law or the suspension of the privilege of the writ
of habeas corpus is independent of the actual actions
that have been taken by Congress jointly or separately;
4. Whether or not there were sufficient factual [basis] for
the proclamation of martial law or the suspension of the
privilege of the writ of habeas corpus;
a. What are the parameters for review?
b. Who has the burden of proof?
c. What is the threshold of evidence?
5. Whether the exercise of the power of judicial review
by this Court involves the calibration of graduated
powers granted the President as Commander-in-Chief,
namely calling out powers, suspension of the privilege of
the writ of habeas corpus, and declaration of martial law;
6. Whether or not Proclamation No. 216 of 23 May 2017
may be considered, vague and thus null and void:
a. with its inclusion of "other rebel groups;" or
b. since it has no guidelines specifying its actual
operational parameters within the entire Mindanao
region;
7. Whether or not the armed hostilities mentioned in
Proclamation No. 216 and in the Report of the President
to Congress are sufficient [bases]:
a. for the existence of actual rebellion; or
b. for a declaration of martial law or the suspension of
the privilege of the writ of habeas corpus in the entire
Mindanao 1 region;
8. Whether or not terrorism or acts attributable to
terrorism are equivalent to actual rebellion and the
requirements of public safety sufficient to declare martial
law or suspend the privilege of the writ of habeas
corpus; and
9. Whether or not nullifying Proclamation No. 216 of 23
May 2017 will:
a. have the effect of recalling Proclamation No. 55 s.
2016; or
b. also nullify the acts of the President in calling out the
armed forces to quell lawless violence in Marawi and
other parts of the Mindanao region.
After the oral argument, the parties submitted their
respective memoranda and supplemental memoranda.
OUR RULING
I. Locus standi of petitioners.
One of the requisites for judicial review is locus standi,
i.e., "the constitutional question is brought before [the
Court] by a party having the requisite 'standing' to
challenge it."79 As a general rule, the challenger 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."80 Over the years, there
has been a trend towards relaxation of the rule on legal
standing, a prime example of which is found in Section
18 of Article VII which provides that any citizen may file
the appropriate proceeding to assail the sufficiency of
the factual basis of the declaration of martial law or the
suspension of the privilege of the writ of habeas
corpus. "[T]he only requisite for standing to challenge the
validity of the suspension is that the challenger be a
citizen. He need not even be a taxpayer."81
Petitioners in the Cullamat Petition claim to be "suing in
their capacities as citizens of the Republic;"82 similarly,
petitioners in the Mohamad Petition all claim to be
"Filipino citizens, all women, all of legal [age], and
residents of Marawi City".83 In the Lagman Petition,
however, petitioners therein did not categorically mention
that they are suing's citizens but merely referred to
themselves as duly elected Representatives.84 That they
are suing in their official capacities as Members of
Congress couLd have elicited a vigorous discussion
considering the issuance by the House of
Representatives of House Resolution No. 1050
expressing full support to President Duterte and finding
no reason to revoke Proclamation No. 216. By such
resolution, the House of Representatives is declaring
that it finds no reason to review the sufficiency of the
factual basis of the martial law declaration, which is in
direct contrast to the views and arguments being
espoused by the petitioners in the Lagman Petition.
Considering, however, the trend towards relaxation of
the rules on legal standing, as well as the transcendental
issues involved in the present Petitions, the Court will
exercise judicial self-restraint85 and will not venture into
this matter. After all, "the Court is not entirely without
discretion to accept a suit which does not satisfy the
requirements of a [bona fide] case or of standing.
Considerations paramount to [the requirement of legal
standing] could compel assumption of jurisdiction." 86 In
any case, the Court can take judicial cognizance of the
fact that petitioners in the Lagman Petition are all
citizens of the Philippines since Philippine citizenship is a
requirement for them to be elected as representatives.
We will therefore consider them as suing in their own
behalf as citizens of this country. Besides, respondents
did not question petitioners' legal standing.
II. Whether or not the petitions are the
"appropriate proceeding" covered by paragraph
3, Section 18, Article VII of the Constitution
sufficient to invoke the mode of review required
by the Court.
All three petitions beseech the cognizance of this Court
based on the third paragraph of Section 18, Article VII
(Executive Department) of the 1987 Constitution which
provides:
The Supreme Court may review, in an appropriate
proceeding filed by any citizen, the sufficiency of the
163
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ or the extension
thereof, and must promulgate its decision thereon within
thirty days from its filing.
During the oral argument, the petitioners theorized that
the jurisdiction of this Court under the third paragraph of
Section 18, Article VII is sui generis.87 It is a special and
specific jurisdiction of the Supreme Court different from
those enumerated in Sections 1 and 5 of Article VIII. 88
The Court agrees.
a) Jurisdiction must be
specifically conferred by the
Constitution or by law.
It is settled that jurisdiction over the subject matter is
conferred only by the Constitution or by the law.89 Unless
jurisdiction has been specifically conferred by the
Constitution or by some legislative act, no body or
tribunal has the power to act or pass upon a matter
brought before it for resolution. It is likewise settled that
in the absence of a clear legislative intent, jurisdiction
cannot be implied from the language of the Constitution
or a statute.90 It must appear clearly from the law or it will
not be held to exist.91
A plain reading of the afore-quoted Section 18, Article VII
reveals that it specifically grants authority to the Court to
determine the sufficiency of the factual basis of the
proclamation of martial law or suspension of the privilege
of the writ of habeas corpus.
b) "In an appropriate
proceeding" does not refer to a
petition for certiorari filed under
Section 1 or 5 of Article VIII
It could not have been the intention of the framers of the
Constitution that the phrase "in an appropriate
proceeding" would refer to a Petition
for Certiorari pursuant to Section 1 or Section 5 of Article
VIII. The standard of review in a petition for certiorari is
whether the respondent has committed any grave abuse
of discretion amounting to lack or excess of jurisdiction in
the performance of his or her functions. Thus, it is not
the proper tool to review the sufficiency of the factual
basis of the proclamationor suspension. It must be
emphasized that under Section 18, Article VII, the Court
is tasked to review the sufficiency of the factual basis of
the President's exercise of emergency powers. Put
differently, if this Court applies the standard of review
used in a petition for certiorari, the same would
emasculate its constitutional task under Section 18,
Article VII.
c) Purpose/significance of
Section 18, Article VII is to
constitutionalize the pre-Marcos
martial law ruling in In the Matter of
the Petition for Habeas Corpus of Lansang.
The third paragraph of Section 18, Article VII was
inserted by the framers of the 1987 Constitution to
constitutionalize the pre-Marcos martial law ruling of this
Court in In the Matter of the Petition for Habeas Corpus
of Lansang,92 to wit: that the factual basis of the
declaration of martial law or the suspension of the
privilege of the writ of habeas corpus is not a political
question but precisely within the ambit of judicial review.
"In determining the meaning, intent, and purpose of a
law or constitutional provision, the history of the times
out of which it grew and to which it may be rationally
supposed to bear some direct relationship, the evils
intended to be remedied, and the good to be
accomplished are proper subjects of inquiry."93 Fr.
Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the
Constitutional Commission that drafted the 1987
Constitution, explained:
The Commander-in-Chief provisions of the 1935
Constitution had enabled President Ferdinand Marcos to
impose authoritarian rule on the Philippines from 1972 to
1986. Supreme Court decisions during that period
upholding the actions taken by Mr. Marcos made
authoritarian rule part of Philippine constitutional
jurisprudence. The members of the Constitutional
Commission, very much aware of these facts, went
about reformulating the Commander-in-Chief powers
with a view to dismantling what had been constructed
during the authoritarian years. The new formula included
revised grounds for the activation of emergency powers,
the manner of activating them, the scope of the powers,
and review of presidential action.94 (Emphasis supplied)
To recall, the Court held in the 1951 case of Montenegro
v. Castaneda95 that the authority to decide whether there
is a state of rebellion requiring the suspension of the
privilege of the writ of habeas corpus is lodged with the
President and his decision thereon is final and
conclusive upon the courts. This ruling was reversed in
the 1971 case of Lansang where it was held that the
factual basis of the declaration of martial law and the
suspension of the privilege of the writ of habeas
corpus is not a political question and is within the ambit
of judicial review.96 However, in 1983, or after the
declaration of martial law by former President Ferdinand
E. Marcos, the Court, in Garcia-Padilla v.
Enrile,97 abandoned the ruling in Lansang and reverted
to Montenegro. According to the Supreme Court, the
constitutional power of the President to suspend the
privilege of the writ of habeas corpus is not subject to
judicial inquiry.98
Thus, by inserting Section 18 in Article VII which allows
judicial review of the declaration of martial law and
suspension of the privilege of the writ of habeas
corpus, the framers of the 1987 Constitution in effect
constitutionalized and reverted to the Lansang doctrine.
d) Purpose of Section 18,
Article VII is to provide additional
safeguard against possible abuse by
the President on the exercise of the
extraordinary powers.
Section 18, Article VII is meant to provide additional
safeguard against possible abuse by the President in the
exercise of his power to declare martial law or suspend
the privilege of the writ of habeas corpus. Reeling from
the aftermath of the Marcos martial law, the framers of
the Constitution deemed it wise to insert the now third
paragraph of Section 18 of Article VII.99 This is clear from
the records of the Constitutional Commission when its
members were deliberating on whether the President
could proclaim martial law even without the concurrence
of Congress. Thus:
MR. SUAREZ. Thank you, Madam President.
The Commissioner is proposing a very substantial
amendment because this means that he is vesting
exclusively unto the President the right to determine the
factors which may lead to the declaration of martial law
and the suspension of the writ of habeas corpus. I
suppose he has strong and compelling reasons in
seeking to delete this particular, phrase. May we be
informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion
or rebellion. And in previous interpellations regarding this
phrase, even during the discussions on the Bill of Rights,
as I understand it, the interpretation is a situation of
actual invasion or rebellion. In these situations, the
President has to act quickly. Secondly, this declaration
has a time fuse. It is only good for a maximum of 60
days. At the end of 60 days, it automatically terminates.
Thirdly, the right of the judiciary to inquire into the
sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
MR. SUAREZ. Given our traumatic experience during
the past administration, if we give exclusive right to the
164
President to determine these factors, especially the
existence of an invasion or rebellion and the second
factor of determining whether the public safety requires it
or not, may I call the attention of the Gentleman to what
happened to us during the past administration.
Proclamation No. 1081 was issued by Ferdinand E.
Marcos in his capacity as President of the Philippines by
virtue of the powers vested upon him purportedly under
Article VII, Section 10 (2) of the Constitution, wherein he
made this predicate under the "Whereas" provision:
Whereas, the rebellion and armed action undertaken by
these lawless elements of the Communists and other
armed aggrupations organized to overthrow the Republic
of the Philippines by armed violence and force have
assumed the magnitude of an actual state of war against
our people and the Republic of the Philippines.
And may I also call the attention of the Gentleman to
General Order No. 3, also promulgated by Ferdinand E.
Marcos, in his capacity as Commander-in-Chief of all the
Armed Forces of the Philippines and pursuant to
Proclamation No. 1081 dated September 21, 1972
wherein he said, among other things:
Whereas, martial law having been declared because of
wanton destruction of lives and properties, widespread
lawlessness and anarchy and chaos and disorder now
prevailing throughout the country, which condition has
been brought about by groups of men who are actively
engaged in a criminal conspiracy to seize political and
state power in the Philippines in order to take over the
government by force and violence, the extent of which
has now assumed the proportion of an actual war
against our people and the legitimate government ...
And he gave all reasons in order to suspend the privilege
of the writ of habeas corpus and declare martial law in
our country without justifiable reason. Would the
Gentleman still insist on the deletion of the phrase 'and,
with the concurrence of at least a majority of all the
members of the Congress'?
MR. MONSOD. Yes, Madam President, in the case
of Mr.Marcos, he is undoubtedly an aberration in our
history and national consciousness. But given the
possibility that there would be another Marcos, our
Constitution now has sufficient safeguards. As I said, it is
not really true, as the Gentleman has mentioned, that
there is an exclusive right to determine the factual basis
because the paragraph beginning on line 9 precisely
tells us that the Supreme Court may review, in an
appropriate proceeding filed by any citizen, the
sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ
or the extension thereof and must promulgate its
decision on the same within 30 days from its filing.
I believe that there are enough safeguards. The
Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public
interest in case of invasion or rebellion as against the
rights of citizens. And I am saying that there are enough
safeguards, unlike in 1972 when Mr. Marcos was able to
do all those things mentioned.100
To give more teeth to this additional safeguard, the
framers of the 1987 Constitution not only placed the
President's proclamation of martial law or suspension of
the privilege of the writ of habeas corpus within the ambit
of judicial review, it also relaxed the rule on standing by
allowing any citizen to question before this Court the
sufficiency of the factual basis of such proclamation or
suspension. Moreover, the third paragraph of Section 18,
Article VII veritably conferred upon any citizen a
demandable right to challenge the sufficiency of the
factual basis of said proclamation or suspension. It
further designated this Court as the reviewing tribunal to
examine, in an appropriate proceeding, the sufficiency of
the factual basis and to render its decision thereon within
a limited period of 30 days from date of filing.
e) Purpose of Section 18,
Article VII is to curtail the extent of
the powers of the President.
The most important objective, however, of Section 18,
Article VII is the curtailment of the extent of the powers
of the Commander-in-Chief. This is the primary reason
why the provision was not placed in Article VIII or the
Judicial Department but remained under Article VII or the
Executive Department.
During the closing session of the Constitutional
Commission's deliberations, President Cecilia Muñoz
Palma expressed her sentiments on the 1987
Constitution. She said:
The executive power is vested in the President of the
Philippines elected by the people for a six-year term with
no reelection for the duration of his/her life. While
traditional powers inherent in the office of the President
are granted, nonetheless for the first time, there are
specific provisions which curtail the extent of such
powers. Most significant is the power of the Chief
Executive to suspend the privilege of the writ of habeas
corpus or proclaim martial law.
The flagrant abuse of that power of the Commander-in-
Chief by Mr. Marcos caused the imposition of martial law
for more than eight years and the suspension of the
privilege of the writ even after the lifting of martial law in
1981. The new Constitution now provides that those
powers can be exercised only in two cases, invasion or
rebellion when public safety demands it, only for a period
not exceeding 60 days, and reserving to Congress the
power to revoke such suspension or proclamation of
martial law which congressional action may not be
revoked by the President. More importantly, the action of
the President is made subject to judicial review, thereby
again discarding jurisprudence which render[s] the
executive action a political question and beyond the
jurisdiction of the courts to adjudicate.
For the first time, there is a provision that the state of
martial law does not suspend the operation of the
Constitution nor abolish civil courts or legislative
assemblies, or vest jurisdiction to military tribunals over
civilians, or suspend the privilege of the writ. Please
forgive me if, at this point, I state that this constitutional
provision vindicates the dissenting opinions I have
written during my tenure in the Supreme Court in the
martial law cases.101
f) To interpret "appropriate
proceeding" as filed under Section 1
of Article VIII would be contrary to
the intent of the Constitution.
To conclude that the "appropriate proceeding" refers to a
Petition for Certiorari filed under the expanded
jurisdiction of this Court would, therefore, contradict the
clear intention of the framers of the Constitution to
place additional safeguards against possible martial law
abuse for, invariably, the third paragraph of Section 18,
Article VII would be subsumed under Section 1 of Article
VIII. In other words, the framers of the Constitution
165
added the safeguard under the third paragraph of
Section 18, Article VII on top of the expanded jurisdiction
of this Court.
g) Jurisdiction of the Court is
not restricted to those enumerated in
Sections I and 5 of Article VIII
The jurisdiction of this Court is not restricted to those
enumerated in Sections 1 and 5 of Article VIII. For
instance, its jurisdiction to be the sole judge of all
contests relating to the election, returns, and
qualifications of the President or Vice-President can be
found in the last paragraph of Section 4, Article
VII.102 The power of the Court to review on certiorari the
decision, order, or ruling of the Commission on Elections
and Commission on Audit can be found in Section 7,
Article IX(A).103
h) Unique features of the third
paragraph of Section 18, Article VII
make it sui generis.
The unique features of the third paragraph of Section 18,
Article VII clearly indicate that it should be treated as sui
generis separate and different from those enumerated in
Article VIII. Under the third paragraph of Section 18,
Article VII, a petition filed pursuant therewith will follow a
different rule on standing as any citizen may file it. Said
provision of the Constitution also limits the issue to the
sufficiency of the factual basis of the exercise by the
Chief Executive of his emergency powers. The usual
period for filing pleadings in Petition for Certiorari is
likewise not applicable under the third paragraph of
Section 18, Article VII considering the limited period
within which this Court has to promulgate its decision.
A proceeding "[i]n its general acceptation, [is] the form in
which actions are to be brought and defended, the
manner of intervening in suits, of conducting them, the
mode of deciding them, of opposing judgments, and of
executing."104In fine, the phrase "in an appropriate
proceeding" appearing on the third paragraph of Section
18, Article VII refers to any action initiated by a citizen for
the purpose of questioning the sufficiency of the factual
basis of the exercise of the Chief Executive's emergency
powers, as in these cases. It could be denominated as a
complaint, a petition, or a matter to be resolved by the
Court.
III. The power of the Court to review the
sufficiency of the factual basis of the
proclamation of martial law or the suspension of
the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is
independent of the actions taken by Congress.
During the oral argument,105 the OSG urged the Court to
give! deference to the actions of the two co-equal
branches of the Government: on' the part of the
President as Commander-in-Chief, in resorting to his
extraordinary powers to declare martial law and suspend
the privilege of the writ of habeas corpus; and on the
part of Congress, in giving its imprimatur to Proclamation
No. 216 and not revoking the same.
The framers of the 1987 Constitution reformulated the
scope of the extraordinary powers of the President as
Commander-in-Chief and the review of the said
presidential action. In particular, the President's
extraordinary powers of suspending the privilege of the
writ of habeas corpus and imposing martial law are
subject to the veto powers of the Court and Congress.
a) The judicial power to review
versus the congressional power to
revoke.
The Court may strike down the presidential proclamation
in an appropriate proceeding filed by any citizen on the
ground of lack of sufficient factual basis. On the other
hand, Congress may revoke the proclamation or
suspension, which revocation shall not be set aside by
the President.
In reviewing the sufficiency of the factual basis of the
proclamation or suspension, the Court considers only the
information and data available to the President prior to or
at the time of the declaration; it is not allowed td
"undertake an independent investigation beyond the
pleadings."106 On the other hand, Congress may take
into consideration not only data available prior to, but
likewise events supervening the declaration. Unlike the
Court I which does not look into the absolute correctness
of the factual basis as will be discussed below, Congress
could probe deeper and further; it can delve into the
accuracy of the facts presented before it.
In addition, the Court's review power is passive; it is only
initiated by the filing of a petition "in an appropriate
proceeding" by a citizen. On the other hand, Congress'
review mechanism is automatic in the sense that it may
be activated by Congress itself at any time after the
proclamation or suspension was made.
Thus, the power to review by the Court and the power to
revoke by Congress are not only totally different but
likewise independent from each other although
concededly, they have the same trajectory, which is, the
nullification of the presidential proclamation. Needless to
say, the power of the Court to review can be exercised
independently from the power of revocation of Congress.
b) The framers of the 1987
Constitution intended the judicial
power to review to be exercised
independently from the congressional
power to revoke.
If only to show that the intent of the framers of the 1987
Constitution was to vest the Court and Congress with
veto powers independently from each other, we quote
the following exchange:
MS. QUESADA. Yesterday, the understanding of many
was that there would be safeguards that Congress will
be able to revoke such proclamation.
MR. RAMA. Yes.
MS. QUESADA. But now, if they cannot meet because
they have been arrested or that the Congress has been
padlocked, then who is going to declare that such a
proclamation was not warranted?
xxxx
MR. REGALADO. May I also inform Commissioner
Quesada that the judiciary is not exactly just standing by.
A petition for a writ of habeas corpus, if the Members are
detained, can immediately be applied for, and the
Supreme Court shall also review the factual basis. x x
x107
c) Re-examination of the
Court's pronouncement in Fortun v.
President Macapagal-Arroyo
Considering the above discussion, the Court finds it
imperative to re-examine, reconsider, and set aside its
pronouncement in Fortun v. President Macapagal-
Arroyo108 to the effect that:
Consequently, although the Constitution reserves to the
Supreme Court the power to review the sufficiency of the
factual basis of the proclamation or suspension in a
proper suit, it is implicit that the Court must allow
Congress to exercise its own review powers, which is
automatic rather than initiated. Only when Congress
defaults in its express duty to defend the Constitution
through such review should the Supreme Court step in
as its final rampart. The constitutional validity of the
President's proclamation of martial law or suspension of
the writ of habeas corpus is first a political question in
the hands of Congress before it becomes a justiciable
one in the hands of the Court.109
xxxx
166
If the Congress procrastinates or altogether fails to fulfill
its duty respecting the proclamation or suspension within
the short time expected of it, then the Court can step in,
hear the petitions challenging the President's action, and
ascertain if it has a factual basis. x x x110
By the above pronouncement, the Court willingly but
unwittingly clipped its own power and surrendered the
same to Congress as well as: abdicated from its
bounden duty to review. Worse, the Court considered'
itself just on stand-by, waiting and willing to act as a
substitute in case Congress "defaults." It is an
aberration, a stray declaration, which must be rectified
and set aside in this proceeding.111
We, therefore, hold that the Court can simultaneously
exercise its power of review with, and independently
from, the power to revoke by Congress. Corollary, any
perceived inaction or default on the part of Congress
does not deprive or deny the Court of its power to
review.
IV. The judicial power to review the sufficiency
of factual basis of the declaration of martial law
or the suspension of the privilege of the writ of
habeas corpus does not extend to the calibration
of the President's decision of which among his
graduated powers he will avail of in a given
situation.
The President as the Commander-in-Chief wields the
extraordinary powers of: a) calling out the armed forces;
b) suspending the privilege of the writ of habeas
corpus; and c) declaring martial law.112 These powers
may be resorted to only under specified conditions.
The framers of the 1987 Constitution reformulated the
powers of the Commander-in-Chief by revising the
"grounds for the activation of emergency powers, the
manner of activating them, the scope of the powers, and
review of presidential action."113
a) Extraordinary powers of the
President distinguished.
Among the three extraordinary powers, the calling out
power is the most benign and involves ordinary police
action.114 The President may resort to this extraordinary
power whenever it becomes necessary to prevent or
suppress lawless violence, invasion, or rebellion. "[T]he
power to call is fully discretionary to the President;" 115 the
only limitations being that he acts within permissible
constitutional boundaries or in a manner not constituting
grave abuse of discretion.116 In fact, "the actual use to
which the President puts the armed forces is x x x not
subject to judicial review."117
The extraordinary powers of suspending the privilege of
the writ of habeas corpus and/or declaring martial law
may be exercised only when there is actual invasion or
rebellion, and public safety requires it. The 1987
Constitution imposed the following limits in the exercise
of these powers: "(1) a time limit of sixty days; (2) review
and possible revocation by Congress; [and] (3) review
and possible nullification by the Supreme Court." 118
The framers of the 1987 Constitution eliminated
insurrection, and the phrase "imminent danger thereof'
as grounds for the suspension of the privilege of the writ
of habeas corpus or declaration of martial law.119 They
perceived the phrase "imminent danger" to be "fraught
with possibilities of abuse;"120 besides, the calling out
power of the President "is sufficient for handling
imminent danger."121
The powers to declare martial law and to suspend the
privilege of the writ of habeas corpus involve curtailment
and suppression of civil rights and individual freedom.
Thus, the declaration of martial law serves as a warning
to citizens that the Executive Department has called
upon the military to assist in the maintenance of law and
order, and while the emergency remains, the citizens
must, under pain of arrest and punishment, not act in a
manner that will render it more difficult to restore order
and enforce the law.122 As such, their exercise requires
more stringent safeguards by the Congress, and review
by the Court.123
b) What really happens during martial law?
During the oral argument, the following questions
cropped up: What really happens during the imposition
of martial law? What powers could the President
exercise during martial law that he could not exercise if
there is no martial law? Interestingly, these questions
were also discussed by the framers of the 1987
Constitution, viz.:
FR. BERNAS. That same question was asked during the
meetings of the Committee: What precisely does martial
law add to the power of the President to call on the
armed forces? The first and second lines in this provision
state:
A state of martial law does not suspend the operation of
the Constitution, nor supplant the functioning of the civil
courts or legislative assemblies...
The provision is put there, precisely, to reverse the
doctrine of the Supreme Court. I think it is the case
of Aquino v. COMELEC where the Supreme Court said
that in times of martial law, the President automatically
has legislative power. So these two clauses denied that.
A state of martial law does not suspend the operation of
the Constitution; therefore, it does not suspend the
principle of separation of powers.
The question now is: During martial law, can the
President issue decrees? The answer we gave to that
question in the Committee was: During martial law, the
President may have the powers of a commanding
general in a theatre of war. In actual war when there is
fighting in an area, the President as the commanding
general has the authority to issue orders which have the
effect of law but strictly in a theater of war, not in the
situation we had during the period of martial law. In other
words, there is an effort here to return to the traditional
concept of martial law as it was developed especially in
American jurisprudence, where martial law has reference
to the theater of war.124
xxxx
FR. BERNAS. This phrase was precisely put here
because we have clarified the meaning of martial law;
meaning, limiting it to martial law as it has existed in the
jurisprudence in international law, that it is a law for the
theater of war. In a theater of war, civil courts are unable
to function. If in the actual theater of war civil courts, in
fact, are unable to function, then the military commander
is authorized to give jurisdiction even over civilians to
military courts precisely because the civil courts are
closed in that area. But in the general area where the
civil courts are open then in no case can the military
courts be given jurisdiction over civilians. This is in
reference to a theater of war where the civil courts, in
fact, are unable to function.
MR. FOZ. It is a state of things brought about by the
realities of the situation in that specified critical area.
FR. BERNAS. That is correct.
MR. FOZ. And it is not something that is brought about
by a declaration of the Commander-in-Chief.
FR. BERNAS. It is not brought about by a declaration of
the Commander-in-Chief. The understanding here is that
the phrase 'nor authorize the conferment of jurisdiction
on military courts and agencies over civilians' has
reference to the practice under the Marcos regime where
military courts were given jurisdiction over civilians. We
say here that we will never allow that except in areas
where civil courts are, in fact, unable to function and it
becomes necessary for some kind of court to function.125
A state of martial law is peculiar because the President,
at such a time, exercises police power, which is normally
167
a function of the Legislature. In particular, the President
exercises police power, with the military’s assistance, to
ensure public safety and in place of government
agencies which for the time being are unable to cope
with the condition in a locality, which remains under the
control of the State.126
In David v. President Macapagal-Arroyo,127 the Court,
quoting Justice Vicente V. Mendoza's (Justice
Mendoza) Statement before the Senate Committee on
Justice on March 13, 2006, stated that under a valid
declaration of martial law, the President as Commander-
in-Chief may order the "(a) arrests and seizures without
judicial warrants; (b) ban on public assemblies; (c)
[takeover] of news media and agencies and press
censorship; and (d) issuance of Presidential Decrees x x
x".128
Worthy to note, however, that the above-cited acts that
the President may perform do not give him unbridled
discretion to infringe on the rights of civilians during
martial law. This is because martial law does not
suspend the operation of the Constitution, neither does it
supplant the operation of civil courts or legislative
assemblies. Moreover, the guarantees under the Bill of
Rights remain in place during its pendency. And in such
instance where the privilege of the writ of habeas
corpus is also suspended, such suspension applies only
to those judicially charged with rebellion or offenses
connected with invasion.129
Clearly, from the foregoing, while martial law poses the
most severe threat to civil liberties,130 the Constitution
has safeguards against the President's prerogative to
declare a state of martial law.
c) "Graduation" of powers
refers to hierarchy based on scope
and effect; it does not refer to a
sequence, order, or arrangement by
which the Commander-in-Chief must
adhere to.
Indeed, the 1987 Constitution gives the "President, as
Commander-in- Chief, a 'sequence' of 'graduated
power[s]'. From the most to the least benign, these are:
the calling out power, the power to suspend the privilege
of the writ of habeas corpus, and the power to declare
martial law."131 It must be stressed, however, that the
graduation refers only to hierarchy based on scope and
effect. It does not in any manner refer to a sequence,
arrangement, or order which the Commander-in-Chief
must follow. This so-called "graduation of powers" does
not dictate or restrict the manner by which the President
decides which power to choose.
These extraordinary powers are conferred by the
Constitution with the President as Commander-in-Chief;
it therefore necessarily follows that the power and
prerogative to determine whether the situation warrants
a mere exercise of the calling out power; or whether the
situation demands suspension of the privilege of the writ
of habeas corpus; or whether it calls for the declaration
of martial law, also lies, at least initially, with the
President. The power to choose, initially, which among
these extraordinary powers to wield in a given set of
conditions is a judgment call on the part of the President.
As Commander-in-Chief, his powers are broad enough
to include his prerogative to address exigencies or
threats that endanger the government, and the very
integrity of the State.132
It is thus beyond doubt that the power of judicial review
does not extend to calibrating the President's decision
pertaining to which extraordinary power to avail given a
set of facts or conditions. To do so would be tantamount
to an incursion into the exclusive domain of the
Executive and an infringement on the prerogative that
solely, at least initially, lies with the President.
d) The framers of the 1987
Constitution intended the Congress
not to interfere a priori in the
decision-making process of the
President.
The elimination by the framers of the 1987 Constitution
of the requirement of prior concurrence of the Congress
in the initial imposition of martial law or suspension of the
privilege of the writ of habeas corpus further supports
the conclusion that judicial review does not include the
calibration of the President's decision of which of his
graduated powers will be availed of in a given situation.
Voting 28 to 12, the framers of the 1987 Constitution
removed the requirement of congressional concurrence
in the first imposition of martial law and suspension of
the privilege.133
MR. PADILLA.x x x
We all agree with the suspension of the writ or the
proclamation of martial law should not require
beforehand the concurrence of the majority of the
Members of the Congress. However, as provided by the
Committee, the Congress may revoke, amend, or
shorten or even increase the period of such
suspension.134
xxxx
MR. NATIVIDAD. First and foremost, we agree with the
Commissioner's thesis that in the first imposition of
martial law there is no need for concurrence of the
Members of Congress because the provision says 'in
case of actual invasion or rebellion.' If there is actual
invasion and rebellion, as Commissioner Crispino de
Castro said, there is a need for immediate response
because there is an attack. Second, the fact of securing
a concurrence may be impractical because the roads
might be blocked or barricaded. x x x So the requirement
of an initial concurrence of the majority of all Members of
the Congress in case of an invasion or rebellion might be
impractical as I can see it.
Second, Section 15 states that the Congress may revoke
the declaration or lift the suspension.
And third, the matter of declaring martial law is already a
justiciable question and no longer a political one in that it
is subject to judicial review at any point in time. So on
that basis, I agree that there is no need for concurrence
as a prerequisite to declare martial law or to suspend the
privilege of the writ of habeas corpus. x x x135
xxxx
MR. SUAREZ. Thank you.
The Commissioner is suggesting that in connection with
Section 15, we delete the phrase 'and, with the
concurrence of at least a majority of all the Members of
the Congress...'
MR. PADILLA. That is correct especially for the initial
suspension of the privilege of the writ of habeas
corpus or also the declaration of martial law.
MR. SUAREZ. So in both instances, the Commissioner
is suggesting that this would be an exclusive prerogative
of the President?
MR. PADILLA. At least initially, for a period of 60 days.
But even that period of 60 days may be shortened by the
Congress or the Senate because the next sentence says
that the Congress or the Senate may even revoke the
proclamation.136
xxxx
MR. SUAREZ. x x x
The Commissioner is proposing a very substantial
amendment because this means that he is vesting
exclusively unto the President the right to determine the
factors which may lead to the declaration of martial law
and the suspension of the writ of habeas corpus. I
suppose he has strong and compelling reasons in
168
seeking to delete this particular phrase. May we be
informed of his good and substantial reasons?
MR. MONSOD. This situation arises in cases of invasion
or rebellion. And in previous interpellations regarding this
phrase, even during the discussions on the Bill of Rights,
as I understand it, the interpretation is a situation of
actual invasion or rebellion. In these situations, the
President has to act quickly. Secondly, this declaration
has a time fuse. It is only good for a maximum of 60
days. At the end of 60 days, it automatically terminates.
Thirdly, the right of the judiciary to inquire into the
sufficiency of the factual basis of the proclamation
always exists, even during those first 60 days.
xxxx
MR. MONSOD. Yes, Madam President, in the case of
Mr. Marcos[,] he is undoubtedly an aberration in our
history and national consciousness. But given the
possibility that there would be another Marcos, our
Constitution now has sufficient safeguards. As I said, it is
not really true, as the Gentleman mentioned, that there is
an exclusive right to determine the factual basis because
the paragraph being on line 9 precisely tells us that the
Supreme court may review, in an appropriate proceeding
filed by any citizen, the sufficiency of the factual basis of
the proclamation of martial law or the suspension of the
privilege of the writ or the extension thereof and must
promulgate its decision on the same within 30 days from
its filing.
I believe that there are enough safeguards. The
Constitution is supposed to balance the interests of the
country. And here we are trying to balance the public
interest in case of invasion or rebellion as against the
rights of citizens. x x x
MR. SUAREZ. Will that prevent a future President from
doing what Mr. Marcos had done?
MR. MONSOD. There is nothing absolute in this world,
and there may be another Marcos. What we are looking
for are safeguards that arereasonable and, I believe,
adequate at this point. On the other hand, in case of
invasion or rebellion, even during the first 60 days when
the intention here is to protect the country in that
situation, it would be unreasonable to ask that there
should be a concurrence on the part of the Congress,
which situation is automatically terminated at the end of
such 60 days.
xxxx
MR. SUAREZ. Would the Gentleman not feel more
comfortable if we provide for a legislative check on this
awesome power of the Chief Executive acting as
Commander-in-Chief?
MR. MONSOD. I would be less comfortable if we have a
presidency that cannot act under those conditions.
MR. SUAREZ. But he can act with the concurrence of
the proper or appropriate authority?
MR. MONSOD. Yes. But when those situations arise, it is
very unlikely that the concurrence of Congress would be
available; and, secondly, the President will be able to act
quickly in order to deal with the circumstances.
MR. SUAREZ. So, we would be subordinating actual
circumstances to expediency?
MR. MONSOD. I do not believe it is expediency when
one is trying to protect the country in the event of an
invasion or a rebellion.137
The foregoing exchange clearly manifests the intent of
the Constitution not to allow Congress to interfere a
priori in the President's choice of extraordinary powers.
e) The Court must similarly
and necessarily refrain from
calibrating the President's decision of
which among his extraordinary
powers to avail given a certain
situation or condition.
It cannot be overemphasized that time is paramount in
situations necessitating the proclamation of martial law
or suspension of the privilege of the writ of habeas
corpus. It was precisely this time element that prompted
the Constitutional Commission to eliminate the
requirement of 1 concurrence of the Congress in the
initial imposition by the President of martial law or
suspension of the privilege of the writ of habeas corpus.
Considering that the proclamation of martial law or
suspension of the privilege of the writ of habeas
corpus is now anchored on actual invasion or rebellion
and when public safety requires it, and is no longer
under threat or in imminent danger thereof, there is a
necessity and urgency for the President to act quickly to
protect the country.138The Court, as Congress does, must
thus accord the President the same leeway by not
wading into the realm that is reserved exclusively by the
Constitution to the Executive Department.
j) The recommendation of the
Defense Secretary is not a condition
for the declaration of martial law or
suspension of the privilege of the writ
of habeas corpus.
Even the recommendation of, or consultation with, the
Secretary of National Defense, or other high-ranking
military officials, is not a condition for the President to
declare martial law. A plain reading of Section 18, Article
VII of the Constitution shows that the President's power
to declare martial law is not subject to any condition
except for the requirements of actual invasion or
rebellion and that public safety requires it. Besides, it
would be contrary to common sense if the decision of the
President is made dependent on the recommendation of
his mere alter ego. Rightly so, it is only on the President
and no other that the exercise of the powers of the
Commander-in-Chief under Section 18, Article VII of the
Constitution is bestowed.
g) In any event, the President
initially employed the most benign
action - the calling out power -
before he declared martial law and
suspended the privilege of the writ of
habeas corpus.
At this juncture, it must be stressed that prior to
Proclamation No. 216 or the declaration of martial law on
May 23, 201 7, the President had already issued
Proclamation No. 55 on September 4, 2016, declaring a
state of national emergency on account of lawless
violence in Mindanao. This, in fact, is extant in the first
Whereas Clause of Proclamation No. 216. Based on the
foregoing presidential actions, it can be gleaned that
although there is no obligation or requirement on his part
to use his extraordinary powers on a graduated or
sequential basis, still the President made the conscious
anddeliberate effort to first employ the most benign from
among his extraordinary powers. As the initial and
preliminary step towards suppressing and preventing the
armed hostilities in Mindanao, the President decided to
use his calling out power first. Unfortunately, the situation
did not improve; on the contrary, it only worsened. Thus,
exercising his sole and exclusive prerogative, the
President decided to impose martial law and suspend
the privilege of the writ of habeas corpus on the belief
that the armed hostilities in Mindanao already amount to
actual rebellion and public safety requires it.
V. Whether or not Proclamation No. 216 may
be considered vague and thus void because of (a)
its inclusion of "other rebel groups"; and (b) the
absence of any guideline specifying its actual
operational parameters within the entire
Mindanao region.
Proclamation No. 216 is being facially challenged on the
ground of "vagueness" by the insertion of the phrase
169
"other rebel groups"139 in its Whereas Clause and for
lack of available guidelines specifying its actual
operational parameters within the entire Mindanao
region, making the proclamation susceptible to broad
interpretation, misinterpretation, or confusion.
This argument lacks legal basis.
a) Void-for-vagueness doctrine.
The void-for-vagueness doctrine holds that a law is
facially invalid if "men of common intelligence must
necessarily guess at its meaning and differ as to its
application."140 "[A] statute or act may be said to be
vague when it lacks comprehensible standards that men
of common intelligence must necessarily guess at its
meaning and differ in its application. [In such instance,
the statute] is repugnant to the Constitution in two
respects: (1) it violates due process for failure to accord
persons, especially the parties targeted by it, fair notice
of the conduct to avoid; and (2) it leaves law enforcers
unbridled discretion in carrying out its provisions and
becomes an arbitrary flexing of the Government
muscle."141
b) Vagueness doctrine applies
only in free speech cases.
The vagueness doctrine is an analytical tool developed
for testing "on their faces" statutes in free speech cases
or, as they are called in American law, First Amendment
cases.142 A facial challenge is allowed to be made to a
vague statute and also to one which is overbroad
because of possible "'chilling effect' on protected speech
that comes from statutes violating free speech. A person
who does not know whether his speech constitutes a
crime under an overbroad or vague law may simply
restrain himself from speaking in order to avoid being
charged of a crime. The overbroad or vague law thus
chills him into silence."143
It is best to stress that the vagueness doctrine has a
special application only to free-speech cases. They are
not appropriate for testing the validity of penal
statutes.144 Justice Mendoza explained the reason as
follows:
A facial challenge is allowed to be made to a vague
statute and to one which is overbroad because of
possible 'chilling effect' upon protected speech. The
theory is that ' [w]hen statutes regulate or proscribe
speech and no readily apparent construction suggests
itself as a vehicle for rehabilitating the statutes in a single
prosecution, the transcendent value to all society of
constitutionally protected expression is deemed to justify
allowing attacks on overly broad statutes with no
requirement that the person making the attack
demonstrate that his own conduct could not be regulated
by a statute drawn with narrow specificity.' The possible
harm to society in permitting some unprotected speech
to go unpunished is outweighed by the possibility that
the protected speech of others may be deterred and
perceived grievances left to fester because of possible
inhibitory effects of overly broad statutes.
This rationale does not apply to penal statutes. Criminal
statutes have general in terrorem effect resulting from
their very existence, and, if facial challenge is allowed for
this reason alone, the State may well be prevented from
enacting laws against socially harmful conduct. In the
area of criminal law, the law cannot take chances as in
the area of free speech.
xxxx
In sum, the doctrines of strict scrutiny, overbreadth, and
vagueness are analytical tools developed for testing 'on
their faces' statutes in free speech cases or, as they are
called in American law, First Amendment cases. They
cannot be made to do service when what is involved is a
criminal statute. With respect to such statute, the
established rule is that'one to whom application of a
statute is constitutional will not be heard to attack the
statute on the ground that impliedly it might also be
taken as applying to other persons or other situations in
which its application might be unconstitutional.' As has
been pointed out, 'vagueness challenges in the First
Amendment context, like overbreadth challenges
typically produce facial invalidation, while statutes found
vague as a matter of due process typically are
invalidated [only] 'as applied' to a particular defendant.' x
x x145
Invalidation of statutes "on its face" should be used
sparingly because it results in striking down statutes
entirely on the ground that they might beapplied to
parties not before the Court whose activities are
constitutionally protected.146 "Such invalidation would
constitute a departure from the usual requirement of
'actual case and controversy' and permit decisions to be
made in a sterile abstract context having no factual
concreteness."147
c) Proclamation No. 216
cannot be facially challenged using
the vagueness doctrine.
Clearly, facial review of Proclamation No. 216 on the
grounds of vagueness is unwarranted. Proclamation No.
216 does not regulate speech, religious freedom, and
other fundamental rights that may be facially
challenged.148 What it seeks to penalize is conduct, not
speech.
As held by the Court in David v. President Macapagal-
Arroyo,149 the facial review of Proclamation No. 1017,
issued by then President Gloria Macapagal-Arroyo
declaring a state of national emergency, on ground o
vagueness is uncalled for since a plain reading of
Proclamation No. 10171 shows that it is not primarily
directed at speech or even speech-related1 conduct. It is
actually a call upon the Armed Forces of the Philippines
(AFP) to prevent or suppress all forms of lawless
violence. Like Proclamation No. 1017, Proclamation No.
216 pertains to a spectrum of conduct, not free speech,
which is manifestly subject to state regulation.
d) Inclusion of "other rebel
groups " does not make Proclamation
No.216 vague.
The contention that the phrase "other rebel groups"
leaves Proclamation No. 216 open to broad
interpretation, misinterpretation, and confusion, cannot
be sustained.
In People v. Nazario,150 the Court enunciated that:
As a rule, a statute or act may be said to be vague when
it lacks comprehensible standards that men 'of common
intelligence must necessarily guess at its meaning and
differ as to its application.' It is repugnant to the
Constitution in two respects: (1) it violates due process
for failure to accord persons, especially the parties
targetted by it, fair notice of the conduct to avoid; and (2)
it leaves law enforcers unbridled discretion in carrying
out its provisions and becomes an arbitrary flexing of the
Government muscle.
But the act must be utterly vague on its face, that is to
say, it cannot be clarified by either a saving clause or by
construction. Thus, in Coates v. City of Cincinnati, the
U.S. Supreme Court struck down an ordinance that had
made it illegal for 'three or more persons to assemble on
any sidewalk and there conduct themselves in a manner
annoying to persons passing by.' Clearly, the ordinance
imposed no standard at all 'because one may never
know in advance what annoys some people but does not
annoy others.'
Coates highlights what has been referred to as a
'perfectly vague' act whose obscurity is evident on its
face. It is to be distinguished, however, from legislation
couched in imprecise language - but which nonetheless
specifies a standard though defectively phrased - in
which case, it may be 'saved' by proper construction.151
170
The term "other rebel groups" in Proclamation No. 216 is
not at all vague when viewed in the context of the words
that accompany it. Verily, the text of Proclamation No.
216 refers to "other rebel groups" found in Proclamation
No. 55, which it cited by way of reference in its Whereas
clauses.
e) Lack of guidelines/
operational parameters does not
make Proclamation No. 216 vague.
Neither could Proclamation No. 216 be described as
vague, and thus void, on the ground that it has no
guidelines specifying its actual operational parameters
within the entire Mindanao region. Besides, operational
guidelines will serve only as mere tools for the
implementation of the proclamation. In Part III, we
declared that judicial review covers only the sufficiency
of information or data available to or known to the
President prior to, or at the time of, the declaration or
suspension. And, as will be discussed exhaustively in
Part VII, the review will be confined to the proclamation
itself and the Report submitted to Congress.
Clearly, therefore, there is no need for the Court to
determine the constitutionality of the implementing
and/or operational guidelines, general orders, arrest
orders and other orders issued after the proclamation for
being irrelevant to its review. Thus, any act committed
under the said orders in violation of the Constitution and
the laws, such as criminal acts or human rights
violations, should be resolved in a separate proceeding.
Finally, there is a risk that if the Court wades into these
areas, it would be deemed as trespassing into the
sphere that is reserved exclusively for Congress in the
exercise of its power to revoke.
VI. Whether or not nullifying Proclamation No.
216 will (a) have the effect of recalling
Proclamation No. 55; or (b) also nullify the acts
of the President in calling out the armed forces to
quell lawless violence in Marawi and other parts
of the Mindanao region.
a) The calling out power is in a
different category from the power to
declare martial law and the power to
suspend the privilege of the writ of
habeas corpus; nullification of
Proclamation No. 216 will not affect
Proclamation No. 55.
The Court's ruling in these cases will not, in any way,
affect the President's declaration of a state of national
emergency on account of lawless violence in Mindanao
through Proclamation No. 55 dated September 4, 2016,
where he called upon the Armed Forces and the
Philippine National 1 Police (PNP) to undertake such
measures to suppress any and all forms of lawless
violence in the Mindanao region, and to prevent such
lawless violence from spreading and escalating
elsewhere in the Philippines.
In Kulayan v. Tan,152 the Court ruled that the President's
calling out power is in a different category from the
power to suspend the privilege of the writ of habeas
corpus and the power to declare martial law:
x x x Congress may revoke such proclamation or
suspension and the Court may review the sufficiency of
the factual basis thereof. However, there is no such
equivalent provision dealing with the revocation or
review of the President's action to call out the armed
forces. The distinction places the calling out power in
a different category from the power to declare martial
law and the power to suspend the privilege of the writ
of habeas corpus, otherwise, the framers of the
Constitution would have simply lumped together the
three powers and provided for their revocation and
review without any qualification.153
In other words, the President may exercise the power to
call out the Armed Forces independently of the power to
suspend the privilege of the writ of habeas corpus and to
declare martial law, although, of course, it may also be a
prelude to a possible future exercise of the latter powers,
as in this case.
Even so, the Court's review of the President's
declaration of martial law and his calling out the Armed
Forces necessarily entails separate
proceedings instituted for that particular purpose.
As explained in Integrated Bar of the Philippines v.
Zamora,154 the President's exercise of his power to call
out the armed forces to prevent or suppress lawless
violence, invasion or rebellion may only be examined by
the Court as to whether such power was exercised within
permissible constitutional limits or in a manner
constituting grave abuse of discretion.155
In Zamora, the Court categorically ruled that the
Integrated Bar of the ' Philippines had failed to
sufficiently comply with the requisites of locus standi, as
it was not able to show any specific injury which it had
suffered or could suffer by virtue of President Joseph
Estrada's order deploying the Philippine Marines to join
the PNP in visibility patrols around the metropolis.156
This locus standi requirement, however, need not be
complied with in so far as the Court's jurisdiction to
review the sufficiency of the factual basis of the
President's declaration of martial law or suspension of
the privilege ofthe writ of habeas corpus is concerned. In
fact, by constitutional design, such review may be
instituted by any citizen before the Court,157 without the
need to prove that he or she stands to sustain a direct
and personal injury as a consequence of the questioned
Presidential act/s.
But, even assuming arguendo that the Court finds no
sufficient basis for the declaration of martial law in this
case, such ruling could not affect the President's
exercise of his calling out power through Proclamation
No. 55.
b) The operative fact doctrine.
Neither would the nullification of Proclamation No. 216
result in the nullification of the acts of the President done
pursuant thereto. Under the "operative fact doctrine," the
unconstitutional statute is recognized as an "operative
fact" before it is declared unconstitutional.158
Where the assailed legislative or executive act is found
by the judiciary to be contrary to the Constitution, it is
null and void. As the new Civil Code puts it: 'When the
courts declare a law to be inconsistent with the
Constitution, the former shall be void and the latter shall
govern. Administrative or executive acts, orders and
regulations shall be valid only when they are not contrary
to the laws or the Constitution.' The above provision of
the Civil Code reflects the orthodox view that an
unconstitutional act, whether legislative or executive, is
not a law, confers no rights, imposes no duties, and
affords no protection. This doctrine admits of
qualifications, however. As the American Supreme Court
stated: 'The actual existence of a statute prior to such a
determination [of constitutionality], is an operative fact
and may have consequences which cannot always be
erased by a new judicial declaration. The effect of the
subsequent ruling as to the invalidity may have to be
considered in various aspects, - with respect to particular
regulations, individual and corporate, and particular
conduct, private and official.
The orthodox view finds support in the well-settled
doctrine that the Constitution is supreme and provides
the measure for the validity of legislative or executive
acts. Clearly then, neither the legislative nor the
executive branch, and for that matter much less, this
Court, has power under the Constitution to act contrary
171
to its terms. Any attempted exercise of power in violation
of its provisions is to that extent unwarranted and null.
The growing awareness of the role of the judiciary as the
governmental organ which has the final say on whether
or not a legislative or executive measure is valid leads to
a more appreciative attitude of theemerging concept that
a declaration of nullity may have legal consequences
which the more orthodox view would deny. That for a
period of time such a statute, treaty, executive order, or
ordinance was in 'actual existence' appears to be
indisputable. What is more appropriate and logical then
than to consider it as 'an operative fact?' (Emphasis
supplied)159
However, it must also be stressed that this "operative
fact doctrine" is not a fool-proof shield that would repulse
any challenge to acts performed during the effectivity of
martial law or suspension of the privilege of the writ
of habeas corpus, purportedly in furtherance of quelling
rebellion or invasion, and promotion of public safety,
when evidence shows otherwise.
VII. The Scope of the Power to Review.
a) The scope of the power of
review under the 1987 Constitution
refers only to the determination of the
sufficiency of the factual basis of the
declaration of martial law and
suspension of the privilege of habeas
corpus.
To recall, the Court, in the case of In the Matter of the
Petition for Habeas Corpus of Lansang,160 which was
decided under the 1935 Constitution,161 held that it can
inquire into, within proper bounds, whether there has
been adherence to or compliance with the
constitutionally-imposed limitations on the Presidential
power to suspend the privilege of the writ of habeas
corpus.162 "Lansang limited the review function of the
Court to a very prudentially narrow test of
arbitrariness."163 Fr. Bernas described the "proper
bounds" in Lansang as follows:
What, however, are these 'proper bounds' on the power
of the courts? The Court first gave the general answer
that its power was 'merely to check - not to supplant - the
Executive, or to ascertain merely whether he has gone
beyond the constitutional limits of his jurisdiction, not to
exercise the power vested in him or to determine the
wisdom of his act. More specifically, the Court said that
its power was not 'even comparable with its power over
civil or criminal cases elevated thereto by appeal...in
which cases the appellate court has all the powers of the
courtof origin,' nor to its power of quasi-judicial
administrative decisions where the Court is limited to
asking whether 'there is some evidentiary basis' for the
administrative finding. Instead, the Court accepted the
Solicitor General's suggestion that it 'go no further than
to satisfy [itself] not that the President's decision
is correct and that public safety was endangered by the
rebellion and justified the suspension of the writ, but that
in suspending the writ, the President did not act
arbitrarily.'164
Lansang, however, was decided under the 1935
Constitution. The 1987 Constitution, by providing only for
judicial review based on the determination of the
sufficiency of the factual bases, has in fact done away
with the test of arbitrariness as provided in Lansang.
b) The "sufficiency of factual
basis test".
Similarly, under the doctrine of contemporaneous
construction, the framers of the 1987 Constitution are
presumed to know the prevailing jurisprudence at the
time they were drafting the Constitution. Thus, the
phrase "sufficiency of factual basis" in Section 18, Article
VII of the Constitution should be understood as the only
test for judicial review of the President's power to declare
martial law and suspend the privilege of the writ
of habeas corpus under Section 18, Article VII of the
Constitution. The Court does not need to satisfy itself
that the President's decision is correct, rather it only
needs to determine whether the President's decision had
sufficient factual bases.
We conclude, therefore, that Section 18, Article VII limits
the scope of judicial review by the introduction of the
"sufficiency of the factual basis" test.
As Commander-in-Chief, the President has
the sole discretion to declare martial law and/or to
suspend the privilege of the writ of
habeas corpus, subject to the revocation of Congress
and the review of this Court. Since the exercise of these
powers is a judgment call of the President, the
determination of this Court as to whether there is
sufficient factual basis for the exercise of such, must be
based only on facts or information known by or available
to the President at the time he made the declaration or
suspension, which facts or information are found in the
proclamation as well as the written Report submitted by
him to Congress. These may be based on the situation
existing at the time the declaration was made or past
events. As to how far the past events should be from the
present depends on the President.
Past events may be considered as justifications for the
declaration and/or suspension as long as these are
connected or related to the current situation existing at
the time of the declaration.
As to what facts must be stated in the proclamation and
the written Report is up to the President.165 As
Commander-in-Chief, he has sole discretion to
determine what to include and what not to include in the
proclamation and the written Report taking into account
the urgency of the situation as well as national security.
He cannot be forced to divulge intelligence reports and
confidential information that may prejudice the
operations and the safety of the military.
Similarly, events that happened after the issuance of the
proclamation, which are included in the written report,
cannot be considered in determining the sufficiency of
the factual basis of the declaration of martial law and/or
the suspension of the privilege of the writ of habeas
corpus since these happened after the President had
already issued the proclamation. If at all, they may be
used only as tools, guides or reference in the Court's
determination of the sufficiency of factual basis, but not
as part or component of the portfolio of the factual basis
itself.
In determining the sufficiency of the factual basis of the
declaration and/or the suspension, the Court should look
into the full complement or totality of the factual basis,
and not piecemeal or individually. Neither should the
Court expect absolute correctness of the facts stated in
the proclamation and in the written Report as the
President could not be expected to verify the accuracy
and veracity of all facts reported to him due to the
urgency of the situation. To require precision in the
President's appreciation of facts would unduly burden
him and therefore impede the process of his decision-
making. Such a requirement will practically necessitate
the President to be on the ground to confirm the
correctness of the reports submitted to him within a
period that only the circumstances obtaining would be
able to dictate. Such a scenario, of course, would not
only place the President in peril but would also defeat
the very purpose of the grant of emergency powers upon
him, that is, to borrow the words of Justice Antonio T.
Carpio in Fortun, to "immediately put an end to the root
cause of the emergency".166 Possibly, by the time the
President is satisfied with the correctness of the facts in
his possession, it would be too late in the day as the
invasion or rebellion could have already escalated to a
level that is hard, if not impossible, to curtail.
172
Besides, the framers of the 1987 Constitution considered
intelligence reports of military officers as credible
evidence that the President ca appraise and to which he
can anchor his judgment,167 as appears to be the case
here.
At this point, it is wise to quote the pertinent portions of
the Dissenting Opinion of Justice Presbitero J. Velasco
Jr. in Fortun:
President Arroyo cannot be blamed for relying upon the
information given to her by the Armed Forces of the
Philippines and the Philippine National Police,
considering that the matter of the supposed armed
uprising was within their realm of competence, and that a
state of emergency has also been declared in Central
Mindanao to prevent lawless violence similar to the
'Maguindanao massacre,' which may be an indication
that there is a threat to the public safety warranting a
declaration of martial law or suspension of the writ.
Certainly, the President cannot be expected to risk being
too late before declaring martial law or suspending the
writ of habeas corpus. The Constitution, as couched,
does not require precision in establishing the fact of
rebellion. The President is called to act as public safety
requires.168
Corollary, as the President is expected to decide quickly
on whether there is a need to proclaim martial law even
only on the basis of intelligence reports, it is irrelevant,
for purposes of the Court's review, if subsequent events
prove that the situation had not been accurately reported
to him.
After all, the Court's review is confined to the sufficiency,
not accuracy, of the information at hand during the
declaration or suspension; subsequent events do not
have any bearing insofar as the Court's review is
concerned. In any event, safeguards under Section 18,
Article VII of the Constitution are in place to cover such a
situation, e.g., the martial law period is good only for 60
days; Congress may choose to revoke it even
immediately after the proclamation is made; and, this
Court may investigate the factual background of the
declaration.169
Hence, the maxim falsus in uno, falsus in omnibus finds
no application in this case. Falsities of and/or
inaccuracies in some of the facts stated in the
proclamation and the written report are not enough
reasons for the Court to invalidate the declaration and/or
suspension as long as there are other facts in the
proclamation and the written Report that support the
conclusion that there is an actual invasion or rebellion
and that public safety requires the declaration and/or
suspension.
In sum, the Court's power to review is limited to the
determination of whether the President in declaring
martial law and suspending the privilege of the writ
of habeas corpus had sufficient factual basis. Thus, our
review would be limited to an examination on whether
the President acted within the bounds set by the
Constitution, i.e., whether the facts in his possession
prior to and at the time of the declaration or suspension
are sufficient for him to declare martial law or suspend
the privilege of the writ of habeas corpus.
VIII. The parameters for determining the
sufficiency of the/actual basis/or the declaration
of martial law and/or the suspension of the
privilege of the writ of habeas corpus.
a) Actual invasion or rebellion,
and public safety requirement.
Section 18, Article VII itself sets the parameters for
determining the sufficiency of the factual basis for the
declaration of martial law and/or the suspension of the
privilege of the writ of habeas corpus, "namely (1) actual
invasion or rebellion, and (2) public safety requires the
exercise of such power."170 Without the concurrence of
the two conditions, the President's declaration of martial
law and/or suspension of the privilege of the writ
of habeas corpus must be struck down.
As a general rule, a word used in a statute which has a
technical or legal meaning, is construed to have the
same technical or legal meaning.171 Since the
Constitution did not define the term "rebellion," it must be
understood to have the same meaning as the crime of
"rebellion" in the Revised Penal Code (RPC).172
During the July 29, 1986 deliberation of the
Constitutional Commission of 1986, then Commissioner
Florenz D. Regalado alluded to actual rebellion as one
defined under Article 134 of the RPC:
MR. DE LOS REYES. As I see it now, the Committee
envisions actual rebellion and no longer imminent
rebellion. Does the Committee mean that there should
be actual shooting or actual attack on the legislature or
Malacañang, for example? Let us take for example a
contemporary event - this Manila Hotel incident,
everybody knows what happened. Would the Committee
consider that an actual act of rebellion?
MR. REGALADO. If we consider the definition of
rebellion under Articles 134 and 135 of the Revised
Penal Code, that presupposes an actual assemblage of
men in an armed public uprising for the purposes
mentioned in Article 134 and by the means employed
under Article 135. x x x173
Thus, rebellion as mentioned in the Constitution could
only refer to rebellion as defined under Article 134 of the
RPC. To give it a different definition would not only
create confusion but would also give the President wide
latitude of discretion, which may be abused - a situation
that the Constitution see k s to prevent.174
Article 134 of the RPC states:
Art. 134. Rebellion or insurrection; How committed. - The
crime of rebellion or insurrection is committed by rising
publicly and taking arms against the Government for the
purpose of removing from the allegiance to said
Government or its laws, the territory of the Philippine
Islands or any part thereof, of any body of land, naval or
other armed forces, depriving the Chief Executive or the
Legislature, wholly or partially, of any of their powers or
prerogatives.
Thus, for rebellion to exist, the following elements must
be present, to wit: "(l) there is a (a) public uprising and
(b) taking arms against the Government; and (2) the
purpose of the uprising or movement is either (a) to
remove from the allegiance to the Government or its
laws: (i) the territory of the Philippines or any part
thereof; or (ii) any body of land, naval, or other armed
forces; or (b) to deprive the Chief Executive or Congress,
wholly or partially, of any of their powers and
prerogatives."175
b) Probable cause is the
allowable standard of proof for the
President.
In determining the existence of rebellion, the President
only needs to convince himself that there is probable
cause or evidence showing that more likely than not a
rebellion was committed or is being committed.176 To
require him to satisfy a higher standard of proof would
restrict the exercise of his emergency powers. Along this
line, Justice Carpio, in his Dissent in Fortun v. President
Macapagal-Arroyo, concluded that the President needs
only to satisfy probable cause as the standard of proof in
determining the existence of either invasion or rebellion
for purposes of declaring martial law, and that probable
cause is the most reasonable, most practical and most
expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion
necessary for a declaration of martial law or suspension
of the writ. This is because unlike other standards of
proof, which, in order to be met, would require much
173
from the President and therefore unduly restrain his
exercise of emergency powers, the requirement of
probable cause is much simpler. It merely necessitates
an "average man [to weigh] the facts and circumstances
without resorting to the calibration of the rules of
evidence of which he has no technical knowledge. He
[merely] relies on common sense [and] x x x needs only
to rest on evidence showing that, more likely than not, a
crime has been committed x x x by the accused."177
To summarize, the parameters for determining the
sufficiency of factual basis are as follows: l) actual
rebellion or invasion; 2) public safety requires it; the first
two requirements must concur; and 3) there is probable
cause for the President to believe that there is actual
rebellion or invasion.
Having laid down the parameters for review, the Court
shall nowproceed to the core of the controversy -
whether Proclamation No. 216,Declaring a State of
Martial Law and Suspending the Privilege of the Writ
of Habeas Corpus in the whole of Mindanao, lacks
sufficient factual basis.
IX. There is sufficient factual basis for the
declaration of martial law and the suspension of
the writ of habeas corpus.
At this juncture, it bears to emphasize that the purpose
of judicial review is not the determination of accuracy or
veracity of the facts upon which the President anchored
his declaration of martial law or suspension of the
privilege of the writ of habeas corpus; rather, only the
sufficiency of the factual basis as to convince the
President that there is probable cause that rebellion
exists. It must also be reiterated that martial law is a
matter ofurgency and much leeway and flexibility should
be accorded the President. As such, he is not expected
to completely validate all the information he received
before declaring martial law or suspending the privilege
of the writ of habeas corpus.
We restate the elements of rebellion for reference:
1. That there be (a) public uprising, and (b) taking up
arms against the Government; and
2. That the purpose of the uprising or movement is
either: (a) to remove from the allegiance to said
Government or its laws the territory of the Philippines or
any part thereof, or any body of land, naval or other
armed forces or (b) to deprive the Chief Executive or
Congress, wholly or partially, of any of their powers or
prerogatives.178
Petitioners concede that there is an armed public
uprising in Marawi City.179 However, they insist that the
armed hostilities do not constitute rebellion in the
absence of the element of culpable political
purpose, i.e., the removal from the allegiance to the
Philippine Government or its laws: (i) the territory of the
Philippines or any part thereof; or (ii) any body of land,
naval, or other armed forces; or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their
powers and prerogatives.
The contention lacks merit.
a) Facts, events and
information upon which the President
anchored his decision to declare
martial law and suspend the privilege
of the writ of habeas corpus.
Since the President supposedly signed Proclamation No.
216 on May 23, 2017 at 10:00 PM,180 the Court will
consider only those facts and/or events which were
known to or have transpired on or before that time,
consistent with the scope of judicial review. Thus, the
following facts and/or events were deemed to have been
considered by the President in issuing Proclamation No.
216, as plucked from and extant in Proclamation No. 216
itself:
1. Proclamation No. 55 issued on September 4, 2016,
declaring a state of national emergency on account of
lawless violence in Mindanao;181
2. Series of violent acts182 committed by the Maute
terrorist group including:
a) Attack on the military outpost in Butig, Lanao
del Sur m February 2016, killing and wounding
several soldiers;
b) Mass jailbreak in Marawi City in August 2016
of the arrested comrades of the Maute Group
and other detainees;
3. On May 23, 2017:183
a) Takeover of a hospital in Marawi;
b) Establishment of several checkpoints within Marawi;
c) Burning of certain government and private facilities;
d) Mounting casualties on the part of the government;
e) Hoisting the flag of ISIS in several areas; and
f) Capability of the Maute Group and other rebel groups
to sow terror, and cause death and damage to property
not only in Lanao del Sur but also in other parts of
Mindanao; and the Report184 submitted to Congress:
1. Zamboanga siege;185
2. Davao bombing;186
3. Mamasapano carnage;187
4. Cotabato bombings;188
5. Sultan Kudarat bombings;189
6. Sulu bombings;190
7. Basilan bombings;191
8. Attempt to capture Hapilon was confronted with armed
resistance by combined forces of ASG and the Maute
Group;192
9. Escalation of armed hostility against the government
troops;193
10. Acts of violence directed not only against
government authorities and establishments but civilians
as well;194
11. Takeover of major social, economic and political
foundations which paralyzed Marawi City;195
12. The object of the armed hostilities was to lay the
groundwork for the establishment of a
DAESH/ISIS wilayat or province;196
13. Maute Group has 263 active members, armed and
combat-ready;197
14. Extensive networks or linkages of the Maute Group
with foreign and local armed groups;198
15. Adherence of the Maute Group to the ideals
espoused by ISIS;199
16. Publication of a video showing Maute Group's
declaration of allegiance to ISIS;200
17. Foreign-based terrorist groups provide financial and
logistical support to the Maute Group;201
18. Events on May 23, 2017 in Marawi City, particularly:
a) at 2:00 PM, members and sympathizers of the Maute
Group and ASG attacked various government and
privately-owned facilities;202
b) at 4:00 PM, around fifty (50) armed criminals forcibly
entered the Marawi City Jail; facilitated the escape of
inmates; killed a member of PDEA; assaulted and
disarmed on-duty personnel and/or locked them inside
the cells; confiscated cellphones, personnel-issued
firearms, and vehicles;203
c) by 4:30 PM, intem1ption of power supply; sporadic
gunfights; city-wide power outage by evening;204
d) from 6:00 PM to 7:00 PM, Maute Group ambushed
and burned the Marawi Police Station; commandeered a
police car;205
e) BJMP personnel evacuated the Marawi City Jail and
other affected areas;206
174
f) control over three bridges in Lanao del Sur, namely,
Lilod, Bangulo, and Sauiaran, was taken by the rebels; 207
g) road blockades and checkpoints set up by lawless
armed groups at the Iligan-Marawi junction;208
h) burning of Dansalan College Foundation, Cathedral of
Maria Auxiliadora, the nuns' quarters in the church, and
the Shia Masjid Moncado Colony;209
i) taking of hostages from the church;210
j) killing of five faculty members of Dansalan College
foundation;211
k) burning of Senator Ninoy Aquino College Foundation
and Marawi Central Elementary Pilot School;212
1) overrunning of Amai Pakpak Hospital;213
m) hoisting the ISIS flag in several areas;214
n) attacking and burning of the Filipino-Libyan Friendship
Hospital;215
o) ransacking of a branch of Landbank of the Philippines
and commandeering an armored vehicle;216
p) reports regarding Maute Group's plan to execute
Christians;217
q) preventing Maranaos from leaving their homes; 218
r) forcing young Muslims to join their group;219 and
s) intelligence reports regarding the existence of
strategic mass action of lawless armed groups in Marawi
City, seizing public and private facilities, perpetrating
killings of government personnel1 , and committing
armed uprising against and open defiance of the
Government.220
b) The President's Conclusion
After the assessment by the President of the
aforementioned facts, he arrived at the following
conclusions, as mentioned in Proclamation No. 216 and
the Report:
1) The Maute Group is "openly attempting to remove
from the allegiance to the Philippine Government this
part of Mindanao and deprive the Chief Executive of his
powers and prerogatives to enforce the laws of the land
and to maintain public order and safety in Mindanao,
constituting the crime of rebellion."221
2) "[L]awless armed groups have taken up arms and
committed public uprising against the duly constituted
government and against the people of Mindanao, for the
purpose of removing Mindanao - starting with the City of
Marawi, Lanao del Sur - from its allegiance to the
Government and its laws and depriving the Chief
Executive of his powers and prerogatives to enforce the
laws of the land and to maintain public order and safety
in Mindanao, to the great damage, prejudice, and
detriment of the people therein and the nation as a
whole."222
3) The May 23, 2017 events "put on public display the
groups' clear intention to establish an Islamic State and
their capability to deprive the duly constituted authorities
- the President, foremost - of their powers and
prerogatives. "223
4) "These activities constitute not simply a display of
force, but a clear attempt to establish the groups' seat of
power in Marawi City for their planned establishment of a
DAESH wilayat or province covering the entire
Mindanao."224
5) "The cutting of vital lines for transportation and power;
the recruitment of young Muslims to further expand their
ranks and strengthen their force; the armed
consolidation of their members throughout Marawi City;
the decimation of a segment of the city population who
resist; and the brazen display of DAESH flags constitute
a clear, pronounced, and unmistakable intent to remove
Marawi City, and eventually the rest of Mindanao, from
its allegiance to the Government."225
6) "There exists no doubt that lawless armed groups are
attempting to deprive the President of his power,
authority, and prerogatives within Marawi City as a
precedent to spreading their control over the entire
Mindanao, in an attempt to undermine his control over
executive departments, bureaus, and offices in said
area; defeat his mandate to ensure that all laws are
faithfully executed; and remove his supervisory powers
over local governments."226
7) "Law enforcement and other government agencies
now face pronounced difficulty sending their reports to
the Chief Executive due to the city-wide power outages.
Personnel from the BJMP have been prevented from
performing their functions. Through the attack and
occupation of several hospitals, medical services in
Marawi City have been adversely affected. The bridge
and road blockades set up by the groups effectively
deprive the government of its ability to deliver basic
services to its citizens. Troop reinforcements have been
hampered, preventing the government from restoring
peace and order in the area. Movement by both civilians
and government personnel to and from the city is
likewise hindered." 227
8) "The taking up of arms by lawless armed groups in
the area, with support being provided by foreign-based
terrorists and illegal drug money, and their blatant acts of
defiance which embolden other armed groups in
Mindanao, have resulted in the deterioration of public
order and safety in Marawi City; they have likewise
compromised the security of the entire Island of
Mindanao." 228
9) "Considering the network and alliance-building
activities among terrorist groups, local criminals, and
lawless armed men, the siege f Marawi City is a vital cog
in attaining their long-standing goal: absolute control
over the entirety of Mindanao. These circumstances
demand swift and decisive action to ensure the safety
and security of the Filipino people and preserve our
national integrity."229
Thus, the President deduced from the facts available to
him that there was an armed public uprising, the
culpable purpose of which was to remove from the
allegiance to the Philippine Government a portion of its
territory and to deprive the Chief Executive of any of his
powers and prerogatives, leading the President to
believe that there was probable cause that the crime of
rebellion was and is being committed and that public
safety requires the imposition of martial law and
suspension of the privilege of the writ of habeas corpus.
A review of the aforesaid facts similarly leads the Court
to conclude that the President, in issuing Proclamation
No. 216, had sufficient factual bases tending to show
that actual rebellion exists. The President's conclusion,
that there was an armed public uprising, the culpable
purpose of which was the removal from the allegiance of
the Philippine Government a portion of its territory and
the deprivation of the President from performing his
powers and prerogatives, was reached after a tactical
consideration of the facts. In fine, the President
satisfactorily discharged his burden of proof.
After all, what the President needs to satisfy is only the
standard of probable cause for a valid declaration of
martial law and suspension of the privilege of the writ
of habeas corpus. As Justice Carpio decreed in his
Dissent in Fortun:
x x x [T]he Constitution does not compel the President to
produce such amount of proof as to unduly burden and
effectively incapacitate her from exercising such powers.
Definitely, the President need not gather proof beyond
FACTUAL STATEMENTS
reasonable doubt, which is the standard of proof
required for convicting an accused charged with a the Maute group attacked Amai Pakpak
(1) that
criminal offense.x x x Hospital and hoisted the DAESH flag there,
xxxx
175
Proof beyond reasonable doubt is the highest quantum
of evidence, and to require the President to establish the
existence of rebellion or invasion with such amount of
proof before declaring martial law or suspending the writ
amounts to an excessive restriction on 'the President's
power to act as to practically tie her hands and disable
her from effectively protecting the nation against threats
to public safety.'
Neither clear and convincing evidence, which is
employed in either criminal or civil cases, is
indispensable for a lawful declaration of martial law or
suspension of the writ. This amount of proof likewise
unduly restrains the President in exercising her
emergency powers, as it requires proof greater than
preponderance of evidence although not beyond
reasonable doubt.
Not even preponderance of evidence, which is the
degree of proof necessary in civil cases, is demanded for
a lawful declaration of martial law.
xxxx
Weighing the superiority of the evidence on hand, from
at least two opposing sides, before she can act and
impose martial law or suspend the writ unreasonably
curtails the President's emergency powers.
Similarly, substantial evidence constitutes an
unnecessary restriction on the President's use of her
emergency powers. Substantial evidence is the amount
of proof required in administrative or quasi-judicial cases,
or that amount of relevant evidence which a reasonable
mind might accept as adequate to justify a conclusion.
I am of the view that probable cause of the existence of
either invasion or rebellion suffices and satisfies the
standard of proof for a valid declaration of martial law
and suspension of the writ.
Probable cause is the same amount of proof required for
the filing of a criminal information by the prosecutor and
for the issuance of an arrest warrant by a judge.
Probable cause has been defined as a 'set of facts and
circumstances as would lead a reasonably discreet and
prudent man to believe that the offense charged in the
Information or any offense included therein has been
committed by the person sought to be arrested.'
In determining probable cause, the average man weighs
the facts and circumstances without resorting to the
calibrations of the rules of evidence of which he has no
technical knowledge. He relies on common sense. A
finding of probable cause needs only to rest on evidence
showing that, more likely than not, a crime has been
committed and that it was committed by the accused.
Probable cause demands more than suspicion; it
requires less than evidence that would justify conviction.
Probable cause, basically premised on common sense,
is the most reasonable, most practical, and most
expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion,
necessary for a declaration of martial law x x x230
c) Inaccuracies, simulations,
falsities, and hyperboles.
The allegation in the Lagman Petition that the facts
stated in Proclamation No. 216 and the Report are false,
inaccurate, simulated, and/or hyperbolic, does not
persuade. As mentioned, the Court is not concerned
about absolute correctness, accuracy, or precision of the
facts because to do so would unduly tie the hands of the
President in responding to an urgent situation.
Specifically, it alleges that the following facts are not true
as shown by its counter-evidence.231
COUNTER-EVIDENCE
Statements made by:
(a) Dr. Amer Saber, Chief of the Hos
al locations. As of 0600H of 24 May (b) Health Secretary Paulyn Ubial; e) There are other independent
(c) PNP Spokesperson Senior Supt.facts which support the finding that,
ers of the Maute Group were seen Dionardo
more likely than not, rebellion exists
entry gates of the Amai Pakpak Carlos;
and that public safety requires it.
that they held hostage the (d) AFP Public Affairs Office Chief Co. Edgard
f the Hospital and took over the Arevalo; and Moreover, the alleged false and/or inaccurate statements
fice located thereat (Proclamation (e) Marawi City Mayor Majul Gandamra are just pieces and parcels of the Report; along with
denying
Report); that the hospital was attacked by thetheseMaute alleged false data is an arsenal of other
Group citing online news articles of independent
Philstar, facts showing that more likely than not,
Sunstar, Inquirer, and Bombo Radyo. actua1 rebellion exists, and public safety requires the
declaration of martial law or suspension of the privilege
aute Group ambushed and burned Statements made by PNP Director General of the writ of habeas corpus. To be precise, the alleged
Police Station (Proclamation No. Ronald dela Rosa and Marawi City false Mayorand/or
Majul inaccurate statements are only five out of
Report); Gandamra in the online news reports of ABS- statements bulleted in the President's
the severa1
CBN News and CNN Philippines Report. Notably, in the interpellation by Justice Francis
the Maute group occupied the Marawi H. Jardeleza
Police during the second day of the oral argument,
Station. petitioner Lagman admitted that he was not aware or
that he had no personal knowledge of the other incidents
cited.241 As it thus stands, there is no question or
ss armed groups likewise ransacked Statement made by the bank officials in the on-
challenge with respect to the reliability of the other
k of the Philippines and line news article of Philstar234 that the Marawi which by themselves are ample to preclude
incidents,
red one of its armored vehicles City branch was not ransacked but sustained
the conclusion that the President's report is unreliable
damages from the attacks. and that Proclamation No. 216 was without sufficient
factual basis.
arawi Central Elementary Pilot Statements in the on-line news article of there is no credence to petitioners' claim that the
Verily,
burned (Proclamation No. 216 and Philstar235 made by the Marawi City basesSchools for the President's imposition of martial law and
Division Assistant Superintendent Ana Alonto of the writ of habeas corpus were mostly
suspension
denying that the school was burnedinaccurate,
and simulated, false and/or hyperbolic.
Department of Education Assistant Secretary
X. Public safety requires the declaration of
Tonisito Umali stating that they have not
martial law and the suspension of the privilege of
received any report of damage.
the writ of habeas corpus in the whole of
Mindanao.
aute Group attacked various Statement in the on-line news article of
Invasion or rebellion alone may justify resort to the
facilities (Proclamation No. 216 and Inquirer236 made by Marawi City Mayor Majul
calling out power but definitely not the declaration of
Gandamra stating that the ASG and the Maute
martial law or suspension of the privilege of the writ
Terror Groups have not taken over any
of habeas corpus. For a declaration of martial law or
government facility in Marawi City.
suspension of the privilege of the writ of habeas
However, the so-called counter-evidence were derived corpus to be valid, there must be a concurrence of actual
solely from unverified news articles on the internet, with rebellion or invasion and the public safety requirement.
neither the authors nor the sources shown to have In his Report, the President noted that the acts of
affirmed the contents thereof It was not even shown that violence perpetrated by the ASG and the Maute Group
efforts were made to secure such affirmation albeit the were directed not only against government forces or
circumstances proved futile. As the Court has establishments but likewise against civilians and their
consistently ruled, news articles are hearsay evidence, properties.242 In addition and in relation to the armed
twice removed, and are thus without any probative value, hostilities, bomb threats were issued;243 road blockades
unless offered for a purpose other than proving the truth and checkpoints were set up;244 schools and churches
of the matter asserted.237 This pronouncement applies were burned;245 civilian hostages were taken and
with equal force to the Cullamat Petition which likewise killed;246 non-Muslims or Christians were
submitted online news articles238 as basis for their claim targeted;247 young male Muslims were forced to join their
of insufficiency of factual basis. group;248 medical services and delivery of basic services
were hampered;249 reinforcements of government troops
Again, it bears to reiterate that the maxim falsus in uno, and civilian movement were hindered;250 and the security
falsus in omnibus finds no application in these cases. As of the entire Mindanao Island was compromised.251
long as there are other facts in the proclamation and the
written Report indubitably showing the presence of an These particular scenarios convinced the President that
actual invasion or rebellion and that public safety the atrocities had already escalated to a level that risked
requires the declaration and/or suspension, the finding of public safety and thus impelled him to declare martial
sufficiency of factual basis, stands. law and suspend the privilege of the writ of habeas
corpus. In the last paragraph of his Report, the President
d) Ruling in Bedol v. declared:
Commission on Elections not
Applicable. While the government is presently conducting legitimate
operations to address the on-going rebellion, if not the
Petitioners, however, insist that in Bedol v. Commission seeds of invasion, public safety necessitates the
on Elections,239 news reports may be admitted on continued implementation of martial law and the
grounds of relevance, trustworthiness, and necessity. suspension of the privilege of the writ of habeas
Petitioners' reliance on this case is misplaced. The Court corpus in the whole of Mindanao until such time that the
in Bedol made it clear that the doctrine of independent rebellion is completely quelled.252
relevant statement, which is an ·exception to the hearsay
rule, applies in cases "where only the fact that such Based on the foregoing, we hold that the parameters for
statements were made is relevant, and the truth or falsity the declaration of martial law and suspension of the
240
thereof is immaterial." Here, the question is not privilege of the writ f habeas corpus have been properly
whether such statements were made by Saber, et. and fully complied with. Proclamation No. 216 has
al., but rather whether what they said are true. Thus, sufficient factual basis there being probable cause to
contrary to the view of petitioners, the exception believe that rebellion exists and that public safety
in Bedol finds no application here. requires the martial law declaration and the suspension
of the privilege of the writ of habeas corpus.

176
XI. Whole of Mindanao
a) The overriding and
paramount concern of martial law is
the protection of the security of the
nation and the good and safety of the
public.
Considering the nation's and its people's traumatic
experience martial law under the Marcos regime, one
would expect the framers of the 1987 Constitution to
stop at nothing from not resuscitating the law. Yet it
would appear that the constitutional writers
entertained no doubt about the necessity and practicality
of such specie of extraordinary power and thus, once
again, bestowed on the Commander-in-Chief the power
to declare martial law albeit in its diluted form.
Indeed, martial law and the suspension of the privilege of
the writ of habeas corpus are necessary for the
protection of the security of the nation; suspension of the
privilege of the writ of habeas corpus is "precautionary ,
and although it might [curtail] certain rights of individuals,
[it] is for the purpose of defending and protecting the
security of the state or the entire country and our
sovereign people".253 Commissioner Ople referred to the
suspension of the privilege of the writ of habeas
corpus as a "form of immobilization" or "as a means of
immobilizing potential internal enemies" "especially in
areas like Mindanao."254
Aside from protecting the security of the country, martial
law also guarantees and promotes public safety. It is
worthy of mention that rebellion alone does not justify the
declaration of martial law or suspension of the privilege
of the writ of habeas corpus; the public safety
requirement must likewise be present.
b) As Commander-in-Chief, the
President receives vital, relevant,
classified, and live information which
equip and assist him in making
decisions.
In Parts IX and X, the Court laid down the arsenal of
facts and events that formed the basis for Proclamation
No. 216. For the President, the totality of facts and
events, more likely than not, shows that actual rebellion
exists and that public safety requires the declaration of
martial law and suspension of the privilege of the writ
of habeas corpus. Otherwise stated, the President
believes that there is probable cause that actual rebellion
exists and public safety warrants the issuance of
Proclamation No. 216. In turn, the Court notes that the
President, in arriving at such a conclusion, relied on the
facts and events included in the Report, which we find
sufficient.
To be sure, the facts mentioned in the Proclamation and
the Report are far from being exhaustive or all-
encompassing. At this juncture, it may not be amiss to
state that as Commander-in-Chief, the President has
possession of documents and information classified as
"confidential", the contents of which cannot be included
in the Proclamation or Report for reasons of national
security. These documents may contain information
detailing the position of government troops and rebels,
stock of firearms or ammunitions, ground commands and
operations, names of suspects and sympathizers, etc. ,
In fact, during the closed door session held by the Court,
some information came to light, although not mentioned
in the Proclamation or Report. But then again, the
discretion whether to include the same in the
Proclamation or Report is the judgment call of the
President. In fact, petitioners concede to this. During the
oral argument, petitioner Lagman admitted that "the
assertion of facts [in the Proclamation and Report] is the
call of the President."255
It is beyond cavil that the President can rely on
intelligence reports and classified documents. "It is for
177
the President as [C]ommander-in[C]hief of the Armed
Forces to appraise these [classified evidence or
documents/]reports and be satisfied that the public
safety demands the suspension of the
writ."256 Significantly, respect to these so-called classified
documents is accorded even "when [the] authors of or
witnesses to these documents may not be revealed." 257
In fine, not only does the President have a wide array of
information before him, he also has the right,
prerogative, and the means to access vital, relevant, and
confidential data, concomitant with his position as
Commander-in-Chief of the Armed Forces.
c) The Court has no machinery
or tool equal to that of the
Commander-in-Chief to ably and
properly assess the ground
conditions.
In contrast, the Court does not have the same resources
available to the President. However, this should not be
considered as a constitutiona1 lapse. On the contrary,
this is in line with the function of the Court, particularly in
this instance, to determine the sufficiency of factual basis
of Proclamation No. 216. As thoroughly discussed in Part
VIII, the determination by the Court of the sufficiency of
factual basis must be limited only to the facts and
information mentioned in the Report and Proclamation.
In fact, the Court, in David v. President Macapagal-
Arroyo,258 cautioned not to "undertake an independent
investigation beyond the pleadings." In this regard, "the
Court will have to rely on the fact-finding capabilities of
the [E]xecutive [D]epartment;"259 in turn, the Executive
Department will have to open its findings to the
Court,260 which it did during the closed door session last
June 15, 2017.
d) The 1987 Constitution
grants to the President, as
Commander-in-Chief, the discretion
to determine the territorial coverage
or application of martial law or
suspension of the privilege of the writ
of habeas corpus.
Section 18, Article VII of the Constitution states that "[i]n
case of invasion or rebellion, when the public safety
requires it, [the President] may x x x suspend the
privilege of writ of habeas corpus or place the
Philippines or any part thereof under martial law."
Clearly, the Constitution grants to the President the
discretion to determine the territorial coverage of martial
law and the suspension of the privilege of the writ
of habeas corpus. He may put the entire Philippines or
only a part thereof under martial law.
This is both an acknowledgement and a recognition that
it is the Executive Department, particularly the President
as Commander-in-Chief, who is the repository of vital,
classified, and live information necessary for and
relevant in calibrating the territorial application of martial
law and the suspension of the privilege of the writ
of habeas corpus. It, too, is a concession that the
President has the tactical and military support, and thus
has a more informed understanding of what is happening
on the ground. Thus, the Constitution imposed a
limitation on the period of application, which is 60 days,
unless sooner nullified, revoked or extended, but not on
the territorial scope or area of coverage; it merely stated
"the Philippines or any part thereof," depending on the
assessment of the President.
e) The Constitution has
provided sufficient safeguards against
possible abuses of Commander-in-
Chief's powers; further curtailment of
Presidential powers should not only
be discouraged but also avoided.
Considering the country's history, it is understandable
that the resurgence of martial law would engender
apprehensions among the citizenry. Even the Court as
an institution cannot project a stance of nonchalance.
However, the importance of martial law in the context of
our society should outweigh one's prejudices and
apprehensions against it. The significance of martial law
should not be undermined by unjustified fears and past
experience. After all, martial law is critical and crucial to
the promotion of public safety, the preservation of the
nation's sovereignty and ultimately, the survival of our
country. It is vital for the protection of the country not
only against internal enemies but also against those
enemies lurking from beyond our shores. As such,
martial law should not be cast aside, or its scope and
potency limited and diluted, based on bias and
unsubstantiated assumptions.
Conscious of these fears and apprehensions, the
Constitution placed several safeguards which effectively
watered down the power to declare martial law. The
1987 Constitution "[clipped] the powers of [the]
Commander-in-Chief because of [the] experience with
the previous regime."261 Not only were the grounds
limited to actual invasion or rebellion, but its duration
was likewise fixed at 60 days, unless sooner revoked,
nullified, or extended; at the same time, it is subject to
the veto powers of the Court and Congress.
Commissioner Monsod, who, incidentally, is a counsel
for the Mohamad Petition, even exhorted his colleagues
in the Constitutional Convention to look at martial law
from a new perspective by elaborating on the sufficiency
of the proposed safeguards:
MR. MONSOD. x x x
Second, we have been given a spectre of non
sequitur, that the mere declaration of martial law for a
fixed period not exceeding 60 days, which is subject to
judicial review, is going to result in numerous violations
of human rights, the predominance of the military forever
and in untold sufferings. Madam President, we are
talking about invasion and rebellion. We may not have
any freedom to speak of after 60 days, if we put as a
precondition the concurrence of Congress. That might
prevent the President from acting at that time in order to
meet the problem. So I would like to suggest that,
perhaps, we should look at this in its proper perspective.
We are only looking at a very specific case. We are only
looking at a case of the first 60 days at its maximum. And
we are looking at actual invasion and rebellion, and there
are other safeguards in those cases.262
Even Bishop Bacani was convinced that the 1987
Constitution has enough safeguards against presidential
abuses and commission of human rights violations. In
voting yes for the elimination of the requirement of prior
concurrence of Congress, Bishop Bacani stated, viz.:
BISHOP BACANI. Yes, just two sentences. The reason I
vote II yes is that despite my concern for human rights, I
believe that a good President can also safeguard human
rights and human lives as well. And I do not want to
unduly emasculate the powers of the President. Xxx263
Commissioner Delos Reyes shared the same sentiment,
to wit:
MR. DE LOS REYES. May I explain my vote, Madam
President.
x x x The power of the President to impose martial law is
doubtless of a very high and delicate nature. A free
people are naturally jealous of the exercise of military
power, and the power to impose martial law is certainly
felt to be one of no ordinary magnitude. But as presented
by the Committee, there are many safeguards: 1) it is
limited to 60 days; 2) Congress can revoke it; 3) the
Supreme Court can still review as to the sufficiency of
factual basis; and 4) it does not suspend the operation of
the Constitution. To repeat what I have quoted when I
178
interpellated Commissioner Monsod, it is said that the
power to impose martial law is dangerous to liberty and
may be abused. All powers may be abused if placed in
unworthy hands. But it would be difficult, we think, to
point out any other hands in which this power will be
more safe and at the same time equally effectual. When
citizens of the State are in arms against each other and
the constituted authorities are unable to execute the
laws, the action of the President must be prompt or it is
of little value. x x x264 (Emphasis supplied)
At this juncture, it bears to stress that it was the
collective sentiment of the framers of the 1987
Constitution that sufficient safeguards against possible
misuse and abuse by the Commander-in-Chief of his
extraordinary powers are already in place and that no
further emasculation of the presidential powers is called
for in the guise of additional safeguards. The
Constitution recognizes that any further curtailment,
encumbrance, or emasculation of the presidential
powers would not generate any good among the three
co-equal branches, and to the country and its citizens as
a whole. Thus:
MR. OPLE. The reason for my concern, Madam
President, is that when we put all of these
encumbrances on the President and Commander-in-
Chief during an actual invasion or rebellion, given an
intractable Congress that may be dominated by
opposition parties, we may be actually impelling the
President to use the sword of Alexander to cut the
Gordian knot by just declaring a revolutionary
government that sets him free to deal with the invasion
or the insurrection. x x x265 (Emphasis supplied)
f) Rebellion and public safety;
nature, scope, and range.
It has been said that the "gravamen of the crime of
rebellion is an armed public uprising against the
government;"266 and that by nature, "rebellion is x x x a
crime of masses or multitudes, involving crowd action,
that cannot be confined a priori, within predetermined
bounds."267 We understand this to mean that the precise
extent or range of the rebellion could not be measured
by exact metes and bounds.
To illustrate: A contingent armed with high-powered
firearms publicly assembled in Padre Faura, Ermita,
Manila where the Court's compound is situated. They
overpowered the guards, entered the Court's premises,
and hoisted the ISIS flag. Their motive was
political, i.e., they want to remove from the allegiance to
the Philippine government a part of the territory of the
Philippines, particularly the Court's compound and
establish it as an ISIS-territory.
Based on the foregoing illustration, and vis-a-vis the
nature of the crime of rebellion, could we validly say that
the rebellion is confined only within the Court's
compound? Definitely not. The possibility that there are
other rebels positioned in the nearby buildings or
compound of the Philippine General Hospital (PGH) or
the Manila Science High Schoo1 (MSHS) could not be
discounted. There is no way of knowing that
all participants in the rebellion went and stayed inside
the Court's compound.
Neither could it be validly argued that the armed
contingent positioned in PGH or MSHS is not engaged in
rebellion because there is no publicity in their acts as, in
fact, they were merely lurking inside the compound of
PGH and MSHS. However, it must be pointed out that for
the crime of rebellion to be consummated, it
is not required that all armed participants should
congregate in one place, in this case, the Court's
compound, and publicly rise in arms against the
government for the attainment of their culpable purpose.
It suffices that a portion of the contingent gathered and
formed a mass or a crowd and engaged in an armed
public uprising against the government. Similarly, it
cannot be validly concluded that the grounds on which
the armed public uprising actually to6k place should be
the measure of the extent, scope or range, of the actual I
rebellion. This is logical since the other rebels positioned
in PGH, MSHS, I or elsewhere, whose participation did
not involve the publicity aspect of rebellion, may also be
considered as engaging in the crime of rebellion.
Proceeding from the same illustration, suppose we say
that the President, after finding probable cause that there
exists actual rebellion and that public safety requires it,
declares martial law and suspends the writ of habeas
corpus in the whole of Metro Manila, could we then say
that the territorial coverage of the proclamation is too
expansive?
To answer this question, we revert back to the premise
that the discretion to determine the territorial scope of
martial law lies with the President. The Constitution
grants him the prerogative whether to put the entire
Philippines or any part thereof under martial law. There
is no constitutional edict that martial law should be
confined only in the particular place where the armed
public uprising actually transpired. This is not only
practical but also logical. Martial law is an urgent
measure since at stake is the nation's territorial
sovereignty and survival. As such, the President has to
respond quickly. After the rebellion in the Court's
compound, he need not wait for another rebellion to be
mounted in Quezon City before he could impose martial
law thereat. If that is the case, then the President would
have to wait until every remote corner in the country is
infested with rebels before he could declare martial law
in the entire Philippines. For sure, this is not the scenario
envisioned by the Constitution.
Going back to the illustration above, although the
President is not required to impose martial law only
within the Court's compound because it is where the
armed public uprising actually transpired, he may do so if
he sees fit. At the same time, however, he is not
precluded from expanding the coverage of martial law
beyond the Court's compound. After all, rebellion is not
confined within predetermined bounds.
Public safety, which is another component element for
the declaration of martial law, "involves the prevention of
and protection from events that could endanger the
safety of the general public from significant danger,
injury/harm, or damage, such as crimes or
disasters."268 Public safety is an abstract term; it does not
take any physical form. Plainly, its range, extent or scope
could not be physically measured by metes and bounds.
Perhaps another reason why the territorial scope of
martial law should not necessarily be limited to the
particular vicinity where the armed public uprising
actually transpired, is because of the unique
characteristic of rebellion as a crime. "The crime of
rebellion consists of many acts. It is a vast movement of
men and a complex net of intrigues and plots. Acts
committed in furtherance of rebellion[,] though crimes in
themselves[,] are deemed absorbed in one single crime
of rebellion."269 Rebellion absorbs "other acts committed
in its pursuance".270 Direct
assault,271murder,272 homicide,273 arson,274 robbery,275 and
kidnapping,276 just to name a few, are absorbed in the
crime of rebellion if committed in furtherance of rebellion;
"[i]t cannot be made a basis of a separate
charge."277Jurisprudence also teaches that not only
common crimes may be absorbed in rebellion but also
"offenses under special laws [such as Presidential
Decree No. 1829]278 which are perpetrated in furtherance
of the political offense".279 "All crimes, whether
punishable under a special law or general law, which are
me e components or ingredients, or committed in
furtherance thereof, become absorbed in the crime of
179
rebellion and cannot be isolated and charged as
separate crimes in themselves.280
Thus, by the theory of absorption, the crime of murder
committed in Makati City, if committed in furtherance of
the crime of rebellion being hypothetically staged in
Padre Faura, Ermita, Manila, is stripped of its common
complexion and is absorbed in the crime of rebellion.
This all the more makes it difficult to confine the
application of martial law only to the place where the
armed public uprising is actually taking place. In the
illustration above, Padre Faura could only be the nerve
center of the rebellion but at the same time rebellion is
also happening in Makati City.
In fine, it is difficult, if not impossible, to fix the territorial
scope of martial law in direct proportion to the "range" of
actual rebellion and public safety simply because
rebellion and public safety have no fixed physical
dimensions. Their transitory and abstract nature defies
precise measurements; hence, the determination of the
territorial scope of martial law could only be drawn from
arbitrary, not fixed, variables. The Constitution must have
considered these limitations when it granted the
President wide leeway and flexibility in determining the
territorial scope of martial law.
Moreover, the President's duty to maintain peace and
public safety is not limited only to the place where there
is actual rebellion; it extends to other areas where the
present hostilities are in danger of spilling over. It is not
intended merely to prevent the escape of lawless
elements from Marawi City, but also to avoid enemy
reinforcements and to cut their supply lines coming from
different parts of Mindanao. Thus, limiting the
proclamation and/or suspension to the place where there
is actual rebellion would not only defeat the purpose of
declaring martial law, it will make the exercise thereof
ineffective and useless.
g) The Court must stay within
the confines of its power.
The Court can only act within the confines of its
power.1âwphi1 For the Court to overreach is to infringe
upon another's territory. Clearly, the power to determine
the scope of territorial application belongs to the
President. "The Court cannot indulge in judicial
legislation without violating the principle of separation of
powers, and, hence, undermining the foundation of our
republican system."281
To reiterate, the Court is not equipped with the
competence and logistical machinery to determine the
strategical value of other places in the military's efforts to
quell the rebellion and restore peace. It would be
engaging in an act of adventurism if it dares to embark
on a mission of deciphering the territorial metes and
bounds of martial law. To be blunt about it, hours after
the proclamation of martial law none of the members of
this Court could have divined that more than ten
thousand souls would be forced to evacuate to Iligan and
Cagayan de Oro and that the military would have to
secure those places also; none of us could have
predicted that Cayamora Maute would be arrested in
Davao City or that his wife Ominta Romato Maute would
be apprehended in Masiu, Lanao del Sur; and, none of
us had an inkling that the Bangsamoro Islamic Freedom
Fighters (BIFF) would launch an attack in Cotabato City.
The Court has no military background and technical
expertise to predict that. In the same manner, the Court
lacks the technical capability to determine which part of
Mindanao would best serve as forward operating base of
the military in their present endeavor in Mindanao. Until
now the Court is in a quandary and can only speculate
whether the 60-day lifespan of Proclamation No. 216
could outlive the present hostilities in Mindanao. It is on
this score that the Court should give the President
sufficient leeway to address the peace and order
problem in Mindanao.
Thus, considering the current situation, it will not serve
any purpose if the President is goaded into using "the
sword of Alexander to cut the Gordian knot"282 by
attempting to impose another encumbrance; after all "the
declaration of martial law or the suspension of the
privilege of the writ of habeas corpus is essentially an
executive act."283
Some sectors, impelled perhaps by feelings of
patriotism, may wish to subdue, rein in, or give the
President a nudge, so to speak, as some sort of
reminder of the nation's experience under the Marcos-
styled martial law. However, it is not fair to judge
President Duterte based on the ills some of us may have
experienced during the Marcos-martial law era. At this
point, the Court quotes the insightful discourse of
Commissioner Ople:
MR. OPLE. x x x
xxxx
Madam President, there is a tendency to equate
patriotism with rendering the executive branch of the
government impotent, as though by reducing drastically
the powers of the executive, we are rendering a service
to human welfare. I think it is also important to
understand that the extraordinary measures
contemplated in the Article on the Executive pertain to a
practical state of war existing in this country when
national security will become a common bond of
patriotism of all Filipinos, especially if it is an actual
invasion or an actual rebellion, and the President may
have to be given a minimum flexibility to cope with such
unprecedented threats to the survival of a nation. I think
the Commission has done so but at the same time has
not, in any manner, shunned the task of putting these
powers under a whole system of checks and balances,
including the possible revocation at any time of a
proclamation of martial law by the Congress, and in any
case a definite determination of these extraordinary
powers, subject only to another extension to be
determined by Congress in the event that it is necessary
to do so because the emergency persists.
So, I think this Article on the Executive for which I voted
is completely responsible; it is attuned to the freedom
and the rights of the citizenry. It does not render the
presidency impotent and, at the same time, it allows for a
vigorous representation of the people through their
Congress when an emergency measure is in force and
effect.284
h) Several local armed groups
have formed linkages aimed at
committing rebellion and acts in
furtherance thereof in the whole of
Mindanao.
With a predominantly Muslim population, Marawi City is
"the only Islamic City of the South."285 On April 15, 1980,
it was conferred the official title of "Islamic City of
Marawi."286 The city's first name, "Dansalan," "was
derived from the word 'dansal', meaning a destination
point or rendezvous. Literally, it also means arrival or
coming."287 Marawi lies in the heart of Mindanao. In fact,
the Kilometer Zero marker in Mindanao is found in
Marawi City thereby making Marawi City the point of
reference of all roads in Mindanao.
Thus, there is reasonable basis to believe that Marawi is
only the staging point of the rebellion, both for symbolic
and strategic reasons. Marawi may not be the target but
the whole of Mindanao. As mentioned in the Report,
"[l]awless armed groups have historically used provinces
adjoining Marawi City as escape routes, supply lines,
and backdoor passages;"288 there is also the plan to
establish a wilayat in Mindanao by staging the siege of
Marawi. The report that prior to May 23, 2017, Abdullah
Maute had already dispatched some of his men to
various places in Mindanao, such as Marawi, Iligan, and
180
Cagayan de Oro for bombing operations, carnapping,
and the murder of military and police personnel,289 must
also be considered. Indeed, there is some semblance of
truth to the contention that Marawi is only the start, and
Mindanao the end.
Other events also show that the atrocities were not
concentrated in Marawi City. Consider these:
a. On January 13, 2017, an improvised explosive device
(IED) exploded in Barangay Campo Uno, Lamita City,
Basilan. A civilian was killed while another was
wounded.290
b. On January 19, 2017, the ASG kidnapped three
Indonesians near Bakungan Island, Taganak, Tawi-
Tawi.291
c. On January 29, 2017, the ASG detonated an IED in
Barangay Danapah, Albarka, Basilan resulting in the
death of two children and the wounding of three
others.292
d. From March to May 2017, there were eleven (11)
separate instances of IED explosions by the BIFF in
Mindanao. These resulted in the death and wounding of
several personalities.293
e. On February 26, 2017, the ASG beheaded its kidnap
victim, Juergen Kantner in Sulu.294
f. On April 11, 2017, the ASG infiltrated Inabaga, Bohol
resulting in firefights between rebels and government
troops.295
g. On April 13, 2017, the ASG beheaded Filipino kidnap
victim Noel Besconde.296
h. On April 20, 2017, the ASG kidnapped SSg. Anni Siraji
and beheaded him three days later.297
There were also intelligence reports from the military
about offensives committed by the ASG and other local
rebel groups. All these suggest that the rebellion in
Marawi has already spilled over to other parts of
Mindanao.
Moreover, considering the widespread atrocities in
Mindanao and the linkages established among rebel
groups, the armed uprising that was initially staged in
Marawi cannot be justified as confined only to Marawi.
The Court therefore will not simply disregard the events
that happened during the Davao City bombing, the
Mamasapano massacre, the Zamboanga City siege, and
the countless bombings in Cotabato, Sultan Kudarat,
Sulu, and Basilan, among others.298 The Court cannot
simply take the battle of Marawi in isolation. As a crime
without predetermined bounds, the President has
reasonable basis to believe that the declaration of
martial law, as well as the suspension of the privilege of
the writ of habeas corpus in the whole of Mindanao, is
most necessary, effective, and called for by the
circumstances.
i) Terrorism neither negates
nor absorbs rebellion.
It is also of judicial notice that the insurgency in
Mindanao has been ongoing for decades. While some
groups have sought legal and peaceful means, others
have resorted to violent extremism and terrorism.
Rebellion may be subsumed under the crime of
terrorism, which has a broader scope covering a wide
range of predicate crimes. In fact, rebellion is only one of
the various means by which terrorism can be
committed.299 However, while the scope of terrorism may
be comprehensive, its purpose is distinct and well-
defined. The objective of a "'terrorist" is to sow and
create a condition of widespread fear among the
populace in order to coerce the government to give in to
an unlawful demand. This condition of widespread fear is
traditionally achieved through bombing, kidnapping,
mass killing, and beheading, among others. In contrast,
the purpose of rebellion, as previously discussed, is
political, i.e., (a) to remove from the allegiance to the
Philippine Government or its laws: (i) the territory of the
Philippines or any part thereof; (ii) any body of land,
naval, or armed forces; or (b) to deprive the Chief
Executive or Congress, wholly or partially, of any of their
powers and prerogatives.
In determining what crime was committed, we have to
look into the main objective of the malefactors. If it is
political, such as for the purpose of severing the
allegiance of Mindanao to the Philippine Government to
establish a wilayat therein, the crime is rebellion. If, on
the other hand, the primary objective is to sow and
create a condition of widespread and extraordinary fear
and panic among the populace in order to coerce the
government to give in to an unlawful demand, the crime
is terrorism. Here, we have already explained and ruled
that the President did not err in believing that what is
going on in Marawi City is one contemplated under the
crime of rebellion.
In any case, even assuming that the insurgency in
Marawi City can also be characterized as terrorism, the
same will not in any manner affect Proclamation No.
216. Section 2 of Republic Act (RA) No. 9372, otherwise
known as the Human Security Act of 2007 expressly
provides that "[n]othing in this Act shall be interpreted as
a curtailment, restriction or diminution of constitutionally
recognized powers of the executive branch of the
government." Thus, as long as the President complies
with all the requirements of Section 18, Article VII, the
existence of terrorism cannot prevent him from
exercising his extraordinary power of proclaiming martial
' law or suspending the privilege of the writ of habeas
corpus. After all, the extraordinary powers of the
President are bestowed on him by the Constitution. No
act of Congress can, therefore, curtail or diminish such
powers.
Besides, there is nothing in Art. 134 of the RPC and RA
9372 which states that rebellion and terrorism are
mutuallty exclusive of each other or that they cannot co-
exist together. RA 9372 does not expressly or impliedly
repeal Art. 134 of the RPC. And while rebellion is one of
the predicate crimes of terrorism, one cannot absorb the
other as they have different elements.300
Verily, the Court upholds the validity of the declaration of
martial law and suspension of the privilege of the writ
of habeas corpus in the entire Mindanao region.
At the end of the day, however ardently and passionately
we may believe in the validity or correctness of the
varied and contentious causes or principles that we
espouse, advocate or champion, let us not forget that at
this point in time we, the Filipino people, are confronted
with a crisis of such magnitude and proportion that we all
need to summon the spirit of unity and act as one
undivided nation, if we are to overcome and prevail in
the struggle at hand.
Let us face up to the fact that the siege in Marawi City
has entered the second month and only God or Allah
knows when it would end. Let us take notice of the fact
that the casualties of the war are mounting. To date, 418
have died. Out of that were 303 Maute rebels as against
71 government troops and 44 civilians.
Can we not sheathe our swords and pause for a while to
bury our dead, including our differences and prejudices?
WHEREFORE, the Court FINDS sufficient factual bases
for the issuance of Proclamation No. 216
and DECLARES it as CONSTITUTIONAL. Accordingly,
the consolidated Petitions are hereby DISMISSED.
SO ORDERED.
FACTS:
Effective May 23, 2017, and for a period not exceeding 60
days, President Rodrigo Roa Duterte issued Proclamation No.
216 declaring a state of martial law and suspending the
privilege of the writ of habeas corpus in the whole of
Mindanao.
181
In accordance with Section 18, Article VII of the Constitution,
the President, on May 25, 2017, submitted to Congress a
written Report on the factual basis of Proclamation No. 216.
The Report pointed out that for decades, Mindanao has been
plagued with rebellion and lawless violence which only
escalated and worsened with the passing of time.
On May 23, 2017, as the President stated in his Report, the
Maute terrorist group took over a hospital in Marawi City;
established several checkpoints within the city; burned down
certain government and private facilities and inflicted
casualties on the part of Government forces; and started flying
the flag of the Islamic State of Iraq and Syria (ISIS) in several
areas, thereby indicating a removal of allegiance from the
Philippine Government and their capability to deprive the duly
constituted authorities – the President, foremost – of their
powers and prerogatives.
The Report also highlighted the strategic location of Marawi
City; the role it plays in Mindanao, and the Philippines as a
whole; and the possible tragic repercussions once it falls under
the control of the lawless groups.
After the submission of the Report and the briefings, the
Senate declared that it found “no compelling reason to revoke
Proclamation 216.
The Lagman Group, the Cullamat Group and the Mohamad
Group petitioned the Supreme Court, questioning the factual
basis of President Duterte’s Proclamation of martial law.
ISSUES:
[1] W/N the petitions are the “appropriate proceeding”
covered by paragraph 3, Section 18, Article VII of the
Constitution sufficient to invoke the mode of review required
by the Court;
[2] A. Is the President required to be factually correct or only
not arbitrary in his appreciation of facts? B. Is the President
required to obtain the favorable recommendation thereon bf
the Secretary of National Defense? C. Is the President is
required to take into account only the situation at the time of
the proclamation, even if subsequent events prove the situation
to have not been accurately reported?
[3] Is the power of this Court to review the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus is
independent of the actual actions that have been taken by
Congress jointly or separately;
[4] W/N there were sufficient factual [basis] for the
proclamation of martial law or the suspension of the privilege
of the writ of habeas corpus; A. What are the parameters for
review? B. Who has the burden of proof? C. What is the
threshold of evidence?
[5] Whether the exercise of the power of judicial review by
this Court involves the calibration of graduated powers
granted the President as Commander-in-Chief?
[6] W/N Proclamation No. 216 of 23 May 2017 may be
considered, vague and thus null and void: a. with its inclusion
of “other rebel groups;” or b. since it has no guidelines
specifying its actual operational parameters within the entire
Mindanao region;
[7] W/N the armed hostilities mentioned in Proclamation No.
216 and in the Report of the President to Congress are
sufficient bases: a. for the existence of actual rebellion; or b.
for a declaration of martial law or the suspension of the
privilege of the writ of habeas corpus in the entire Mindanao
region;
[8] W/N terrorism or acts attributable to terrorism are
equivalent to actual rebellion and the requirements of public
safety sufficient to declare martial law or suspend the privilege
of the writ of habeas corpus; and
[9] W/N nullifying Proclamation No. 216 of23 May 2017 will:
A. have the effect of recalling Proclamation No. 55 s. 2016; or
B. also nullify the acts of the President in calling out the
armed forces to quell lawless violence in Marawi and other
parts of the Mindanao region.
RULING:
1. The Court agrees that the jurisdiction of this Court under
the third paragraph of Section 18, Article VII is sui generis. It
is a special and specific jurisdiction of the Supreme Court
different from those enumerated in Sections 1 and 5 of Article
VIII. The phrase “in an appropriate proceeding” appearing
on the third paragraph of Section 18, Article VII refers to any
action initiated by a citizen for the purpose of questioning the
sufficiency of the factual basis of the exercise of the Chief
Executive’s emergency powers, as in these cases. It could be
denominated as a complaint, a petition, or a matter to be
resolved by the Court.
2. a.) In determining the sufficiency of the factual basis of the
declaration and/or the suspension, the Court should look into
the full complement or totality of the factual basis, and not
piecemeal or individually. Neither should the Court expect
absolute correctness of the facts stated in the proclamation
and in the written Report as the President could not be
expected to verify the accuracy and veracity of all facts
reported to him due to the urgency of the situation. To require
him otherwise would impede the process of his decision-
making.
b.) The recommendation of the Defense Secretary is not a
condition for the declaration of martial law or suspension of
the privilege of the writ of habeas corpus. A plain reading of
Section 18, Article VII of the Constitution shows that the
President’s power to declare martial law is not subject to any
condition except for the requirements of actual invasion or
rebellion and that public safety requires it. Besides, it would
be contrary to common sense if the decision of the President is
made dependent on the recommendation of his mere alter ego.
Only on the President can exercise of the powers of the
Commander-in-Chief.
c.) As Commander-in-Chief, the President has the sole
discretion to declare martial law and/or to suspend the
privilege of the writ of habeas corpus, subject to the
revocation of Congress and the review of this Court. Since the
exercise of these powers is a judgment call of the President,
the determination of this Court as to whether there is sufficient
factual basis for the exercise of such, must be based only on
facts or information known by or available to the President at
the time he made the declaration or suspension which facts or
information are found in the proclamation as well as the
written Report submitted by him to Congress. These may be
based on the situation existing at the time the declaration was
made or past events. As to how far the past events should be
from the present depends on the President.
3. The power of the Court to review the sufficiency of the
factual basis of the proclamation of martial law or the
suspension of the privilege of the writ of habeas corpus under
Section 18, Article VII of the 1987 Constitution is independent
of the actions taken by Congress.
The Court may strike down the presidential proclamation in
an appropriate proceeding filed by any citizen on the ground
of lack sufficient factual basis. On the other hand, Congress
may revoke the proclamation or suspension, which revocation
shall not be set aside by the President. The power to review by
the Court and the power to revoke by Congress are not only
totally different but likewise independent from each other
although concededly, they have the same trajectory, which is,
the nullification of the presidential proclamation.
4. The parameters for determining the sufficiency of factual
basis are as follows: l) actual rebellion or invasion; 2) public
safety requires it; the first two requirements must concur; and
3) there is probable cause for the President to believe that
there is actual rebellion or invasion.
The President needs only to satisfy probable cause as the
standard of proof in determining the existence of either
invasion or rebellion for purposes of declaring martial law,
and that probable cause is the most reasonable, most practical
and most expedient standard by which the President can fully
ascertain the existence or non-existence of rebellion necessary
for a declaration of martial law or suspension of the writ. To
require him to satisfy a higher standard of proof would restrict
the exercise of his emergency powers.
182
5. The judicial power to review the sufficiency of factual basis
of the declaration of martial law or the suspension of the
privilege of the writ of habeas corpus does not extend to the
calibration of the President’s decision of which among his
graduated powers he will avail of in a given situation. To do
so would be tantamount to an incursion into the exclusive
domain of the Executive and an infringement on the
prerogative that solely, at least initially, lies with the
President.
6. a.) Inclusion of “other rebel groups ” does not make
Proclamation No. 216 vague. The term “other rebel groups”
in Proclamation No. 216 is not at all vague when viewed in
the context of the words that accompany it. Verily, the text of
Proclamation No. 216 refers to “other rebel groups” found in
Proclamation No. 55, which it cited by way of reference in its
Whereas clauses.
b.) Lack of guidelines/operational parameters does not make
Proclamation No. 216 vague. Operational guidelines will
serve only as mere tools for the implementation of the
proclamation.
There is no need for the Court to determine the
constitutionality of the implementing and/or operational
guidelines, general orders, arrest orders and other orders
issued after the proclamation for being irrelevant to its review.
Any act committed under the said orders in violation of the
Constitution and the laws should be resolved in a separate
proceeding. Finally, there is a risk that if the Court wades into
these areas, it would be deemed as trespassing into the sphere
that is reserved exclusively for Congress in the exercise of its
power to revoke.
7. There is sufficient factual basis for the declaration of
martial law and the suspension of the writ of habeas corpus.
By a review of the facts available to him that there was an
armed public uprising, the culpable purpose of which was to
remove from the allegiance to the Philippine Government a
portion of its territory and to deprive the Chief Executive of
any of his power and prerogatives, leading the President to
believe that there was probable cause that the crime of
rebellion was and is being committed and that public safety
requires the imposition of martial law and suspension of the
privilege of the writ of habeas corpus.
After all, what the President needs to satisfy is only the
standard of probable cause for a valid declaration of martial
law and suspension of the privilege of the writ of habeas
corpus.
8. Terrorism neither negates nor absorbs rebellion. Rebellion
may be subsumed under the crime of terrorism, which has a
broader scope covering a wide range of predicate crimes. In
fact, rebellion is only one of the various means by which
terrorism can be committed.
Meanwhile, public safety requires the declaration of martial
law and the suspension of the privilege of the writ of habeas
corpus in the whole of Mindanao. For a declaration of martial
law or suspension of the privilege of the writ of habeas corpus
to be valid, there must be concurrence of 1.) actual rebellion
or invasion and 2.) the public safety requirement.
In his report, the President noted that the acts of violence
perpetrated by the ASG and the Maute Group were directed
not only against government forces or establishment but
likewise against civilians and their properties. There were
bomb threats, road blockades, burning of schools and
churches, hostages and killings of civilians, forced entry of
young male Muslims to the group, there were hampering of
medical services and delivery of basic services, reinforcement
of government troops, among others. These particular
scenarios convinced the President that the atrocities had
already escalated to a level that risked public safety and thus
impelled him to declare martial law and suspend the privilege
of the writ of habeas corpus.
9. a.) The calling out power is in a different category from the
power to declare martial law and the power to suspend the
privilege of the writ of habeas corpus; nullification of
Proclamation No. 216 will not affect Proclamation No. 55.
The President may exercise the power to call out the Armed
Forces independently of the power to suspend the privilege of
the writ of habeas corpus and to declare martial law. Even so,
the Court’s review of the President’s declaration of martial
law and his calling out the Armed Forces necessarily entails
separate proceedings instituted for that particular purpose.
b.) Neither would the nullification of Proclamation No. 216
result in the nullification of the acts of the President done
pursuant thereto. Under the operative fact doctrine,” the
unconstitutional statute is recognized as an “operative fact”
before it is declared unconstitutional.
***
Verily, the Court upholds the validity of the declaration of
martial law and suspension of the privilege of the writ of
habeas corpus in the entire Mindanao region. The Court
FINDS sufficient factual bases for the issuance of
Proclamation No. 216 and DECLARES it as
CONSTITUTIONAL. Accordingly, the consolidated Petitions
are hereby DISMISSED.
G.R. No. L-1278 January 21, 1949
LORETO BARRIOQUINTO and NORBERTO
JIMENEZ, petitioners,
vs.
ENRIQUE A. FERNANDEZ, ANTONIO BELMONTE
and FELICISIMO OCAMPO, as Commissioners of the
Fourteenth Guerrilla Amnesty
Commission, respondents.
Roseller T. Lim for petitioners.
Antonio Belmonte for respondents.
FERIA, J.:
This is a special action of mandamus instituted by the
petitioners against the respondents who composed the
14th Guerrilla Amnesty Commission, to compel the latter
to act and decide whether or not the petitioners are
entitled to the benefits of amnesty.
Petitioners Norberto Jimenez and Loreto Barrioquinto
were charged with the crime of murder. As the latter had
not yet been arrested the case proceeded against the
former, and after trial Court of First Instance of
Zamboanga sentenced Jimenez to life imprisonment.
Before the period for perfecting an appeal had expired,
the defendant Jimenez became aware of the
Proclamation No. 8, dated September 7, 1946, which
grants amnesty in favor of all persons who may be
charged with an act penalized under the Revised Penal
Code in furtherance of the resistance to the enemy or
against persons aiding in the war efforts of the enemy,
and committed during the period from December 8,
1941, to the date when particular area of the Philippines
where the offense was actually committed was liberated
from enemy control and occupation, and said Jimenez
decided to submit his case to the Guerrilla Amnesty
Commission presided by the respondents herein, and
the other petitioner Loreto Barrioquinto, who had then
been already apprehended, did the same.
After a preliminary hearing had started, the Amnesty
Commission, prescribed by the respondents, issued on
January 9, 1947, an order returning the cases of the
petitioners to the Court of First Instance of Zamboanga,
without deciding whether or not they are entitled to the
benefits of he said Amnesty Proclamation, on the ground
that inasmuch as neither Barrioquinto nor Jimenez have
admitted having committed the offense, because
Barrioquinto alleged that it was Hipolito Tolentino who
shot and killed the victim, they cannot invoke the benefits
of amnesty.
The Amnesty Proclamation of September 7, 1946,
issued by the President with the concurrence of
Congress of the Philippines, reads in part as follows:
WHEREAS, since the inception of the war until
the liberation of the different areas comprising
the territory of the Philippines, volunteer armed
forces of Filipinos and for of other nationalities
operated as guerrillas and other patriotic
individuals and groups pursued activities in
183
opposition to the forces and agents of the
Japanese Empire in the invasion and occupation
of the Philippines;
WHEREAS, members of such forces, in their
determined efforts to resist the enemy, and to
bring about his ultimate defeat, committed acts
penalized under the Revised Penal Code;
WHEREAS, charges have been presented in the
courts against many members of these
resistance forces, for such acts;
WHEREAS, the fact that such acts were
committed in furtherance of the resistance to the
enemy is not a valid defense under the laws of
the Philippines;
WHEREAS, the persons so accused should not
be regarded as criminals but rather as patriots
and heroes who have rendered invaluable
service to the nation; and
WHEREAS, it is desirable that without the least
possible delay, these persons be freed form the
indignity and the jeopardy to which they are now
being subjected;
NOW, THEREFORE, I Manuel Roxas, President
of the Philippines in accordance with the
provisions of Article VII, section 10, paragraph 6
of the Constitution, do hereby declare and
proclaim an amnesty inn favor of al persons who
committed any act penalized under the Revised
Penal Code in furtherance of the resistance to
the enemy or against persons aiding in the war
effort of the enemy, and committed during the
period from December 8, 1941 to the date when
each particular area of the Philippines was
actually liberated from the enemy control and
occupation. This amnesty shall not apply to
crimes against chastity or to acts committed
from purely personal motives.
It is further proclaimed and declared that in order
to determine who among those against whom
charges have been filed before the courts of the
Philippines or against whom charges may be
filed in the future, come within the terms of this
amnesty, Guerrilla Amnesty Commissions,
simultaneously to be established , shall examine
the facts and circumstance surrounding each
case and, if necessary, conduct summary
hearings of witnesses both for the complainant
and the accused. These Commissions shall
decided each case and, upon finding that it falls
within the terms of this proclamation, the
Commissions shall so declare and this amnesty
shall immediately be effective as to the accused,
who shall forthwith be released or discharged.
The theory of the respondents, supported by the
dissenting opinion, is predicated on a wrong conception
of the nature or character of an amnesty. Amnesty must
be distinguished from pardon.
Pardon is granted by the Chief Executive and as such it
is a private act which must be pleaded and proved by the
person pardoned, because the courts take no notice
thereof; while amnesty by Proclamation of the Chief
Executive with the concurrence of Congress, and it is a
public act of which the courts should take judicial notice.
Pardon is granted to one after conviction; while amnesty
is granted to classes of persons or communities who
may be guilty of political offenses, generally before or
after the institution of the criminal prosecution and
sometimes after conviction. Pardon looks forward and
relieves the offender from the consequences of an
offense of which he has been convicted, that is, it
abolished or forgives the punishment, and for that
reason it does ""nor work the restoration of the rights to
hold public office, or the right of suffrage, unless such
rights be expressly restored by the terms of the pardon,"
and it "in no case exempts the culprit from the payment
of the civil indemnity imposed upon him by the sentence"
article 36, Revised Penal Code). while amnesty looks
backward and abolishes and puts into oblivion the
offense itself, it so overlooks and obliterates the offense
with which he is charged that the person released by
amnesty stands before the law precisely as though he
had committed no offense. (section 10[6], Article VII,
Philippine Constitution; State vs. Blalock, 62 N.C., 242,
247; In re Briggs, 135 N.C., 118; 47 S.E. 402., 403; Ex
parte Law, 35 GA., 285, 296; State ex rel Anheuser—
Busch Brewing Ass'n. vs. Eby, 170 Mo., 497; 71 S.W 52,
61; Burdick vs United States, N.Y., 35 S. Ct., 267; 271;
236 U.S., 79; 59 Law. ed., 476.)
In view of the foregoing, we are of the opinion and so
hold that, in order to entitle a person to the benefits of
the Amnesty Proclamation of September 7, 1946, it is not
necessary that he should, as a condition precedent
or sine qua non, admit having committed the criminal act
or offense with which he is charged and allege the
amnesty as a defense; it is sufficient that the evidence
either of the complainant or the accused, shows that the
offense committed comes within the terms of said
Amnesty Proclamation. Hence, it is not correct to say
that "invocation of the benefits of amnesty is in the
nature of a plea of confession and avoidance." Although
the accused does not confess the imputation against
him, he may be declared by the courts or the Amnesty
Commissions entitled to the benefits. For, whether or not
he admits or confesses having committed the offense
with which he is charged, the Commissions should, if
necessary or requested by the interested party, conduct
summary hearing of the witnesses both for the
complainants and the accused, on whether he has
committed the offense in furtherance of the resistance to
the enemy, or against persons aiding in the war efforts of
the enemy, and decide whether he is entitled to the
benefits of amnesty and to be "regarded as a patriot or
hero who have rendered invaluable services to the
nation,," or not, in accordance with the terms of the
Amnesty Proclamation. since the Amnesty Proclamation
is a public act, the courts as well as the Amnesty
Commissions created thereby should take notice of the
terms of said Proclamation and apply the benefits
granted therein to cases coming within their province or
jurisdiction, whether pleaded or claimed by the person
charged with such offenses or not, if the evidence
presented show that the accused is entitled to said
benefits.
The right to the benefits of amnesty, once established by
the evidence presented either by the complainant or
prosecution, or by the defense, can not be waived,
because it is of public interest that a person who is
regarded by the Amnesty Proclamation which has the
force of a law, not only as innocent, for he stands in the
eyes of the law as if he had never committed any
punishable offense because of the amnesty, but as a
patriot or hero, can not be punishment as a criminal. Just
as the courts of justice can not convict a person who,
according to the evidence, has committed an act not
punishable by law, although he confesses being guilty
thereof, so also and a fortiori they can not convict a
person considered by law not a criminal, but as a patriot
and hero, for having rendered invaluable services to the
nation inn committing such an act.
While it is true that the evidence must show that the
offense charged was against chastity and was
committed in furtherance of the resistance against the
enemy, for otherwise, it is to be naturally presumed that
is has been committed for purely personal motive, it is
nonetheless true that though the motive as a mental
impulse is state of mind or subjective, it need not be
testified to be the defendant himself at his arraignment or
184
hearing of the case. Generally the motive for the
commission of an offense is established by the testimony
of witnesses on the acts or statements of the accused
before or immediately after the commission of the
offense, deeds or words hat may express it or from
which his motive or reason for committing it may be
inferred. The statement of testimony of a defendant at
the time of arraignment or the hearing of the case about
said motive, can not generally be considered and relied
on, specially if there is evidence to the contrary, as the
true expression of the reason o motive he had at the
time of committing the offense. Because such
statements or testimony may be an afterthought or
colored by the interest he may have to suit his defense
or the purpose for which he intends to achieve with such
declaration. Hence it does not stand to reason and logic
to say, as the dissenting opinion avers, that unless the
defendant admits at the investigation or hearing having
committed the offense with which he is charged, and
states that he did it in furtherance of the resistance to the
enemy, and not for purely personal motive, it is
impossible for the court of Commission to verify the
motive for the commission of the offense, because only
the accused could explain of the offense, because only
the accused could explain his belief and intention or the
motive of committing the offense.
There is no necessity for an accused to admit his
responsibility for the commission of a criminal act before
a court of Amnesty Commission may investigate and
extend or not to him the benefits of amnesty. The fact
that he pleads not guilty or that he has not committed the
act with which he is charged, does not necessarily prove
that he is not guilty thereof. Notwithstanding his denial,
the evidence for the prosecution or complainant may
show the contrary, as it is generally the case in criminal
proceedings, and what should in such a case be
determined is whether or not the offense committed is of
political character. The plea of not having committed the
offense made by an accused simply means that he can
not be convicted of the offense charged because he is
not guilty thereof, and, even if the evidence would show
that he is, because he has committed it in furtherance of
the resistance to the enemy or against persons a ding in
the war efforts of the enemy, and not for purely political
motives.
According to Administrative Order No. 11 of October 2,
1946, creating the Amnesty Commissions, issued by the
President of the Philippines, cases pending in the Courts
of First Instance of the province in which the accused
claims the benefits of Amnesty Proclamation, and cases
already decided by said courts but not yet elevated on
appeal to the appellate courts, shall be passed upon and
decided by the respective Amnesty Commission, and
cases pending appeal shall be passed upon by the
Seventh Amnesty Commission. Under the theory of the
respondents and the writer oft he dissenting opinion, the
Commissions should refuse to comply with the directive
of said Administrative Order, because is almost all cases
pending in the Court of First Instance, and all those
pending appeal form the sentence of said courts, the
defendants must not have pleaded guilty or admitted
having committed the offense charged for otherwise,
they would not or could not have appealed from the
judgment of the Courts of First Instance. To hold that a
Amnesty Commission should not proceed to the
investigation and act and decide whether the offense
with which an accused was charged comes within the
Amnesty Proclamation if he does not admit or confess
having committed it would be to defeat the purpose for
which the Amnesty Proclamation was issued and the
Amnesty Commission were established. If the courts
have to proceed to the trail or hearing of a case and
decide whether the offense committed by the defendant
comes within the terms of the Amnesty Proclamation
although the defendant has plead not guilty, there is no
reason why the Amnesty Commissions can not do so.
Where a defendant to admit or confess having
committed the offense or being responsible therefor
before he can invoke the benefit of amnesty, as there is
no law which makes such admission or confession not
admissible as evidence against him in the courts of
justices in case the Amnesty Commission finds that the
offense does not come within the terms of the Amnesty
Proclamation, nobody or few would take the risk of
submitting their case to said Commission.
Besides, in the present case, the allegation of Loreto
Barrioquinto that the offended party or victim was shot
and killed by Agapito Hipolito , does not necessarily bar
the respondents from finding, after the summary hearing
of the witnesses for the complaints and the accused,
directed in the said Amnesty Proclamation and
Administrative Order No. 11, that the petitioners are
responsible for the killing of the victim, either as
principals by cooperation, inducement or conspiration, or
as accessories before as well as after the fact, but that
they are entitled to the benefits of amnesty, because
they were members of the same group of guerrilleros
who killed the victim in furtherance of the resistance to
the enemy or against persons aiding in the war efforts of
the enemy.
Wherefore, the respondents are hereby ordered to
immediately proceed to hear and decide the application
for amnesty of petitioners Barrioquinto and Jimenez,
unless amnesty of petitioners Barrioquinto and Jimenez,
unless the courts have in the meantime already decided,
expressly and finally, the question whether or not they
are entitled to the benefits of the Amnesty Proclamation
No. 8 of September 7, 1946. So ordered.
G.R. No. L-1278 – 82 Phil. 642 – Political Law –
Constitutional Law – Amnesty Compared w/ Pardon –
Admission Not Needed in Amnesty
Jimenez and Barrioquinto were charged for murder
for the killings they made during the war. The case
was proceeded against Jimenez because Barrioquinto
was nowhere to be found. Jimenez was then
sentenced to life imprisonment. Before the period for
perfecting an appeal had expired, the defendant
Jimenez became aware of Proclamation No. 8, which
grants amnesty in favor of all persons who may be
charged with an act penalized under the RPC in
furtherance of the resistance to the enemy or against
persons aiding in the war efforts of the enemy.
Barrioquinto learned about the proclamation and he
surfaced in order to invoke amnesty as well. However,
Commissioner Fernandez of the 14th Amnesty
Commission refused to process the amnesty request
of the two accused because the two refused to admit
to the crime as charged. Jimenez & Barrioquinto in
fact said that a certain Tolentino was the one who
committed the crime being charged to them.
ISSUE: Whether or not admission of guilt is necessary
in amnesty.
HELD: Pardon is granted by the President and as such
it is a private act which must be pleaded and proved
by the person pardoned, because the courts take no
notice thereof; while amnesty by Proclamation of the
President with the concurrence of Congress, and it is
a public act of which the courts should take judicial
185
notice. Pardon is granted to one after conviction;
while amnesty is granted to classes of persons or
communities who may be guilty of political offenses,
generally before or after the institution of the criminal
prosecution and sometimes after conviction. Pardon
looks forward and relieves the offender from the
consequences of an offense of which he has been
convicted, that is, it abolishes or forgives the
punishment, and for that reason it does “”nor work
the restoration of the rights to hold public office, or
the right of suffrage, unless such rights be expressly
restored by the terms of the pardon,”” and it “”in no
case exempts the culprit from the payment of the civil
indemnity imposed upon him by the sentence”” (art
36, RPC). While amnesty looks backward and
abolishes and puts into oblivion the offense itself, it
so overlooks and obliterates the offense with which
he is charged that the person released by amnesty
stands before the law precisely as though he had
committed no offense.
In order to entitle a person to the benefits of the
Amnesty Proclamation, it is not necessary that he
should, as a condition precedent or sine qua non,
admit having committed the criminal act or offense
with which he is charged, and allege the amnesty as a
defense; it is sufficient that the evidence, either of the
complainant or the accused, shows that the offense
committed comes within the terms of said Amnesty
Proclamation. Hence, it is not correct to say that
“”invocation of the benefits of amnesty is in the
nature of a plea of confession and avoidance.””
Although the accused does not confess the
imputation against him, he may be declared by the
courts or the Amnesty Commissions entitled to the
benefits of the amnesty. For, whether or not he
admits or confesses having committed the offense
with which he is charged, the Commissions should, if
necessary or requested by the interested party,
conduct summary hearing of the witnesses both for
the complainants and the accused, on whether he has
committed the offense in furtherance of the
resistance to the enemy, or against persons aiding in
the war efforts of the enemy, and decide whether he
is entitled to the benefits of amnesty and to be
“”regarded as a patriot or hero who have rendered
invaluable services to the nation,”” or not, in
accordance with the terms of the Amnesty
Proclamation. Since the Amnesty Proclamation is a
public act, the courts as well as the Amnesty
Commissions created thereby should take notice of
the terms of said Proclamation and apply the benefits
granted therein to cases coming within their province
or jurisdiction, whether pleaded or claimed by the
person charged with such offenses or not, if the
evidence presented shows that the accused is entitled
to said benefits.
G.R. No. 78239 February 9, 1989
SALVACION A. MONSANTO, petitioner,
vs.
FULGENCIO S. FACTORAN, JR., respondent.
FERNAN, C.J.:
The principal question raised in this petition for review is
whether or not a public officer, who has been granted an
absolute pardon by the Chief Executive, is entitled to
reinstatement to her former position without need of a
new appointment.
In a decision rendered on March 25, 1983, the
Sandiganbayan convicted petitioner Salvacion A.
Monsanto (then assistant treasurer of Calbayog City)
and three other accused, of the complex crime of estafa
thru falsification of public documents and sentenced
them to imprisonment of four (4) years, two (2) months
and one (1) day of prision correccional as minimum, to
ten (10) years and one (1) day of prision mayor as
maximum, and to pay a fine of P3,500. They were further
ordered to jointly and severally indemnify the
government in the sum of P4,892.50 representing the
balance of the amount defrauded and to pay the costs
proportionately.
Petitioner Monsanto appealed her conviction to this
Court which subsequently affirmed the same. She then
filed a motion for reconsideration but while said motion
was pending, she was extended on December 17, 1984
by then President Marcos absolute pardon which she
accepted on December 21, 1984.
By reason of said pardon, petitioner wrote the Calbayog
City treasurer requesting that she be restored to her
former post as assistant city treasurer since the same
was still vacant.
Petitioner's letter-request was referred to the Ministry of
Finance for resolution in view of the provision of the
Local Government Code transferring the power of
appointment of treasurers from the city governments to
the said Ministry. In its 4th Indorsement dated March 1,
1985, the Finance Ministry ruled that petitioner may be
reinstated to her position without the necessity of a new
appointment not earlier than the date she was extended
the absolute pardon. It also directed the city treasurer to
see to it that the amount of P4,892.50 which the
Sandiganbayan had required to be indemnified in favor
of the government as well as the costs of the litigation,
be satisfied. 1
Seeking reconsideration of the foregoing ruling,
petitioner wrote the Ministry on April 17, 1985 stressing
that the full pardon bestowed on her has wiped out the
crime which implies that her service in the government
has never been interrupted and therefore the date of her
reinstatement should correspond to the date of her
preventive suspension which is August 1, 1982; that she
is entitled to backpay for the entire period of her
suspension; and that she should not be required to pay
the proportionate share of the amount of P4,892.50. 2
The Ministry of Finance, however, referred petitioner's
letter to the Office of the President for further review and
action. On April 15, 1986, said Office, through Deputy
Executive Secretary Fulgenio S. Factoran, Jr. held:
We disagree with both the Ministry of
Finance and the petitioner because, as
borne out by the records, petitioner was
convicted of the crime for which she was
accused. In line with the government's
crusade to restore absolute honesty in
public service, this Office adopts, as
a juridical guide (Miranda v. Imperial, 77
Phil. 1966), the Resolution of the
Sandiganbayan, 2nd Division, in People
v. Lising, Crim. Case No. 6675, October
4, 1985, that acquittal, not absolute
pardon, of a former public officer is the
only ground for reinstatement to his
former position and entitlement to
payment of his salaries, benefits and
186
emoluments due to him during the
period of his suspension pendente lite.
In fact, in such a situation, the former
public official must secure a
reappointment before he can reassume
his former position. ...
Anent the civil liability of Monsanto, the
Revised Penal Code expressly provides
that "a pardon shall in no case exempt
the culprit from payment of the civil
indemnity imposed upon him by the
sentence." (Sec. 36, par. 2).
IN VIEW OF THE FOREGOING, this
Office holds that Salvacion A. Monsanto
is not entitled to an automatic
reinstatement on the basis of the
absolute pardon granted her but must
secure an appointment to her former
position and that, notwithstanding said
absolute pardon, she is liable for the civil
liability concomitant to her previous
conviction. 3
Her subsequent motion for reconsideration having been
denied, petitioner filed the present petition in her behalf
We gave due course on October 13, 1987.
Petitioner's basic theory is that the general rules on
pardon cannot apply to her case by reason of the fact
that she was extended executive clemency while her
conviction was still pending appeal in this Court. There
having been no final judgment of conviction, her
employment therefore as assistant city treasurer could
not be said to have been terminated or forfeited. In other
words, without that final judgment of conviction, the
accessory penalty of forfeiture of office did not attach
and the status of her employment remained
"suspended." More importantly, when pardon was issued
before the final verdict of guilt, it was an acquittal
because there was no offense to speak of. In effect, the
President has declared her not guilty of the crime
charged and has accordingly dismissed the same. 4
It is well to remember that petitioner had been convicted
of the complex crime of estafa thru falsification of public
documents and sentenced to imprisonment of four years,
two months and one day of prision correccional as
minimum, to ten years and one day of prision mayor as
maximum. The penalty of prision mayor carries the
accessory penalties of temporary absolute
disqualification and perpetual special disqualification
from the right of suffrage, enforceable during the term of
the principal penalty. 5 Temporary absolute
disqualification bars the convict from public office or
employment, such disqualification to last during the term
of the sentence. 6 Even if the offender be pardoned, as
to the principal penalty, the accessory penalties remain
unless the same have been expressly remitted by the
pardon. 7 The penalty of prision correccional carries, as
one of its accessory penalties, suspension from public
office. 8
The propositions earlier advanced by petitioner reveal
her inadequate understanding of the nature of pardon
and its legal consequences. This is not totally
unexpected considering that the authorities on the
subject have not been wholly consistent particularly in
describing the effects of pardon.
The benign mercy of pardon is of British origin,
conceived to temper the gravity of the King's wrath. But
Philippine jurisprudence on the subject has been largely
influenced by American case law.
Pardon is defined as "an act of grace, proceeding from
the power entrusted with the execution of the laws,
which exempts the individual, on whom it is bestowed,
from the punishment the law inflicts for a crime he has
committed. It is the private, though official act of the
executive magistrate, delivered to the individual for
whose benefit it is intended, and not communicated
officially to the Court. ... A pardon is a deed, to the
validity of which delivery is essential, and delivery is not
complete without acceptance." 8-a
At the time the antecedents of the present case took
place, the pardoning power was governed by the 1973
Constitution as amended in the April 7, 1981 plebiscite.
The pertinent provision reads:
The President may, except in cases of
impeachment, grant reprieves,
commutations and pardons, remit fines
and forfeitures, and with the
concurrence of the Batasang
Pambansa, grant amnesty. 9
The 1981 amendments had deleted the earlier rule that
clemency could be extended only upon final conviction,
implying that clemency could be given even before
conviction. Thus, petitioner's unconditional pardon was
granted even as her appeal was pending in the High
Court. It is worth mentioning that under the 1987
Constitution, the former limitation of final conviction was
restored. But be that as it may, it is our view that in the
present case, it is not material when the pardon was
bestowed, whether before or after conviction, for the
result would still be the same. Having accepted the
pardon, petitioner is deemed to have abandoned her
appeal and her unreversed conviction by the
Sandiganbayan assumed the character of finality.
Having disposed of that preliminary point, we proceed to
discuss the effects of a full and absolute pardon in
relation to the decisive question of whether or not the
plenary pardon had the effect of removing the
disqualifications prescribed by the Revised Penal Code.
In Pelobello v. Palatino, 10 We find a reiteration of the
stand consistently adopted by the courts on the various
consequences of pardon: "... we adopt the broad view
expressed in Cristobal v. Labrador, G.R. No. 47941,
December 7, 1940, that subject to the limitations
imposed by the Constitution, the pardoning power
cannot be restricted or controlled by legislative action;
that an absolute pardon not only blots out the crime
committed but removes all disabilities resulting from the
conviction. ... (W)e are of the opinion that the better view
in the light of the constitutional grant in this jurisdiction is
not to unnecessarily restrict or impair the power of the
Chief Executive who, after an inquiry into the
environmental facts, should be at liberty to atone the
rigidity of the law to the extent of relieving completely the
party ... concerned from the accessory and resultant
disabilities of criminal conviction.
The Pelobello v. Palatino and Cristobal v.
Labrador cases, 11 and several others 12 show the
unmistakable application of the doctrinal case of Ex
Parte Garland, 13 whose sweeping generalizations to this
day continue to hold sway in our jurisprudence despite
the fact that much of its relevance has been downplayed
by later American decisions.
Consider the following broad statements:
A pardon reaches both the punishment
prescribed for the offense and the guilt
of the offender; and when the pardon is
full, it releases the punishment and blots
out of existence the guilt, so that in the
eye of the law the offender is as
innocent as if he had never committed
the offense. If granted before conviction,
it prevents any of the penalties and
disabilities, consequent upon conviction,
from attaching; if granted after
conviction, it removes the penalties and
disabilities and restores him to all his
civil rights; it makes him, as it were, a
187
new man, and gives him a new credit
and capacity. 14
Such generalities have not been universally accepted,
recognized or approved. 15 The modern trend of
authorities now rejects the unduly broad language of
the Garland case (reputed to be perhaps the most
extreme statement which has been made on the effects
of a pardon). To our mind, this is the more realistic
approach. While a pardon has generally been regarded
as blotting out the existence of guilt so that in the eye of
the law the offender is as innocent as though he never
committed the offense, it does not operate for all
purposes. The very essence of a pardon is forgiveness
or remission of guilt. Pardon implies guilt. It does not
erase the fact of the commission of the crime and the
conviction thereof. It does not wash out the moral stain.
It involves forgiveness and not forgetfulness. 16
The better considered cases regard full pardon (at least
one not based on the offender's innocence) as relieving
the party from all the punitive consequences of his
criminal act, including the disqualifications or disabilities
based on the finding of guilt. 17 But it relieves him from
nothing more. "To say, however, that the offender is a
"new man", and "as innocent as if he had never
committed the offense;" is to ignore the difference
between the crime and the criminal. A person adjudged
guilty of an offense is a convicted criminal, though
pardoned; he may be deserving of punishment, though
left unpunished; and the law may regard him as more
dangerous to society than one never found guilty of
crime, though it places no restraints upon him following
his conviction." 18
A pardon looks to the future. It is not retrospective. 19 It
makes no amends for the past. It affords no relief for
what has been suffered by the offender. It does not
impose upon the government any obligation to make
reparation for what has been suffered. "Since the offense
has been established by judicial proceedings, that which
has been done or suffered while they were in force is
presumed to have been rightfully done and justly
suffered, and no satisfaction for it can be
required." 20 This would explain why petitioner, though
pardoned, cannot be entitled to receive backpay for lost
earnings and benefits.
Petitioner maintains that when she was issued absolute
pardon, the Chief Executive declared her not guilty of the
crime for which she was convicted. In the case of State
v. Hazzard, 21 we find this strong observation: "To
assume that all or even a major number of pardons are
issued because of innocence of the recipients is not only
to indict our judicial system, but requires us to assume
that which we all know to be untrue. The very act of
forgiveness implies the commission of wrong, and that
wrong has been established by the most complete
method known to modern civilization. Pardons may
relieve from the disability of fines and forfeitures
attendant upon a conviction, but they cannot erase the
stain of bad character, which has been definitely fixed. 22
In this ponencia, the Court wishes to stress one vital
point: While we are prepared to concede that pardon
may remit all the penal consequences of a criminal
indictment if only to give meaning to the fiat that a
pardon, being a presidential prerogative, should not be
circumscribed by legislative action, we do not subscribe
to the fictitious belief that pardon blots out the guilt of an
individual and that once he is absolved, he should be
treated as if he were innocent. For whatever may have
been the judicial dicta in the past, we cannot perceive
how pardon can produce such "moral changes" as to
equate a pardoned convict in character and conduct with
one who has constantly maintained the mark of a good,
law-abiding citizen.
Pardon cannot mask the acts constituting the crime.
These are "historical" facts which, despite the public
manifestation of mercy and forgiveness implicit in
the crime of estafa through falsification of public
pardon, "ordinary, prudent men will take into account in
their subsequent dealings with the actor." 23 documents. She was sentenced to jail and to indemnify
Pardon granted after conviction frees the individual from
the government in the sum of P4,892.50.The SC
all the penalties and legal disabilities and restores him to
all his civil rights. But unless expressly grounded on the affirmed the decision. She then filed a motion for
person's innocence (which is rare), it cannot bring back
lost reputation for honesty, integrity and fair reconsideration but while said motion was pending, she
dealing. 24 This must be constantly kept in mind lest we was extended by then President Marcos absolute pardon
lose track of the true character and purpose of the
privilege. which she accepted (at that time, the rule was that
Thus, notwithstanding the expansive and effusive clemency could be given even before conviction). By
language of the Garland case, we are in full agreement
with the commonly-held opinion that pardon does reason of said pardon, petitioner wrote the Calbayog City
not ipso facto restore a convicted felon to public office treasurer requesting that she be restored to her former
necessarily relinquished or forfeited by reason of the
conviction 25 although such pardon undoubtedly restores post as assistant city treasurer since the same was still
his eligibility for appointment to that office. 26 vacant. Her letter was referred to the Minister of Finance
The rationale is plainly evident Public offices are
intended primarily for the collective protection, safety and who ruled that she may be reinstated to her position
benefit of the common good. They cannot be without the necessity of a new appointment not earlier
compromised to favor private interests. To insist on
automatic reinstatement because of a mistaken notion than the date she was extended the absolute pardon.
that the pardon virtually acquitted one from the offense
of estafa would be grossly untenable. A pardon, albeit full
and plenary, cannot preclude the appointing power from Petitioner wrote the Ministry stressing that the full pardon
refusing appointment to anyone deemed to be of bad
bestowed on her has wiped out the crime which implies
character, a poor moral risk, or who is unsuitable by
reason of the pardoned conviction. that her service in the government has never been
For petitioner Monsanto, this is the bottom line: the
interrupted and therefore the date of her reinstatement
absolute disqualification or ineligibility from public office
forms part of the punishment prescribed by the Revised should correspond to the date of her preventive
Penal Code for estafa thru falsification of public
documents. It is clear from the authorities referred to that suspension; that she is entitled to backpay for the entire
when her guilt and punishment were expunged by her period of her suspension; and that she should not be
pardon, this particular disability was likewise removed.
Henceforth, petitioner may apply for reappointment to required to pay the proportionate share of the amount of
the office which was forfeited by reason of her P4,892.50
conviction. And in considering her qualifications and
suitability for the public post, the facts constituting her
offense must be and should be evaluated and taken into The Ministry referred the issue to the Office of the
account to determine ultimately whether she can once
again be entrusted with public funds. Stated differently, President. Deputy Executive Secretary Factoran denied
the pardon granted to petitioner has resulted in removing
Monsanto’s request averring that Monsanto must first
her disqualification from holding public employment but it
cannot go beyond that. To regain her former post as seek appointment and that the pardon does not reinstate
assistant city treasurer, she must re-apply and undergo
the usual procedure required for a new appointment. her former position.
Finally, petitioner has sought exemption from the
payment of the civil indemnity imposed upon her by the
sentence. The Court cannot oblige her. Civil liability Issues:
arising from crime is governed by the Revised Penal
Code. It subsists notwithstanding service of sentence, or
for any reason the sentence is not served by pardon, 1. Is Monsanto entitled to backpay?
amnesty or commutation of sentence. Petitioner's civil
liability may only be extinguished by the same causes
recognized in the Civil Code, namely: payment, loss of 2. Is a public officer, who has been granted an absolute
the thing due, remission of the debt, merger of the rights pardon by the Chief Executive, entitled to reinstatement
of creditor and debtor, compensation and novation. 27
WHEREFORE, the assailed resolution of former Deputy to her former position without need of a new
Executive Secretary Fulgencio S. Factoran, Jr., dated appointment?
April 15, 1986, is AFFIRMED. No costs.
SO ORDERED.
Monsanto vs. Factoran 3. May petitioner be exempt from the payment of the civil
indemnity imposed upon her by the sentence?

Facts:
Held:

The Sandiganbayan convicted petitioner Salvacion A.

1. Pardon is defined as "an act of grace, proceeding
Monsanto (then assistant treasurer of Calbayog City) of
from the power entrusted with the execution of the laws,

188
 April 28, 2010
which exempts the individual, on whom it is bestowed,
Republic of the Philippines
from the punishment the law inflicts for a crime he has SUPREME COURT
committed. It is the private, though official act of the Manila
EN BANC
executive magistrate, delivered to the individual for
G.R. No. 162230 April 28, 2010
whose benefit it is intended, and not communicated ISABELITA C. VINUYA, VICTORIA C. DELA
officially to the Court. PEÑA, HERMINIHILDA MANIMBO, LEONOR H.
SUMAWANG, CANDELARIA L. SOLIMAN,
MARIA L. QUILANTANG, MARIA L. MAGISA,
NATALIA M. ALONZO, LOURDES M. NAVARO,
While a pardon has generally been regarded as blotting
FRANCISCA M. ATENCIO, ERLINDA
out the existence of guilt so that in the eye of the law the MANALASTAS, TARCILA M. SAMPANG, ESTER
M. PALACIO, MAXIMA R. DELA CRUZ, BELEN
offender is as innocent as though he never committed A. SAGUM, FELICIDAD TURLA, FLORENCIA M.
the offense, it does not operate for all purposes. The DELA PEÑA, EUGENIA M. LALU, JULIANA G.
MAGAT, CECILIA SANGUYO, ANA ALONZO,
very essence of a pardon is forgiveness or remission of RUFINA P. MALLARI, ROSARIO M. ALARCON,
guilt. Pardon implies guilt. It does not erase the fact of RUFINA C. GULAPA, ZOILA B. MANALUS,
CORAZON C. CALMA, MARTA A. GULAPA,
the commission of the crime and the conviction thereof. TEODORA M. HERNANDEZ, FERMIN B. DELA
It does not wash out the moral stain. It involves PEÑA, MARIA DELA PAZ B. CULALA,
ESPERANZA MANAPOL, JUANITA M.
forgiveness and not forgetfulness. BRIONES, VERGINIA M. GUEVARRA, MAXIMA
ANGULO, EMILIA SANGIL, TEOFILA R.
PUNZALAN, JANUARIA G. GARCIA, PERLA B.
A pardon looks to the future. It is not retrospective. It BALINGIT, BELEN A. CULALA, PILAR Q.
GALANG, ROSARIO C. BUCO, GAUDENCIA C.
makes no amends for the past. It affords no relief for
DELA PEÑA, RUFINA Q. CATACUTAN,
what has been suffered by the offender. It does not FRANCIA A. BUCO, PASTORA C. GUEVARRA,
VICTORIA M. DELA CRUZ, PETRONILA O.
impose upon the government any obligation to make DELA CRUZ, ZENAIDA P. DELA CRUZ,
reparation for what has been suffered. “Since the offense CORAZON M. SUBA, EMERINCIANA A.
VINUYA, LYDIA A. SANCHEZ, ROSALINA M.
has been established by judicial proceedings, that which BUCO, PATRICIA A. BERNARDO, LUCILA H.
has been done or suffered while they were in force is PAYAWAL, MAGDALENA LIWAG, ESTER C.
BALINGIT, JOVITA A. DAVID, EMILIA C.
presumed to have been rightfully done and justly MANGILIT, VERGINIA M. BANGIT, GUILLERMA
suffered, and no satisfaction for it can be required.” This S. BALINGIT, TERECITA PANGILINAN,
MAMERTA C. PUNO, CRISENCIANA C.
would explain why petitioner, though pardoned, cannot GULAPA, SEFERINA S. TURLA, MAXIMA B.
be entitled to receive backpay for lost earnings and TURLA, LEONICIA G. GUEVARRA, ROSALINA
M. CULALA, CATALINA Y. MANIO, MAMERTA
benefits. T. SAGUM, CARIDAD L. TURLA, et al. In their
capacity and as members of the “Malaya
Lolas Organization”, Petitioners,
2. The pardon granted to petitioner has resulted in vs.
THE HONORABLE EXECUTIVE SECRETARY
removing her disqualification from holding public ALBERTO G. ROMULO, THE HONORABLE
employment but it cannot go beyond that. To regain her SECRETARY OF FOREIGN AFFAIRS DELIA
DOMINGO-ALBERT, THE HONORABLE
former post as assistant city treasurer, she must re-apply SECRETARY OF JUSTICE MERCEDITAS N.
and undergo the usual procedure required for a new GUTIERREZ, and THE HONORABLE
SOLICITOR GENERAL ALFREDO L.
appointment. BENIPAYO, Respondents.
DECISION
3. Civil liability arising from crime is governed by the DEL CASTILLO, J.:
The Treaty of Peace with Japan, insofar as it
Revised Penal Code. It subsists notwithstanding service barred future claims such as those asserted by
of sentence, or for any reason the sentence is not served plaintiffs in these actions, exchanged full
compensation of plaintiffs for a future peace.
by pardon, amnesty or commutation of sentence. History has vindicated the wisdom of that
Petitioner's civil liability may only be extinguished by the bargain. And while full compensation for plaintiffs’
hardships, in the purely economic sense, has
same causes recognized in the Civil Code, namely: been denied these former prisoners and countless
other survivors of the war, the immeasurable
payment, loss of the thing due, remission of the debt,
bounty of life for themselves and their posterity in
merger of the rights of creditor and debtor, compensation a free society and in a more peaceful world
services the debt.1
and novation.
There is a broad range of vitally important areas
Vinuya v. Executive Secretary, G.R. No. 162230, April
that must be regularly decided by the Executive
28, 2010
Department without either challenge or

189
interference by the Judiciary. One such area
involves the delicate arena of foreign relations. It
would be strange indeed if the courts and the
executive spoke with different voices in the realm
of foreign policy. Precisely because of the nature
of the questions presented, and the lapse of more
than 60 years since the conduct complained of,
we make no attempt to lay down general
guidelines covering other situations not involved
here, and confine the opinion only to the very
questions necessary to reach a decision on this
matter.
Factual Antecedents
This is an original Petition for Certiorari under
Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary
mandatory injunction against the Office of the
Executive Secretary, the Secretary of the
Department of Foreign Affairs (DFA), the
Secretary of the Department of Justice (DOJ), and
the Office of the Solicitor General (OSG).
Petitioners are all members of the MALAYA LOLAS,
a non-stock, non-profit organization registered
with the Securities and Exchange Commission,
established for the purpose of providing aid to the
victims of rape by Japanese military forces in the
Philippines during the Second World War.
Petitioners narrate that during the Second World
War, the Japanese army attacked villages and
systematically raped the women as part of the
destruction of the village. Their communities
were bombed, houses were looted and burned,
and civilians were publicly tortured, mutilated,
and slaughtered. Japanese soldiers forcibly seized
the women and held them in houses or cells,
where they were repeatedly raped, beaten, and
abused by Japanese soldiers. As a result of the
actions of their Japanese tormentors, the
petitioners have spent their lives in misery,
having endured physical injuries, pain and
disability, and mental and emotional suffering. 2
Petitioners claim that since 1998, they have
approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in
filing a claim against the Japanese officials and
military officers who ordered the establishment of
the “comfort women” stations in the Philippines.
However, officials of the Executive Department
declined to assist the petitioners, and took the
position that the individual claims of the comfort
women for compensation had already been fully
satisfied by Japan’s compliance with the Peace
Treaty between the Philippines and Japan.
Issues
Hence, this petition where petitioners pray for
this court to (a) declare that respondents
committed grave abuse of discretion amounting
to lack or excess of discretion in refusing to
espouse their claims for the crimes against
humanity and war crimes committed against
them; and (b) compel the respondents to espouse
their claims for official apology and other forms of
reparations against Japan before the International
Court of Justice (ICJ) and other international
tribunals.
Petitioners’ arguments
Petitioners argue that the general waiver of
claims made by the Philippine government in the
Treaty of Peace with Japan is void. They claim that
the comfort women system established by Japan,
and the brutal rape and enslavement of
petitioners constituted a crime against
190
humanity,3 sexual slavery,4 and torture.5 They
allege that the prohibition against these
international crimes is jus cogens norms from
which no derogation is possible; as such, in
waiving the claims of Filipina comfort women and
failing to espouse their complaints against Japan,
the Philippine government is in breach of its legal
obligation not to afford impunity for crimes
against humanity. Finally, petitioners assert that
the Philippine government’s acceptance of the
“apologies” made by Japan as well as funds from
the Asian Women’s Fund (AWF) were contrary to
international law.
Respondents’ Arguments
Respondents maintain that all claims of the
Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty
of 1951 and the bilateral Reparations Agreement
of 1956.6
Article 14 of the Treaty of Peace7 provides:
Article 14. Claims and Property
a) It is recognized that Japan should pay
reparations to the Allied Powers for the damage
and suffering caused by it during the war.
Nevertheless it is also recognized that the
resources of Japan are not presently sufficient, if
it is to maintain a viable economy, to make
complete reparation for all such damage and
suffering and at the present time meet its other
obligations.
b) Except as otherwise provided in the present
Treaty, the Allied Powers waive all reparations
claims of the Allied Powers, other claims of the
Allied Powers and their nationals arising out of
any actions taken by Japan and its nationals in
the course of the prosecution of the war, and
claims of the Allied Powers for direct military
costs of occupation.
In addition, respondents argue that the apologies
made by Japan8 have been satisfactory, and that
Japan had addressed the individual claims of the
women through the atonement money paid by
the Asian Women’s Fund.
Historical Background
The comfort women system was the tragic legacy
of the Rape of Nanking. In December 1937,
Japanese military forces captured the city of
Nanking in China and began a “barbaric
campaign of terror” known as the Rape of
Nanking, which included the rapes and murders
of an estimated 20,000 to 80,000 Chinese
women, including young girls, pregnant mothers,
and elderly women.9
In reaction to international outcry over the
incident, the Japanese government sought ways
to end international condemnation10 by
establishing the “comfort women” system. Under
this system, the military could simultaneously
appease soldiers’ sexual appetites and contain
soldiers’ activities within a regulated
environment.11 Comfort stations would also
prevent the spread of venereal disease among
soldiers and discourage soldiers from raping
inhabitants of occupied territories.12
Daily life as a comfort woman was “unmitigated
misery.”13 The military forced victims into
barracks-style stations divided into tiny cubicles
where they were forced to live, sleep, and have
sex with as many 30 soldiers per day. 14 The 30
minutes allotted for sexual relations with each
soldier were 30-minute increments of
unimaginable horror for the women.15 Disease
was rampant.16 Military doctors regularly
examined the women, but these checks were
carried out to prevent the spread of venereal
diseases; little notice was taken of the frequent
cigarette burns, bruises, bayonet stabs and even
broken bones inflicted on the women by soldiers.
Fewer than 30% of the women survived the
war.17 Their agony continued in having to suffer
with the residual physical, psychological, and
emotional scars from their former lives. Some
returned home and were ostracized by their
families. Some committed suicide. Others, out of
shame, never returned home.18
Efforts to Secure Reparation
The most prominent attempts to compel the
Japanese government to accept legal
responsibility and pay compensatory damages for
the comfort women system were through a series
of lawsuits, discussion at the United Nations (UN),
resolutions by various nations, and the Women’s
International Criminal Tribunal. The Japanese
government, in turn, responded through a series
of public apologies and the creation of the AWF.19
Lawsuits
In December 1991, Kim Hak-Sun and two other
survivors filed the first lawsuit in Japan by former
comfort women against the Japanese
government. The Tokyo District Court however
dismissed their case.20 Other suits followed,21 but
the Japanese government has, thus far,
successfully caused the dismissal of every case.22
Undoubtedly frustrated by the failure of litigation
before Japanese courts, victims of the comfort
women system brought their claims before the
United States (US). On September 18, 2000, 15
comfort women filed a class action lawsuit in the
US District Court for the District of
Columbia23 “seeking money damages for
[allegedly] having been subjected to sexual
slavery and torture before and during World War
II,” in violation of “both positive and customary
international law.” The case was filed pursuant to
the Alien Tort Claims Act (“ATCA”), 24 which allowed
the plaintiffs to sue the Japanese government in a
US federal district court.25 On October 4, 2001,
the district court dismissed the lawsuit due to
lack of jurisdiction over Japan, stating that
“[t]here is no question that this court is not the
appropriate forum in which plaintiffs may seek to
reopen x x x discussions nearly half a century
later x x x [E]ven if Japan did not enjoy sovereign
immunity, plaintiffs’ claims are non-justiciable
and must be dismissed.”
The District of Columbia Court of Appeals
affirmed the lower court’s dismissal of the
case.26 On appeal, the US Supreme Court granted
the women’s petition for writ of certiorari,
vacated the judgment of the District of Columbia
Court of Appeals, and remanded the case.27 On
remand, the Court of Appeals affirmed its prior
decision, noting that “much as we may feel for
the plight of the appellants, the courts of the US
simply are not authorized to hear their
case.”28 The women again brought their case to
the US Supreme Court which denied their petition
for writ of certiorari on February 21, 2006.
Efforts at the United Nations
In 1992, the Korean Council for the Women
Drafted for Military Sexual Slavery by Japan
(KCWS), submitted a petition to the UN Human
Rights Commission (UNHRC), asking for
assistance in investigating crimes committed by
191
Japan against Korean women and seeking
reparations for former comfort women. 29 The
UNHRC placed the issue on its agenda and
appointed Radhika Coomaraswamy as the issue’s
special investigator. In 1996, Coomaraswamy
issued a Report reaffirming Japan’s responsibility
in forcing Korean women to act as sex slaves for
the imperial army, and made the following
recommendations:
A. At the national level
137. The Government of Japan should:
(a) Acknowledge that the system of comfort
stations set up by the Japanese Imperial Army
during the Second World War was a violation of its
obligations under international law and accept
legal responsibility for that violation;
(b) Pay compensation to individual victims of
Japanese military sexual slavery according to
principles outlined by the Special Rapporteur of
the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the
right to restitution, compensation and
rehabilitation for victims of grave violations of
human rights and fundamental freedoms. A
special administrative tribunal for this purpose
should be set up with a limited time-frame since
many of the victims are of a very advanced age;
(c) Make a full disclosure of documents and
materials in its possession with regard to comfort
stations and other related activities of the
Japanese Imperial Army during the Second World
War;
(d) Make a public apology in writing to individual
women who have come forward and can be
substantiated as women victims of Japanese
military sexual slavery;
(e) Raise awareness of these issues by amending
educational curricula to reflect historical realities;
(f) Identify and punish, as far as possible,
perpetrators involved in the recruitment and
institutionalization of comfort stations during the
Second World War.
Gay J. McDougal, the Special Rapporteur for the
UN Sub-Commission on Prevention of
Discrimination and Protection of Minorities, also
presented a report to the Sub-Committee on June
22, 1998 entitled Contemporary Forms of Slavery:
Systematic Rape, Sexual Slavery and Slavery-like
Practices During Armed Conflict. The report
included an appendix entitled An Analysis of the
Legal Liability of the Government of Japan for
‘Comfort Women Stations’ established during the
Second World War,30 which contained the
following findings:
68. The present report concludes that the
Japanese Government remains liable for grave
violations of human rights and humanitarian law,
violations that amount in their totality to crimes
against humanity. The Japanese Government’s
arguments to the contrary, including arguments
that seek to attack the underlying humanitarian
law prohibition of enslavement and rape, remain
as unpersuasive today as they were when they
were first raised before the Nuremberg war
crimes tribunal more than 50 years ago. In
addition, the Japanese Government’s argument
that Japan has already settled all claims from the
Second World War through peace treaties and
reparations agreements following the war
remains equally unpersuasive. This is due, in
large part, to the failure until very recently of the
Japanese Government to admit the extent of the
Japanese military’s direct involvement in the
establishment and maintenance of these rape
centres. The Japanese Government’s silence on
this point during the period in which peace and
reparations agreements between Japan and other
Asian Governments were being negotiated
following the end of the war must, as a matter of
law and justice, preclude Japan from relying today
on these peace treaties to extinguish liability in
these cases.
69. The failure to settle these claims more than
half a century after the cessation of hostilities is a
testament to the degree to which the lives of
women continue to be undervalued. Sadly, this
failure to address crimes of a sexual nature
committed on a massive scale during the Second
World War has added to the level of impunity with
which similar crimes are committed today. The
Government of Japan has taken some steps to
apologize and atone for the rape and
enslavement of over 200,000 women and girls
who were brutalized in “comfort stations” during
the Second World War. However, anything less
than full and unqualified acceptance by the
Government of Japan of legal liability and the
consequences that flow from such liability is
wholly inadequate. It must now fall to the
Government of Japan to take the necessary final
steps to provide adequate redress.
The UN, since then, has not taken any official
action directing Japan to provide the reparations
sought.
Women’s International War Crimes
Tribunal
The Women’s International War Crimes Tribunal
(WIWCT) was a “people’s tribunal” established by
a number of Asian women and human rights
organizations, supported by an international
coalition of non-governmental
organizations.31 First proposed in 1998, the
WIWCT convened in Tokyo in 2000 in order to
“adjudicate Japan’s military sexual violence, in
particular the enslavement of comfort women, to
bring those responsible for it to justice, and to
end the ongoing cycle of impunity for wartime
sexual violence against women.”
After examining the evidence for more than a
year, the “tribunal” issued its verdict on
December 4, 2001, finding the former Emperor
Hirohito and the State of Japan guilty of crimes
against humanity for the rape and sexual slavery
of women.32 It bears stressing, however, that
although the tribunal included prosecutors,
witnesses, and judges, its judgment was not
legally binding since the tribunal itself was
organized by private citizens.
Action by Individual Governments
On January 31, 2007, US Representative Michael
Honda of California, along with six co-sponsor
representatives, introduced House Resolution 121
which called for Japanese action in light of the
ongoing struggle for closure by former comfort
women. The Resolution was formally passed on
July 30, 2007,33 and made four distinct demands:
[I]t is the sense of the House of Representatives
that the Government of Japan (1) should formally
acknowledge, apologize, and accept historical
responsibility in a clear and unequivocal manner
for its Imperial Armed Forces’ coercion of young
women into sexual slavery, known to the world as
“comfort women”, during its colonial and wartime
occupation of Asia and the Pacific Islands from
192
the 1930s through the duration of World War II;
(2) would help to resolve recurring questions
about the sincerity and status of prior statements
if the Prime Minister of Japan were to make such
an apology as a public statement in his official
capacity; (3) should clearly and publicly refute
any claims that the sexual enslavement and
trafficking of the “comfort women” for the
Japanese Imperial Army never occurred; and (4)
should educate current and future generations
about this horrible crime while following the
recommendations of the international community
with respect to the “comfort women.”34
In December 2007, the European Parliament, the
governing body of the European Union, drafted a
resolution similar to House Resolution
121.35 Entitled, “Justice for Comfort Women,” the
resolution demanded: (1) a formal
acknowledgment of responsibility by the Japanese
government; (2) a removal of the legal obstacles
preventing compensation; and (3) unabridged
education of the past. The resolution also
stressed the urgency with which Japan should act
on these issues, stating: “the right of individuals
to claim reparations against the government
should be expressly recognized in national law,
and cases for reparations for the survivors of
sexual slavery, as a crime under international
law, should be prioritized, taking into account the
age of the survivors.”
The Canadian and Dutch parliaments have each
followed suit in drafting resolutions against Japan.
Canada’s resolution demands the Japanese
government to issue a formal apology, to admit
that its Imperial Military coerced or forced
hundreds of thousands of women into sexual
slavery, and to restore references in Japanese
textbooks to its war crimes.36 The Dutch
parliament’s resolution calls for the Japanese
government to uphold the 1993 declaration of
remorse made by Chief Cabinet Secretary Yohei
Kono.
The Foreign Affairs Committee of the United
Kingdom’s Parliament also produced a report in
November, 2008 entitled, “Global Security: Japan
and Korea” which concluded that Japan should
acknowledge the pain caused by the issue of
comfort women in order to ensure cooperation
between Japan and Korea.
Statements of Remorse made by representatives
of the Japanese government
Various officials of the Government of Japan have
issued the following public statements concerning
the comfort system:
a) Statement by the Chief Cabinet Secretary Yohei
Kono in 1993:
The Government of Japan has been conducting a
study on the issue of wartime “comfort women”
since December 1991. I wish to announce the
findings as a result of that study.
As a result of the study which indicates that
comfort stations were operated in extensive areas
for long periods, it is apparent that there existed
a great number of comfort women. Comfort
stations were operated in response to the request
of the military authorities of the day. The then
Japanese military was, directly or indirectly,
involved in the establishment and management
of the comfort stations and the transfer of
comfort women. The recruitment of the comfort
women was conducted mainly by private
recruiters who acted in response to the request of
the military. The Government study has revealed
that in many cases they were recruited against
their own will, through coaxing coercion, etc., and
that, at times, administrative/military personnel
directly took part in the recruitments. They lived
in misery at comfort stations under a coercive
atmosphere.
As to the origin of those comfort women who
were transferred to the war areas, excluding
those from Japan, those from the Korean
Peninsula accounted for a large part. The Korean
Peninsula was under Japanese rule in those days,
and their recruitment, transfer, control, etc., were
conducted generally against their will, through
coaxing, coercion, etc.
Undeniably, this was an act, with the involvement
of the military authorities of the day, that
severely injured the honor and dignity of many
women. The Government of Japan would like to
take this opportunity once again to extend its
sincere apologies and remorse to all those,
irrespective of place of origin, who suffered
immeasurable pain and incurable physical and
psychological wounds as comfort women.
It is incumbent upon us, the Government of
Japan, to continue to consider seriously, while
listening to the views of learned circles, how best
we can express this sentiment.
We shall face squarely the historical facts as
described above instead of evading them, and
take them to heart as lessons of history. We
hereby reiterated our firm determination never to
repeat the same mistake by forever engraving
such issues in our memories through the study
and teaching of history.
As actions have been brought to court in Japan
and interests have been shown in this issue
outside Japan, the Government of Japan shall
continue to pay full attention to this matter,
including private researched related thereto.
b) Prime Minister Tomiichi Murayama’s Statement
in 1994
On the issue of wartime “comfort women”, which
seriously stained the honor and dignity of many
women, I would like to take this opportunity once
again to express my profound and sincere
remorse and apologies”
c) Letters from the Prime Minister of Japan to
Individual Comfort Women
The issue of comfort women, with the
involvement of the Japanese military authorities
at that time, was a grave affront to the honor and
dignity of a large number of women.
As Prime Minister of Japan, I thus extend anew my
most sincere apologies and remorse to all the
women who endured immeasurable and painful
experiences and suffered incurable physical and
psychological wounds as comfort women.
I believe that our country, painfully aware of its
moral responsibilities, with feelings of apology
and remorse, should face up squarely to its past
history and accurately convey it to future
generations.
d) The Diet (Japanese Parliament) passed
resolutions in 1995 and 2005
Solemnly reflecting upon the many instances of
colonial rule and acts of aggression that occurred
in modern world history, and recognizing that
Japan carried out such acts in the past and
inflicted suffering on the people of other
countries, especially in Asia, the Members of this
193
House hereby express deep remorse. (Resolution
of the House of Representatives adopted on June
9, 1995)
e) Various Public Statements by Japanese Prime
Minister Shinzo Abe
I have talked about this matter in the Diet
sessions last year, and recently as well, and to
the press. I have been consistent. I will stand by
the Kono Statement. This is our consistent
position. Further, we have been apologizing
sincerely to those who suffered immeasurable
pain and incurable psychological wounds as
comfort women. Former Prime Ministers,
including Prime Ministers Koizumi and Hashimoto,
have issued letters to the comfort women. I would
like to be clear that I carry the same feeling. This
has not changed even slightly. (Excerpt from
Remarks by Prime Minister Abe at an Interview by
NHK, March 11, 2007).
I am apologizing here and now. I am apologizing
as the Prime Minister and it is as stated in the
statement by the Chief Cabinet Secretary Kono.
(Excerpt from Remarks by Prime Minister Abe at
the Budget Committee, the House of Councilors,
the Diet of Japan, March 26, 2007).
I am deeply sympathetic to the former comfort
women who suffered hardships, and I have
expressed my apologies for the extremely
agonizing circumstances into which they were
placed. (Excerpt from Telephone Conference by
Prime Minister Abe to President George W. Bush,
April 3, 2007).
I have to express sympathy from the bottom of
my heart to those people who were taken as
wartime comfort women. As a human being, I
would like to express my sympathies, and also as
prime minister of Japan I need to apologize to
them. My administration has been saying all
along that we continue to stand by the Kono
Statement. We feel responsible for having forced
these women to go through that hardship and
pain as comfort women under the circumstances
at the time. (Excerpt from an interview article “A
Conversation with Shinzo Abe” by the Washington
Post, April 22, 2007).
x x x both personally and as Prime Minister of
Japan, my heart goes out in sympathy to all those
who suffered extreme hardships as comfort
women; and I expressed my apologies for the fact
that they were forced to endure such extreme
and harsh conditions. Human rights are violated
in many parts of the world during the 20th
Century; therefore we must work to make the
21st Century a wonderful century in which no
human rights are violated. And the Government
of Japan and I wish to make significant
contributions to that end. (Excerpt from Prime
Minister Abe’s remarks at the Joint Press
Availability after the summit meeting at Camp
David between Prime Minister Abe and President
Bush, April 27, 2007).
The Asian Women’s Fund
Established by the Japanese government in 1995,
the AWF represented the government’s concrete
attempt to address its moral responsibility by
offering monetary compensation to victims of the
comfort women system.37 The purpose of the AWF
was to show atonement of the Japanese people
through expressions of apology and remorse to
the former wartime comfort women, to restore
their honor, and to demonstrate Japan’s strong
respect for women.38
The AWF announced three programs for former
comfort women who applied for assistance: (1) an
atonement fund paying ¥2 million (approximately
$20,000) to each woman; (2) medical and welfare
support programs, paying ¥2.5-3 million
($25,000-$30,000) for each woman; and (3) a
letter of apology from the Japanese Prime Minister
to each woman. Funding for the program came
from the Japanese government and private
donations from the Japanese people. As of March
2006, the AWF provided ¥700 million
(approximately $7 million) for these programs in
South Korea, Taiwan, and the Philippines; ¥380
million (approximately $3.8 million) in Indonesia;
and ¥242 million (approximately $2.4 million) in
the Netherlands.
On January 15, 1997, the AWF and the Philippine
government signed a Memorandum of
Understanding for medical and welfare support
programs for former comfort women. Over the
next five years, these were implemented by the
Department of Social Welfare and Development.
Our Ruling
Stripped down to its essentials, the issue in this
case is whether the Executive Department
committed grave abuse of discretion in not
espousing petitioners’ claims for official apology
and other forms of reparations against Japan.
The petition lacks merit.
From a Domestic Law Perspective, the Executive
Department has the exclusive prerogative to
determine whether to espouse petitioners’ claims
against Japan.
Baker v. Carr39 remains the starting point for
analysis under the political question doctrine.
There the US Supreme Court explained that:
x x x Prominent on the surface of any case held to
involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department or a
lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of
deciding without an initial policy determination of
a kind clearly for non-judicial discretion; or the
impossibility of a court’s undertaking
independent resolution without expressing lack of
the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
question.
In Tañada v. Cuenco,40 we held that political
questions refer “to those questions which, under
the Constitution, are to be decided by the people
in their sovereign capacity, or in regard to which
full discretionary authority has been delegated to
the legislative or executive branch of the
government. It is concerned with issues
dependent upon the wisdom, not legality of a
particular measure.”
Certain types of cases often have been found to
present political questions.41 One such category
involves questions of foreign relations. It is well-
established that “[t]he conduct of the foreign
relations of our government is committed by the
Constitution to the executive and legislative—’the
political’—departments of the government, and
the propriety of what may be done in the exercise
of this political power is not subject to judicial
inquiry or decision.”42 The US Supreme Court has
194
further cautioned that decisions relating to
foreign policy are delicate, complex, and involve
large elements of prophecy. They are and should
be undertaken only by those directly responsible
to the people whose welfare they advance or
imperil. They are decisions of a kind for which the
Judiciary has neither aptitude, facilities nor
responsibility.43
To be sure, not all cases implicating foreign
relations present political questions, and courts
certainly possess the authority to construe or
invalidate treaties and executive
agreements.44 However, the question whether the
Philippine government should espouse claims of
its nationals against a foreign government is a
foreign relations matter, the authority for which is
demonstrably committed by our Constitution not
to the courts but to the political branches. In this
case, the Executive Department has already
decided that it is to the best interest of the
country to waive all claims of its nationals for
reparations against Japan in the Treaty of Peace of
1951. The wisdom of such decision is not for the
courts to question. Neither could petitioners
herein assail the said determination by the
Executive Department via the instant petition
for certiorari.
In the seminal case of US v. Curtiss-Wright Export
Corp.,45 the US Supreme Court held that “[t]he
President is the sole organ of the nation in its
external relations, and its sole representative with
foreign relations.”
It is quite apparent that if, in the maintenance of
our international relations, embarrassment—
perhaps serious embarrassment—is to be avoided
and success for our aims achieved, congressional
legislation which is to be made effective through
negotiation and inquiry within the international
field must often accord to the President a degree
of discretion and freedom from statutory
restriction which would not be admissible where
domestic affairs alone involved. Moreover, he, not
Congress, has the better opportunity of knowing
the conditions which prevail in foreign countries,
and especially is this true in time of war. He has
his confidential sources of information. He has his
agents in the form of diplomatic, consular and
other officials. x x x
This ruling has been incorporated in our
jurisprudence through Bayan v. Executive
Secretary46 and Pimentel v. Executive
Secretary;47 its overreaching principle was,
perhaps, best articulated in (now Chief) Justice
Puno’s dissent in Secretary of Justice v. Lantion:48
x x x The conduct of foreign relations is full of
complexities and consequences, sometimes with
life and death significance to the nation
especially in times of war. It can only be
entrusted to that department of government
which can act on the basis of the best available
information and can decide with decisiveness. x x
x It is also the President who possesses the most
comprehensive and the most confidential
information about foreign countries for our
diplomatic and consular officials regularly brief
him on meaningful events all over the world. He
has also unlimited access to ultra-sensitive
military intelligence data. In fine, the presidential
role in foreign affairs is dominant and the
President is traditionally accorded a wider degree
of discretion in the conduct of foreign affairs. The
regularity, nay, validity of his actions are
adjudged under less stringent standards, lest
their judicial repudiation lead to breach of an
international obligation, rupture of state relations,
forfeiture of confidence, national embarrassment
and a plethora of other problems with equally
undesirable consequences.
The Executive Department has determined that
taking up petitioners’ cause would be inimical to
our country’s foreign policy interests, and could
disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For
us to overturn the Executive Department’s
determination would mean an assessment of the
foreign policy judgments by a coordinate political
branch to which authority to make that judgment
has been constitutionally committed.
In any event, it cannot reasonably be maintained
that the Philippine government was without
authority to negotiate the Treaty of Peace with
Japan. And it is equally true that, since time
immemorial, when negotiating peace accords and
settling international claims:
x x x [g]overnments have dealt with x x x private
claims as their own, treating them as national
assets, and as counters, `chips’, in international
bargaining. Settlement agreements have lumped,
or linked, claims deriving from private debts with
others that were intergovernmental in origin, and
concessions in regard to one category of claims
might be set off against concessions in the other,
or against larger political considerations
unrelated to debts.49
Indeed, except as an agreement might otherwise
provide, international settlements generally wipe
out the underlying private claims, thereby
terminating any recourse under domestic law.
In Ware v. Hylton,50 a case brought by a British
subject to recover a debt confiscated by the
Commonwealth of Virginia during the war, Justice
Chase wrote:
I apprehend that the treaty of peace abolishes
the subject of the war, and that after peace is
concluded, neither the matter in dispute, nor the
conduct of either party, during the war, can ever
be revived, or brought into contest again. All
violences, injuries, or damages sustained by the
government, or people of either, during the war,
are buried in oblivion; and all those things are
implied by the very treaty of peace; and therefore
not necessary to be expressed. Hence it follows,
that the restitution of, or compensation for,
British property confiscated, or extinguished,
during the war, by any of the United States, could
only be provided for by the treaty of peace; and if
there had been no provision, respecting these
subjects, in the treaty, they could not be agitated
after the treaty, by the British government, much
less by her subjects in courts of justice.
(Emphasis supplied).
This practice of settling claims by means of a
peace treaty is certainly nothing new. For
instance, in Dames & Moore v. Regan,51 the US
Supreme Court held:
Not infrequently in affairs between nations,
outstanding claims by nationals of one country
against the government of another country are
“sources of friction” between the two
sovereigns. United States v. Pink, 315 U.S. 203,
225, 62 S.Ct. 552, 563, 86 L.Ed. 796 (1942). To
resolve these difficulties, nations have often
entered into agreements settling the claims of
their respective nationals. As one treatise writer
puts it, international agreements settling claims
195
by nationals of one state against the government
of another “are established international practice
reflecting traditional international theory.” L.
Henkin, Foreign Affairs and the Constitution 262
(1972). Consistent with that principle, the United
States has repeatedly exercised its sovereign
authority to settle the claims of its nationals
against foreign countries. x x x Under such
agreements, the President has agreed to
renounce or extinguish claims of United States
nationals against foreign governments in return
for lump-sum payments or the establishment of
arbitration procedures. To be sure, many of these
settlements were encouraged by the United
States claimants themselves, since a claimant’s
only hope of obtaining any payment at all might
lie in having his Government negotiate a
diplomatic settlement on his behalf. But it is also
undisputed that the “United States has
sometimes disposed of the claims of its citizens
without their consent, or even without
consultation with them, usually without exclusive
regard for their interests, as distinguished from
those of the nation as a whole.” Henkin, supra, at
262-263. Accord, Restatement (Second) of
Foreign Relations Law of the United States § 213
(1965) (President “may waive or settle a claim
against a foreign state x x x [even] without the
consent of the [injured] national”). It is clear that
the practice of settling claims continues today.
Respondents explain that the Allied Powers
concluded the Peace Treaty with Japan not
necessarily for the complete atonement of the
suffering caused by Japanese aggression during
the war, not for the payment of adequate
reparations, but for security purposes. The treaty
sought to prevent the spread of communism in
Japan, which occupied a strategic position in the
Far East. Thus, the Peace Treaty compromised
individual claims in the collective interest of the
free world.
This was also the finding in a similar case
involving American victims of Japanese slave
labor during the war.52 In a consolidated case in
the Northern District of California, 53 the court
dismissed the lawsuits filed, relying on the 1951
peace treaty with Japan,54 because of the
following policy considerations:
The official record of treaty negotiations
establishes that a fundamental goal of the
agreement was to settle the reparations issue
once and for all. As the statement of the chief
United States negotiator, John Foster Dulles,
makes clear, it was well understood that leaving
open the possibility of future claims would be an
unacceptable impediment to a lasting peace:
Reparation is usually the most controversial
aspect of peacemaking. The present peace is no
exception.
On the one hand, there are claims both vast and
just. Japan’s aggression caused tremendous cost,
losses and suffering.
On the other hand, to meet these claims, there
stands a Japan presently reduced to four home
islands which are unable to produce the food its
people need to live, or the raw materials they
need to work. x x x
The policy of the United States that Japanese
liability for reparations should be sharply limited
was informed by the experience of six years of
United States-led occupation of Japan. During the
occupation the Supreme Commander of the Allied
Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in
conjunction with the task of managing the
economic affairs of the vanquished nation and
with a view to reparations payments. It soon
became clear that Japan’s financial condition
would render any aggressive reparations plan an
exercise in futility. Meanwhile, the importance of a
stable, democratic Japan as a bulwark to
communism in the region increased. At the end of
1948, MacArthur expressed the view that “[t]he
use of reparations as a weapon to retard the
reconstruction of a viable economy in Japan
should be combated with all possible means” and
“recommended that the reparations issue be
settled finally and without delay.”
That this policy was embodied in the treaty is
clear not only from the negotiations history but
also from the Senate Foreign Relations
Committee report recommending approval of the
treaty by the Senate. The committee noted, for
example:
Obviously insistence upon the payment of
reparations in any proportion commensurate with
the claims of the injured countries and their
nationals would wreck Japan’s economy, dissipate
any credit that it may possess at present, destroy
the initiative of its people, and create misery and
chaos in which the seeds of discontent and
communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of x x x
the United States x x x.
We thus hold that, from a municipal law
perspective, that certiorari will not lie. As a
general principle—and particularly here, where
such an extraordinary length of time has lapsed
between the treaty’s conclusion and our
consideration—the Executive must be given
ample discretion to assess the foreign policy
considerations of espousing a claim against
Japan, from the standpoint of both the interests of
the petitioners and those of the Republic, and
decide on that basis if apologies are sufficient,
and whether further steps are appropriate or
necessary.
The Philippines is not under any international
obligation to espouse petitioners’ claims.
In the international sphere, traditionally, the only
means available for individuals to bring a claim
within the international legal system has been
when the individual is able to persuade a
government to bring a claim on the individual’s
behalf.55 Even then, it is not the individual’s rights
that are being asserted, but rather, the state’s
own rights. Nowhere is this position more clearly
reflected than in the dictum of the Permanent
Court of International Justice (PCIJ) in the
1924 Mavrommatis Palestine Concessions Case:
By taking up the case of one of its subjects and
by resorting to diplomatic action or international
judicial proceedings on his behalf, a State is in
reality asserting its own right to ensure, in the
person of its subjects, respect for the rules of
international law. The question, therefore,
whether the present dispute originates in an
injury to a private interest, which in point of fact
is the case in many international disputes, is
irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects
before an international tribunal, in the eyes of the
latter the State is sole claimant.56
196
Since the exercise of diplomatic protection is the
right of the State, reliance on the right is within
the absolute discretion of states, and the decision
whether to exercise the discretion may invariably
be influenced by political considerations other
than the legal merits of the particular claim. 57 As
clearly stated by the ICJ in
Barcelona Traction:
The Court would here observe that, within the
limits prescribed by international law, a State
may exercise diplomatic protection by whatever
means and to whatever extent it thinks fit, for it is
its own right that the State is asserting. Should
the natural or legal person on whose behalf it is
acting consider that their rights are not
adequately protected, they have no remedy in
international law. All they can do is resort to
national law, if means are available, with a view
to furthering their cause or obtaining redress. The
municipal legislator may lay upon the State an
obligation to protect its citizens abroad, and may
also confer upon the national a right to demand
the performance of that obligation, and clothe the
right with corresponding sanctions. However, all
these questions remain within the province of
municipal law and do not affect the position
internationally.58(Emphasis supplied)
The State, therefore, is the sole judge to decide
whether its protection will be granted, to what
extent it is granted, and when will it cease. It
retains, in this respect, a discretionary power the
exercise of which may be determined by
considerations of a political or other nature,
unrelated to the particular case.
The International Law Commission’s (ILC’s) Draft
Articles on Diplomatic Protection fully support this
traditional view. They (i) state that “the right of
diplomatic protection belongs to or vests in the
State,”59 (ii) affirm its discretionary nature by
clarifying that diplomatic protection is a
“sovereign prerogative” of the State; 60 and (iii)
stress that the state “has the right to exercise
diplomatic protection on behalf of a national. It is
under no duty or obligation to do so.”61
It has been argued, as petitioners argue now, that
the State has a duty to protect its nationals and
act on his/her behalf when rights are
injured.62 However, at present, there is no
sufficient evidence to establish a general
international obligation for States to exercise
diplomatic protection of their own nationals
abroad.63 Though, perhaps desirable, neither
state practice nor opinio juris has evolved in such
a direction. If it is a duty internationally, it is only
a moral and not a legal duty, and there is no
means of enforcing its fulfillment.64
We fully agree that rape, sexual slavery, torture,
and sexual violence are morally reprehensible as
well as legally prohibited under contemporary
international law.65 However, petitioners take
quite a theoretical leap in claiming that these
proscriptions automatically imply that that the
Philippines is under a non-derogable obligation to
prosecute international crimes, particularly since
petitioners do not demand the imputation of
individual criminal liability, but seek to recover
monetary reparations from the state of Japan.
Absent the consent of states, an applicable treaty
regime, or a directive by the Security Council,
there is no non-derogable duty to institute
proceedings against Japan. Indeed, precisely
because of states’ reluctance to directly
prosecute claims against another state, recent
developments support the modern trend to
empower individuals to directly participate in
suits against perpetrators of international
crimes.66 Nonetheless, notwithstanding an array
of General Assembly resolutions calling for the
prosecution of crimes against humanity and the
strong policy arguments warranting such a rule,
the practice of states does not yet support the
present existence of an obligation to prosecute
international crimes.67 Of course a customary
duty of prosecution is ideal, but we cannot find
enough evidence to reasonably assert its
existence. To the extent that any state practice in
this area is widespread, it is in the practice of
granting amnesties, immunity, selective
prosecution, or de facto impunity to those who
commit crimes against humanity.”68
Even the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis.
Even if we sidestep the question of whether jus
cogens norms existed in 1951, petitioners have
not deigned to show that the crimes committed
by the Japanese army violated jus cogens
prohibitions at the time the Treaty of Peace was
signed, or that the duty to prosecute perpetrators
of international crimes is an erga omnes
obligation or has attained the status of jus
cogens.
The term erga omnes (Latin: in relation to
everyone) in international law has been used as a
legal term describing obligations owed by States
towards the community of states as a whole. The
concept was recognized by the ICJ in Barcelona
Traction:
x x x an essential distinction should be drawn
between the obligations of a State towards the
international community as a whole, and those
arising vis-à-vis another State in the field of
diplomatic protection. By their very nature, the
former are the concern of all States. In view of the
importance of the rights involved, all States can
be held to have a legal interest in their
protection; they are obligations erga omnes.
Such obligations derive, for example, in
contemporary international law, from the
outlawing of acts of aggression, and of genocide,
as also from the principles and rules concerning
the basic rights of the human person, including
protection from slavery and racial discrimination.
Some of the corresponding rights of protection
have entered into the body of general
international law … others are conferred by
international instruments of a universal or quasi-
universal character.
The Latin phrase, ‘erga omnes,’ has since
become one of the rallying cries of those sharing
a belief in the emergence of a value-based
international public order. However, as is so often
the case, the reality is neither so clear nor so
bright. Whatever the relevance of
obligations erga omnes as a legal concept, its full
potential remains to be realized in practice.69
The term is closely connected with the
international law concept of jus cogens. In
international law, the term “jus cogens” (literally,
“compelling law”) refers to norms that command
peremptory authority, superseding conflicting
treaties and custom. Jus cogens norms are
considered peremptory in the sense that they are
mandatory, do not admit derogation, and can be
modified only by general international norms of
equivalent authority.70
197
Early strains of the jus cogens doctrine have
existed since the 1700s,71 but peremptory norms
began to attract greater scholarly attention with
the publication of Alfred von Verdross’s influential
1937 article, Forbidden Treaties in International
Law.72 The recognition of jus cogens gained even
more force in the 1950s and 1960s with the ILC’s
preparation of the Vienna Convention on the Law
of Treaties (VCLT).73 Though there was a
consensus that certain international norms had
attained the status of jus cogens,74the ILC was
unable to reach a consensus on the proper
criteria for identifying peremptory norms.
After an extended debate over these and other
theories of jus cogens, the ILC concluded ruefully
in 1963 that “there is not as yet any generally
accepted criterion by which to identify a general
rule of international law as having the character
of jus cogens.”75 In a commentary accompanying
the draft convention, the ILC indicated that “the
prudent course seems to be to x x x leave the full
content of this rule to be worked out in State
practice and in the jurisprudence of international
tribunals.”76 Thus, while the existence of jus
cogens in international law is undisputed, no
consensus exists on its substance,77 beyond a tiny
core of principles and rules.78
Of course, we greatly sympathize with the cause
of petitioners, and we cannot begin to
comprehend the unimaginable horror they
underwent at the hands of the Japanese soldiers.
We are also deeply concerned that, in apparent
contravention of fundamental principles of law,
the petitioners appear to be without a remedy to
challenge those that have offended them before
appropriate fora. Needless to say, our
government should take the lead in protecting its
citizens against violation of their fundamental
human rights. Regrettably, it is not within our
power to order the Executive Department to take
up the petitioners’ cause. Ours is only the power
to urge and exhort the Executive Department to
take up petitioners’ cause.
WHEREFORE, the Petition is hereby DISMISSED.
SO ORDERED.
G.R. No. 162230, April 28, 2010
FACTS:
This is an original Petition for Certiorari under
Rule 65 of the Rules of Court with an application
for the issuance of a writ of preliminary
mandatory injunction against the Office of the
Executive Secretary, the Secretary of the DFA, the
Secretary of the DOJ, and the OSG.
Petitioners are all members of the MALAYA LOLAS,
a non-stock, non-profit organization registered
with the SEC, established for the purpose of
providing aid to the victims of rape by Japanese
military forces in the Philippines during the
Second World War.
Petitioners claim that since 1998, they have
approached the Executive Department through
the DOJ, DFA, and OSG, requesting assistance in
filing a claim against the Japanese officials and
military officers who ordered the establishment of
the “comfort women” stations in the Philippines.
But officials of the Executive Department declined
to assist the petitioners, and took the position
that the individual claims of the comfort women
for compensation had already been fully satisfied
by Japan’s compliance with the Peace Treaty
between the Philippines and Japan.
Hence, this petition where petitioners pray for
this court to (a) declare that respondents
committed grave abuse of discretion amounting
to lack or excess of discretion in refusing to
espouse their claims for the crimes against
humanity and war crimes committed against
them; and (b) compel the respondents to espouse
their claims for official apology and other forms of
reparations against Japan before the International
Court of Justice (ICJ) and other international
tribunals.
Respondents maintain that all claims of the
Philippines and its nationals relative to the war
were dealt with in the San Francisco Peace Treaty
of 1951 and the bilateral Reparations Agreement
of 1956.
On January 15, 1997, the Asian Women’s Fund
and the Philippine government signed a
Memorandum of Understanding for medical and
welfare support programs for former comfort
women. Over the next five years, these were
implemented by the Department of Social Welfare
and Development.
ISSUE:
WON the Executive Department committed grave
abuse of discretion in not espousing petitioners’
claims for official apology and other forms of
reparations against Japan.
RULING:
Petition lacks merit. From a Domestic Law
Perspective, the Executive Department has the
exclusive prerogative to determine whether to
espouse petitioners’ claims against Japan.
Political questions refer “to those questions
which, under the Constitution, are to be decided
by the people in their sovereign capacity, or in
regard to which full discretionary authority has
been delegated to the legislative or executive
branch of the government. It is concerned with
issues dependent upon the wisdom, not legality
of a particular measure.”
One type of case of political questions involves
questions of foreign relations. It is well-
established that “the conduct of the foreign
relations of our government is committed by the
Constitution to the executive and legislative–‘the
political’–departments of the government, and
the propriety of what may be done in the exercise
of this political power is not subject to judicial
inquiry or decision.” are delicate, complex, and
involve large elements of prophecy. They are and
should be undertaken only by those directly
responsible to the people whose welfare they
advance or imperil.
But not all cases implicating foreign relations
present political questions, and courts certainly
possess the authority to construe or invalidate
treaties and executive agreements. However, the
198
question whether the Philippine government
should espouse claims of its nationals against a
foreign government is a foreign relations matter,
the authority for which is demonstrably
committed by our Constitution not to the courts
but to the political branches. In this case, the
Executive Department has already decided that it
is to the best interest of the country to waive all
claims of its nationals for reparations against
Japan in the Treaty of Peace of 1951. The wisdom
of such decision is not for the courts to question.
The President, not Congress, has the better
opportunity of knowing the conditions which
prevail in foreign countries, and especially is this
true in time of war. He has his confidential
sources of information. He has his agents in the
form of diplomatic, consular and other officials.
The Executive Department has determined that
taking up petitioners’ cause would be inimical to
our country’s foreign policy interests, and could
disrupt our relations with Japan, thereby creating
serious implications for stability in this region. For
the to overturn the Executive Department’s
determination would mean an assessment of the
foreign policy judgments by a coordinate political
branch to which authority to make that judgment
has been constitutionally committed.
From a municipal law perspective, certiorari will
not lie. As a general principle, where such an
extraordinary length of time has lapsed between
the treaty’s conclusion and our consideration –
the Executive must be given ample discretion to
assess the foreign policy considerations of
espousing a claim against Japan, from the
standpoint of both the interests of the petitioners
and those of the Republic, and decide on that
basis if apologies are sufficient, and whether
further steps are appropriate or necessary.
In the international sphere, traditionally, the only
means available for individuals to bring a claim
within the international legal system has been
when the individual is able to persuade a
government to bring a claim on the individual’s
behalf. By taking up the case of one of its
subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a
State is in reality asserting its own right to
ensure, in the person of its subjects, respect for
the rules of international law.
Within the limits prescribed by international law,
a State may exercise diplomatic protection by
whatever means and to whatever extent it thinks
fit, for it is its own right that the State is
asserting. Should the natural or legal person on
whose behalf it is acting consider that their rights
are not adequately protected, they have no
remedy in international law. All they can do is
resort to national law, if means are available, with
a view to furthering their cause or obtaining
redress. All these questions remain within the
province of municipal law and do not affect the
position internationally.
Even the invocation of jus cogens norms and erga
omnes obligations will not alter this analysis.
Petitioners have not shown that the crimes
committed by the Japanese army violated jus
cogens prohibitions at the time the Treaty of
Peace was signed, or that the duty to prosecute
perpetrators of international crimes is an erga
omnes obligation or has attained the status of jus
cogens.
The term erga omnes (Latin: in relation to
everyone) in international law has been used as a
legal term describing obligations owed by States
towards the community of states as a whole.
Essential distinction should be drawn between the
obligations of a State towards the international
community as a whole, and those arising vis-à-vis
another State in the field of diplomatic protection.
By their very nature, the former are the concern
of all States. In view of the importance of the
rights involved, all States can be held to have a
legal interest in their protection; they are
obligations erga omnes.
The term “jus cogens” (literally, “compelling
law”) refers to norms that command peremptory
authority, superseding conflicting treaties and
custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory,
do not admit derogation, and can be modified
only by general international norms of equivalent
authority
WHEREFORE, the Petition is hereby DISMISSED.
G.R. No. 146710-15 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
ANIANO DESIERTO, in his capacity as Ombudsman,
RAMON GONZALES, VOLUNTEERS AGAINST
CRIME AND CORRUPTION, GRAFT FREE
PHILIPPINES FOUNDATION, INC., LEONARD DE
VERA, DENNIS FUNA, ROMEO CAPULONG and
ERNESTO B. FRANCISCO, JR., respondent.
----------------------------------------
G.R. No. 146738 March 2, 2001
JOSEPH E. ESTRADA, petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, respondent.
PUNO, J.:
On the line in the cases at bar is the office of the
President. Petitioner Joseph Ejercito Estrada alleges that
he is the President on leave while respondent Gloria
Macapagal-Arroyo claims she is the President. The
warring personalities are important enough but more
transcendental are the constitutional issues embedded
on the parties' dispute. While the significant issues are
many, the jugular issue involves the relationship between
the ruler and the ruled in a democracy, Philippine style.
First, we take a view of the panorama of events that
precipitated the crisis in the office of the President.
In the May 11, 1998 elections, petitioner Joseph Ejercito
Estrada was elected President while respondent Gloria
Macapagal-Arroyo was elected Vice-President. Some
ten (10) million Filipinos voted for the petitioner believing
he would rescue them from life's adversity. Both
petitioner and the respondent were to serve a six-year
term commencing on June 30, 1998.
From the beginning of his term, however, petitioner was
plagued by a plethora of problems that slowly but surely
eroded his popularity. His sharp descent from power
started on October 4, 2000. Ilocos Sur Governor, Luis
199
"Chavit" Singson, a longtime friend of the petitioner, went
on air and accused the petitioner, his family and friends
of receiving millions of pesos from jueteng lords.1
The exposẻ immediately ignited reactions of rage. The
next day, October 5, 2000, Senator Teofisto Guingona,
Jr., then the Senate Minority Leader, took the floor and
delivered a fiery privilege speech entitled "I Accuse." He
accused the petitioner of receiving some P220 million
in jueteng money from Governor Singson from
November 1998 to August 2000. He also charged that
the petitioner took from Governor Singson P70 million on
excise tax on cigarettes intended for Ilocos Sur. The
privilege speech was referred by then Senate President
Franklin Drilon, to the Blue Ribbon Committee (then
headed by Senator Aquilino Pimentel) and the
Committee on Justice (then headed by Senator Renato
Cayetano) for joint investigation.2
The House of Representatives did no less. The House
Committee on Public Order and Security, then headed
by Representative Roilo Golez, decided to investigate
the exposẻ of Governor Singson. On the other hand,
Representatives Heherson Alvarez, Ernesto Herrera and
Michael Defensor spearheaded the move to impeach the
petitioner.
Calls for the resignation of the petitioner filled the air. On
October 11, Archbishop Jaime Cardinal Sin issued a
pastoral statement in behalf of the Presbyteral Council of
the Archdiocese of Manila, asking petitioner to step down
from the presidency as he had lost the moral authority to
govern.3 Two days later or on October 13, the Catholic
Bishops Conference of the Philippines joined the cry for
the resignation of the petitioner.4 Four days later, or on
October 17, former President Corazon C. Aquino also
demanded that the petitioner take the "supreme self-
sacrifice" of resignation.5 Former President Fidel Ramos
also joined the chorus. Early on, or on October 12,
respondent Arroyo resigned as Secretary of the
Department of Social Welfare and Services6 and later
asked for petitioner's resignation.7 However, petitioner
strenuously held on to his office and refused to resign.
The heat was on. On November 1, four (4) senior
economic advisers, members of the Council of Senior
Economic Advisers, resigned. They were Jaime Augusto
Zobel de Ayala, former Prime Minister Cesar Virata,
former Senator Vicente Paterno and Washington
Sycip.8 On November 2, Secretary Mar Roxas II also
resigned from the Department of Trade and Industry. 9 On
November 3, Senate President Franklin Drilon, and
House Speaker Manuel Villar, together with some 47
representatives defected from the ruling coalition, Lapian
ng Masang Pilipino.10
The month of November ended with a big bang. In a
tumultuous session on November 13, House Speaker
Villar transmitted the Articles of Impeachment11 signed by
115 representatives, or more than 1/3 of all the members
of the House of Representatives to the Senate. This
caused political convulsions in both houses of Congress.
Senator Drilon was replaced by Senator Pimentel as
Senate President. Speaker Villar was unseated by
Representative Fuentebella.12 On November 20, the
Senate formally opened the impeachment trial of the
petitioner. Twenty-one (21) senators took their oath as
judges with Supreme Court Chief Justice Hilario G.
Davide, Jr., presiding.13
The political temperature rose despite the cold
December. On December 7, the impeachment trial
started.14 The battle royale was fought by some of the
marquee names in the legal profession. Standing as
prosecutors were then House Minority Floor Leader
Feliciano Belmonte and Representatives Joker Arroyo,
Wigberto Tañada, Sergio Apostol, Raul Gonzales, Oscar
Moreno, Salacnib Baterina, Roan Libarios, Oscar
Rodriguez, Clavel Martinez and Antonio Nachura. They
were assisted by a battery of private prosecutors led by
now Secretary of Justice Hernando Perez and now
Solicitor General Simeon Marcelo. Serving as defense
counsel were former Chief Justice Andres Narvasa,
former Solicitor General and Secretary of Justice Estelito
P. Mendoza, former City Fiscal of Manila Jose
Flaminiano, former Deputy Speaker of the House Raul
Daza, Atty. Siegfried Fortun and his brother, Atty.
Raymund Fortun. The day to day trial was covered by
live TV and during its course enjoyed the highest viewing
rating. Its high and low points were the constant
conversational piece of the chattering classes. The
dramatic point of the December hearings was the
testimony of Clarissa Ocampo, senior vice president of
Equitable-PCI Bank. She testified that she was one foot
away from petitioner Estrada when he affixed the
signature "Jose Velarde" on documents involving a P500
million investment agreement with their bank on
February 4, 2000.15
After the testimony of Ocampo, the impeachment trial
was adjourned in the spirit of Christmas. When it
resumed on January 2, 2001, more bombshells were
exploded by the prosecution. On January 11, Atty.
Edgardo Espiritu who served as petitioner's Secretary of
Finance took the witness stand. He alleged that the
petitioner jointly owned BW Resources Corporation with
Mr. Dante Tan who was facing charges of insider
trading.16 Then came the fateful day of January 16, when
by a vote of 11-1017 the senator-judges ruled against the
opening of the second envelope which allegedly
contained evidence showing that petitioner held P3.3
billion in a secret bank account under the name "Jose
Velarde." The public and private prosecutors walked out
in protest of the ruling. In disgust, Senator Pimentel
resigned as Senate President.18 The ruling made at
10:00 p.m. was met by a spontaneous outburst of anger
that hit the streets of the metropolis. By midnight,
thousands had assembled at the EDSA Shrine and
speeches full of sulphur were delivered against the
petitioner and the eleven (11) senators.
On January 17, the public prosecutors submitted a letter
to Speaker Fuentebella tendering their collective
resignation. They also filed their Manifestation of
Withdrawal of Appearance with the impeachment
tribunal.19Senator Raul Roco quickly moved for the
indefinite postponement of the impeachment
proceedings until the House of Representatives shall
have resolved the issue of resignation of the public
prosecutors. Chief Justice Davide granted the motion.20
January 18 saw the high velocity intensification of the
call for petitioner's resignation. A 10-kilometer line of
people holding lighted candles formed a human chain
from the Ninoy Aquino Monument on Ayala Avenue in
Makati City to the EDSA Shrine to symbolize the
people's solidarity in demanding petitioner's resignation.
Students and teachers walked out of their classes in
Metro Manila to show their concordance. Speakers in the
continuing rallies at the EDSA Shrine, all masters of the
physics of persuasion, attracted more and more
people.21
On January 19, the fall from power of the petitioner
appeared inevitable. At 1:20 p.m., the petitioner informed
Executive Secretary Edgardo Angara that General
Angelo Reyes, Chief of Staff of the Armed Forces of the
Philippines, had defected. At 2:30 p.m., petitioner agreed
to the holding of a snap election for President where he
would not be a candidate. It did not diffuse the growing
crisis. At 3:00 p.m., Secretary of National Defense
Orlando Mercado and General Reyes, together with the
chiefs of all the armed services went to the EDSA
Shrine.22 In the presence of former Presidents Aquino
and Ramos and hundreds of thousands of cheering
demonstrators, General Reyes declared that "on behalf
of Your Armed Forces, the 130,000 strong members of
the Armed Forces, we wish to announce that we are
200
withdrawing our support to this government."23 A little
later, PNP Chief, Director General Panfilo Lacson and
the major service commanders gave a similar stunning
announcement.24 Some Cabinet secretaries,
undersecretaries, assistant secretaries, and bureau
chiefs quickly resigned from their posts.25 Rallies for the
resignation of the petitioner exploded in various parts of
the country. To stem the tide of rage, petitioner
announced he was ordering his lawyers to agree to the
opening of the highly controversial second
envelope.26There was no turning back the tide. The tide
had become a tsunami.
January 20 turned to be the day of surrender. At 12:20
a.m., the first round of negotiations for the peaceful and
orderly transfer of power started at Malacañang'' Mabini
Hall, Office of the Executive Secretary. Secretary
Edgardo Angara, Senior Deputy Executive Secretary
Ramon Bagatsing, Political Adviser Angelito Banayo,
Asst. Secretary Boying Remulla, and Atty. Macel
Fernandez, head of the Presidential Management Staff,
negotiated for the petitioner. Respondent Arroyo was
represented by now Executive Secretary Renato de
Villa, now Secretary of Finance Alberto Romulo and now
Secretary of Justice Hernando Perez.27 Outside the
palace, there was a brief encounter at Mendiola between
pro and anti-Estrada protesters which resulted in stone-
throwing and caused minor injuries. The negotiations
consumed all morning until the news broke out that Chief
Justice Davide would administer the oath to respondent
Arroyo at high noon at the EDSA Shrine.
At about 12:00 noon, Chief Justice Davide administered
the oath to respondent Arroyo as President of the
Philippines.28 At 2:30 p.m., petitioner and his family
hurriedly left Malacañang Palace.29 He issued the
following press statement:30
"20 January 2001
STATEMENT FROM
PRESIDENT JOSEPH EJERCITO ESTRADA
At twelve o'clock noon today, Vice President
Gloria Macapagal-Arroyo took her oath as
President of the Republic of the Philippines.
While along with many other legal minds of our
country, I have strong and serious doubts about
the legality and constitutionality of her
proclamation as President, I do not wish to be a
factor that will prevent the restoration of unity
and order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this
country, for the sake of peace and in order to
begin the healing process of our nation. I leave
the Palace of our people with gratitude for the
opportunities given to me for service to our
people. I will not shirk from any future challenges
that may come ahead in the same service of our
country.
I call on all my supporters and followers to join
me in to promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and beloved
people.
MABUHAY!
(Sgd.) JOSEPH EJERCITO ESTRADA"
It also appears that on the same day, January 20, 2001,
he signed the following letter:31
"Sir:
By virtue of the provisions of Section 11, Article
VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the
powers and duties of my office. By operation of
law and the Constitution, the Vice-President
shall be the Acting President.
 (Sgd.) JOSEPH EJERCITO ESTRADA"
A copy of the letter was sent to former Speaker
Fuentebella at 8:30 a.m. on January 20.23 Another copy
was transmitted to Senate President Pimentel on the
same day although it was received only at 9:00 p.m.33
On January 22, the Monday after taking her oath,
respondent Arroyo immediately discharged the powers
the duties of the Presidency. On the same day, this Court
issued the following Resolution in Administrative Matter
No. 01-1-05-SC, to wit:
"A.M. No. 01-1-05-SC — In re: Request of Vice
President Gloria Macapagal-Arroyo to Take her
Oath of Office as President of the Republic of
the Philippines before the Chief Justice — Acting
on the urgent request of Vice President Gloria
Macapagal-Arroyo to be sworn in as President of
the Republic of the Philippines, addressed to the
Chief Justice and confirmed by a letter to the
Court, dated January 20, 2001, which request
was treated as an administrative matter, the
court Resolve unanimously to confirm the
authority given by the twelve (12) members of
the Court then present to the Chief Justice on
January 20, 2001 to administer the oath of office
of Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January
20, 2001.
This resolution is without prejudice to the
disposition of any justiciable case that may be
filed by a proper party."
Respondent Arroyo appointed members of her Cabinet
as well as ambassadors and special
envoys.34 Recognition of respondent Arroyo's
government by foreign governments swiftly followed. On
January 23, in a reception or vin d' honneur at
Malacañang, led by the Dean of the Diplomatic Corps,
Papal Nuncio Antonio Franco, more than a hundred
foreign diplomats recognized the government of
respondent Arroyo.35 US President George W. Bush
gave the respondent a telephone call from the White
House conveying US recognition of her government.36
On January 24, Representative Feliciano Belmonte was
elected new Speaker of the House of
Representatives.37The House then passed Resolution
No. 175 "expressing the full support of the House of
Representatives to the administration of Her Excellency,
Gloria Macapagal-Arroyo, President of the
Philippines."38 It also approved Resolution No. 176
"expressing the support of the House of Representatives
to the assumption into office by Vice President Gloria
Macapagal-Arroyo as President of the Republic of the
Philippines, extending its congratulations and expressing
its support for her administration as a partner in the
attainment of the nation's goals under the Constitution." 39
On January 26, the respondent signed into law the Solid
Waste Management Act.40 A few days later, she also
signed into law the Political Advertising ban and Fair
Election Practices Act.41
On February 6, respondent Arroyo nominated Senator
Teofisto Guingona, Jr., as her Vice President.42 The next
day, February 7, the Senate adopted Resolution No. 82
confirming the nomination of Senator Guingona,
Jr.43Senators Miriam Defensor-Santiago, Juan Ponce
Enrile, and John Osmena voted "yes" with reservations,
citing as reason therefor the pending challenge on the
legitimacy of respondent Arroyo's presidency before the
Supreme Court. Senators Teresa Aquino-Oreta and
Robert Barbers were absent.44 The House of
Representatives also approved Senator Guingona's
nomination in Resolution No. 178.45 Senator Guingona,
Jr. took his oath as Vice President two (2) days later. 46
On February 7, the Senate passed Resolution No. 83
declaring that the impeachment court is functus
201
officio and has been terminated.47 Senator Miriam
Defensor-Santiago stated "for the record" that she voted
against the closure of the impeachment court on the
grounds that the Senate had failed to decide on the
impeachment case and that the resolution left open the
question of whether Estrada was still qualified to run for
another elective post.48
Meanwhile, in a survey conducted by Pulse Asia,
President Arroyo's public acceptance rating jacked up
from 16% on January 20, 2001 to 38% on January 26,
2001.49 In another survey conducted by the ABS-
CBN/SWS from February 2-7, 2001, results showed that
61% of the Filipinos nationwide accepted President
Arroyo as replacement of petitioner Estrada. The survey
also revealed that President Arroyo is accepted by 60%
in Metro Manila, by also 60% in the balance of Luzon, by
71% in the Visayas, and 55% in Mindanao. Her trust
rating increased to 52%. Her presidency is accepted by
majorities in all social classes: 58% in the ABC or
middle-to-upper classes, 64% in the D or mass class,
and 54% among the E's or very poor class.50
After his fall from the pedestal of power, the petitioner's
legal problems appeared in clusters. Several cases
previously filed against him in the Office of the
Ombudsman were set in motion. These are: (1) OMB
Case No. 0-00-1629, filed by Ramon A. Gonzales on
October 23, 2000 for bribery and graft and corruption; (2)
OMB Case No. 0-00-1754 filed by the Volunteers Against
Crime and Corruption on November 17, 2000 for
plunder, forfeiture, graft and corruption, bribery, perjury,
serious misconduct, violation of the Code of Conduct for
Government Employees, etc; (3) OMB Case No. 0-00-
1755 filed by the Graft Free Philippines Foundation, Inc.
on November 24, 2000 for plunder, forfeiture, graft and
corruption, bribery, perjury, serious misconduct; (4) OMB
Case No. 0-00-1756 filed by Romeo Capulong, et al., on
November 28, 2000 for malversation of public funds,
illegal use of public funds and property, plunder, etc.; (5)
OMB Case No. 0-00-1757 filed by Leonard de Vera, et
al., on November 28, 2000 for bribery, plunder, indirect
bribery, violation of PD 1602, PD 1829, PD 46, and RA
7080; and (6) OMB Case No. 0-00-1758 filed by Ernesto
B. Francisco, Jr. on December 4, 2000 for plunder, graft
and corruption.
A special panel of investigators was forthwith created by
the respondent Ombudsman to investigate the charges
against the petitioner. It is chaired by Overall Deputy
Ombudsman Margarito P. Gervasio with the following as
members, viz: Director Andrew Amuyutan, Prosecutor
Pelayo Apostol, Atty. Jose de Jesus and Atty. Emmanuel
Laureso. On January 22, the panel issued an Order
directing the petitioner to file his counter-affidavit and the
affidavits of his witnesses as well as other supporting
documents in answer to the aforementioned complaints
against him.
Thus, the stage for the cases at bar was set. On
February 5, petitioner filed with this Court GR No.
146710-15, a petition for prohibition with a prayer for a
writ of preliminary injunction. It sought to enjoin the
respondent Ombudsman from "conducting any further
proceedings in Case Nos. OMB 0-00-1629, 1754, 1755,
1756, 1757 and 1758 or in any other criminal complaint
that may be filed in his office, until after the term of
petitioner as President is over and only if legally
warranted." Thru another counsel, petitioner, on
February 6, filed GR No. 146738 for Quo Warranto. He
prayed for judgment "confirming petitioner to be the
lawful and incumbent President of the Republic of the
Philippines temporarily unable to discharge the duties of
his office, and declaring respondent to have taken her
oath as and to be holding the Office of the President,
only in an acting capacity pursuant to the provisions of
the Constitution." Acting on GR Nos. 146710-15, the
Court, on the same day, February 6, required the
respondents "to comment thereon within a non-
extendible period expiring on 12 February 2001." On
February 13, the Court ordered the consolidation of GR
Nos. 146710-15 and GR No. 146738 and the filing of the
respondents' comments "on or before 8:00 a.m. of
February 15."
On February 15, the consolidated cases were orally
argued in a four-hour hearing. Before the hearing, Chief
Justice Davide, Jr.51 and Associate Justice Artemio
Panganiban52 recused themselves on motion of
petitioner's counsel, former Senator Rene A. Saguisag.
They debunked the charge of counsel Saguisag that
they have "compromised themselves by indicating that
they have thrown their weight on one side" but
nonetheless inhibited themselves. Thereafter, the parties
were given the short period of five (5) days to file their
memoranda and two (2) days to submit their
simultaneous replies.
In a resolution dated February 20, acting on the urgent
motion for copies of resolution and press statement for
"Gag Order" on respondent Ombudsman filed by
counsel for petitioner in G.R. No. 146738, the Court
resolved:
"(1) to inform the parties that the Court did not
issue a resolution on January 20, 2001 declaring
the office of the President vacant and that
neither did the Chief Justice issue a press
statement justifying the alleged resolution;
(2) to order the parties and especially their
counsel who are officers of the Court under pain
of being cited for contempt to refrain from
making any comment or discussing in public the
merits of the cases at bar while they are still
pending decision by the Court, and
(3) to issue a 30-day status quo order effective
immediately enjoining the respondent
Ombudsman from resolving or deciding the
criminal cases pending investigation in his office
against petitioner, Joseph E. Estrada and
subject of the cases at bar, it appearing from
news reports that the respondent Ombudsman
may immediately resolve the cases against
petitioner Joseph E. Estrada seven (7) days
after the hearing held on February 15, 2001,
which action will make the cases at bar moot
and academic."53
The parties filed their replies on February 24. On this
date, the cases at bar were deemed submitted for
decision.
The bedrock issues for resolution of this Court are:
I Cuenco,58 where this Court, through former Chief
Whether the petitions present a justiciable
controversy.
II
Assuming that the petitions present a justiciable
controversy, whether petitioner Estrada is a
President on leave while respondent Arroyo is
an Acting President.
III
Whether conviction in the impeachment
proceedings is a condition precedent for the
criminal prosecution of petitioner Estrada. In the
negative and on the assumption that petitioner is
still President, whether he is immune from
criminal prosecution.
IV
Whether the prosecution of petitioner Estrada
should be enjoined on the ground of prejudicial
publicity.
We shall discuss the issues in seriatim.
I
202
Whether or not the cases
At bar involve a political question
Private respondents54 raise the threshold issue that the
cases at bar pose a political question, and hence, are
beyond the jurisdiction of this Court to decide. They
contend that shorn of its embroideries, the cases at bar
assail the "legitimacy of the Arroyo administration." They
stress that respondent Arroyo ascended the presidency
through people power; that she has already taken her
oath as the 14th President of the Republic; that she has
exercised the powers of the presidency and that she has
been recognized by foreign governments. They submit
that these realities on ground constitute the political
thicket, which the Court cannot enter.
We reject private respondents' submission. To be sure,
courts here and abroad, have tried to lift the shroud on
political question but its exact latitude still splits the best
of legal minds. Developed by the courts in the 20th
century, the political question doctrine which rests on the
principle of separation of powers and on prudential
considerations, continue to be refined in the mills of
constitutional law.55 In the United States, the most
authoritative guidelines to determine whether a question
is political were spelled out by Mr. Justice Brennan in the
1962 case or Baker v. Carr,56 viz:
"x x x Prominent on the surface of any case held
to involve a political question is found a textually
demonstrable constitutional commitment of the
issue to a coordinate political department or a
lack of judicially discoverable and manageable
standards for resolving it, or the impossibility of
deciding without an initial policy determination of
a kind clearly for non-judicial discretion; or the
impossibility of a court's undertaking
independent resolution without expressing lack
of the respect due coordinate branches of
government; or an unusual need for
unquestioning adherence to a political decision
already made; or the potentiality of
embarrassment from multifarious
pronouncements by various departments on
question. Unless one of these formulations is
inextricable from the case at bar, there should be
no dismissal for non justiciability on the ground
of a political question's presence. The doctrine of
which we treat is one of 'political questions', not
of 'political cases'."
In the Philippine setting, this Court has been
continuously confronted with cases calling for a firmer
delineation of the inner and outer perimeters of a political
question.57 Our leading case is Tanada v.
Justice Roberto Concepcion, held that political questions
refer "to those questions which, under the Constitution,
are to be decided by the people in their sovereign
capacity, or in regard to which full discretionary
authority has been delegated to the legislative or
executive branch of the government. It is concerned with
issues dependent upon the wisdom, not legality of a
particular measure." To a great degree, the 1987
Constitution has narrowed the reach of the political
question doctrine when it expanded the power of judicial
review of this court not only to settle actual controversies
involving rights which are legally demandable and
enforceable but also to determine whether or not
there has been a grave abuse of discretion
amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of
government.59 Heretofore, the judiciary has focused on
the "thou shalt not's" of the Constitution directed against
the exercise of its jurisdiction.60With the new provision,
however, courts are given a greater prerogative to
determine what it can do to prevent grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of any branch or instrumentality of
government. Clearly, the new provision did not just
grant the Court power of doing nothing. In sync and
symmetry with this intent are other provisions of the
1987 Constitution trimming the so called political thicket.
Prominent of these provisions is section 18 of Article VII
which empowers this Court in limpid language to "x x x
review, in an appropriate proceeding filed by any citizen,
the sufficiency of the factual basis of the proclamation of
martial law or the suspension of the privilege of the writ
(of habeas corpus) or the extension thereof x x x."
Respondents rely on the case of Lawyers League for a
Better Philippines and/or Oliver A. Lozano v.
President Corazon C. Aquino, et al.61 and related
cases62 to support their thesis that since the cases at bar
involve the legitimacy of the government of
respondent Arroyo, ergo, they present a political
question. A more cerebral reading of the cited cases will
show that they are inapplicable. In the cited cases, we
held that the government of former President
Aquino was the result of a successful revolution by
the sovereign people, albeit a peaceful one. No less than
the Freedom Constitution63 declared that the Aquino
government was installed through a direct exercise of
the power of the Filipino people "in defiance of the
provisions of the 1973 Constitution, as amended." In
is familiar learning that the legitimacy of a government
sired by a successful revolution by people power is
beyond judicial scrutiny for that government
automatically orbits out of the constitutional loop. In
checkered contrast, the government of respondent
Arroyo is not revolutionary in character. The oath that
she took at the EDSA Shrine is the oath under the 1987
Constitution.64 In her oath, she categorically swore to
preserve and defend the 1987 Constitution. Indeed,
she has stressed that she is discharging the powers of
the presidency under the authority of the 1987
Constitution.1âwphi1.nêt
In fine, the legal distinction between EDSA People
Power I EDSA People Power II is clear. EDSA I involves
the exercise of the people power of
revolution which overthrew the whole government.
EDSA II is an exercise of people power of freedom of
speech and freedom of assembly to petition the
government for redress of grievances which only
affected the office of the President. EDSA I is extra
constitutional and the legitimacy of the new
government that resulted from it cannot be the subject of
judicial review, but EDSA II is intra constitutional and
the resignation of the sitting President that it caused and
the succession of the Vice President as President are
subject to judicial review. EDSA I presented a political
question; EDSA II involves legal questions. A brief
discourse on freedom of speech and of the freedom of
assembly to petition the government for redress of
grievance which are the cutting edge of EDSA People
Power II is not inappropriate.
Freedom of speech and the right of assembly are
treasured by Filipinos. Denial of these rights was one of
the reasons of our 1898 revolution against Spain. Our
national hero, Jose P. Rizal, raised the clarion call for the
recognition of freedom of the press of the Filipinos and
included it as among "the reforms sine quibus
non."65 The Malolos Constitution, which is the work of
the revolutionary Congress in 1898, provided in its Bill of
Rights that Filipinos shall not be deprived (1) of the right
to freely express his ideas or opinions, orally or in
writing, through the use of the press or other similar
means; (2) of the right of association for purposes of
human life and which are not contrary to public means;
and (3) of the right to send petitions to the authorities,
individually or collectively." These fundamental rights
were preserved when the United States acquired
jurisdiction over the Philippines. In the Instruction to
203
the Second Philippine Commission of April 7, 1900
issued by President McKinley, it is specifically provided
"that no law shall be passed abridging the freedom of
speech or of the press or of the rights of the people to
peaceably assemble and petition the Government for
redress of grievances." The guaranty was carried over in
the Philippine Bill, the Act of Congress of July 1, 1902
and the Jones Law, the Act of Congress of August 29,
1966.66
Thence on, the guaranty was set in stone in our 1935
Constitution,67 and the 197368 Constitution. These
rights are now safely ensconced in section 4, Article III of
the 1987 Constitution, viz:
"Sec. 4. No law shall be passed abridging the
freedom of speech, of expression, or of the
press, or the right of the people peaceably to
assemble and petition the government for
redress of grievances."
The indispensability of the people's freedom of speech
and of assembly to democracy is now self-evident. The
reasons are well put by Emerson: first, freedom of
expression is essential as a means of assuring individual
fulfillment; second, it is an essential process for
advancing knowledge and discovering truth; third, it is
essential to provide for participation in decision-making
by all members of society; and fourth, it is a method of
achieving a more adaptable and hence, a more stable
community of maintaining the precarious balance
between healthy cleavage and necessary consensus." 69
In this sense, freedom of speech and of assembly
provides a framework in which the "conflict
necessary to the progress of a society can take
place without destroying the society."70In Hague v.
Committee for Industrial Organization,71 this function
of free speech and assembly was echoed in the amicus
curiae filed by the Bill of Rights Committee of the
American Bar Association which emphasized that "the
basis of the right of assembly is the substitution of the
expression of opinion and belief by talk rather than
force; and this means talk for all and by all."72 In the
relatively recent case of Subayco v.
Sandiganbayan,73 this Court similar stressed that "… it
should be clear even to those with intellectual deficits
that when the sovereign people assemble to petition for
redress of grievances, all should listen. For in a
democracy, it is the people who count; those who
are deaf to their grievances are ciphers."
Needless to state, the cases at bar pose legal and not
political questions. The principal issues for resolution
require the proper interpretation of certain provisions in
the 1987 Constitution, notably section 1 of Article
II,74 and section 875 of Article VII, and the allocation of
governmental powers under section 1176 of Article VII.
The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the
correct calibration of the right of petitioner against
prejudicial publicity. As early as the 1803 case
of Marbury v. Madison,77 the doctrine has been laid
down that "it is emphatically the province and duty of
the judicial department to say what the law is . . ."
Thus, respondent's in vocation of the doctrine of political
question is but a foray in the dark.
II
Whether or not the petitioner
Resigned as President
We now slide to the second issue. None of the parties
considered this issue as posing a political question.
Indeed, it involves a legal question whose factual
ingredient is determinable from the records of the case
and by resort to judicial notice. Petitioner denies he
resigned as President or that he suffers from a
permanent disability. Hence, he submits that the office of
the President was not vacant when respondent Arroyo
took her oath as President.
The issue brings under the microscope the meaning of
section 8, Article VII of the Constitution which provides:
"Sec. 8. In case of death, permanent disability,
removal from office or resignation of the
President, the Vice President shall become the
President to serve the unexpired term. In case of
death, permanent disability, removal from office,
or resignation of both the President and Vice
President, the President of the Senate or, in
case of his inability, the Speaker of the House of
Representatives, shall then act as President until
the President or Vice President shall have been
elected and qualified.
x x x."
The issue then is whether the petitioner resigned as
President or should be considered resigned as of
January 20, 2001 when respondent took her oath as the
14th President of the Public. Resignation is not a high
level legal abstraction. It is a factual question and
its elements are beyond quibble: there must be an
intent to resign and the intent must be coupled by
acts of relinquishment.78 The validity of a resignation is
not government by any formal requirement as to form. It
can be oral. It can be written. It can be express. It can be
implied. As long as the resignation is clear, it must be
given legal effect.
In the cases at bar, the facts show that petitioner did not
write any formal letter of resignation before he evacuated
Malacañang Palace in the afternoon of January 20, 2001
after the oath-taking of respondent Arroyo.
Consequently, whether or not petitioner resigned has to
be determined from his act and omissions before, during
and after January 20, 2001 or by the totality of prior,
contemporaneous and posterior facts and
circumstantial evidence bearing a material relevance
on the issue.
Using this totality test, we hold that petitioner resigned
as President.
To appreciate the public pressure that led to the
resignation of the petitioner, it is important to follow the
succession of events after the exposẻ of Governor
Singson. The Senate Blue Ribbon Committee
investigated. The more detailed revelations of
petitioner's alleged misgovernance in the Blue Ribbon
investigation spiked the hate against him. The Articles of
Impeachment filed in the House of Representatives
which initially was given a near cipher chance of
succeeding snowballed. In express speed, it gained the
signatures of 115 representatives or more than 1/3 of the
House of Representatives. Soon, petitioner's powerful
political allies began deserting him. Respondent Arroyo
quit as Secretary of Social Welfare. Senate President
Drilon and former Speaker Villar defected with 47
representatives in tow. Then, his respected senior
economic advisers resigned together with his Secretary
of Trade and Industry.
As the political isolation of the petitioner worsened, the
people's call for his resignation intensified. The call
reached a new crescendo when the eleven (11)
members of the impeachment tribunal refused to open
the second envelope. It sent the people to paroxysms of
outrage. Before the night of January 16 was over, the
EDSA Shrine was swarming with people crying for
redress of their grievance. Their number grew
exponentially. Rallies and demonstration quickly spread
to the countryside like a brush fire.
As events approached January 20, we can have an
authoritative window on the state of mind of the
petitioner. The window is provided in the "Final Days of
Joseph Ejercito Estrada," the diary of Executive
Secretary Angara serialized in the Philippine Daily
204
Inquirer.79 The Angara Diary reveals that in the morning
of January 19, petitioner's loyal advisers were worried
about the swelling of the crowd at EDSA, hence, they
decided to create an ad hoc committee to handle it. Their
worry would worsen. At 1:20 p.m., petitioner pulled
Secretary Angara into his small office at the presidential
residence and exclaimed: "Ed, seryoso na ito. Kumalas
na si Angelo (Reyes) (Ed, this is serious. Angelo has
defected.)"80 An hour later or at 2:30 p.m., the petitioner
decided to call for a snap presidential election and
stressed he would not be a candidate. The proposal
for a snap election for president in May where he
would not be a candidate is an indicium that
petitioner had intended to give up the presidency
even at that time. At 3:00 p.m., General Reyes joined
the sea of EDSA demonstrators demanding the
resignation of the petitioner and dramatically announced
the AFP's withdrawal of support from the petitioner and
their pledge of support to respondent Arroyo. The
seismic shift of support left petitioner weak as a
president. According to Secretary Angara, he asked
Senator Pimentel to advise petitioner to consider the
option of "dignified exit or resignation."81 Petitioner
did not disagree but listened intently.82 The sky was
falling fast on the petitioner. At 9:30 p.m., Senator
Pimentel repeated to the petitioner the urgency of
making a graceful and dignified exit. He gave the
proposal a sweetener by saying that petitioner would be
allowed to go abroad with enough funds to support him
and his family.83 Significantly, the petitioner
expressed no objection to the suggestion for a
graceful and dignified exit but said he would never
leave the country.84 At 10:00 p.m., petitioner revealed to
Secretary Angara, "Ed, Angie (Reyes) guaranteed that I
would have five days to a week in the palace." 85 This is
proof that petitioner had reconciled himself to the
reality that he had to resign. His mind was already
concerned with the five-day grace period he could
stay in the palace. It was a matter of time.
The pressure continued piling up. By 11:00 p.m., former
President Ramos called up Secretary Angara and
requested, "Ed, magtulungan tayo para magkaroon tayo
ng (let's cooperate to ensure a) peaceful and orderly
transfer of power."86 There was no defiance to the
request. Secretary Angara readily agreed. Again, we
note that at this stage, the problem was already about
a peaceful and orderly transfer of power. The
resignation of the petitioner was implied.
The first negotiation for a peaceful and orderly transfer
of power immediately started at 12:20 a.m. of January
20, that fateful Saturday. The negotiation was
limited to three (3) points: (1) the transition period of five
days after the petitioner's resignation; (2) the guarantee
of the safety of the petitioner and his family, and (3) the
agreement to open the second envelope to vindicate the
name of the petitioner.87 Again, we note that the
resignation of petitioner was not a disputed point.
The petitioner cannot feign ignorance of this
fact. According to Secretary Angara, at 2:30 a.m., he
briefed the petitioner on the three points and the
following entry in the Angara Diary shows the reaction
of the petitioner, viz:
"x x x
I explain what happened during the first round of
negotiations. The President immediately
stresses that he just wants the five-day period
promised by Reyes, as well as to open the
second envelope to clear his name.
If the envelope is opened, on Monday, he
says, he will leave by Monday.
The President says. "Pagod na pagod na ako.
Ayoko na masyado nang masakit. Pagod na
ako sa red tape, bureaucracy, intriga. (I am
very tired. I don't want any more of this – it's
 too painful. I'm tired of the red tape, the
bureaucracy, the intrigue.)
I just want to clear my name, then I will go."88
Again, this is high grade evidence that the petitioner
has resigned. The intent to resign is clear when he said
"x x x Ayoko na masyado nang masakit." "Ayoko na"
are words of resignation.
The second round of negotiation resumed at 7:30 a.m.
According to the Angara Diary, the following happened:
"Opposition's deal
7:30 a.m. – Rene arrives with Bert Romulo and
(Ms. Macapagal's spokesperson) Rene Corona.
For this round, I am accompanied by Dondon
Bagatsing and Macel.
Rene pulls out a document titled "Negotiating
Points." It reads:
'1. The President shall sign a resignation
document within the day, 20 January 2001, that
will be effective on Wednesday, 24 January
2001, on which day the Vice President will
assume the Presidency of the Republic of the
Philippines.
2. Beginning to day, 20 January 2001, the
transition process for the assumption of the new
administration shall commence, and persons
designated by the Vice President to various
positions and offices of the government shall
start their orientation activities in coordination
with the incumbent officials concerned.
3. The Armed Forces of the Philippines and the
Philippine National Police shall function under
the Vice President as national military and police
authority effective immediately.
4. The Armed Forced of the Philippines, through
its Chief of Staff, shall guarantee the security of
the President and his family as approved by the
national military and police authority (Vice
President).
5. It is to be noted that the Senate will open the
second envelope in connection with the alleged
savings account of the President in the Equitable
PCI Bank in accordance with the rules of the
Senate, pursuant to the request to the Senate
President.
Our deal
We bring out, too, our discussion draft which
reads:
The undersigned parties, for and in behalf of
their respective principals, agree and undertake
as follows:
'1. A transition will occur and take place on
Wednesday, 24 January 2001, at which time
President Joseph Ejercito Estrada will turn over
the presidency to Vice President Gloria
Macapagal-Arroyo.
'2. In return, President Estrada and his families
are guaranteed security and safety of their
person and property throughout their natural
lifetimes. Likewise, President Estrada and his
families are guarantee freedom from persecution
or retaliation from government and the private
sector throughout their natural lifetimes.
This commitment shall be guaranteed by the
Armed Forces of the Philippines (AFP) through
the Chief of Staff, as approved by the national
military and police authorities – Vice President
(Macapagal).
'3. Both parties shall endeavor to ensure that the
Senate sitting as an impeachment court will
authorize the opening of the second envelope in
the impeachment trial as proof that the subject
205
savings account does not belong to President
Estrada.
'4. During the five-day transition period between
20 January 2001 and 24 January 2001 (the
'Transition Period"), the incoming Cabinet
members shall receive an appropriate briefing
from the outgoing Cabinet officials as part of the
orientation program.
During the Transition Period, the AFP and the
Philippine National Police (PNP) shall function
Vice President (Macapagal) as national military
and police authorities.
Both parties hereto agree that the AFP chief of
staff and PNP director general shall obtain all
the necessary signatures as affixed to this
agreement and insure faithful implementation
and observance thereof.
Vice President Gloria Macapagal-Arroyo shall
issue a public statement in the form and tenor
provided for in "Annex A" heretofore attached to
this agreement."89
The second round of negotiation cements the reading
that the petitioner has resigned. It will be noted that
during this second round of negotiation, the resignation
of the petitioner was again treated as a given fact. The
only unsettled points at that time were the measures to
be undertaken by the parties during and after the
transition period.
According to Secretary Angara, the draft agreement,
which was premised on the resignation of the petitioner
was further refined. It was then, signed by their side and
he was ready to fax it to General Reyes and Senator
Pimentel to await the signature of the United Opposition.
However, the signing by the party of the respondent
Arroyo was aborted by her oath-taking. The Angara diary
narrates the fateful events, viz;90
"xxx
11:00 a.m. – Between General Reyes and
myself, there is a firm agreement on the five
points to effect a peaceful transition. I can hear
the general clearing all these points with a group
he is with. I hear voices in the background.
Agreement.
The agreement starts: 1. The President shall
resign today, 20 January 2001, which
resignation shall be effective on 24 January
2001, on which day the Vice President will
assume the presidency of the Republic of the
Philippines.
xxx
The rest of the agreement follows:
2. The transition process for the assumption of
the new administration shall commence on 20
January 2001, wherein persons designated by
the Vice President to various government
positions shall start orientation activities with
incumbent officials.
'3. The Armed Forces of the Philippines through
its Chief of Staff, shall guarantee the safety and
security of the President and his families
throughout their natural lifetimes as approved by
the national military and police authority – Vice
President.
'4. The AFP and the Philippine National Police
(PNP) shall function under the Vice President as
national military and police authorities.
'5. Both parties request the impeachment court
to open the second envelope in the
impeachment trial, the contents of which shall be
offered as proof that the subject savings account
does not belong to the President.
 The Vice President shall issue a public
statement in the form and tenor provided for in
Annex "B" heretofore attached to this
agreement.
11:20 a.m. – I am all set to fax General Reyes
and Nene Pimentel our agreement, signed by
our side and awaiting the signature of the United
opposition.
And then it happens. General Reyes calls me to
say that the Supreme Court has decided that
Gloria Macapagal-Arroyo is President and will be
sworn in at 12 noon.
'Bakit hindi naman kayo nakahintay? Paano na
ang agreement (why couldn't you wait? What
about the agreement)?' I asked.
Reyes answered: 'Wala na, sir (it's over, sir).'
I ask him: Di yung transition period, moot and
academic na?'
And General Reyes answers: ' Oo nga,
I delete na natin, sir (yes, we're deleting the
part).'
Contrary to subsequent reports, I do not react
and say that there was a double cross.
But I immediately instruct Macel to delete the
first provision on resignation since this matter is
already moot and academic. Within moments,
Macel erases the first provision and faxes the
documents, which have been signed by myself,
Dondon and Macel, to Nene Pimentel and
General Reyes.
I direct Demaree Ravel to rush the original
document to General Reyes for the signatures of
the other side, as it is important that the
provisions on security, at least, should be
respected.
I then advise the President that the Supreme
Court has ruled that Chief Justice Davide will
administer the oath to Gloria at 12 noon.
The President is too stunned for words:
Final meal
12 noon – Gloria takes her oath as president of
the Republic of the Philippines.
12:20 p.m. – The PSG distributes firearms to
some people inside the compound.
The president is having his final meal at the
presidential Residence with the few friends and
Cabinet members who have gathered.
By this time, demonstrators have already broken
down the first line of defense at Mendiola. Only
the PSG is there to protect the Palace, since the
police and military have already withdrawn their
support for the President.
1 p.m. – The President's personal staff is rushing
to pack as many of the Estrada family's personal
possessions as they can.
During lunch, Ronnie Puno mentions that the
president needs to release a final statement
before leaving Malacañang.
The statement reads: At twelve o'clock noon
today, Vice President Gloria Macapagal-Arroyo
took her oath as President of the Republic of the
Philippines. While along with many other legal
minds of our country, I have strong and serious
doubts about the legality and constitutionality of
her proclamation as President, I do not wish to
be a factor that will prevent the restoration of
unity and order in our civil society.
It is for this reason that I now leave Malacañang
Palace, the seat of the presidency of this
country, for the sake of peace and in order to
begin the healing process of our nation. I leave
206
the Palace of our people with gratitude for the
opportunities given to me for service to our
people. I will not shirk from any future challenges
that may come ahead in the same service of our
country.
I call on all my supporters and followers to join
me in the promotion of a constructive national
spirit of reconciliation and solidarity.
May the Almighty bless our country and our
beloved people.
MABUHAY!"'
It was curtain time for the petitioner.
In sum, we hold that the resignation of the petitioner
cannot be doubted. It was confirmed by his leaving
Malacañang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with
reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the
sake of peace and in order to begin the healing process
of our nation. He did not say he was leaving the Palace
due to any kind inability and that he was going to re-
assume the presidency as soon as the disability
disappears: (3) he expressed his gratitude to the people
for the opportunity to serve them. Without doubt, he was
referring to the past opportunity given him to serve the
people as President (4) he assured that he will not shirk
from any future challenge that may come ahead in the
same service of our country. Petitioner's reference is to a
future challenge after occupying the office of the
president which he has given up; and (5) he called on his
supporters to join him in the promotion of a constructive
national spirit of reconciliation and solidarity. Certainly,
the national spirit of reconciliation and solidarity could
not be attained if he did not give up the presidency. The
press release was petitioner's valedictory, his final act of
farewell. His presidency is now in the part tense.
It is, however, urged that the petitioner did not resign but
only took a temporary leave dated January 20, 2001 of
the petitioner sent to Senate President Pimentel and
Speaker Fuentebella is cited. Again, we refer to the said
letter, viz:
"Sir.
By virtue of the provisions of Section II, Article
VII of the Constitution, I am hereby transmitting
this declaration that I am unable to exercise the
powers and duties of my office. By operation of
law and the Constitution, the Vice President
shall be the Acting president.
(Sgd.) Joseph Ejercito Estrada"
To say the least, the above letter is wrapped in
mystery.91 The pleadings filed by the petitioner in the
cases at bar did not discuss, may even intimate, the
circumstances that led to its preparation. Neither did the
counsel of the petitioner reveal to the Court these
circumstances during the oral argument. It strikes the
Court as strange that the letter, despite its legal value,
was never referred to by the petitioner during the week-
long crisis. To be sure, there was not the slightest hint of
its existence when he issued his final press release. It
was all too easy for him to tell the Filipino people in his
press release that he was temporarily unable to govern
and that he was leaving the reins of government to
respondent Arroyo for the time bearing. Under any
circumstance, however, the mysterious letter cannot
negate the resignation of the petitioner. If it was prepared
before the press release of the petitioner clearly as a
later act. If, however, it was prepared after the press
released, still, it commands scant legal significance.
Petitioner's resignation from the presidency cannot be
the subject of a changing caprice nor of a whimsical will
especially if the resignation is the result of his reputation
by the people. There is another reason why this Court
cannot given any legal significance to petitioner's letter
and this shall be discussed in issue number III of this
Decision.
After petitioner contended that as a matter of fact he did
not resign, he also argues that he could not resign as a
matter of law. He relies on section 12 of RA No. 3019,
otherwise known as the Anti-graft and Corrupt Practices
Act, which allegedly prohibits his resignation, viz:
"Sec. 12. No public officer shall be allowed to
resign or retire pending an investigation,
criminals or administrative, or pending a
prosecution against him, for any offense under
this Act or under the provisions of the Revised
Penal Code on bribery."
A reading of the legislative history of RA No. 3019 will
hardly provide any comfort to the petitioner. RA No. 3019
originated form Senate Bill No. 293. The original draft of
the bill, when it was submitted to the Senate, did not
contain a provision similar to section 12 of the law as it
now stands. However, in his sponsorship speech,
Senator Arturo Tolentino, the author of the bill, "reserved
to propose during the period of amendments the
inclusion of a provision to the effect that no public official
who is under prosecution for any act of graft or
corruption, or is under administrative investigation, shall
be allowed to voluntarily resign or retire."92 During the
period of amendments, the following provision was
inserted as section 15:
"Sec. 15. Termination of office – No public official
shall be allowed to resign or retire pending an
investigation, criminal or administrative, or
pending a prosecution against him, for any
offense under the Act or under the provisions of
the Revised Penal Code on bribery.
The separation or cessation of a public official
form office shall not be a bar to his prosecution
under this Act for an offense committed during
his incumbency."93
The bill was vetoed by then President Carlos P. Garcia
who questioned the legality of the second paragraph of
the provision and insisted that the President's immunity
should extend after his tenure.
Senate Bill No. 571, which was substantially similar
Senate Bill No. 293, was thereafter passed. Section 15
above became section 13 under the new bill, but the
deliberations on this particular provision mainly focused
on the immunity of the President, which was one of the
reasons for the veto of the original bill. There was hardly
any debate on the prohibition against the resignation or
retirement of a public official with pending criminal and
administrative cases against him. Be that as it may, the
intent of the law ought to be obvious. It is to prevent the
act of resignation or retirement from being used by a
public official as a protective shield to stop the
investigation of a pending criminal or administrative case
against him and to prevent his prosecution under the
Anti-Graft Law or prosecution for bribery under the
Revised Penal Code. To be sure, no person can be
compelled to render service for that would be a violation
of his constitutional right.94 A public official has the right
not to serve if he really wants to retire or resign.
Nevertheless, if at the time he resigns or retires, a public
official is facing administrative or criminal investigation or
prosecution, such resignation or retirement will not cause
the dismissal of the criminal or administrative
proceedings against him. He cannot use his resignation
or retirement to avoid prosecution.
There is another reason why petitioner's contention
should be rejected. In the cases at bar, the records show
that when petitioner resigned on January 20, 2001, the
cases filed against him before the Ombudsman were
OMB Case Nos. 0-00-1629, 0-00-1755, 0-00-1756, 0-00-
1757 and 0-00-1758. While these cases have been filed,
207
the respondent Ombudsman refrained from conducting
the preliminary investigation of the petitioner for the
reason that as the sitting President then, petitioner was
immune from suit. Technically, the said cases cannot be
considered as pending for the Ombudsman lacked
jurisdiction to act on them. Section 12 of RA No. 3019
cannot therefore be invoked by the petitioner for it
contemplates of cases whose investigation or
prosecution do not suffer from any insuperable legal
obstacle like the immunity from suit of a sitting President.
Petitioner contends that the impeachment proceeding is
an administrative investigation that, under section 12 of
RA 3019, bars him from resigning. We hold otherwise.
The exact nature of an impeachment proceeding is
debatable. But even assuming arguendo that it is an
administrative proceeding, it can not be considered
pending at the time petitioner resigned because the
process already broke down when a majority of the
senator-judges voted against the opening of the second
envelope, the public and private prosecutors walked out,
the public prosecutors filed their Manifestation of
Withdrawal of Appearance, and the proceedings were
postponed indefinitely. There was, in effect, no
impeachment case pending against petitioner when he
resigned.
III
Whether or not the petitioner Is only temporarily
unable to Act as President.
We shall now tackle the contention of the petitioner that
he is merely temporarily unable to perform the powers
and duties of the presidency, and hence is a President
on leave. As aforestated, the inability claim is contained
in the January 20, 2001 letter of petitioner sent on the
same day to Senate President Pimentel and Speaker
Fuentebella.
Petitioner postulates that respondent Arroyo as Vice
President has no power to adjudge the inability of the
petitioner to discharge the powers and duties of the
presidency. His significant submittal is that "Congress
has the ultimate authority under the Constitution to
determine whether the President is incapable of
performing his functions in the manner provided for in
section 11 of article VII."95 This contention is
the centerpiece of petitioner's stance that he is a
President on leave and respondent Arroyo is only an
Acting President.
An examination of section 11, Article VII is in order. It
provides:
"SEC. 11. Whenever the President transmits to
the President of the Senate and the Speaker of
the House of Representatives his written
declaration that he is unable to discharge the
powers and duties of his office, and until he
transmits to them a written declaration to the
contrary, such powers and duties shall be
discharged by the Vice-President as Acting
President.
Whenever a majority of all the Members of the
Cabinet transmit to the President of the Senate
and to the Speaker of the House of
Representatives their written declaration that the
President is unable to discharge the powers and
duties of his office, the Vice-President shall
immediately assume the powers and duties of
the office as Acting President.
Thereafter, when the President transmits to the
President of the Senate and to the Speaker of
the House of Representatives his written
declaration that no inability exists, he shall
reassume the powers and duties of his office.
Meanwhile, should a majority of all the Members
of the Cabinet transmit within five days to the
President of the Senate and to the Speaker of
 the House of Representatives their written
declaration that the President is unable to
discharge the powers and duties of his office,
the Congress shall decide the issue. For that
purpose, the Congress shall convene, if it is not
in session, within forty-eight hours, in
accordance with its rules and without need of
call.
If the Congress, within ten days after receipt of
the last written declaration, or, if not in session,
within twelve days after it is required to
assemble, determines by a two-thirds vote of
both Houses, voting separately, that the
President is unable to discharge the powers and
duties of his office, the Vice-President shall act
as President; otherwise, the President shall
continue exercising the powers and duties of his
office."
That is the law. Now, the operative facts:
1. Petitioner, on January 20, 2001, sent the
above letter claiming inability to the
Senate President and Speaker of the
House;
2. Unaware of the letter, respondent Arroyo
took her oath of office as President on
January 20, 2001 at about 12:30 p.m.;
3. Despite receipt of the letter, the House
of Representatives passed on January
24, 2001 House Resolution No. 175;96
On the same date, the House of the Representatives
passed House Resolution No. 17697 which states:
"RESOLUTION EXPRESSING THE SUPPORT
OF THE HOUSE OF REPRESENTATIVES TO
THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO
AS PRESIDENT OF THE REPUBLIC OF THE
PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS
SUPPORT FOR HER ADMINISTRATION AS A
PARTNER IN THE ATTAINMENT OF THE
NATION'S GOALS UNDER THE
CONSTITUTION
WHEREAS, as a consequence of the people's
loss of confidence on the ability of former
President Joseph Ejercito Estrada to effectively
govern, the Armed Forces of the Philippines, the
Philippine National Police and majority of his
cabinet had withdrawn support from him;
WHEREAS, upon authority of an en
banc resolution of the Supreme Court, Vice
President Gloria Macapagal-Arroyo was sworn
in as President of the Philippines on 20 January
2001 before Chief Justice Hilario G. Davide, Jr.;
WHEREAS, immediately thereafter, members of
the international community had extended their
recognition to Her Excellency, Gloria Macapagal-
Arroyo as President of the Republic of the
Philippines;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has espoused a policy of
national healing and reconciliation with justice
for the purpose of national unity and
development;
WHEREAS, it is axiomatic that the obligations of
the government cannot be achieved if it is
divided, thus by reason of the constitutional duty
of the House of Representatives as an institution
and that of the individual members thereof of
fealty to the supreme will of the people, the
House of Representatives must ensure to the
people a stable, continuing government and
208
therefore must remove all obstacles to the
attainment thereof;
WHEREAS, it is a concomitant duty of the
House of Representatives to exert all efforts to
unify the nation, to eliminate fractious tension, to
heal social and political wounds, and to be an
instrument of national reconciliation and
solidarity as it is a direct representative of the
various segments of the whole nation;
WHEREAS, without surrending its
independence, it is vital for the attainment of all
the foregoing, for the House of Representatives
to extend its support and collaboration to the
administration of Her Excellency, President
Gloria Macapagal-Arroyo, and to be a
constructive partner in nation-building, the
national interest demanding no less: Now,
therefore, be it
Resolved by the House of Representatives, To
express its support to the assumption into office
by Vice President Gloria Macapagal-Arroyo as
President of the Republic of the Philippines, to
extend its congratulations and to express its
support for her administration as a partner in the
attainment of the Nation's goals under the
Constitution.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on January 24, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
On February 7, 2001, the House of the Representatives
passed House Resolution No. 17898 which states:
"RESOLUTION CONFIRMING PRESIDENT
GLORIA MACAPAGAL-ARROYO'S
NOMINATION OF SENATOR TEOFISTO T.
GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
WHEREAS, there is a vacancy in the Office of
the Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9, Article VII of
the Constitution, the President in the event of
such vacancy shall nominate a Vice President
from among the members of the Senate and the
House of Representatives who shall assume
office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona Jr., to the
position of Vice President of the Republic of the
Philippines;
WHEREAS, Senator Teofisto T. Guingona Jr., is
a public servant endowed with integrity,
competence and courage; who has served the
Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Senator Teofisto T. Guingona, Jr.
possesses sterling qualities of true
statesmanship, having served the government in
various capacities, among others, as Delegate to
the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the Philippines –
qualities which merit his nomination to the
position of Vice President of the Republic: Now,
therefore, be it
 Resolved as it is hereby resolved by the House
of Representatives, That the House of
Representatives confirms the nomination of
Senator Teofisto T. Guingona, Jr. as the Vice
President of the Republic of the Philippines.
Adopted,
(Sgd.) FELICIANO BELMONTE JR.
Speaker
This Resolution was adopted by the House of
Representatives on February 7, 2001.
(Sgd.) ROBERTO P. NAZARENO
Secretary General"
(4) Also, despite receipt of petitioner's letter
claiming inability, some twelve (12) members of
the Senate signed the following:
"RESOLUTION
WHEREAS, the recent transition in government
offers the nation an opportunity for meaningful
change and challenge;
WHEREAS, to attain desired changes and
overcome awesome challenges the nation
needs unity of purpose and resolve cohesive
resolute (sic) will;
WHEREAS, the Senate of the Philippines has
been the forum for vital legislative measures in
unity despite diversities in perspectives;
WHEREFORE, we recognize and express
support to the new government of President
Gloria Macapagal-Arroyo and resolve to
discharge and overcome the nation's
challenges." 99
On February 7, the Senate also passed Senate
Resolution No. 82100 which states:
"RESOLUTION CONFIRMING PRESIDENT
GLORIA MACAPAGAL ARROYO'S
NOMINATION OF SEM. TEOFISTO T.
GUINGONA, JR. AS VICE PRESIDENT OF THE
REPUBLIC OF THE PHILIPPINES
WHEREAS, there is vacancy in the Office of the
Vice President due to the assumption to the
Presidency of Vice President Gloria Macapagal-
Arroyo;
WHEREAS, pursuant to Section 9 Article VII of
the Constitution, the President in the event of
such vacancy shall nominate a Vice President
from among the members of the Senate and the
House of Representatives who shall assume
office upon confirmation by a majority vote of all
members of both Houses voting separately;
WHEREAS, Her Excellency, President Gloria
Macapagal-Arroyo has nominated Senate
Minority Leader Teofisto T. Guingona, Jr. to the
position of Vice President of the Republic of the
Philippines;
WHEREAS, Sen. Teofisto T. Guingona, Jr. is a
public servant endowed with integrity,
competence and courage; who has served the
Filipino people with dedicated responsibility and
patriotism;
WHEREAS, Sen. Teofisto T. Guingona, Jr.
possesses sterling qualities of true
statemanship, having served the government in
various capacities, among others, as Delegate to
the Constitutional Convention, Chairman of the
Commission on Audit, Executive Secretary,
Secretary of Justice, Senator of the land - which
qualities merit his nomination to the position of
Vice President of the Republic: Now, therefore,
be it
Resolved, as it is hereby resolved, That the
Senate confirm the nomination of Sen. Teofisto
209
T. Guingona, Jr. as Vice President of the
Republic of the Philippines.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
On the same date, February 7,
the Senate likewise passed Senate Resolution
No. 83101 which states:
"RESOLUTION RECOGNIZING THAT THE
IMPEACHMENT COURT IS FUNCTUS
OFFICIO
Resolved, as it is hereby resolved. That the
Senate recognize that the Impeachment Court
is functus officioand has been terminated.
Resolved, further, That the Journals of the
Impeachment Court on Monday, January 15,
Tuesday, January 16 and Wednesday, January
17, 2001 be considered approved.
Resolved, further, That the records of the
Impeachment Court including the "second
envelope" be transferred to the Archives of the
Senate for proper safekeeping and preservation
in accordance with the Rules of the Senate.
Disposition and retrieval thereof shall be made
only upon written approval of the Senate
president.
Resolved, finally. That all parties concerned be
furnished copies of this Resolution.
Adopted,
(Sgd.) AQUILINO Q. PIMENTEL, JR.
President of the Senate
This Resolution was adopted by the Senate on
February 7, 2001.
(Sgd.) LUTGARDO B. BARBO
Secretary of the Senate"
(5) On February 8, the Senate also passed Resolution
No. 84 "certifying to the existence of vacancy in the
Senate and calling on the COMELEC to fill up such
vacancy through election to be held simultaneously with
the regular election on May 14, 2001 and the Senatorial
candidate garnering the thirteenth (13th) highest number
of votes shall serve only for the unexpired term of
Senator Teofisto T. Guingona, Jr.'
(6) Both houses of Congress started sending bills to
be signed into law by respondent Arroyo as
President.
(7) Despite the lapse of time and still without any
functioning Cabinet, without any recognition from any
sector of government, and without any support from the
Armed Forces of the Philippines and the Philippine
National Police, the petitioner continues to claim that his
inability to govern is only momentary.
What leaps to the eye from these irrefutable facts is
that both houses of Congress have recognized
respondent Arroyo as the President. Implicitly clear
in that recognition is the premise that the inability of
petitioner Estrada. Is no longer temporary. Congress
has clearly rejected petitioner's claim of inability.
The question is whether this Court has jurisdiction
to review the claim of temporary inability of
petitioner Estrada and thereafter revise the decision
of both Houses of Congress recognizing respondent
Arroyo as president of the Philippines. Following Tañada
v. Cuenco,102 we hold that this Court cannot exercise its
judicial power or this is an issue "in regard to which full
discretionary authority has been delegated to the
Legislative xxx branch of the government." Or to use the
language in Baker vs. Carr,103 there is a "textually
demonstrable or a lack of judicially discoverable and
manageable standards for resolving it." Clearly, the
Court cannot pass upon petitioner's claim of inability to
discharge the power and duties of the presidency. The
question is political in nature and addressed solely
to Congress by constitutional fiat. It is a political
issue, which cannot be decided by this Court without
transgressing the principle of separation of powers.
In fine, even if the petitioner can prove that he did
not resign, still, he cannot successfully claim that he
is a President on leave on the ground that he is
merely unable to govern temporarily. That claim has
been laid to rest by Congress and the decision that
respondent Arroyo is the de jure, president made by
a co-equal branch of government cannot be
reviewed by this Court.
IV
Whether or not the petitioner enjoys immunity from
suit.
Assuming he enjoys immunity, the extent of the
immunity
Petitioner Estrada makes two submissions: first, the
cases filed against him before the respondent
Ombudsman should be prohibited because he has not
been convicted in the impeachment proceedings against
him; and second, he enjoys immunity from all kinds of
suit, whether criminal or civil.
Before resolving petitioner's contentions, a revisit of our
legal history executive immunity will be most
enlightening. The doctrine of executive immunity in this
jurisdiction emerged as a case law. In the 1910 case of
Forbes, etc. vs. Chuoco Tiaco and Crosfield,104 the
respondent Tiaco, a Chinese citizen, sued petitioner W.
Cameron Forbes, Governor-General of the Philippine
Islands. J.E. Harding and C.R. Trowbridge, Chief of
Police and Chief of the Secret Service of the City of
Manila, respectively, for damages for allegedly
conspiring to deport him to China. In granting a writ of
prohibition, this Court, speaking thru Mr. Justice
Johnson, held:
" The principle of nonliability, as herein
enunciated, does not mean that the judiciary has
no authority to touch the acts of the Governor-
General; that he may, under cover of his office,
do what he will, unimpeded and unrestrained.
Such a construction would mean that tyranny,
under the guise of the execution of the law,
could walk defiantly abroad, destroying rights of
person and of property, wholly free from
interference of courts or legislatures. This does
not mean, either that a person injured by the
executive authority by an act unjustifiable under
the law has n remedy, but must submit in
silence. On the contrary, it means, simply, that
the governors-general, like the judges if the
courts and the members of the Legislature, may
not be personally mulcted in civil damages for
the consequences of an act executed in the
performance of his official duties. The judiciary
has full power to, and will, when the mater is
properly presented to it and the occasion justly
warrants it, declare an act of the Governor-
General illegal and void and place as nearly as
possible in status quo any person who has been
deprived his liberty or his property by such act.
This remedy is assured to every person,
however humble or of whatever country, when
his personal or property rights have been
invaded, even by the highest authority of the
state. The thing which the judiciary can not do is
mulct the Governor-General personally in
damages which result from the performance of
210
his official duty, any more than it can a member
of the Philippine Commission of the Philippine
Assembly. Public policy forbids it.
Neither does this principle of nonliability mean
that the chief executive may not be personally
sued at all in relation to acts which he claims to
perform as such official. On the contrary, it
clearly appears from the discussion heretofore
had, particularly that portion which touched the
liability of judges and drew an analogy between
such liability and that of the Governor-General,
that the latter is liable when he acts in a case so
plainly outside of his power and authority that he
can not be said to have exercised discretion in
determining whether or not he had the right to
act. What is held here is that he will be protected
from personal liability for damages not only
when he acts within his authority, but also when
he is without authority, provided he actually used
discretion and judgement, that is, the judicial
faculty, in determining whether he had authority
to act or not. In other words, in determining the
question of his authority. If he decide wrongly, he
is still protected provided the question of his
authority was one over which two men,
reasonably qualified for that position, might
honestly differ; but he s not protected if the lack
of authority to act is so plain that two such men
could not honestly differ over its determination.
In such case, be acts, not as Governor-General
but as a private individual, and as such must
answer for the consequences of his act."
Mr. Justice Johnson underscored the consequences if
the Chief Executive was not granted immunity from
suit, viz"xxx. Action upon important matters of state
delayed; the time and substance of the chief executive
spent in wrangling litigation; disrespect engendered for
the person of one of the highest officials of the state and
for the office he occupies; a tendency to unrest and
disorder resulting in a way, in distrust as to the integrity
of government itself."105
Our 1935 Constitution took effect but it did not contain
any specific provision on executive immunity. Then came
the tumult of the martial law years under the late
President Ferdinand E. Marcos and the 1973
Constitution was born. In 1981, it was amended and one
of the amendments involved executive immunity. Section
17, Article VII stated:
"The President shall be immune from suit during
his tenure. Thereafter, no suit whatsoever shall
lie for official acts done by him or by others
pursuant to his specific orders during his tenure.
The immunities herein provided shall apply to
the incumbent President referred to in Article
XVII of this Constitution.
In his second Vicente G. Sinco professional Chair lecture
entitled, "Presidential Immunity and All The King's Men:
The Law of Privilege As a Defense To Actions For
Damages,"106 petitioner's learned counsel, former Dean
of the UP College of Law, Atty. Pacificao Agabin,
brightened the modifications effected by this
constitutional amendment on the existing law on
executive privilege. To quote his disquisition:
"In the Philippines, though, we sought to do the
Americans one better by enlarging and fortifying
the absolute immunity concept. First, we
extended it to shield the President not only form
civil claims but also from criminal cases and
other claims. Second, we enlarged its scope so
that it would cover even acts of the President
outside the scope of official duties. And third, we
broadened its coverage so as to include not only
the President but also other persons, be they
 government officials or private individuals, who
acted upon orders of the President. It can be
said that at that point most of us were suffering
from AIDS (or absolute immunity defense
syndrome)."
The Opposition in the then Batasan Pambansa sought
the repeal of this Marcosian concept of executive
immunity in the 1973 Constitution. The move was led by
them Member of Parliament, now Secretary of Finance,
Alberto Romulo, who argued that the after incumbency
immunity granted to President Marcos violated the
principle that a public office is a public trust. He
denounced the immunity as a return to the anachronism
"the king can do no wrong."107 The effort failed.
The 1973 Constitution ceased to exist when President
Marcos was ousted from office by the People Power
revolution in 1986. When the 1987 Constitution was
crafted, its framers did not reenact the executive
immunity provision of the 1973 Constitution. The
following explanation was given by delegate J.
Bernas vis:108
"Mr. Suarez. Thank you.
The last question is with reference to the
Committee's omitting in the draft proposal the
immunity provision for the President. I agree with
Commissioner Nolledo that the Committee did
very well in striking out second sentence, at the
very least, of the original provision on immunity
from suit under the 1973 Constitution. But would
the Committee members not agree to a
restoration of at least the first sentence that the
President shall be immune from suit during his
tenure, considering that if we do not provide him
that kind of an immunity, he might be spending
all his time facing litigation's, as the President-in-
exile in Hawaii is now facing litigation's almost
daily?
Fr. Bernas. The reason for the omission is that
we consider it understood in present
jurisprudence that during his tenure he is
immune from suit.
Mr. Suarez. So there is no need to express it
here.
Fr. Bernas. There is no need. It was that way
before. The only innovation made by the 1973
Constitution was to make that explicit and to add
other things.
Mr. Suarez. On that understanding, I will not
press for any more query, Madam President.
I think the Commissioner for the clarifications."
We shall now rule on the contentions of petitioner in the
light of this history. We reject his argument that he
cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The
impeachment trial of petitioner Estrada was aborted by
the walkout of the prosecutors and by the events that led
to his loss of the presidency. Indeed, on February 7,
2001, the Senate passed Senate Resolution No. 83
"Recognizing that the Impeachment Court is Functus
Officio."109 Since, the Impeachment Court is now functus
officio, it is untenable for petitioner to demand that he
should first be impeached and then convicted before he
can be prosecuted. The plea if granted, would put a
perpetual bar against his prosecution. Such a
submission has nothing to commend itself for it will place
him in a better situation than a non-sitting President who
has not been subjected to impeachment proceedings
and yet can be the object of a criminal prosecution. To
be sure, the debates in the Constitutional Commission
make it clear that when impeachment proceedings have
become moot due to the resignation of the President, the
proper criminal and civil cases may already be filed
against him, viz:110
211
"xxx
Mr. Aquino. On another point, if an impeachment
proceeding has been filed against the President,
for example, and the President resigns before
judgement of conviction has been rendered by
the impeachment court or by the body, how does
it affect the impeachment proceeding? Will it be
necessarily dropped?
Mr. Romulo. If we decide the purpose of
impeachment to remove one from office, then
his resignation would render the case moot and
academic. However, as the provision says, the
criminal and civil aspects of it may continue in
the ordinary courts."
This is in accord with our ruling In Re: Saturnino
Bermudez111 that 'incumbent Presidents are immune
from suit or from being brought to court during the period
of their incumbency and tenure" but not beyond.
Considering the peculiar circumstance that the
impeachment process against the petitioner has been
aborted and thereafter he lost the presidency, petitioner
Estrada cannot demand as a condition sine qua non to
his criminal prosecution before the Ombudsman that he
be convicted in the impeachment proceedings. His
reliance on the case of Lecaroz vs.
Sandiganbayan112 and related cases113 are inapropos for
they have a different factual milieu.
We now come to the scope of immunity that can be
claimed by petitioner as a non-sitting President. The
cases filed against petitioner Estrada are criminal in
character. They involve plunder, bribery and graft and
corruption. By no stretch of the imagination can these
crimes, especially plunder which carries the death
penalty, be covered by the alleged mantle of immunity of
a non-sitting president. Petitioner cannot cite any
decision of this Court licensing the President to commit
criminal acts and wrapping him with post-tenure
immunity from liability. It will be anomalous to hold that
immunity is an inoculation from liability for unlawful acts
and conditions. The rule is that unlawful acts of public
officials are not acts of the State and the officer who acts
illegally is not acting as such but stands in the same
footing as any trespasser.114
Indeed, critical reading of current literature on executive
immunity will reveal a judicial disinclination to expand the
privilege especially when it impedes the search for truth
or impairs the vindication of a right. In the 1974 case of
US v. Nixon,115 US President Richard Nixon, a sitting
President, was subpoenaed to produce certain
recordings and documents relating to his conversations
with aids and advisers. Seven advisers of President
Nixon's associates were facing charges of conspiracy to
obstruct Justice and other offenses, which were
committed in a burglary of the Democratic National
Headquarters in Washington's Watergate Hotel during
the 972 presidential campaign. President Nixon himself
was named an unindicted co-conspirator. President
Nixon moved to quash the subpoena on the ground,
among others, that the President was not subject to
judicial process and that he should first be impeached
and removed from office before he could be made
amenable to judicial proceedings. The claim was
rejected by the US Supreme Court. It concluded that
"when the ground for asserting privilege as to
subpoenaed materials sought for use in a criminal trial is
based only on the generalized interest in confidentiality,
it cannot prevail over the fundamental demands of due
process of law in the fair administration of criminal
justice." In the 1982 case of Nixon v. Fitzgerald,116 the
US Supreme Court further held that the immunity of the
president from civil damages covers only "official acts."
Recently, the US Supreme Court had the occasion to
reiterate this doctrine in the case of Clinton v.
Jones117 where it held that the US President's immunity
from suits for money damages arising out of their official
acts is inapplicable to unofficial conduct.
There are more reasons not to be sympathetic to
appeals to stretch the scope of executive immunity in our
jurisdiction. One of the great themes of the 1987
Constitution is that a public office is a public trust. 118 It
declared as a state policy that "the State shall maintain
honesty and integrity in the public service and take
positive and effective measures against graft and
corruptio."119 it ordained that "public officers and
employees must at all times be accountable to the
people, serve them with utmost responsibility, integrity,
loyalty, and efficiency act with patriotism and justice, and
lead modest lives."120 It set the rule that 'the right of the
State to recover properties unlawfully acquired by public
officials or employees, from them or from their nominees
or transferees, shall not be barred by prescription,
latches or estoppel."121 It maintained the Sandiganbayan
as an anti-graft court.122 It created the office of the
Ombudsman and endowed it with enormous powers,
among which is to "investigate on its own, or on
complaint by any person, any act or omission of any
public official, employee, office or agency, when such act
or omission appears to be illegal, unjust improper or
inefficient."123 The Office of the Ombudsman was also
given fiscal autonomy.124 These constitutional policies
will be devalued if we sustain petitioner's claim that a
non-sitting president enjoys immunity from suit for
criminal acts committed during his incumbency.
V barrage of publicity that characterized the
Whether or not the prosecution of petitioner
Estrada should be enjoined due to prejudicial
publicity
Petitioner also contends that the respondent
Ombudsman should be stopped from conducting the
investigation of the cases filed against him due to the
barrage of prejudicial publicity on his guilt. He submits
that the respondent Ombudsman has developed bias
and is all set file the criminal cases violation of his right
to due process.
There are two (2) principal legal and philosophical
schools of thought on how to deal with the rain of
unrestrained publicity during the investigation and trial of
high profile cases.125 The British approach the problem
with the presumption that publicity will prejudice a jury.
Thus, English courts readily stay and stop criminal trials
when the right of an accused to fair trial suffers a
threat.126 The American approach is different. US courts
assume a skeptical approach about the potential effect
of pervasive publicity on the right of an accused to a fair
trial. They have developed different strains of tests to
resolve this issue, i.e., substantial; probability of
irreparable harm, strong likelihood, clear and present
danger, etc.
This is not the first time the issue of trial by publicity has
been raised in this Court to stop the trials or annul
convictions in high profile criminal cases.127 In People vs.
Teehankee, Jr.,128 later reiterated in the case of
Larranaga vs. court of Appeals, et al.,129 we laid down
the doctrine that:
"We cannot sustain appellant's claim that he was
denied the right to impartial trial due to
prejudicial publicity. It is true that the print and
broadcast media gave the case at bar pervasive
publicity, just like all high profile and high stake
criminal trials. Then and now, we rule that the
right of an accused to a fair trial is not
incompatible to a free press. To be sure,
responsible reporting enhances accused's right
to a fair trial for, as well pointed out, a
responsible press has always been regarded as
the criminal field xxx. The press does not simply
publish information about trials but guards
212
against the miscarriage of justice by subjecting
the police, prosecutors, and judicial processes to
extensive public scrutiny and criticism.
Pervasive publicity is not per se prejudicial to the
right of an accused to fair trial. The mere fact
that the trial of appellant was given a day-to-day,
gavel-to-gavel coverage does not by itself prove
that the publicity so permeated the mind of the
trial judge and impaired his impartiality. For one,
it is impossible to seal the minds of members of
the bench from pre-trial and other off-court
publicity of sensational criminal cases. The state
of the art of our communication system brings
news as they happen straight to our breakfast
tables and right to our bedrooms. These news
form part of our everyday menu of the facts and
fictions of life. For another, our idea of a fair and
impartial judge is not that of a hermit who is out
of touch with the world. We have not installed
the jury system whose members are overly
protected from publicity lest they lose there
impartially. xxx xxx xxx. Our judges are learned
in the law and trained to disregard off-court
evidence and on-camera performances of
parties to litigation. Their mere exposure to
publications and publicity stunts does not per se
fatally infect their impartiality.
At best, appellant can only conjure possibility of
prejudice on the part of the trial judge due to the
investigation and trial of the case. In Martelino,
et al. v. Alejandro, et al., we rejected this
standard of possibility of prejudice and adopted
the test of actual prejudice as we ruled that to
warrant a finding of prejudicial publicity, there
must be allegation and proof that the judges
have been unduly influenced, not simply that
they might be, by the barrage of publicity. In the
case at a bar, the records do not show that the
trial judge developed actual bias against
appellants as a consequence of the extensive
media coverage of the pre-trial and trial of his
case. The totality of circumstances of the case
does not prove that the trial judge acquired a
fixed opinion as a result of prejudicial publicity,
which is incapable of change even by evidence
presented during the trial. Appellant has the
burden to prove this actual bias and he has not
discharged the burden.'
We expounded further on this doctrine in the subsequent
case of Webb vs. Hon. Raul de Leon, etc.130 and its
companion cases, viz:
"Again petitioners raise the effect of prejudicial
publicity on their right to due process while
undergoing preliminary investigation. We find no
procedural impediment to its early invocation
considering the substantial risk to their liberty
while undergoing a preliminary investigation.
xxx
The democratic settings, media coverage of
trials of sensational cases cannot be avoided
and oftentimes, its excessiveness has been
aggravated by kinetic developments in the
telecommunications industry. For sure, few
cases can match the high volume and high
velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of
facts and fiction about the case continues
unabated even today. Commentators still
bombard the public with views not too many of
which are sober and sublime. Indeed, even the
principal actors in the case – the NBI, the
respondents, their lawyers and their
sympathizers have participated in this media
 blitz. The possibility of media abuses and their
threat to a fair trial notwithstanding, criminal
trials cannot be completely closed to the press
and public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia, it was
xxx
a. The historical evidence of the evolution
of the criminal trial in Anglo-American
justice demonstrates conclusively that at
the time this Nation's organic laws were
adopted, criminal trials both here and in
England had long been presumptively
open, thus giving assurance that the
proceedings were conducted fairly to all
concerned and discouraging perjury, the
misconduct of participants, or decisions
based on secret bias or partiality. In
addition, the significant community
therapeutic value of public trials was
recognized when a shocking crime
occurs a community reaction of outrage
and public protest often follows, and
thereafter the open processes of justice
serve an important prophylactic
purpose, providing an outlet for
community concern, hostility and
emotion. To work effectively, it is
important that society's criminal process
satisfy the appearance of justice,' Offutt
v. United States, 348 US 11, 14, 99 L ED
11, 75 S Ct 11, which can best be
provided by allowing people to observe
such process. From this unbroken,
uncontradicted history, supported by
reasons as valid today as in centuries
past, it must be concluded that a
presumption of openness inheres in the
very nature of a criminal trial under this
Nation's system of justice, Cf., e,g.,
Levine v. United States, 362 US 610, 4 L
Ed 2d 989, 80 S Ct 1038.
b. The freedoms of speech. Press and
assembly, expressly guaranteed by the
First Amendment, share a common core
purpose of assuring freedom of
communication on matters relating to
the functioning of government. In
guaranteeing freedom such as those of
speech and press, the First Amendment
can be read as protecting the right of
everyone to attend trials so as give
meaning to those explicit guarantees;
the First Amendment right to receive
information and ideas means, in the
context of trials, that the guarantees of
speech and press, standing alone,
prohibit government from summarily
closing courtroom doors which had long
been open to the public at the time the
First Amendment was adopted.
Moreover, the right of assembly is also
relevant, having been regarded not only
as an independent right but also as a
catalyst to augment the free exercise of
the other First Amendment rights with
which the draftsmen deliberately linked
it. A trial courtroom is a public place
where the people generally and
representatives of the media have a
right to be present, and where their
presence historically has been thought
to enhance the integrity and quality of
what takes place.
213
c. Even though the Constitution contains
no provision which be its terms
guarantees to the public the right to
attend criminal trials, various
fundamental rights, not expressly
guaranteed, have been recognized as
indispensable to the enjoyment of
enumerated rights. The right to attend
criminal trial is implicit in the guarantees
of the First Amendment: without the
freedom to attend such trials, which
people have exercised for centuries,
important aspects of freedom of speech
and of the press be eviscerated.
Be that as it may, we recognize that pervasive
and prejudicial publicity under certain
circumstances can deprive an accused of his
due process right to fair trial. Thus, in Martelino,
et al. vs. Alejandro, et al., we held that to warrant
a finding of prejudicial publicity there must
be allegation and proof that the judges have
been unduly influenced, not simply that they
might be, by the barrage of publicity. In the case
at bar, we find nothing in the records that will
prove that the tone and content of the publicity
that attended the investigation of petitioners
fatally infected the fairness and impartiality of the
DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of
fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To
be sure, the DOJ Panel is composed of an
Assistant Chief State Prosecutor and Senior
State Prosecutors. Their long experience in
criminal investigation is a factor to consider in
determining whether they can easily be blinded
by the klieg lights of publicity. Indeed, their 26-
page Resolution carries no indubitable indicia of
bias for it does not appear that they considered
any extra-record evidence except evidence
properly adduced by the parties. The length of
time the investigation was conducted despite its
summary nature and the generosity with which
they accommodated the discovery motions of
petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel
on the ground of bias resulting from their
bombardment of prejudicial publicity." (emphasis
supplied)
Applying the above ruling, we hold that there is not
enough evidence to warrant this Court to enjoin the
preliminary investigation of the petitioner by the
respondent Ombudsman. Petitioner needs to offer
more than hostile headlines to discharge his burden of
proof.131 He needs to show more weighty social science
evidence to successfully prove the impaired capacity of a
judge to render a bias-free decision. Well to note, the
cases against the petitioner are still
undergoing preliminary investigation by a special panel
of prosecutors in the office of the respondent
Ombudsman. No allegation whatsoever has been made
by the petitioner that the minds of the members of this
special panel have already been infected by bias
because of the pervasive prejudicial publicity against
him. Indeed, the special panel has yet to come out with
its findings and the Court cannot second guess whether
its recommendation will be unfavorable to the petitioner.
The records show that petitioner has instead charged
respondent Ombudsman himself with bias. To quote
petitioner's submission, the respondent Ombudsman
"has been influenced by the barrage of slanted news
reports, and he has buckled to the threats and pressures
directed at him by the mobs."132 News reports have also
been quoted to establish that the respondent
Ombudsman has already prejudged the cases of the
petitioner133 and it is postulated that the prosecutors
investigating the petitioner will be influenced by this bias
of their superior.
Again, we hold that the evidence proffered by the
petitioner is insubstantial. The accuracy of the news
reports referred to by the petitioner cannot be the subject
of judicial notice by this Court especially in light of the
denials of the respondent Ombudsman as to his alleged
prejudice and the presumption of good faith and
regularity in the performance of official duty to which he
is entitled. Nor can we adopt the theory of derivative
prejudice of petitioner, i.e., that the prejudice of
respondent Ombudsman flows to his subordinates.
In truth, our Revised Rules of Criminal Procedure, give
investigation prosecutors the independence to make
their own findings and recommendations albeit they are
reviewable by their superiors.134 They can be reversed
but they can not be compelled cases which they believe
deserve dismissal. In other words, investigating
prosecutors should not be treated like unthinking slot
machines. Moreover, if the respondent Ombudsman
resolves to file the cases against the petitioner and the
latter believes that the findings of probable cause against
him is the result of bias, he still has the remedy of
assailing it before the proper court.
VI.
Epilogue
A word of caution to the "hooting throng." The cases
against the petitioner will now acquire a different
dimension and then move to a new stage - - - the Office
of the Ombudsman. Predictably, the call from the
majority for instant justice will hit a higher decibel while
the gnashing of teeth of the minority will be more
threatening. It is the sacred duty of the respondent
Ombudsman to balance the right of the State to
prosecute the guilty and the right of an accused to a fair
investigation and trial which has been categorized as the
"most fundamental of all freedoms."135 To be sure, the
duty of a prosecutor is more to do justice and less to
prosecute. His is the obligation to insure that the
preliminary investigation of the petitioner shall have a
circus-free atmosphere. He has to provide the restraint
against what Lord Bryce calls "the impatient vehemence
of the majority." Rights in a democracy are not decided
by the mob whose judgment is dictated by rage and not
by reason. Nor are rights necessarily resolved by the
power of number for in a democracy, the dogmatism of
the majority is not and should never be the definition of
the rule of law. If democracy has proved to be the best
form of government, it is because it has respected the
right of the minority to convince the majority that it is
wrong. Tolerance of multiformity of thoughts, however
offensive they may be, is the key to man's progress from
the cave to civilization. Let us not throw away that key
just to pander to some people's prejudice.
IN VIEW WHEREOF, the petitions of Joseph Ejercito
Estrada challenging the respondent Gloria Macapagal-
Arroyo as the de jure 14th President of the Republic
are DISMISSED.
SO ORDERED.
Estrada v. Arroyo
Estrada V. Arroyo
G.R. No. 146738
FACTS: Petitioner sought to enjoin the respondent
Ombudsman from conducting any further proceedings in any
criminal complaint that may be filed in his office, until after
the term of petitioner as President is over and only if legally
warranted. Erap also filed a Quo Warranto case, praying for
judgment “confirming petitioner to be the lawful and
214
incumbent President of the Republic of the Philippines
temporarily unable to discharge the duties of his office, and
declaring respondent to have taken her oath as and to be
holding the Office of the President, only in an acting capacity
pursuant to the provisions of the Constitution.”
HELD:
FIRST: The cases at bar pose legal and not political questions.
The principal issues for resolution require the proper
interpretation of certain provisions in the 1987 Constitution,
notably section 1 of Article II, and section 8 of Article VII, and
the allocation of governmental powers under section II of
Article VII. The issues likewise call for a ruling on the scope of
presidential immunity from suit. They also involve the correct
calibration of the right of petitioner against prejudicial
publicity. As early as the 1803 case of Marbury v. Madison,
the doctrine has been laid down that “it is emphatically the
province and duty of the judicial department to say what the
law is . . .”
The Court also distinguished between EDSA People Power I
and EDSA People Power II. EDSA I involves the exercise of the
people power of revolution which overthrew the whole
government. EDSA II is an exercise of people power of
freedom of speech and freedom of assembly to petition the
government for redress of grievances which only affected the
office of the President. EDSA I is extra constitutional and the
legitimacy of the new government that resulted from it
cannot be the subject of judicial review, but EDSA II is intra
constitutional and the resignation of the sitting President that
it caused and the succession of the Vice President as
President are subject to judicial review. EDSA I presented
political question; EDSA II involves legal questions.
SECOND: Using the totality test, the SC held that petitioner
resigned as President.
1. The proposal for a snap election for president in May
where he would not be a candidate is an indicium that
petitioner had intended to give up the presidency even at that
time.
2. The Angara diary shows that the President wanted
only five-day period promised by Reyes, as well as to open the
second envelop to clear his name.
"If the envelope is opened, on Monday, he says, he will leave
by Monday.
"The President says. “Pagod na pagod na ako. Ayoko na
masyado nang masakit. Pagod na ako sa red tape,
bureaucracy, intriga. (I am very tired. I don’t want any more of
this – it’s too painful. I’m tired of the red tape, the
bureaucracy, the intrigue.)
"I just want to clear my name, then I will go.”
The SC held that this is high grade evidence that the
petitioner has resigned. The intent to resign is clear when he
said “x x x Ayoko na masyado nang masakit.” “ Ayoko na” are
words of resignation.
3. During the negotiations, the resignation of the
petitioner was treated as a given fact. The only unsettled
points at that time were the measures to be undertaken by
the parties during and after transition period.
4. His resignation was also confirmed by his leaving
Malacañang. In the press release containing his final
statement, (1) he acknowledged the oath-taking of the
respondent as President of the Republic albeit with the
reservation about its legality; (2) he emphasized he was
leaving the Palace, the seat of the presidency, for the sake of
peace and in order to begin the healing process of our nation.
He did not say he was leaving the Palace due to any kind of
inability and he was going to re-assume the presidency as
soon as the disability disappears; (3) he expressed his
gratitude to the people for the opportunity to serve them.
Without doubt, he was referring to the past opportunity given
him to serve the people as President; (4) he assured that he
will not shirk from any future challenge that may come ahead
in the same service of our country. Petitioner’s reference is to
a future challenge after occupying the office of’ the president
which he has given up; and (5) he called on his supporters to
join him in the promotion of a constructive national spirit of
reconciliation and solidarity. Certainly, the national spirit of
reconciliation and solidarity could not be attained if he did not
give up the presidency. The press release was petitioner’s
valedictory, his final act of farewell. His presidency is now in
the past tense.
brought to court during the period of their incumbency and
tenure” but not beyond. Considering the peculiar
circumstance that the impeachment process against the
petitioner has been aborted and thereafter he lost the
presidency, petitioner cannot demand as a condition sine qua
non to his criminal prosecution before the Ombudsman that
he be convicted in the impeachment proceedings.
Also, petitioner cannot cite any decision of the SC licensing
the President to commit criminal acts and wrapping him with
post-tenure immunity from liability. The rule is that unlawful
acts of public officials are not acts of the State and the officer
who acts illegally is not acting as such but stands in the same
footing as any other trespasser.

THIRD: The petitioner is permanently unable to act as
President.
Section 11 of Article VII provides that “Congress has the
ultimate authority under the Constitution to determine
whether the President is incapable of performing his
functions.” Both houses of Congress have recognized
respondent Arroyo as the President.
The House of Representative passed on January 24, 2001
House Resolution No. l75 which states: “RESOLUTION
EXPRESSING THE SUPPORT OF THE HOUSE OF
REPRESENTATIVES TO THE ASSUMPTION INTO OFFICE BY VICE
PRESIDENT GLORIA MACAPAGAL-ARROYO AS PRESIDENT
OFTHE REPUBLIC OF THE PHILIPPINES, EXTENDING ITS
CONGRATULATIONS AND EXPRESSING ITS SUPPORT FOR HER
ADMINISTRATION AS A PARTNER IN THE ATTAINMENT OF THE
NATION’S GOALS UNDER THE CONSTITUTION.” The Senate
also passed Senate Resolution No. 82 which states:
“RESOLUTION CONFIRMING PRESIDENT GLORIA MACAPAGAL-
ARROYO’S NOMINATION OF SEN. TEOFISTO T. GUINGONA, JR.
AS VICE PRESIDENT OF THE REPUBLIC OF THE PHILIPPINES”
FIFTH: Petitioner was not denied the right to impartial trial.
Pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The mere fact that the trial of appellant
was given a day-to-day, gavel-to-gavel coverage does not by
itself prove that the publicity so permeated the mind of the
trial judge and impaired his impartiality. In the case at bar, the
records do not show that the trial judge developed actual bias
against appellant as a consequence of the extensive media
coverage of the pre-trial and trial of his case. The totality of
circumstances of the case does not prove that the trial judge
acquired a fixed opinion as a result of prejudicial publicity
which is incapable if change even by evidence presented
during the trial. Appellant has the burden to prove this actual
bias and he has not discharged the burden.

Implicitly clear in that recognition is the premise that the

inability of petitioner Estrada is no longer temporary.
Congress has clearly rejected petitioner’s claim of inability.
Even if petitioner can prove that he did not resign, still, he
cannot successfully claim that he is a President on leave on
the ground that he is merely unable to govern temporarily.
That claim has been laid to rest by Congress and the decision
that respondent Arroyo is the de jure President made by a co-
equal branch of government cannot be reviewed by the
Supreme Court.

FOURTH: The petitioner does not enjoy immunity from suit.

The Supreme Court rejected petitioner’s argument that he

cannot be prosecuted for the reason that he must first be
convicted in the impeachment proceedings. The
impeachment trial of petitioner Estrada was aborted by the
walkout of the prosecutors and by the events that led to his
loss of the presidency. On February 7, 2001, the Senate
passed Senate Resolution No. 83 “Recognizing that the
Impeachment Court is Functus Officio.” Since the
Impeachment Court is now functus officio, it is untenable for
petitioner to demand that he should first be impeached and
then convicted before he can be prosecuted. The plea, if
granted, would put a perpetual bar against his prosecution.
The debates in the Constitutional Commission make it clear
that when impeachment proceedings have become moot due
to the resignation of the President, the proper criminal and
civil cases may already be filed against him.

The SC also ruled in In re: Saturnino Bermudez that

“incumbent Presidents are immune from suit or from being

215