Poli Meeting 2

Presidential Ad Hoc Fact-Finding Committee on Behest Loans, et. al. v.
Desierto, G.R. No. 130140, Oct. 25, 1999

[G.R. No. 130140. October 25, 1999.]
PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS

represented by MAGTANGGOL C. GUNIGUNDO, PCGG Chairman and
ORLANDO C. SALVADOR, as Consultant, Technical Working Group of the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans, Petitioners,
v. HON. ANIANO A. DESIERTO as Ombudsman; JOSE Z. OSIAS; PACIFICO E.
MARCOS; EDUARDO V. ROMUALDEZ; FERNANDO C. ORDOVEZA; and
JUANITO ORDOVEZA, Members of the Board of Directors of Philippine
Seeds, Inc.; CONCERNED MEMBERS OF THE DEVELOPMENT BANK OF THE
PHILIPPINES, Respondents.
DECISION
DAVIDE, JR., C.J.:
The core issue in this special civil action for certiorari is whether public respondent
Ombudsman Aniano A. Desierto (hereafter OMBUDSMAN) committed grave abuse
of discretion in holding that the offenses with which the other respondents were
charged in OMB-0-96-0968 had already prescribed.
This case originated as G.R. No. 129763, the docket number given to the Motion for
Extension of Time to File Petition for Review filed by the Presidential Commission on
Good Government (PCGG). 1 The motion was granted. However, what was filed was
a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure, with the
Presidential Ad Hoc Fact-Finding Committee on Behest Loans (hereafter
COMMITTEE) as petitioner. The petition was docketed as G.R. No. 130140.
Accordingly, G.R. No. 129763 is now deemed functus officio. chanrobles lawlibrary : rednad
Initially, the Court dismissed the petition in this case on technical grounds. But,
upon petitioner’s motion for reconsideration, the petition was reinstated, and the
respondents were required to comment on the petition.
In its Manifestation (In Lieu of Comment), 2 the Development Bank of the

Philippines (DBP) manifested that it would "rel[y] on the evaluation and exercise of
the discretionary power conferred on Petitioner in the prosecution of the instant
petition."
cralaw virtua1aw library
In its Manifestation and Motion 3 of 16 February 1998, the Office of the Solicitor
General (OSG) informed the Court that it could not represent the OMBUDSMAN for
the following reasons: (a) the Solicitor General is the Vice-Chairman of petitioner
COMMITTEE; (b) being an agency of the Government, the COMMITTEE is entitled to
be represented by the OSG; and (c) the petition was signed by Associate Solicitor
Salvador C. Guevarra, who is presently on detail with the PCGG, and by
Commissioner Herminio A. Mendoza of the PCGG, which is also a client of the OSG.
The Court then required the OMBUDSMAN to file his own comment, which he did on
11 June 1998. 4
Copies of the resolution requiring comment on the petition sent to the other
respondents were returned to sender because the said respondents had "MOVED."
Since the challenged resolution and order of the OMBUDSMAN were issued before
said other respondents were even required to submit their counter-affidavits,
impleading them in this case is not necessary; hence, this case can be resolved
without their inclusion as respondents.chanroblesvirtuallawlibrary
As culled from the initiatory pleadings and MEMORANDA of the COMMITTEE and the
OMBUDSMAN, the undisputed facts are as follows: chanrob1es virtual 1aw library
On 8 October 1992, President Fidel V. Ramos issued Administrative Order No. 13,
creating the Presidential Ad Hoc Fact-Finding Committee on Behest Loans, with the
Chairman of the PCGG as Chairman; the Solicitor General as Vice Chairman; and
one representative each from the Office of the Executive Secretary, Department of
Finance, Department of Justice, Development Bank of the Philippines, Philippine
National Bank, Asset Privatization Trust, Government Corporate Counsel, and the
Philippine Export and Foreign Loan Guarantee Corporation as members. The
Committee was directed to perform the following functions: chanrob1es virtual 1aw library
1. Inventory all behest loans; identify the lenders and borrowers, including the
principal officers and stockholders of the borrowing firms, as well as the persons
responsible for granting the loans or who influenced the grant thereof;
2. Identify the borrowers who were granted "friendly waivers," as well as the
government officials who granted these waivers; determine the validity of these
waivers.
3. Determine the courses of action that the government should take to recover
those loans, and to recommend appropriate actions to the Office of the President
within sixty (60) days from the date hereof. chanroblesvirtualawlibrary
On 9 November 1992, President Ramos issued Memorandum Order No. 61 directing

the COMMITTEE to "include in its investigation, inventory, and study all non-
performing loans which shall embrace both behest and non-behest loans." It
likewise provided for the following criteria which might be "utilized as a frame of
reference in determining a behest loan," to wit: chanrob1es virtual 1aw library
a. It is undercollateralized.
b. The borrower corporation is undercapitalized.
c. Direct or indirect endorsement by high government officials like presence of

marginal notes.
d. Stockholders, officers or agents of the borrower corporation are identified as

cronies.
e. Deviation of use of loan proceeds from the purpose intended.
f. Use of corporate layering.
g. Non-feasibility of the project for which financing is being sought.
h. Extraordinary speed in which the loan release was made.
x x x
Moreover, a behest loan may be distinguished from a non-behest loan in that while
both may involve civil liability for non-payment or non-recovery, the former may
likewise entail criminal liability." chanroblesvirtuallawlibrary
In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated

15 July 1993, 5 the COMMITTEE reported that the Philippine Seeds, Inc., (hereafter
PSI) of which the respondents in OMB-0-96-0968 were the Directors, was one of
the twenty-one corporations which obtained behest loans.
In his instructions handwritten on the cover of the aforementioned Report,

President Ramos directed COMMITTEE Chairman Magtanggol C. Gunigundo to, inter
alia, "proceed with administrative and judicial actions against the twenty-one firms
(out of 21) in this batch with positive findings ASAP." 6
On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG

consultant detailed with the COMMITTEE, filed with the OMBUDSMAN a sworn
complaint 7 against the Directors of PSI namely, Jose Z. Osias, Pacifico E. Marcos,
Eduardo V. Romualdez, Fernando C. Ordoveza, and Juanito Ordoveza; and the
Directors of the Development Bank of the Philippines who approved the loans for
violation of paragraphs (e) and (g) of Section 3 of Republic Act No. 3019, as
amended, which read: chanrob1es virtual 1aw library
SECTION 3. Corrupt Practices of Public Officers. — In addition to acts or omissions

of public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful: chanrobles virtual lawlibrary
x x x
e. Causing any undue injury to any party, including the Government or giving any
private party any unwarranted benefit, advantage or preference in the discharge of
his official, administrative or judicial functions through manifest partiality, evident
bad faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses
or permits or other concessions.
x x x
g. Entering, on behalf of the Government, into any contract or transaction

manifestly and grossly disadvantageous to the same, whether or not the public
officer profited or will profit thereby.
The complaint, later docketed as OMB-0-96-0968, alleged as follows: chanrob1es virtual 1aw library
4. The evidence submitted to us show that: chanrob1es virtual 1aw library
a) Philippine Seeds, Inc. (PSI) obtained its initial loan guarantee on April 17, 1969
under B/R 2805 (Annex 1, Evidence 3) with an aggregate amount of $3,452,535, or
P13,568,463. (P3.93 to $1) . . . . chanroblesvirtuallawlibrary
Based on the foregoing DBP approved Guarantee Loans, PSI still had a collateral
deficiency of P5,444,432, and likewise DBP infused the amount of P3,824,911 as
against the corporation’s paid-up capital of P2,225,000 only.
b) Subsequent loans/guarantees were extended by DBP for the benefit and/or

advantage of PSI under the following Board Resolutions: chanrob1es virtual 1aw library
1) B/R 3353 dated August 13, 1975 (Annex 2, Evidence 4) for the following
purposes: chanrob1es virtual 1aw library
(a) DBP to extend a loan of P215,000 at 12% interest per annum for repairs &
rehabilitation of the PSI plant within a period of four (4) months from the full
release of the amount.
(b) DBP to extend a short term of P6 million at 12% interest per annum for its
working capital.
(c) DBP to assume PSI loans with commercial banks.
(d) DBP to restructure PSI existing obligations if after 6 months of trial period,
operations proved profitable and viable. chanrobles.com.ph : virtual law library
(e) DDBP to suspend foreclosure for 10 months.
2) B/R 883 series 1978, (Annex 3, Evidence 9) DBP Board approved a P2.9 million
loan for the following purposes: chanrob1es virtual 1aw library
(a) P1.9 million to liquidate PSI’s obligation with other creditors.

(b) P1.0 million to finance PSI’s special projects.
(c) DBP initiated PSI foreclosures starting March 1975 but it was not implemented
by virtue of then President Marcos’ marginal notes dated April 1975 (Annex 4,
Evidence 6) and June 1995 (Annex 5, Evidence 7).
(d) Pacifico Marcos and Eduardo Romualdez, relatives of the late President Marcos,
were the principal stockholders and officers of the subject firm. chanroblesvirtuallawlibrary
5. As a private entity, Philippine Seeds, Inc., did not deserve the concessions given
it without sufficient collateral for the loan and adequate capital to ensure not only
the viability of its operations but its ability to repay all its loans.
In the resolution 8 dated 14 May 1996 and approved on 9 June 1996, the
OMBUDSMAN dismissed the complaint in OMB-0-96-0968 on the ground of
prescription. Relying on People v. Dinsay, 9 a case decided by the Court of Appeals,
he ratiocinated that since the questioned transactions were evidenced by public
instruments and were thus open for the perusal of the public, the prescriptive
period commenced to run from the time of the commission of the crime, not from
the discovery thereof. Reckoning the prescriptive period from 1969, 1970, 1975,
and 1978, when the disputed transactions were entered into, the OMBUDSMAN
ruled that the offenses with which respondents were charged had already
prescribed.
Its motion for reconsideration having been denied by the OMBUDSMAN in the Order
10 of 19 May 1997, the COMMITTEE filed this case raising this sole issue: chanrob1es virtual 1aw library
WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS

DISCRETION IN HOLDING THAT THE PRESCRIPTIVE PERIOD IN THIS CASE
SHOULD BE COUNTED FROM THE DATE OF THE GRANT OF THE BEHEST LOANS
INVOLVED, AND NOT FROM THE DATE OF DISCOVERY OF THE SAME BY THE
COMMITTEE. chanrobles.com : virtual law library
The COMMITTEE argues that the right of the Republic of the Philippines to recover
behest loans as ill-gotten wealth is imprescriptible pursuant to the mandate of
Section 15 of Article XI of the Constitution, which provides:chanrob1es virtual 1aw library
The right of the State to recover properties unlawfully acquired by public officials or
employees, from them or from their nominees as transferees, shall not be barred
by prescription, laches, or estoppel.
Behest loans are part of the ill-gotten wealth which former President Marcos and his
cronies accumulated and which the Government through the PCGG seeks to
recover. Besides, even assuming ex gratia that the right to file criminal charges
against the respondents is prescriptible, the prescriptive period should be counted
from the discovery of the crimes charged, and not from the date of their
commission. The ruling in Dinsay is not applicable to the case at bar. First, it is a
decision of the Court of Appeals; hence, it does not establish a doctrine and can
only have a persuasive value. Second, it involved a prosecution for estafa in that
the accused disposed of his property claiming that it was free from any lien or
encumbrance despite the fact that a notice of lis pendens was registered with the
Registry of Deeds. The sale, cancellation of the accused’s title, and issuance of a
new title to the buyer could not have been concealed from the offended parties or
their lawyers because these transactions took place when the civil case involving
the said property and the offended parties was in progress. Third, Dinsay involved
private parties, while the instant case involves the Government and public officers.
Fourth, the ruling is not absolute, since no less than this Court in People v. Monteiro
11 said:chanrob1es virtual 1aw library
[T]he period of prescription for the offense of failure to register with the SSS shall
begin from the day of the discovery of the violation if this was not shown at the
time of its commission. A contrary view would be dangerous as the successful
concealment of an offense during the period fixed for its prescription would be the
very means by which the offender may escape punishment. (Emphasis supplied) chanroblesvirtuallawlibrary
Also, in People v. Duque, 12 which involved a prosecution for illegal recruitment

under Article 38 of the Labor Code, this Court held: chanrob1es virtual 1aw library
Even if it be assumed arguendo that ordinary prudence required that a person

seeking overseas employment ought to check the authority or status of persons
pretending to be authorized or to speak for a recruitment or placement agency, the
offended parties’ failure to do so did not start the running of the prescriptive period.
In the nature of things, acts made criminal by special laws are frequently not
immoral or obviously criminal in themselves; for this reason, the applicable statute
requires that if the violation of the special law is not known at that time, the
prescription begins to run only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts. (Emphasis supplied)
Finally, the COMMITTEE asserts that even assuming that the discovery rule does
not apply, still, because of the principle of "equitable tolling," prescription has not
yet set in for the offenses with which respondents in OMB-0-96-0960 were charged.
This principle is based on the doctrine "contra non valentem agere nulla currit
praescriptio," i.e., "no prescription shall run against a person unable to bring an
action." The COMMITTEE was unable to bring the action, for the cause therefor was
not known or reasonably known to it owing to the fact that (1) the loans, being
behest, were concealed; (2) both parties to the loan transactions were in
conspiracy to perpetrate the fraud against the State; and (3) the loans were
granted at the time then President Marcos was at the threshold of his authority
when no one dared question, much less investigate, any of his orders.
The OMBUDSMAN takes a different view. For one, he asserts that Section 15 of
Article XI of the Constitution is not applicable, since what the COMMITTEE seeks in
OMB-0-96-0968 is not to recover the unlawfully acquired wealth from the
respondents therein but to hold them criminally liable for violation of R.A. No. 3019.
The dismissal of the case is not a bar to the institution of forfeiture proceedings
against the concerned former government officials and cronies. chanrobles.com.ph : virtual law library
For another, the OMBUDSMAN insists that the offenses with which the respondents
were charged had already prescribed. As a matter of fact it prescribed in ten years
pursuant to the original provision of Section 11 of R.A. No. 3019, which fixed the
prescriptive period at ten years. B.P. Blg. 195, which increased the prescriptive
period to fifteen years, became effective only on 16 March 1982 and cannot be
given retroactive effect; hence, the offenses which might have arisen from the
grant of the assailed loans in 1969, 1975 and 1978 prescribed in 1979, 1985 and
1988, respectively.
The OMBUDSMAN points to Section 2 of Act No. 3326, which governs prescription of
crimes under special laws and which reads as follows: chanrob1es virtual 1aw library
SECTION 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery
thereof . . .
According to him, the computation of the prescriptive period from the date of
discovery would only be resorted to if the commission of the crime be not known at
the day of the commission. The phrase "if the same be not known" does not mean
"lack of actual knowledge," but that the crime "is not reasonably knowable" by
reason of the nature of the crime or the environmental circumstances thereof. In
the case filed by the COMMITTEE, the crimes alleged to have been committed were
"reasonably knowable" because the transactions were "never conducted
clandestinely ... [but] carried out in the open, leaving a trail of public
instruments/documents accessible and susceptible to evaluation." Moreover, as can
be drawn from the allegation in the COMMITTEE’s complaint that the DBP initiated
PSI foreclosures starting March 1975, the corresponding mortgages were executed
and registered. Hence, the doctrine laid down in Dinsay is applicable. Likewise, in
People v. Sandiganbayan, 13 this Court ruled that the prescriptive period for the
violation of R.A. No. 3019, which was allegedly committed by Paredes by
misrepresenting in an application for land patent that the subject land was
disposable, started to run from the date of the filing of the application. Yet, in said
case the falsity of Paredes’ representation regarding the disposability of the land
was not capable of being drawn from the application alone; nevertheless, this Court
was not deterred from holding that prescription started to run from the filing of the
application.chanrobles.com : virtual law library
Finally, the OMBUDSMAN maintains that any confidential relationship between the
former strongman and the respondents DBP officials ceased altogether after the
February 1986 EDSA revolution. Even assuming then that the running of the 10-
year period of prescription was suspended by reason of the said confidential
relationship, the same re-started in February 1986 and went on to lapse in
February 1996. However, the complaint of the COMMITTEE in OMB-0-96-0968 was
filed only on 2 March 1996.
We agree with the OMBUDSMAN that Section 15 of Article XI of the Constitution

applies only to civil actions for recovery of ill-gotten wealth, and not to criminal
cases, such as the complaint against the respondents in OMB-0-96-0968. This is
clear from the proceedings of the Constitutional Commission of 1986.
What is now Section 15 of Article XI of the Constitution was originally Section 13 of

the proposed Article on Accountability of Public Officers in Committee Report No. 17
submitted to the Constitutional Commission by its Committee on Accountability of
Public Officers, 14 viz: chanrob1es virtual 1aw library
The right of the State to recover properties unlawfully acquired by public officials or
employees shall not be barred by prescription.
At the plenary session, Commissioner Hilario G. Davide, Jr., succeeded in having

that Section amended. Thus: chanrobles lawlibrary : rednad
MR. DAVIDE.
Madam President.
MR. DAVIDE.
Would the proponent accept some amendments?
MR. MAAMBONG.
Gladly.
MR. DAVIDE.
The amendment of Section 13 will consist of the following: On line 25, after the
word "employees," add the following: OR THEIR CO-PRINCIPALS, ACCOMPLICES OR
ACCESSORIES OR TO PROSECUTE OFFENSES IN CONNECTION THEREWITH; then
on line 25, after the word "prescription," add a comma (,) and the words LACHES
OR ESTOPPEL. So the entire Section 13 will read as follows: "The right of the State
to recover properties unlawfully acquired by public officials or employees OR THEIR
CO-PRINCIPALS, ACCOMPLICES OR ACCESSORIES OR TO PROSECUTE OFFENSES
IN CONNECTION THEREWITH shall not be barred by prescription, LACHES OR
ESTOPPEL." cralaw virtua1aw library
x x x
MR. DAVIDE.
I would like to insist on my proposal for the plain and simple reason that the
republic act on forfeiture of ill-gotten wealth would cover only the civil aspect. As a
matter of fact, any prosecution for the criminal aspect of that will have to be taken
under the Anti-Graft and Corrupt Practices Act. That is why it is necessary to
include here, specifically, the criminal action and the imprescriptibility of the
criminal action. Besides, what is stated in the law on ill-gotten wealth and recovery
thereof would refer to prescription or statute of limitations. We know for a fact that
there are two other concepts in Civil Law. We have laches and estoppel. Laches, for
instance, is a concept entirely different from prescription. While an action may not
prescribe, it may be barred by laches and while an action may not prescribe or may
not be barred by laches, it may also be a limitation because of estoppel. So, if we
really want to strengthen this particular concept, we should be very specific in
having it related to both criminal and civil actions. In addition to prescription, we
should also include laches and estoppel. chanroblesvirtual|awlibrary
...
THE PRESIDENT.
Is it accepted by the Committee?
MR. NOLLEDO.
After consultations, the Committee is happy to announce that we are accepting the
amendment.
MR. DAVIDE.
Thank you, Madam President; I also thank the members of the Committee.
THE PRESIDENT.
Is there any objection? (Silence) The Chair hears none; the amendment is
approved. 15 (Emphasis supplied).
As shown, the amendment made the provision applicable as well to criminal actions
arising from, relating or incident to, or involving ill-gotten wealth.
However, on motion for reconsideration by Commissioner Christian Monsod, who

explained that the intention of the Committee was to limit the proposed Section 13
to civil actions, and without objection on the part of Commissioner Davide, the
motion for reconsideration was granted. As a consequence, the amendment of
Commissioner Davide regarding the applicability of the Section to criminal actions
was deleted. After further proceedings the Section was further amended by the
insertion of the phrase "from them or from their transferees." Thus: chanrobles law library : red
MR. BENGZON.
There is just one loose thread hanging in the Article on Accountability of Public
Officers and I would like to get this out of the way. May I suggest that
Commissioner Monsod be recognized.
THE PRESIDING OFFICER. (Mr. de los Reyes).

Commissioner Monsod is recognized.
MR. MONSOD.
We circulated to the Commissioners a memorandum that was unanimously

endorsed by the members of the committee, except for one member who [was]
absent. In this memorandum, we suggested the deletion of a phrase which we
consider redundant in the context of the intent of the committee. We wanted to ask
the body for any comment it may have on it because we feel we do not need to
reopen the article if the body agrees with us that it is not a substantial change, but
a change to reflect the intention of the body and the committee on this matter.
THE PRESIDING OFFICER (Mr. de los Reyes).
On what article is that, Commissioner Monsod?
MR. MONSOD.
It is on the Article on Accountability of Public Officers which was circulated a couple

of days ago.
On Section 13, lines 7 and 8, we propose to delete the phrase "or to prosecute
offenses in connection therewith." The committee considers this phrase redundant
with its intent on the recovery of property illegally acquired. The action
contemplated by the committee is a civil action. However, since jurisprudence
considers such action for recovery as partaking of a criminal action, we believe that
it is not necessary to mention "or to prosecute offenses in connection therewith."
Hence, we ask the body if there is any objection to delete that phrase. chanrobles virtual lawlibrary
Commissioner Monsod, what is the phrase sought to be deleted?
MR. MONSOD.
The phrase "or to prosecute offenses in connection therewith." cralaw virtua1aw library
...
MR. MONSOD.
May we ask Commissioner Davide, the proponent of some of these amendments,

on this article?
Commissioner Davide is recognized.

MR. DAVIDE.
Thank you, Mr. Presiding Officer.
After deeper reflection on the consequences of the amendments which I introduced

and which are now sought to be deleted, and taking into account the massive
consensus of opinions on the part of the committee which is now seeking for its
reconsideration, I would have no objection to it. However, there is a point to be
taken up and I understand that Commissioner Regalado has also a point to take up
on this.
chanrobles law library
Commissioner Regalado is recognized.
MR. REGALADO.
Thank you, Mr. Presiding Officer.
I move for the deletion of the phrase "co-principals, accomplices or accessories,"

because what is contemplated in that amendment is a civil action. The phrase "co-
principals, accomplices and accessories" is proper only in a criminal action. So, I
have asked the committee to delete those words.
So, how will the section now read?
MR. MONSOD.
The section as amended by deletion will now read: "Sec. 13. The right of the State
to recover properties unlawfully acquired by public officials or employees shall not
be barred by prescription, laches or estoppel."cralaw virtua1aw library
So for the information of the Members of the Commission, what phrases are
deleted? chanrobles.com:cralaw:red
MR. MONSOD.
The phrases that are deleted are as follows: "or to prosecute offenses in connection
therewith" and "or their co-principals, accomplices or accessories." cralaw virtua1aw library
So, in effect, the Commissioner is asking for a reconsideration.

MR. MONSOD.
It has been suggested that that would be appropriate in order to make sure that
this is properly regularized.
RECONSIDERATION OF APPROVAL
OF PROPOSED RESOLUTION NO. 456
(Article on the Accountability of Public Officers)
As many as are in favor of reconsidering Section 13, please raise their hand.
(Several Members raised their hand.)
As many as are against, please raise their hand. (No Member raised his hand).
The results show 27 votes in favor and 1 against; the reconsideration is approved.
16chanrobles lawlibrary : rednad
Commissioner Monsod is again recognized.
MR MONSOD.
I propose that we delete the phrases: "or their co-principals, accomplices or

accessories" and "or to prosecute offenses in connection therewith." So, the entire
article will now read: "The right of the State to recover properties unlawfully
acquired by public officials or employees shall not be barred by prescription, laches
or estoppel." cralaw virtua1aw library
...
Is there any objection to the amendment of Commissioner Monsod?
Commissioner Azcuna is recognized.
MR AZCUNA.
Mr. Presiding Officer, the phrase "co-principals, accomplices and accessories" refers
to criminal cases. So I propose to insert the phrase "OR THEIR TRANSFEREES IN
BAD FAITH" in order to be able to recover these properties even from transferees of
the public officers if they are done in bad faith. Hence, the amended section will
read: "The right of the State to recover properties unlawfully acquired by public
officials or employees OR THEIR TRANSFEREES IN BAD FAITH." cralaw virtua1aw library
What does Commissioner Monsod say? chanroblesvirtuallawlibrary
MR. MONSOD.
We have no objection to that, but I understand there is a comment on this matter.
...
MR. MONSOD.
In order to clarify the intent of the amendment, we suggest that the amendment be
stated this way: "FROM THEM OR FROM THEIR TRANSFEREES." So, the entire
section will read: "The right of the State to recover properties unlawfully acquired
by public officials or employees FROM THEM OR FROM THEIR TRANSFEREES shall
not be barred by prescription, laches or estoppel." cralaw virtua1aw library
Commissioner Azcuna is recognized.
MR. AZCUNA.
I accept the amendment.
Commissioner Maambong is recognized.
MR. MAAMBONG.
Mr. Presiding Officer, I recall I presented an amendment precisely on this provision.

I gave way to Commissioner Davide at that time because the imprescriptibility
provision was supposed to cover both criminal and civil actions. I just want to
clarify this from Commissioner Monsod or from Commissioner Davide if in the
present formulation, what is covered is only imprescriptibility of civil action and not
of criminal action. Commissioner Davide can probably answer that. chanrobles law library
MR. MONSOD.
Mr. Presiding Officer.

MR. MONSOD.
Yes, it is just the imprescriptibility of the civil action.
MR. MAAMBONG.
If only civil action, it does not cover imprescriptibility of criminal action.
MR. MONSOD.
Yes, that is right.
MR. MAAMBONG.
Thank you.
Is the Commission now prepared to vote on the issue?
MR. RAMA.
Yes.
Is there any objection to the amendment of Commissioner Monsod? (Silence) The

Chair hears none; the amendment is approved. 17 (Emphasis supplied). chanrobles virtual lawlibrary
Then, on motion of the Committee on Style, the Section 13 which became Section
15, was approved; thus: chanrob1es virtual 1aw library
MR. RODRIGO.
In Section 15, we inserted: "FROM THEM OR FROM THEIR NOMINEES OR

TRANSFEREES" and we deleted "co-principals, accomplices or accessories or to
prosecute offenses in connection therewith." So, Section 15 reads: "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, laches, or estoppel." cralaw virtua1aw library
I move for its approval.
THE PRESIDING OFFICER (Mr. Jamir).

Is there any objection? (Silence). The Chair hears none; the amendment is
approved. 18
The upshot of the foregoing discussion is that the prosecution of offenses arising
from, relating or incident to, or involving ill-gotten wealth contemplated in Section
15, Article XI of the Constitution may be barred by prescription.
Since the law alleged to have been violated, i.e., paragraphs (e) and (g) of Section
3, R.A. No. 3019, as amended, is a special law, the applicable rule in the
computation of the prescriptive period is Section 2 of Act No. 3326, 19 as amended,
which provides: chanrobles law library
SECTION 2. Prescription shall begin to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery
thereof and institution of judicial proceedings for its investigation and punishment.
The prescription shall be interrupted when proceedings are instituted against the
guilty person and shall begin to run again if the proceedings are dismissed for
reasons not constituting double jeopardy.
This simply means that if the commission of the crime is known, the prescriptive
period shall commence to run on the day it was committed.
In the present case, it was well-nigh impossible for the State, the aggrieved party,
to have known the violations of R.A. No. 3019 at the time the questioned
transactions were made because, as alleged, the public officials concerned connived
or conspired with the "beneficiaries of the loans." Thus, we agree with the
COMMITTEE that the prescriptive period for the offenses with which the
respondents in OMB-0-96-0968 were charged should be computed from the
discovery of the commission thereof and not from the day of such commission.
The assertion by the OMBUDSMAN that the phrase "if the same be not known" in
Section 2 of Act No. 3326 does not mean "lack of knowledge" but that the crime "is
not reasonably knowable" is unacceptable, as it provides an interpretation that
defeats or negates the intent of the law, which is written in a clear and
unambiguous language and thus provides no room for interpretation but only
application.
chanrobles.com : virtual law library
The OMBUDSMAN’s reliance on Dinsay is misplaced. The estafa committed by the

accused was known to the offended party from the very start; hence, it could even
be said that the commission and the discovery of the offense were simultaneous.
20 Neither is People v. Sandiganbayan 21 of any help to OMBUDSMAN. We ruled
therein that the prescriptive period commenced to run from the filing of the
application for the following reasons: chanrob1es virtual 1aw library
The theory of the prosecution that the prescriptive period should not commence
upon the filing of Paredes’ application because no one could have known about it
except Paredes and Lands Inspector Luison, is not correct for, as the
Sandiganbayan pointedly observed: "it is not only the Lands Inspector who passes
upon the disposability of public land . . . other public officials pass upon the
application for a free patent including the location of the land and, therefore, the
disposable character thereof" (p. 30, Rollo). Indeed, practically all the department
personnel, who had a hand in processing and approving the application, namely:
(1) the lands inspector who inspected the land to ascertain its location and
occupancy; (2) the surveyor who prepared its technical description; (3) the regional
director who assessed the application and determined the land classification; (4)
the Director of Lands who prepared the free patent; and (5) the Department
Secretary who signed it, could... have helped "discovering" that the subject of the
application was non disposable public agricultural land.
There was no showing that Paredes had connived with "all the department
personnel, who had a hand in processing and approving the application" of Paredes.
Consequently, such personnel could have easily discovered the falsity in Paredes’
claim and denounced it. It would have been entirely different if the public officials
concerned conspired with him, in which case, they would have hidden the misdeed
to escape culpability.
People v. Duque 22 is more in point, and what was stated there stands reiteration:
In the nature of things, acts made criminal by special laws are frequently not
immoral or obviously criminal in themselves; for this reason, the applicable statute
requires that if the violation of the special law is not known at the time, the
prescription begins to run only from the discovery thereof, i.e., discovery of the
unlawful nature of the constitutive act or acts.
In the case at bar the OMBUDSMAN forthwith dismissed the complaint in Case No.
OMB-0-96-0968 without even requiring the respondents to submit their counter-
affidavits and solely on the basis of the dates the alleged behest loans were
granted, or the dates of the commission of the alleged offense was committed. chanrobles law library
Since the computation of the prescriptive period for the filing of the criminal action
should commence from the discovery of the offense, the OMBUDSMAN clearly acted
with grave abuse of discretion in dismissing outright Case No. OMB-0-96-0968. It
should have first received the evidence from the complainant and the respondents
to resolve the case on its merits and on the issue of the date of discovery of the
offense.
IN LIGHT OF ALL THE FOREGOING, judgment is hereby rendered GRANTING the

petition, and SETTING ASIDE the resolution of 14 May 1996 and the Order of 19
May 1997 of the public respondent OMBUDSMAN in Case No. OMB-0-96-0968.
The OMBUDSMAN is hereby directed to proceed with the preliminary investigation

of the case OMB-0-96-0968 taking into account the foregoing disquisitions. chanroblesvirtualawlibrary
No pronouncement as to costs.
SO ORDERED.
Isagani Cruz v. Sec. of DENR, G.R. No. 135385, Dec. 6, 2000
G.R. No. 135385 December 6, 2000
ISAGANI CRUZ and CESAR EUROPA, petitioners,

vs.
SECRETARY OF ENVIRONMENT AND NATURAL RESOURCES, SECRETARY OF BUDGET
AND MANAGEMENT and CHAIRMAN and COMMISSIONERS OF THE NATIONAL
COMMISSION ON INDIGENOUS PEOPLES, respondents.
HON. JUAN M .FLAVIER, HON. PONCIANO BENNAGEN, BAYANI ASCARRAGA, EDTAMI
MANSAYANGAN, BASILIO WANDAG, EVELYN DUNUAN, YAOM TUGAS, ALFREMO
CARPIANO, LIBERATO A. GABIN, MATERNIDAD M. COLAS, NARCISA M. DALUPINES, BAI
KIRAM-CONNIE SATURNO, BAE MLOMO-BEATRIZ T. ABASALA, DATU BALITUNGTUNG-
ANTONIO D. LUMANDONG, DATU MANTUMUKAW TEOFISTO SABASALES, DATU
EDUAARDO BANDA, DATU JOEL UNAD, DATU RAMON BAYAAN, TIMUAY JOSE ANOY,
TIMUAY MACARIO D. SALACAO, TIMUAY EDWIN B. ENDING, DATU SAHAMPONG
MALANAW VI, DATU BEN PENDAO CABIGON, BAI NANAPNAY-LIZA SAWAY, BAY INAY
DAYA-MELINDA S. REYMUNDO, BAI TINANGHAGA HELINITA T. PANGAN, DATU
MAKAPUKAW ADOLINO L. SAWAY, DATU MAUDAYAW-CRISPEN SAWAY, VICKY MAKAY,
LOURDES D. AMOS, GILBERT P. HOGGANG, TERESA GASPAR, MANUEL S. ONALAN, MIA
GRACE L. GIRON, ROSEMARIE G. PE, BENITO CARINO, JOSEPH JUDE CARANTES,
LYNETTE CARANTES-VIVAL, LANGLEY SEGUNDO, SATUR S. BUGNAY, CARLING
DOMULOT, ANDRES MENDIOGRIN, LEOPOLDO ABUGAN, VIRGILIO CAYETANO, CONCHITA
G. DESCAGA, LEVY ESTEVES, ODETTE G. ESTEVEZ, RODOLFO C. AGUILAR, MAURO
VALONES, PEPE H. ATONG, OFELIA T. DAVI, PERFECTO B. GUINOSAO, WALTER N. TIMOL,
MANUEL T. SELEN, OSCAR DALUNHAY, RICO O. SULATAN, RAFFY MALINDA, ALFREDO
ABILLANOS, JESSIE ANDILAB, MIRLANDO H. MANGKULINTAS, SAMIE SATURNO, ROMEO
A. LINDAHAY, ROEL S. MANSANG-CAGAN, PAQUITO S. LIESES, FILIPE G. SAWAY,
HERMINIA S. SAWAY, JULIUS S. SAWAY, LEONARDA SAWAY, JIMMY UGYUB, SALVADOR
TIONGSON, VENANCIO APANG, MADION MALID, SUKIM MALID, NENENG MALID,
MANGKATADONG AUGUSTO DIANO, JOSEPHINE M. ALBESO, MORENO MALID, MARIO
MANGCAL, FELAY DIAMILING, SALOME P. SARZA, FELIPE P. BAGON, SAMMY
SALNUNGAN, ANTONIO D. EMBA, NORMA MAPANSAGONOS, ROMEO SALIGA, SR.,
JERSON P. GERADA, RENATO T. BAGON, JR., SARING MASALONG, SOLEDAD M.
GERARDA, ELIZABETH L. MENDI, MORANTE S. TIWAN, DANILO M. MALUDAO, MINORS
MARICEL MALID, represented by her father CORNELIO MALID, MARCELINO M. LADRA,
represented by her father MONICO D. LADRA, JENNYLYN MALID, represented by her father
TONY MALID, ARIEL M. EVANGELISTA, represented by her mother LINAY BALBUENA,
EDWARD M. EMUY, SR., SUSAN BOLANIO, OND, PULA BATO B'LAAN TRIBAL FARMER'S
ASSOCIATION, INTER-PEOPLE'S EXCHANGE, INC. and GREEN FORUM-WESTERN
VISAYAS, intervenors.
COMMISSION ON HUMAN RIGHTS, intervenor.
IKALAHAN INDIGENOUS PEOPLE and HARIBON FOUNDATION FOR THE CONSERVATION
OF NATURAL RESOURCES, INC., intervenor.
RESOLUTION
PER CURIAM:
Petitioners Isagani Cruz and Cesar Europa brought this suit for prohibition and mandamus as
citizens and taxpayers, assailing the constitutionality of certain provisions of Republic Act No. 8371
(R.A. 8371), otherwise known as the Indigenous Peoples Rights Act of 1997 (IPRA), and its
Implementing Rules and Regulations (Implementing Rules).
In its resolution of September 29, 1998, the Court required respondents to comment. In compliance,
1
respondents Chairperson and Commissioners of the National Commission on Indigenous Peoples

(NCIP), the government agency created under the IPRA to implement its provisions, filed on October
13, 1998 their Comment to the Petition, in which they defend the constitutionality of the IPRA and
pray that the petition be dismissed for lack of merit.
On October 19, 1998, respondents Secretary of the Department of Environment and Natural
Resources (DENR) and Secretary of the Department of Budget and Management (DBM) filed
through the Solicitor General a consolidated Comment. The Solicitor General is of the view that the
IPRA is partly unconstitutional on the ground that it grants ownership over natural resources to
indigenous peoples and prays that the petition be granted in part.
On November 10, 1998, a group of intervenors, composed of Sen. Juan Flavier, one of the authors
of the IPRA, Mr. Ponciano Bennagen, a member of the 1986 Constitutional Commission, and the
leaders and members of 112 groups of indigenous peoples (Flavier, et. al), filed their Motion for
Leave to Intervene. They join the NCIP in defending the constitutionality of IPRA and praying for the
dismissal of the petition.
On March 22, 1999, the Commission on Human Rights (CHR) likewise filed a Motion to Intervene
and/or to Appear as Amicus Curiae. The CHR asserts that IPRA is an expression of the principle of
parens patriae and that the State has the responsibility to protect and guarantee the rights of those
who are at a serious disadvantage like indigenous peoples. For this reason it prays that the petition
be dismissed.
On March 23, 1999, another group, composed of the Ikalahan Indigenous People and the Haribon
Foundation for the Conservation of Natural Resources, Inc. (Haribon, et al.), filed a motion to
Intervene with attached Comment-in-Intervention. They agree with the NCIP and Flavier, et al. that
IPRA is consistent with the Constitution and pray that the petition for prohibition and mandamus be
dismissed.
The motions for intervention of the aforesaid groups and organizations were granted.
Oral arguments were heard on April 13, 1999. Thereafter, the parties and intervenors filed their
respective memoranda in which they reiterate the arguments adduced in their earlier pleadings and
during the hearing.
Petitioners assail the constitutionality of the following provisions of the IPRA and its Implementing
Rules on the ground that they amount to an unlawful deprivation of the State’s ownership over lands
of the public domain as well as minerals and other natural resources therein, in violation of the
regalian doctrine embodied in Section 2, Article XII of the Constitution:
"(1) Section 3(a) which defines the extent and coverage of ancestral domains, and Section 3(b)
which, in turn, defines ancestral lands;
"(2) Section 5, in relation to section 3(a), which provides that ancestral domains including inalienable
public lands, bodies of water, mineral and other resources found within ancestral domains are
private but community property of the indigenous peoples;
"(3) Section 6 in relation to section 3(a) and 3(b) which defines the composition of ancestral domains
and ancestral lands;
"(4) Section 7 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral domains;
(5) Section 8 which recognizes and enumerates the rights of the indigenous peoples over the
ancestral lands;
"(6) Section 57 which provides for priority rights of the indigenous peoples in the harvesting,
extraction, development or exploration of minerals and other natural resources within the areas
claimed to be their ancestral domains, and the right to enter into agreements with nonindigenous
peoples for the development and utilization of natural resources therein for a period not exceeding
25 years, renewable for not more than 25 years; and
"(7) Section 58 which gives the indigenous peoples the responsibility to maintain, develop, protect
and conserve the ancestral domains and portions thereof which are found to be necessary for critical
watersheds, mangroves, wildlife sanctuaries, wilderness, protected areas, forest cover or
reforestation."
2
Petitioners also content that, by providing for an all-encompassing definition of "ancestral domains"
and "ancestral lands" which might even include private lands found within said areas, Sections 3(a)
and 3(b) violate the rights of private landowners.3
In addition, petitioners question the provisions of the IPRA defining the powers and jurisdiction of the
NCIP and making customary law applicable to the settlement of disputes involving ancestral
domains and ancestral lands on the ground that these provisions violate the due process clause of
the Constitution. 4
These provisions are:
"(1) sections 51 to 53 and 59 which detail the process of delineation and recognition of
ancestral domains and which vest on the NCIP the sole authority to delineate ancestral
domains and ancestral lands;
"(2) Section 52[i] which provides that upon certification by the NCIP that a particular area is
an ancestral domain and upon notification to the following officials, namely, the Secretary of
Environment and Natural Resources, Secretary of Interior and Local Governments,
Secretary of Justice and Commissioner of the National Development Corporation, the
jurisdiction of said officials over said area terminates;
"(3) Section 63 which provides the customary law, traditions and practices of indigenous
peoples shall be applied first with respect to property rights, claims of ownership, hereditary
succession and settlement of land disputes, and that any doubt or ambiguity in the
interpretation thereof shall be resolved in favor of the indigenous peoples;
"(4) Section 65 which states that customary laws and practices shall be used to resolve
disputes involving indigenous peoples; and
"(5) Section 66 which vests on the NCIP the jurisdiction over all claims and disputes
involving rights of the indigenous peoples." 5
Finally, petitioners assail the validity of Rule VII, Part II, Section 1 of the NCIP Administrative Order
No. 1, series of 1998, which provides that "the administrative relationship of the NCIP to the Office of
the President is characterized as a lateral but autonomous relationship for purposes of policy and
program coordination." They contend that said Rule infringes upon the President’s power of control
over executive departments under Section 17, Article VII of the Constitution. 6
Petitioners pray for the following:
"(1) A declaration that Sections 3, 5, 6, 7, 8, 52[I], 57, 58, 59, 63, 65 and 66 and other related
provisions of R.A. 8371 are unconstitutional and invalid;
"(2) The issuance of a writ of prohibition directing the Chairperson and Commissioners of the
NCIP to cease and desist from implementing the assailed provisions of R.A. 8371 and its
Implementing Rules;
"(3) The issuance of a writ of prohibition directing the Secretary of the Department of
Environment and Natural Resources to cease and desist from implementing Department of
Environment and Natural Resources Circular No. 2, series of 1998;
"(4) The issuance of a writ of prohibition directing the Secretary of Budget and Management
to cease and desist from disbursing public funds for the implementation of the assailed
provisions of R.A. 8371; and
"(5) The issuance of a writ of mandamus commanding the Secretary of Environment and
Natural Resources to comply with his duty of carrying out the State’s constitutional mandate
to control and supervise the exploration, development, utilization and conservation of
Philippine natural resources." 7
After due deliberation on the petition, the members of the Court voted as follows:
Seven (7) voted to dismiss the petition. Justice Kapunan filed an opinion, which the Chief Justice
and Justices Bellosillo, Quisumbing, and Santiago join, sustaining the validity of the challenged
provisions of R.A. 8371. Justice Puno also filed a separate opinion sustaining all challenged
provisions of the law with the exception of Section 1, Part II, Rule III of NCIP Administrative Order
No. 1, series of 1998, the Rules and Regulations Implementing the IPRA, and Section 57 of the
IPRA which he contends should be interpreted as dealing with the large-scale exploitation of natural
resources and should be read in conjunction with Section 2, Article XII of the 1987 Constitution. On
the other hand, Justice Mendoza voted to dismiss the petition solely on the ground that it does not
raise a justiciable controversy and petitioners do not have standing to question the constitutionality
of R.A. 8371.
Seven (7) other members of the Court voted to grant the petition. Justice Panganiban filed a
separate opinion expressing the view that Sections 3 (a)(b), 5, 6, 7 (a)(b), 8, and related provisions
of R.A. 8371 are unconstitutional. He reserves judgment on the constitutionality of Sections 58, 59,
65, and 66 of the law, which he believes must await the filing of specific cases by those whose rights
may have been violated by the IPRA. Justice Vitug also filed a separate opinion expressing the view
that Sections 3(a), 7, and 57 of R.A. 8371 are unconstitutional. Justices Melo, Pardo, Buena,
Gonzaga-Reyes, and De Leon join in the separate opinions of Justices Panganiban and Vitug.
As the votes were equally divided (7 to 7) and the necessary majority was not obtained, the case
was redeliberated upon. However, after redeliberation, the voting remained the same. Accordingly,
pursuant to Rule 56, Section 7 of the Rules of Civil Procedure, the petition is DISMISSED.
Attached hereto and made integral parts thereof are the separate opinions of Justices Puno, Vitug,
Kapunan, Mendoza, and Panganiban.
SO ORDERED.
Resident Marine Mammals v. Sec. Angelo Reyes, G.R. No. 180771, 21
April 2015
G.R. No. 180771 April 21, 2015
RESIDENT MARINE MAMMALS OF THE PROTECTED SEASCAPE TAÑON STRAIT, e.g.,

TOOTHED WHALES, DOLPHINS, PORPOISES, AND OTHER CETACEAN SPECIES, Joined in
and Represented herein by Human Beings Gloria Estenzo Ramos and Rose-Liza Eisma-
Osorio, In Their Capacity as Legal Guardians of the Lesser Life-Forms and as Responsible
Stewards of God's Creations, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), SECRETARY JOSE L. ATIENZA, in his capacity as Secretary of the Department of
Environment and Natural Resources (DENR), LEONARDO R. SIBBALUCA, DENR Regional
Director-Region VII and in his capacity as Chairperson of the Tañon Strait Protected
Seascape Management Board, Bureau of Fisheries and Aquatic Resources (BFAR),
DIRECTOR MALCOLM J. SARMIENTO, JR., BFAR Regional Director for Region VII ANDRES
M. BOJOS, JAPAN PETROLEUM EXPLORATION CO., LTD. (JAPEX), as represented by its
Philippine Agent, SUPPLY OILFIELD SERVICES, INC. Respondents.
x-----------------------x
G.R. No. 181527
CENTRAL VISAYAS FISHERFOLK DEVELOPMENT CENTER (FIDEC), CERILO D. ENGARCIAL,

RAMON YANONG, FRANCISCO LABID, in their personal capacity and as representatives of
the SUBSISTENCE FISHERFOLKS OF THE MUNICIPALITIES OF ALOGUINSAN AND
PINAMUNGAJAN, CEBU, AND THEIR FAMILIES, AND THE PRESENT AND FUTURE
GENERATIONS OF FILIPINOS WHOSE RIGHTS ARE SIMILARLY AFFECTED, Petitioners,
vs.
SECRETARY ANGELO REYES, in his capacity as Secretary of the Department of Energy
(DOE), JOSE L. ATIENZA, in his capacity as Secretary of the Department of Environment and
Natural Resources (DENR), LEONARDO R. SIBBALUCA, in his capacity as DENR Regional
Director-Region VII and as Chairperson of the Tañon Strait Protected Seascape Management
Board, ALAN ARRANGUEZ, in his capacity as Director - Environmental Management Bureau-
Region VII, DOE Regional Director for Region VIII ANTONIO LABIOS, JAPAN PETROLEUM
1
EXPLORATION CO., LTD. (JAPEX), as represented by its Philippine Agent, SUPPLY OILFIELD
SERVICES, INC., Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
Before Us are two consolidated Petitions filed under Rule 65 of the 1997 Rules of Court, concerning
Service Contract No. 46 (SC-46), which allowed the exploration, development, and exploitation of
petroleum resources within Tañon Strait, a narrow passage of water situated between the islands of
Negros and Cebu. 2
The Petition docketed as G.R. No. 180771 is an original Petition for Certiorari, Mandamus, and
Injunction, which seeks to enjoin respondents from implementing SC-46 and to have it nullified for
willful and gross violation of the 1987 Constitution and certain international and municipal laws. 3
Likewise, the Petition docketed as G.R. No. 181527 is an original Petition for Certiorari, Prohibition,
and Mandamus, which seeks to nullify the Environmental Compliance Certificate (ECC) issued by
the Environmental Management Bureau (EMB) of the Department of Environment and Natural
Resources (DENR), Region VII in connection with SC-46; to prohibit respondents from implementing
SC-46; and to compel public respondents to provide petitioners access to the pertinent documents
involving the Tañon Strait Oil Exploration Project.
4
ANTECEDENT FACTS AND PROCEEDINGS
Petitioners in G.R. No. 180771, collectively referred to as the "Resident Marine Mammals" in the
petition, are the toothed whales, dolphins, porpoises, and other cetacean species, which inhabit the
waters in and around the Tañon Strait. They are joined by Gloria Estenzo Ramos (Ramos) and
Rose-Liza Eisma-Osorio (Eisma-Osorio) as their legal guardians and as friends (to be collectively
known as "the Stewards") who allegedly empathize with, and seek the protection of, the
aforementioned marine species. Also impleaded as an unwilling co-petitioner is former President
Gloria Macapagal-Arroyo, for her express declaration and undertaking in the ASEAN Charter to
protect the Tañon Strait, among others. 5
Petitioners in G.R. No. 181527 are the Central Visayas Fisherfolk Development Center (FIDEC), a
non-stock, non-profit, non-governmental organization, established for the welfare of the marginal
fisherfolk in Region VII; and Cerilo D. Engarcial (Engarcial), Ramon Yanong (Yanong) and Francisco
Labid (Labid), in their personal capacities and as representatives of the subsistence fisherfolk of the
municipalities of Aloguinsan and Pinamungajan, Cebu.
Named as respondents in both petitions are the late Angelo T. Reyes, as then Secretary of the
Department of Energy (DOE); Jose L. Atienza, as then Secretary of the DENR; Leonardo R.
Sibbaluca, as then DENRRegional Director for Region VII and Chairman of the Tañon Strait
Protected Seascape Management Board; Japan Petroleum Exploration Co., Ltd. (JAPEX), a
company organized and existing under the laws of Japan with a Philippine branch office; and Supply
Oilfield Services, Inc. (SOS), as the alleged Philippine agent of JAPEX.
In G.R. No. 181527, the following were impleaded as additional public respondents: Alan C.
Arranguez (Arranguez) and Antonio Labios (Labios), in their capacities as then Director of the EMB,
Region VII and then Regional Director of the DOE, Region VII, respectively. 6
On June 13, 2002, the Government of the Philippines, acting through the DOE, entered into a
Geophysical Survey and Exploration Contract-I 02 (GSEC-102) with JAPEX. This contract involved
geological and geophysical studies of the Tañon Strait. The studies included surface geology,
sample analysis, and reprocessing of seismic and magnetic data. JAPEX, assisted by DOE, also
conducted geophysical and satellite surveys, as well as oil and gas sampling in Tañon Strait. 7
On December 21, 2004, DOE and JAPEX formally converted GSEC-102 into SC-46 for the
exploration, development, and production of petroleum resources in a block covering approximately
2,850 square kilometers offshore the Tañon Strait. 8
From May 9 to 18, 2005, JAPEX conducted seismic surveys in and around the Tañon Strait. A multi-
channel sub-bottom profiling covering approximately 751 kilometers was also done to determine the
area's underwater composition. 9
JAPEX committed to drill one exploration well during the second sub-phase of the project. Since the
well was to be drilled in the marine waters of Aloguinsan and Pinamungajan, where the Tañon Strait
was declared a protected seascape in 1988, JAPEX agreed to comply with the Environmental
10
Impact Assessment requirements pursuant to Presidential Decree No. 1586, entitled "Establishing
An Environmental Impact Statement System, Including Other Environmental Management Related
Measures And For Other Purposes." 11
On January 31, 2007, the Protected Area Management Board of the Tañon Strait (PAMB-Tañon
12
Strait) issued Resolution No. 2007-001, wherein it adopted the Initial Environmental Examination
13
(IEE) commissioned by JAPEX, and favorably recommended the approval of JAPEX's application for
an ECC.
On March 6, 2007, the EMB of DENR Region VII granted an ECC to the DOE and JAPEX for the
offshore oil and gas exploration project in Tañon Strait. Months later, on November 16, 2007,
14
JAPEX began to drill an exploratory well, with a depth of 3,150 meters, near Pinamungajan town in
the western Cebu Province. This drilling lasted until February 8, 2008.
15 16
It was in view of the foregoing state of affairs that petitioners applied to this Court for redress, via two
separate original petitions both dated December 1 7, 2007, wherein they commonly seek that
respondents be enjoined from implementing SC-46 for, among others, violation of the 1987
Constitution.
On March 31, 2008, SOS filed a Motion to Strike its name as a respondent on the ground that it is
17
not the Philippine agent of JAPEX. In support of its motion, it submitted the branch office application
of JAPEX, wherein the latter's resident agent was clearly identified. SOS claimed that it had acted
18
as a mere logistics contractor for JAPEX in its oil and gas exploration activities in the Philippines.
Petitioners Resident Marine Mammals and Stewards opposed SOS' s motion on the ground that it
was premature, it was pro-forma, and it was patently dilatory. They claimed that SOS admitted that
"it is in law a (sic) privy to JAPEX" since it did the drilling and other exploration activities in Tañon
Strait under the instructions of its principal, JAPEX. They argued that it would be premature to drop
SOS as a party as JAPEX had not yet been joined in the case; and that it was "convenient" for SOS
to ask the Court to simply drop its name from the parties when what it should have done was to
either notify or ask JAPEX to join it in its motion to enable proper substitution. At this juncture,
petitioners Resident Marine Mammals and Stewards also asked the Court to" implead JAPEX
Philippines as a corespondent or as a substitute for its parent company, JAPEX. 19
On April 8, 2008, the Court resolved to consolidate G.R. No. 180771 and G.R. No. 181527.
On May 26, 2008, the FIDEC manifested that they were adopting in toto the Opposition to Strike
20
with Motion to Implead filed by petitioners Resident Marine Mammals and Stewards in G.R. No.
180771.
On June 19, 2008, public respondents filed their Manifestation that they were not objecting to
21
SOS's Motion to Strike as it was not JAPEX's resident agent. JAPEX during all this time, did not file
any comment at all.
Thus, on February 7, 2012, this Court, in an effort to ensure that all the parties were given ample
chance and opportunity to answer the issues herein, issued a Resolution directing the Court's
process servicing unit to again serve the parties with a copy of the September 23, 2008 Resolution
of the Court, which gave due course to the petitions in G.R. Nos. 180771 and 181527, and which
required the parties to submit their respective memoranda. The February 7, 2012 Resolution reads
22
as follows:
G.R. No. 180771 (Resident Marine Mammals of the Protected Seascape Tañon Strait, e.g., Toothed
Whales, Dolphins, Porpoises and Other Cetacean Species, et al. vs. Hon. Angelo Reyes, in his
capacity as Secretary of the Department of Energy, et al.) and G.R. No. 181527 (Central Visayas
Fisherfolk Development Center, et al. vs. Hon. Angelo Reyes, et al.). - The Court Resolved to direct
the Process Servicing Unit to RE-SEND the resolution dated September 23, 2008 to the following
parties and counsel, together with this resolution:
Atty. Aristeo O. Carino 20th Floor Pearlbank Centre

Counsel for Respondent Supply 146 Valero Street
Oilfield Services, Inc. Salcedo Village, Makati City
JAPEX Philippines Ltd. 20th Floor Pearlbank Centre
146 Valero Street
Salcedo Village, Makati City
JAPEX Philippines Ltd. 19th Floor Pearlbank Centre
c/o Atty. Maria Farah Z.G. 146 Valero Street
Nicolas-Suchianco Salcedo Village, Makati City
Atty. Maria Farah Z.G. Suite 2404 Discovery Centre
Nicolas-Suchianco 25 ADB Avenue
Resident Agent of JAPEX Ortigas Center, Pasig City
Philippines Ltd.
This Resolution was personally served to the above parties, at the above addresses on February 23,
2012. On March 20, 2012, JAPEX Philippines, Ltd. (JAPEX PH), by way of special appearance, filed
a Motion to Admit its Motion for Clarification, wherein JAPEX PH requested to be clarified as to
23 24
whether or not it should deem the February 7, 2012 Resolution as this Court's Order of its inclusion
in the case, as it has not been impleaded. It also alleged that JAPEX PH had already stopped
exploration activities in the Taft. on Strait way back in 2008, rendering this case moot.
On March 22, 2012, JAPEX PH, also by special appearance, filed a Motion for Extension of Time to 25
file its Memorandum. It stated that since it received the February 7, 2012 Resolution on February 23,
2012, it had until March 22, 2012 to file its Memorandum. JAPEX PH then asked for an additional
thirty days, supposedly to give this Court some time to consider its Motion for Clarification.
On April 24, 2012, this Court issued a Resolution granting JAPEX PH's Motion to Admit its Motion
26
for Clarification. This Court, addressing JAPEX PH's Motion for Clarification, held:
With regard to its Motion for Clarification (By Special Appearance) dated March 19, 2012, this Court
considers JAPEX Philippines, Ltd. as a real party-in-interest in these cases. Under Section 2, Rule 3
of the 1997 Rules of Court, a real party-in-interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Contrary to JAPEX
Philippines, Ltd. 's allegation that it is a completely distinct corporation, which should not be
confused with JAPEX Company, Ltd., JAPEX Philippines, Ltd. is a mere branch office, established
by JAPEX Company, Ltd. for the purpose of carrying out the latter's business transactions here in
the Philippines. Thus, JAPEX Philippines, Ltd., has no separate personality from its mother foreign
corporation, the party impleaded in this case.
Moreover, Section 128 of the Corporation Code provides for the responsibilities and duties of a
resident agent of a foreign corporation:
SECTION 128. Resident agent; service of process. - The Securities and Exchange Commission
shall require as a condition precedent to the issuance of the license to transact business in the
Philippines by any foreign corporation that such corporation file with the Securities and Exchange
Commission a written power of attorney designating some person who must be a resident of the
Philippines, on whom any summons and other legal processes may be served in all actions or other
legal proceedings against such corporation, and consenting that service upon such resident agent
shall be admitted and held as valid as if served upon the duly authorized officers of the foreign
corporation at its home office. Any such foreign corporation shall likewise execute and file with the
Securities and Exchange Commission an agreement or stipulation, executed by the proper
authorities of said corporation, in form and substance as follows:
"The (name of foreign corporation) does hereby stipulate and agree, in consideration of its being
granted by the Securities and Exchange Commission a license to transact business in the
Philippines, that if at any time said corporation shall cease to transact business in the Philippines, or
shall be without any resident agent in the Philippines on whom any summons or other legal
processes may be served, then in any action or proceeding arising out of any business or
transaction which occurred in the Philippines, service of any summons or other legal process may be
made upon the Securities and Exchange Commission and that such service shall have the same
force and effect as if made upon the duly-authorized officers of the corporation at its home office."
Whenever such service of summons or other process shall be made upon the Securities and
Exchange Commission, the Commission shall, within ten (10) days thereafter, transmit by mail a
copy of such summons or other legal process to the corporation at its home or principal office. The
sending of such copy by the Commission shall be a necessary part of and shall complete such
service. All expenses incurred by the Commission for such service shall be paid in advance by the
party at whose instance the service is made.
In case of a change of address of the resident agent, it shall be his or its duty to immediately notify in
writing the Securities and Exchange Commission of the new address.
It is clear from the foregoing provision that the function of a resident agent is to receive summons or
legal processes that may be served in all actions or other legal proceedings against the foreign
corporation. These cases have been prosecuted in the name of JAPEX Company, Ltd., and JAPEX
Philippines Ltd., as its branch office and resident agent, had been receiving the various resolutions
from this Court, as evidenced by Registry Return Cards signed by its representatives.
And in the interest of justice, this Court resolved to grant JAPEX PH's motion for extension of time to
file its memorandum, and was given until April 21, 2012, as prayed for, within which to comply with
the submission. 27
Without filing its Memorandum, JAPEX PH, on May 14, 2012, filed a motion, asking this Court for an
additional thirty days to file its Memorandum, to be counted from May 8, 2012. It justified its request
by claiming that this Court's April 24, 2012 Resolution was issued past its requested deadline for
filing, which was on April 21, 2012.28
On June 19, 2012, this Court denied JAPEX PH's second request for additional time to file its
Memorandum and dispensed with such filing.
Since petitioners had already filed their respective memoranda, and public respondents had earlier
29
filed a Manifestation that they were adopting their Comment dated March 31, 2008 as their
30
memorandum, this Court submitted the case for decision.
Petitioners.' Allegations
Protesting the adverse ecological impact of JAPEX's oil exploration activities in the Tañon Strait,
petitioners Resident Marine Mammals and Stewards aver that a study made after the seismic survey
showed that the fish catch was reduced drastically by 50 to 70 percent. They claim that before the
seismic survey, the average harvest per day would be from 15 to 20 kilos; but after the activity, the
fisherfolk could only catch an average of 1 to 2 kilos a day. They attribute this "reduced fish catch" to
the destruction of the ''payao," also known as the "fish aggregating device" or "artificial
reef." Petitioners Resident Marine Mammals and Stewards also impute the incidences of "fish
31
kill" observed by some of the local fisherfolk to the seismic survey. And they further allege that the
32
ECC obtained by private respondent JAPEX is invalid because public consultations and discussions
with the affected stakeholders, a pre-requisite to the issuance of the ECC, were not held prior to the
ECC's issuance.
In its separate petition, petitioner FIDEC confirms petitioners Resident Marine Mammals and
Stewards' allegations of reduced fish catch and lack of public consultations or discussions with the
fisherfolk and other stakeholders prior to the issuance of the ECC. Moreover, it alleges that during
the seismic surveys and drilling, it was barred from entering and fishing within a 7-kilometer radius
from the point where the oilrig was located, an area greater than the 1.5-kilometer radius "exclusion
zone" stated in the IEE. It also agrees in the allegation that public respondents DENR and EMB
33
abused their discretion when they issued an ECC to public respondent DOE and private respondent
JAPEX without ensuring the strict compliance with the procedural and substantive requirements
under the Environmental Impact Assessment system, the Fisheries Code, and their implementing
rules and regulations. It further claims that despite several requests for copies of all the documents
34
pertaining to the project in Tañon Strait, only copies of the P AMB-Tañon Strait Resolution and the
ECC were given to the fisherfolk. 35
Public Respondents' Counter-Allegations
Public respondents, through the Solicitor General, contend that petitioners Resident Marine
Mammals and Stewards have no legal standing to file the present petition; that SC-46 does not
violate the 1987 Constitution and the various laws cited in the petitions; that the ECC was issued in
accordance with existing laws and regulations; that public respondents may not be compelled by
mandamus to furnish petitioners copies of all documents relating to SC-46; and that all the
petitioners failed to show that they are entitled to injunctive relief. They further contend that the
issues raised in these petitions have been rendered moot and academic by the fact that SC-46 had
been mutually terminated by the parties thereto effective June 21, 2008. 36
ISSUES
The following are the issues posited by petitioners Resident Marine Mammals and Stewards in G.R.
No. 180771:
I. WHETHER OR NOT PETITIONERS HAVE LOCUS STAND! TO FILE THE INSTANT

PETITION;
II. WHETHER OR NOT SERVICE CONTRACT NO. 46 IS VIOLA T[IVE] OF THE 1987
PHILIPPINE CONSTITUTION AND STATUTES;
III. WHETHER OR NOT THE ON-GOING EXPLORATION AND PROPOSED
EXPLOITATION FOR OIL AND NATURAL GAS AT, AROUND, AND UNDERNEATH THE
MARINE WATERS OF THE TAÑON STRAIT PROTECTED SEASCAPE IS INCONSISTENT
WITH THE PHILIPPINE COMMITMENTS TO INTERNATIONAL ENVIRONMENTAL LAWS
AND INSTRUMENTS; AND
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) IN ENVIRONMENTALLY CRITICAL AREAS AND HABITATS OF
MARINE WILDLIFE AND ENDANGERED SPECIES IS LEGAL AND PROPER. 37
Meanwhile, in G.R. No. 181527, petitioner FIDEC presented the following issues for our
consideration:
I. WHETHER OR NOT SERVICE CONTRACT NO. 46 EXECUTED BETWEEN

RESPONDENTS DOE AND JAPEX SHOULD BE NULLIFIED AND SET ASIDE FOR BEING
IN DIRECT VIOLATION OF SPECIFIC PROVISIONS OF THE 1987 PHILIPPINE
CONSTITUTION AND APPLICABLE LAWS;
II. WHETHER OR NOT THE OFF-SHORE OIL EXPLORAT[I]ON CONTEMPLATED UNDER

SERVICE CONTRACT NO. 46 ·IS LEGALLY PERMISSIBLE WITHOUT A LAW BEING
DULY PASSED EXPRESSLY FOR THE PURPOSE;
III. WHETHER OR NOT THE OIL EXPLORATION BEING CONDUCTED WITHIN THE
TAÑON STRAIT PROTECTED SEASCAPE VIOLATES THE RIGHTS AND LEGAL
PROTECTION GRANTED TO PETITIONERS UNDER THE CONSTITUTION AND
APPLICABLE LAWS.
IV. WHETHER OR NOT THE ISSUANCE OF THE ENVIRONMENTAL COMPLIANCE

CERTIFICATE (ECC) FOR SUCH AN ENVIRONMENTALLY CRITICAL PROJECT INSIDE
AN ENVIRONMENTALLY CRITICAL AREA SUCH AS THE TAÑON STRAIT PROTECTED
SEASCAPE CONFORMED TO LAW AND EXISTING RULES AND REGULATIONS ON
THE MATTER.
V. WHETHER OR NOT THE RESPONDENTS MAY BE COMPELLED BY MANDAMUS TO

FURNISH PETITIONERS WITH COPIES OF THE DOCUMENTS PERTAINING TO THE
TAÑON STRAIT OIL EXPLORATION PROJECT. 38
In these consolidated petitions, this Court has determined that the various issues raised by the
petitioners may be condensed into two primary issues:
I. Procedural Issue: Locus Standi of the Resident Marine Mammals and Stewards, petitioners in
G.R. No. 180771; and
II. Main Issue: Legality of Service Contract No. 46.
DISCUSSION
At the outset, this Court makes clear that the "'moot and academic principle' is not a magical formula
that can automatically dissuade the courts in resolving a case." Courts have decided cases
otherwise moot and academic under the following exceptions:
1) There is a grave violation of the Constitution;
2) The exceptional character of the situation and the paramount public interest is involved;
3) The constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public; and
4) The case is capable of repetition yet evading review. 39
In this case, despite the termination of SC-46, this Court deems it necessary to resolve these
consolidated petitions as almost all of the foregoing exceptions are present in this case. Both
petitioners allege that SC-46 is violative of the Constitution, the environmental and livelihood issues
raised undoubtedly affect the public's interest, and the respondents' contested actions are capable of
repetition.
Procedural Issues
Locus Standi of Petitioners Resident Marine Mammals and Stewards
The Resident Marine Mammals, through the Stewards, "claim" that they have the legal standing to
file this action since they stand to be benefited or injured by the judgment in this suit. Citing Oposa
40
v. Factoran, Jr., they also assert their right to sue for the faithful performance of international and
41
municipal environmental laws created in their favor and for their benefit. In this regard, they
propound that they have the right to demand that they be accorded the benefits granted to them in
multilateral international instruments that the Philippine Government had signed, under the concept
of stipulation pour autrui.
42
For their part, the Stewards contend that there should be no question of their right to represent the
Resident Marine Mammals as they have stakes in the case as forerunners of a campaign to build
awareness among the affected residents of Tañon Strait and as stewards of the environment since
the primary steward, the Government, had failed in its duty to protect the environment pursuant to
the public trust doctrine.
43
Petitioners Resident Marine Mammals and Stewards also aver that this Court may lower the
benchmark in locus standi as an exercise of epistolary jurisdiction. 44
In opposition, public respondents argue that the Resident Marine Mammals have no standing
because Section 1, Rule 3 of the Rules of Court requires parties to an action to be either natural or
juridical persons, viz.:
Section 1. Who may be parties, plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party,
the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party defendant.
The public respondents also contest the applicability of Oposa, pointing out that the petitioners
therein were all natural persons, albeit some of them were still unborn. 45
As regards the Stewards, the public respondents likewise challenge their claim of legal standing on
the ground that they are representing animals, which cannot be parties to an action. Moreover, the
public respondents argue that the Stewards are not the real parties-in-interest for their failure to
show how they stand to be benefited or injured by the decision in this case. Invoking the alter ego
46
principle in political law, the public respondents claim that absent any proof that former President
Arroyo had disapproved of their acts in entering into and implementing SC-46, such acts remain to
be her own. 47
The public respondents contend that since petitioners Resident Marine Mammals and Stewards'
petition was not brought in the name of a real party-in-interest, it should be dismissed for failure to
state a cause of action. 48
The issue of whether or not animals or even inanimate objects should be given legal standing in
actions before courts of law is not new in the field o f animal rights and environmental law.
Petitioners Resident Marine Mammals and Stewards cited the 1972 United States case Sierra Club
v. Rogers C.B. Morton, wherein Justice William 0. Douglas, dissenting to the conventional thought
49
on legal standing, opined:
The critical question of "standing" would be simplified and also put neatly in focus if we fashioned a
federal rule that allowed environmental issues to be litigated before federal agencies or federal
courts in the name of the inanimate object about to be despoiled, defaced, or invaded by roads and
bulldozers and where injury is the subject of public outrage. x x x. Inanimate objects are sometimes
parties in litigation. A ship has a legal personality, a fiction found useful for maritime purposes. The
corporation sole - a creature of ecclesiastical law - is an acceptable adversary and large fortunes
ride on its cases. The ordinary corporation is a "person" for purposes of the adjudicatory processes,
whether it represents proprietary, spiritual, aesthetic, or charitable causes.
So it should be as respects valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges,
groves of trees, swampland, or even air that feels the destructive pressures of modem technology
and modem life. The river, for example, is the living symbol of all the life it sustains or nourishes-fish,
aquatic insects, water ouzels, otter, fisher, deer, elk, bear, and all other animals, including man, who
are dependent on it or who enjoy it for its sight, its sound, or its life. The river as plaintiff speaks for
the ecological unit of life that is part of it. Those people who have a meaningful relation to that body
of water-whether it be a fisherman, a canoeist, a zoologist, or a logger-must be able to speak for the
values which the river represents and which are threatened with destruction. (Citations omitted.)
50
The primary reason animal rights advocates and environmentalists seek to give animals and
inanimate objects standing is due to the need to comply with the strict requirements in bringing a suit
to court. Our own 1997 Rules of Court demand that parties to a suit be either natural or juridical
persons, or entities authorized by law. It further necessitates the action to be brought in the name of
the real party-in-interest, even if filed by a representative, viz.:
Rule 3
Parties to Civil Actions
Section 1. Who may be parties; plaintiff and defendant. - Only natural or juridical persons, or entities
authorized by law may be parties in a civil action. The term "plaintiff' may refer to the claiming party,
the counter-claimant, the cross-claimant, or the third (fourth, etc.)-party plaintiff. The term
"defendant" may refer to the original defending party, the defendant in a counterclaim, the cross-
defendant, or the third (fourth, etc.)-party defendant.
Sec. 2. Parties in interest. - A real party in interest is the party who stands to be benefited or injured
by the judgment in the suit, or the party entitled to the avails of the suit. Unless otherwise authorized
by law or these Rules, every action must be prosecuted or defended in the name of the real party in
interest.
Sec. 3. Representatives as parties. - Where the action is allowed to be prosecuted or defended by a

representative or someone acting in a fiduciary capacity, the beneficiary shall be included in the title
of the case and shall be deemed to be the real party in interest. A representative may be a trustee of
an express trust, a guardian, an executor or administrator, or a party authorized by law or these
Rules. An agent acting in his own name and for the benefit of an undisclosed principal may sue or
be sued without joining the principal except when the contract involves things belonging to the
principal.
It had been suggested by animal rights advocates and environmentalists that not only natural and
juridical persons should be given legal standing because of the difficulty for persons, who cannot
show that they by themselves are real parties-in-interests, to bring actions in representation of these
animals or inanimate objects. For this reason, many environmental cases have been dismissed for
failure of the petitioner to show that he/she would be directly injured or affected by the outcome of
the case. However, in our jurisdiction, locus standi in environmental cases has been given a more
liberalized approach. While developments in Philippine legal theory and jurisprudence have not
progressed as far as Justice Douglas's paradigm of legal standing for inanimate objects, the current
trend moves towards simplification of procedures and facilitating court access in environmental
cases.
Recently, the Court passed the landmark Rules of Procedure for Environmental Cases, which allow
51
for a "citizen suit," and permit any Filipino citizen to file an action before our courts for violations of
our environmental laws:
SEC. 5. Citizen suit. - Any Filipino citizen in representation of others, including minors or generations
yet unborn, may file an action to enforce rights or obligations under environmental laws. Upon the
filing of a citizen suit, the court shall issue an order which shall contain a brief description of the
cause of action and the reliefs prayed for, requiring all interested parties to manifest their interest to
intervene in the case within fifteen (15) days from notice thereof. The plaintiff may publish the order
once in a newspaper of a general circulation in the Philippines or furnish all affected barangays
copies of said order.
Citizen suits filed under R.A. No. 8749 and R.A. No. 9003 shall be governed by their respective
provisions. (Emphasis ours.)
52
Explaining the rationale for this rule, the Court, in the Annotations to the Rules of Procedure for
Environmental Cases, commented:
Citizen suit. To further encourage the protection of the environment, the Rules enable litigants
enforcing environmental rights to file their cases as citizen suits. This provision liberalizes standing
for all cases filed enforcing environmental laws and collapses the traditional rule on personal and
direct interest, on the principle that humans are stewards of nature. The terminology of the text
reflects the doctrine first enunciated in Oposa v. Factoran, insofar as it refers to minors and
generations yet unborn. (Emphasis supplied, citation omitted.) Although this petition was filed in
53
2007, years before the effectivity of the Rules of Procedure for Environmental Cases, it has been
consistently held that rules of procedure "may be retroactively applied to actions pending and
undetermined at the time of their passage and will not violate any right of a person who may feel that
he is adversely affected, inasmuch as there is no vested rights in rules of procedure." 54
Elucidating on this doctrine, the Court, in Systems Factors Corporation v. National Labor Relations
Commission held that:
55
Remedial statutes or statutes relating to remedies or modes of procedure, which do not create new
or take away vested rights, but only operate in furtherance of the remedy or confirmation of rights
already existing, do not come within the legal conception of a retroactive law, or the general rule
against retroactive operation of statutes. Statutes regulating the procedure of the courts will be
construed as applicable to actions pending and undetermined at the time of their passage.
Procedural laws are retroactive in that sense and to that extent. x x x.
Moreover, even before the Rules of Procedure for Environmental · Cases became effective, this
Court had already taken a permissive position on the issue of locus standi in environmental cases. In
Oposa, we allowed the suit to be brought in the name of generations yet unborn "based on the
concept of intergenerational responsibility insofar as the right to a balanced and healthful ecology is
concerned." Furthermore, we said that the right to a balanced and healthful ecology, a right that
56
does not even need to be stated in our Constitution as it is assumed to exist from the inception of
humankind, carries with it the correlative duty to refrain from impairing the environment. 57
In light of the foregoing, the need to give the Resident Marine Mammals legal standing has been
eliminated by our Rules, which allow any Filipino citizen, as a steward of nature, to bring a suit to
enforce our environmental laws. It is worth noting here that the Stewards are joined as real parties in
the Petition and not just in representation of the named cetacean species. The Stewards, Ramos
and Eisma-Osorio, having shown in their petition that there may be possible violations of laws
concerning the habitat of the Resident Marine Mammals, are therefore declared to possess the legal
standing to file this petition.
Impleading Former President Gloria Macapagal-Arroyo

as an Unwilling Co-Petitioner
Petitioners Stewards in G.R. No. 180771 impleaded as an unwilling co-petitioner former President
Gloria Macapagal-Arroyo for the following reasons, which we quote:
Her Excellency Gloria Macapagal-Arroyo, also of legal age, Filipino and resident of Malacailang
Palace, Manila Philippines. Steward Gloria Macapagal-Arroyo happens to be the incumbent
President of the Philippine Islands. She is personally impleaded in this suit as an unwilling co-
petitioner by reason of her express declaration and undertaking under the recently signed ASEAN
Charter to protect Your Petitioners' habitat, among others. She is meantime dominated as an
unwilling co-petitioner due to lack of material time in seeking her signature and imprimatur hereof
and due to possible legal complications that may hereafter arise by reason of her official relations
with public respondents under the alter ego principle in political law. This is incorrect.
58
Section 10, Rule 3 of the Rules of Court provides:
Sec. 10. Unwilling co-plaintiff. - If the consent of any party who should be joined as plaintiff can not
be obtained, he may be made a defendant and the reason therefor shall be stated in the complaint.
Under the foregoing rule, when the consent of a party who should be joined as a plaintiff cannot be
obtained, he or she may be made a party defendant to the case. This will put the unwilling party
under the jurisdiction of the Court, which can properly implead him or her through its processes. The
unwilling party's name cannot be simply included in a petition, without his or her knowledge and
consent, as such would be a denial of due process.
Moreover, the reason cited by the petitioners Stewards for including former President Macapagal-
Arroyo in their petition, is not sufficient to implead her as an unwilling co-petitioner. Impleading the
former President as an unwilling co-petitioner, for an act she made in the performance of the
functions of her office, is contrary to the public policy against embroiling the President in suits, "to
assure the exercise of Presidential duties and functions free from any hindrance or distraction,
considering that being the Chief Executive of the Government is a job that, aside from requiring all of
the office holder's time, also demands undivided attention." 59
Therefore, former President Macapagal-Arroyo cannot be impleaded as one of the petitioners in this
suit. Thus, her name is stricken off the title of this case.
Main Issue:
Legality of Service Contract No. 46

Service Contract No. 46 vis-a-vis
Section 2, Article XII of the
1987 Constitution
Petitioners maintain that SC-46 transgresses the Jura Regalia Provision or paragraph 1, Section 2,
Article XII of the 1987 Constitution because JAPEX is 100% Japanese-owned. Furthermore, the
60
FIDEC asserts that SC-46 cannot be considered as a technical and financial assistance agreement
validly executed under paragraph 4 of the same provision. The petitioners claim that La Bugal-
61
B'laan Tribal Association, Inc. v. Ramos laid down the guidelines for a valid service contract, one of
62
which is that there must exist a general law for oil exploration before a service contract may be
entered into by the Government. The petitioners posit that the service contract in La Bugal is
presumed to have complied with the requisites of (a) legislative enactment of a general law after the
effectivity of the 1987 Constitution (such as Republic Act No. 7942, or the Philippine Mining Law of
1995, governing mining contracts) and (b) presidential notification. The petitioners thus allege that
the ruling in La Bugal, which involved mining contracts under Republic Act No. 7942, does not apply
in this case. The petitioners also argue that Presidential Decree No. 87 or the Oil Exploration and
63
Development Act of 1972 cannot legally justify SC-46 as it is deemed to have been repealed by the
1987 Constitution and subsequent laws, which enunciate new policies concerning the
environment. In addition, petitioners in G.R. No. 180771 claim that paragraphs 2 and 3 of Section 2,
64
Article XII of the 1987 Constitution mandate the exclusive use and enjoyment by the Filipinos of our
natural resources, and paragraph 4 does not speak of service contracts but of FTAAs or Financial
65
Technical Assistance Agreements. 66
The public respondents again controvert the petitioners' claims and asseverate that SC-46 does not
violate Section 2, Article XII of the 1987 Constitution. They hold that SC-46 does not fall under the
coverage of paragraph 1 but instead, under paragraph 4 of Section 2, Article XII of the 1987
Constitution on FTAAs. They also insist that paragraphs 2 and 3, which refer to the grant of
exclusive fishing right to Filipinos, are not applicable to SC-46 as the contract does not grant
exclusive fishing rights to JAPEX nor does it otherwise impinge on the FIDEC's right to preferential
use of communal marine and fishing resources. 67
Ruling of the Court
On the legality of Service Contract No. 46

vis-a-vis Section 2, Article XII of the 1987 Constitution
The petitioners insist that SC-46 is null and void for having violated Section 2, Article XII of the 1987
Constitution, which reads as follows:
Section 2. All lands of the public domain, waters, minerals, coal, petroleum, and other mineral oils,
all forces of potential energy, fisheries, forests or timber, wildlife, flora and fauna, and other natural
resources are owned by the State. With the exception of agricultural lands, all other natural
resources shall not be alienated. The exploration, development, and utilization of natural resources
shall be under the full control and supervision of the State. The State may directly undertake such
activities, or it may enter into co-production, joint venture, or production-sharing agreements with
Filipino citizens, or corporations or associations at least sixty per centum of whose capital is owned
by such citizens. Such agreements may be for a period not exceeding twenty-five years, renewable
for not more than twenty-five years, and under such terms and conditions as may be provided by
law. In cases of water rights for irrigation, water supply, fisheries, or industrial uses other than the
development of water power, beneficial use may be the measure and limit of the grant.
The State shall protect the nation's marine wealth in its archipelagic waters, territorial sea, and
exclusive economic zone, and reserve its use and enjoyment exclusively to Filipino citizens. The
Congress may, by law, allow small-scale utilization of natural resources by Filipino citizens, as well
as cooperative fish farming, with priority to subsistence fishermen and fishworkers in rivers, lakes,
bays, and lagoons.
The President may enter into agreements with foreign-owned corporations involving either technical
or financial assistance for large-scale exploration, development, and utilization of minerals,
petroleum, and other mineral oils according to the general terms and conditions provided by law,
based on real contributions to the economic growth and general welfare of the country. In such
agreements, the State shall promote the development and use of local scientific and technical
resources.
The President shall notify the Congress of every contract entered into in accordance with this
provision, within thirty days from its execution. (Emphases ours.)
This Court has previously settled the issue of whether service contracts are still allowed under the
1987 Constitution. In La Bugal, we held that the deletion of the words "service contracts" in the 1987
Constitution did not amount to a ban on them per se. In fact, in that decision, we quoted in length,
portions of the deliberations of the members of the Constitutional Commission (ConCom) to show
that in deliberating on paragraph 4, Section 2, Article XII, they were actually referring to service
contracts as understood in the 1973 Constitution, albeit with safety measures to eliminate or
minimize the abuses prevalent during the martial law regime, to wit: Summation of the
ConCom Deliberations
At this point, we sum up the matters established, based on a careful reading of the Con Com
deliberations, as follows:
In their deliberations on what was to become paragraph 4, the framers used the term service
contracts in referring to agreements x x x involving either technical or financial assistance.
They spoke of service contracts as the concept was understood in the 1973 Constitution.
It was obvious from their discussions that they were not about to ban or eradicate service contracts.
Instead, they were plainly crafting provisions to put in place safeguards that would eliminate or
minimize the abuses prevalent during the marital law regime. In brief, they were going to permit
service contracts with foreign corporations as contractors, but with safety measures to prevent
abuses, as an exception to the general norm established in the first paragraph of Section 2 of Article
XII. This provision reserves or limits to Filipino citizens -- and corporations at least 60 percent of
which is owned by such citizens -- the exploration, development and utilization of natural resources.
This provision was prompted by the perceived insufficiency of Filipino capital and the felt need for
foreign investments in the EDU of minerals and petroleum resources.
The framers for the most part debated about the sort of safeguards that would be considered
adequate and reasonable. But some of them, having more "radical" leanings, wanted to ban service
contracts altogether; for them, the provision would permit aliens to exploit and benefit from the
nation's natural resources, which they felt should be reserved only for Filipinos.
In the explanation of their votes, the individual commissioners were heard by the entire body. They
sounded off their individual opinions, openly enunciated their philosophies, and supported or
attacked the provisions with fervor. Everyone's viewpoint was heard.
In the final voting, the Article on the National Economy and Patrimony -- including paragraph 4
allowing service contracts with foreign corporations as an exception to the general norm in
paragraph 1 of Section 2 of the same article --was resoundingly approved by a vote of 32 to 7, with 2
abstentions.
Agreements Involving Technical

Or Financial Assistance Are
Service Contracts with Safeguards
From the foregoing, we are impelled to conclude that the phrase agreements involving either
technical or financial assistance, referred to in paragraph 4, are in fact service contracts. But unlike
those of the 1973 variety, the new ones are between foreign corporations acting as contractors on
the one hand; and on the other, the government as principal or "owner" of the works. In the new
service contracts, the foreign contractors provide capital, technology and technical know-how, and
managerial expertise in the creation and operation of large-scale mining/extractive enterprises; and
the government, through its agencies (DENR, MGB), actively exercises control and supervision over
the entire operation.
68
In summarizing the matters discussed in the ConCom, we established that paragraph 4, with the
safeguards in place, is the exception to paragraph 1, Section 2 of Article XII. The following are the
safeguards this Court enumerated in La Bugal:
Such service contracts may be entered into only with respect to minerals, petroleum and other
mineral oils. The grant thereof is subject to several safeguards, among which are these
requirements:
(1) The service contract shall be crafted in accordance with a general law that will set
standard or uniform terms, conditions and requirements, presumably to attain a certain
uniformity in provisions and avoid the possible insertion of terms disadvantageous to the
country.
(2) The President shall be the signatory for the government because, supposedly before an
agreement is presented to the President for signature, it will have been vetted several times
over at different levels to ensure that it conforms to law and can withstand public scrutiny.
(3) Within thirty days of the executed agreement, the President shall report it to Congress to
give that branch of government an opportunity to look over the agreement and interpose
timely objections, if any.
69
Adhering to the aforementioned guidelines, this Court finds that SC-46 is indeed null and void for
noncompliance with the requirements of the 1987 Constitution.
1. The General Law on Oil Exploration
The disposition, exploration, development, exploitation, and utilization of indigenous petroleum in the
Philippines are governed by Presidential Decree No. 87 or the Oil Exploration and Development Act
of 1972. This was enacted by then President Ferdinand Marcos to promote the discovery and
production of indigenous petroleum through the utilization of government and/or local or foreign
private resources to yield the maximum benefit to the Filipino people and the revenues to the
Philippine Government. 70
Contrary to the petitioners' argument, Presidential Decree No. 87, although enacted in 1972, before
the adoption of the 1987 Constitution, remains to be a valid law unless otherwise repealed, to wit:
ARTICLE XVIII - TRANSITORY PROVISIONS
Section 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.
If there were any intention to repeal Presidential Decree No. 87, it would have been done expressly
by Congress. For instance, Republic Act No. 7160, more popularly known as the Local Government
Code of 1991, expressly repealed a number of laws, including a specific provision in Presidential
Decree No. 87, viz.:
SECTION 534. Repealing Clause. - (a) Batas Pambansa Blg. 337, otherwise known as the "Local
Government Code," Executive Order No. 112 (1987), and Executive Order No. 319 (1988) are
hereby repealed.
(b) Presidential Decree Nos. 684, 1191, 1508 and such other decrees, orders, instructions,
memoranda and issuances related to or concerning the barangay are hereby repealed.
(c) The provisions of Sections 2, 3, and 4 of Republic Act No. 1939 regarding hospital fund;
Section 3, a (3) and b (2) of Republic Act No. 5447 regarding the Special Education Fund;
Presidential Decree No. 144 as amended by Presidential Decree Nos. 559 and 1741;
Presidential Decree No. 231 as amended; Presidential Decree No. 436 as amended by
Presidential Decree No. 558; and Presidential Decree Nos. 381, 436, 464, 477, 526, 632,
752, and 1136 are hereby repealed and rendered of no force and effect.
(d) Presidential Decree No. 1594 is hereby repealed insofar as it governs locally-funded
projects.
(e) The following provisions are hereby repealed or amended insofar as they are inconsistent
with the provisions of this Code: Sections 2, 16 and 29 of Presidential Decree No. 704;
Section 12 of Presidential Decree No. 87, as amended; Sections 52, 53, 66, 67, 68, 69, 70,
71, 72, 73, and 74 of Presidential Decree No. 463, as amended; and Section 16 of
Presidential Decree No. 972, as amended, and
(f) All general and special laws, acts, city charters, decrees, executive orders, proclamations
and administrative regulations, or part or parts thereof which are inconsistent with any of the
provisions of this Code are hereby repealed or modified accordingly. (Emphasis supplied.)
This Court could not simply assume that while Presidential Decree No. 87 had not yet been
expressly repealed, it had been impliedly repealed. As we held in Villareña v. The Commission on
Audit, "[i]mplied repeals are not lightly presumed." It is a settled rule that when laws are in conflict
71
with one another, every effort must be exerted to reconcile them. In Republic of the Philippines v.
Marcopper Mining Corporation, we said:
72
The two laws must be absolutely incompatible, and a clear finding thereof must surface, before the
inference of implied repeal may be drawn. The rule is expressed in the maxim, interpretare et
concordare leqibus est optimus interpretendi, i.e., every statute must be so interpreted and brought
into accord with other laws as to form a uniform system of jurisprudence. The fundament is that the
legislature should be presumed to have known the existing laws on the subject and not have
enacted conflicting statutes. Hence, all doubts must be resolved against any implied repeal, and all
efforts should be exerted in order to harmonize and give effect to all laws on the subject. (Citation
omitted.)
Moreover, in cases where the statute seems to be in conflict with the Constitution, but a construction
that it is in harmony with the Constitution is also possible, that construction should be
preferred. This Court, in Pangandaman v. Commission on Elections expounding on this point,
73 74
pronounced:
It is a basic precept in statutory construction that a statute should be interpreted in harmony with the
Constitution and that the spirit, rather than the letter of the law determines its construction; for that
reason, a statute must be read according to its spirit and intent. x x x. (Citation omitted.)
Consequently, we find no merit in petitioners' contention that SC-46 is prohibited on the ground that
there is no general law prescribing the standard or uniform terms, conditions, and requirements for
service contracts involving oil exploration and extraction.
But note must be made at this point that while Presidential Decree No. 87 may serve as the general
law upon which a service contract for petroleum exploration and extraction may be authorized, as
will be discussed below, the exploitation and utilization of this energy resource in the present case
may be allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS area. 75
2. President was not the signatory to SC-46 and the same was not submitted to Congress
While the Court finds that Presidential Decree No. 87 is sufficient to satisfy the requirement of a
general law, the absence of the two other conditions, that the President be a signatory to SC-46, and
that Congress be notified of such contract, renders it null and void.
As SC-46 was executed in 2004, its terms should have conformed not only to the provisions of
Presidential Decree No. 87, but also to those of the 1987 Constitution. The Civil Code provides:
ARTICLE 1306. The contracting parties may establish such stipulations, clauses, terms and
conditions as they may deem convenient, provided they are not contrary to law, morals, good
customs, public order, or public policy. (Italics ours.)
In Heirs of San Miguel v. Court of Appeals, this Court held that:
76
It is basic that the law is deemed written into every contract. Although a contract is the law between
the parties, the provisions of positive law which regulate contracts are deemed written therein and
shall limit and govern the relations between the parties. x x x. (Citations omitted.) Paragraph 4,
Section 2, Article XII of the 1987 Constitution requires that the President himself enter into any
service contract for the exploration of petroleum. SC-46 appeared to have been entered into and
signed only by the DOE through its then Secretary, Vicente S. Perez, Jr., contrary to the said
constitutional requirement. Moreover, public respondents have neither shown nor alleged that
Congress was subsequently notified of the execution of such contract.
Public respondents' implied argument that based on the "alter ego principle," their acts are also that
of then President Macapagal-Arroyo's, cannot apply in this case. In Joson v. Torres, we explained
77
the concept of the alter ego principle or the doctrine of qualified political agency and its limit in this
wise:
Under this doctrine, which recognizes the establishment of a single executive, all executive and
administrative organizations are adjuncts of the Executive Department, the heads of the various
executive departments are assistants and agents of the Chief Executive, and, except in cases where
the Chief Executive is required by the Constitution or law to act in person or the exigencies of the
situation demand that he act personally, the multifarious executive and administrative functions of
the Chief Executive are performed by and through the executive departments, and the acts of the
Secretaries of such departments, performed and promulgated in the regular course of business, are,
unless disapproved or reprobated by the Chief Executive presumptively the acts of the Chief
Executive. (Emphasis ours, citation omitted.)
While the requirements in executing service contracts in paragraph 4, Section 2 of Article XII of the
1987 Constitution seem like mere formalities, they, in reality, take on a much bigger role. As we have
explained in La Bugal, they are the safeguards put in place by the framers of the Constitution to
"eliminate or minimize the abuses prevalent during the martial law regime." Thus, they are not just
78
mere formalities, which will only render a contract unenforceable but not void, if not complied with.
They are requirements placed, not just in an ordinary statute, but in the fundamental law, the non-
observance of which will nullify the contract. Elucidating on the concept of a "constitution," this Court,
in Manila Prince Hotel v. Government Service Insurance System, held:79
A constitution is a system of fundamental laws for the governance and administration of a nation. It
is supreme, imperious, absolute and unalterable except by the authority from which it emanates. It
has been defined as the fundamental and paramount law of the nation. It prescribes the permanent
framework of a system of government, assigns to the different departments their respective powers
and duties, and establishes certain fixed principles on which government is founded. The
fundamental conception in other words is that it is a supreme law to which all other laws must
conform and in accordance with which all private rights must be determined and all public authority
administered. Under the doctrine of constitutional supremacy, if a law or contract violates any norm
of the constitution that law or contract whether promulgated by the legislative or by the executive
branch or entered into by private persons for private purposes is null and void and without any force
and effect. Thus, since the Constitution is the fundamental, paramount and supreme law of the
nation, it is deemed written in every statute and contract. (Emphasis ours.)
As this Court has held in La Bugal, our Constitution requires that the President himself be the
signatory of service agreements with foreign-owned corporations involving the exploration,
development, and utilization of our minerals, petroleum, and other mineral oils. This power cannot be
taken lightly.
In this case, the public respondents have failed to show that the President had any participation in
SC-46. Their argument that their acts are actually the acts of then President Macapagal-Arroyo,
absent proof of her disapproval, must fail as the requirement that the President herself enter into
these kinds of contracts is embodied not just in any ordinary statute, but in the Constitution itself.
These service contracts involving the exploitation, development, and utilization of our natural
resources are of paramount interest to the present and future generations. Hence, safeguards were
put in place to insure that the guidelines set by law are meticulously observed and likewise to
eradicate the corruption that may easily penetrate departments and agencies by ensuring that the
President has authorized or approved of these service contracts herself.
Even under the provisions of Presidential Decree No. 87, it is required that the Petroleum Board,
now the DOE, obtain the President's approval for the execution of any contract under said statute, as
shown in the following provision:
SECTION 5. Execution of contract authorized in this Act. -Every contract herein authorized shall,
subject to the approval of the President, be executed by the Petroleum Board created in this Act,
after due public notice pre-qualification and public bidding or concluded through negotiations. In
case bids are requested or if requested no bid is submitted or the bids submitted are rejected by the
Petroleum Board for being disadvantageous to the Government, the contract may be concluded
through negotiation.
In opening contract areas and in selecting the best offer for petroleum operations, any of the
following alternative procedures may be resorted to by the Petroleum Board, subject to prior
approval of the President[.]
Even if we were inclined to relax the requirement in La Bugal to harmonize the 1987 Constitution
with the aforementioned provision of Presidential Decree No. 87, it must be shown that the
government agency or subordinate official has been authorized by the President to enter into such
service contract for the government. Otherwise, it should be at least shown that the President
subsequently approved of such contract explicitly. None of these circumstances is evident in the
case at bar.
Service Contract No. 46 vis-a-vis Other Laws
Petitioners in G.R. No. 180771 claim that SC-46 violates Section 27 of Republic Act. No. 9147 or the
Wildlife Resources Conservation and Protection Act, which bans all marine exploration and
exploitation of oil and gas deposits. They also aver that Section 14 of Republic Act No. 7586 or the
National Integrated Protected Areas System Act of 1992 (NIPAS Act), which allows the exploration
of protected areas for the purpose of information-gathering, has been repealed by Section 27 of
Republic Act No. 914 7. The said petitioners further claim that SC-46 is anathema to Republic Act
No. 8550 or the Philippine Fisheries Code of 1998, which protects the rights of the fisherfolk in the
preferential use of municipal waters, with the exception being limited only to research and survey
activities. 80
The FIDEC, for its part, argues that to avail of the exceptions under Section 14 of the NIP AS Act,
the gathering of information must be in accordance with a DENR-approved program, and the
exploitation and utilization of energy resources must be pursuant to a general law passed by
Congress expressly for that purpose. Since there is neither a DENR approved program nor a
general law passed by Congress, the seismic surveys and oil drilling operations were all done
illegally. The FIDEC likewise contends that SC-46 infringes on its right to the preferential use of the
81
communal fishing waters as it is denied free access within the prohibited zone, in violation not only
of the Fisheries Code but also of the 1987 Constitutional provisions on subsistence fisherfolk and
social justice. Furthermore, the FIDEC believes that the provisions in Presidential Decree No. 87,
82
which allow offshore drilling even in municipal waters, should be deemed to have been rendered
inoperative by the provisions of Republic Act No. 8550 and Republic Act No. 7160, which reiterate
the social justice provisions of the Constitution. 83
The public respondents invoke the rules on statutory construction and argue that Section 14 of the
NIP AS Act is a more particular provision and cannot be deemed to have been repealed by the more
general prohibition in Section 27 of Republic Act No. 9147. They aver that Section 14, under which
SC-46 falls, should instead be regarded as an exemption to Section 27. Addressing the claim of
84
petitioners in G.R. No. 180771 that there was a violation of Section 27 of Republic Act No. 9147, the
public respondents assert that what the section prohibits is the exploration of minerals, which as
defined in the Philippine Mining Act of 1995, exclude energy materials such as coal, petroleum,
natural gas, radioactive materials and geothennal energy. Thus, since SC-46 involves oil and gas
exploration, Section 27 does not apply. 85
The public respondents defend the validity of SC-46 and insist that it does not grant exclusive fishing
rights to JAPEX; hence, it does not violate the rule on preferential use of municipal waters.
Moreover, they allege that JAPEX has not banned fishing in the project area, contrary to the FIDEC's
claim. The public respondents also contest the attribution of the declining fish catch to the seismic
surveys and aver that the allegation is unfounded. They claim that according to the Bureau of
Fisheries and Aquatic Resources' fish catch data, the reduced fish catch started in the 1970s due to
destructive fishing practices.86
Ruling of the Court
On the legality of Service Contract No. 46
vis-a-vis Other Laws
Although we have already established above that SC-46 is null and void for being violative of the
1987 Constitution, it is our duty to still rule on the legality of SC-46 vis-a-vis other pertinent laws, to
serve as a guide for the Government when executing service contracts involving not only the Tafion
Strait, but also other similar areas. While the petitioners allege that SC-46 is in violation of several
laws, including international ones, their arguments focus primarily on the protected status of the
Tañon Strait, thus this Court will concentrate on those laws that pertain particularly to the Tañon
Strait as a protected seascape.
The Tañon Strait is a narrow passage of water bounded by the islands of Cebu in the East and
Negros in the West. It harbors a rich biodiversity of marine life, including endangered species of
dolphins and whales. For this reason, former President Fidel V. Ramos declared the Tañon Strait as
a protected seascape in 1998 by virtue of Proclamation No. 1234 -Declaring the Tañon Strait
situated in the Provinces of Cebu, Negros Occidental and Negros Oriental as a Protected Area
pursuant to the NIP AS Act and shall be known as Tañon Strait Protected Seascape. During former
President Joseph E. Estrada's time, he also constituted the Tañon Strait Commission via Executive
Order No. 76 to ensure the optimum and sustained use of the resources in that area without
threatening its marine life. He followed this with Executive Order No. 177, wherein he included the
87
mayor of Negros Occidental Municipality/City as a member of the Tañon Strait Commission, to

represent the LGUs concerned. This Commission, however, was subsequently abolished in 2002 by
then President Gloria Macapagal-Arroyo, via Executive Order No. 72. 88
True to the constitutional policy that the "State shall protect and advance the right of the people to a
balanced and healthful ecology in accord with the rhythm and harmony of nature," Congress
89
enacted the NIP AS Act to secure the perpetual existence of all native plants and animals through
the establishment of a comprehensive system of integrated protected areas. These areas possess
common ecological values that were incorporated into a holistic plan representative of our natural
heritage. The system encompasses outstandingly remarkable areas and biologically important public
lands that are habitats of rare and endangered species of plants and animals, biogeographic zones
and related ecosystems, whether terrestrial, wetland, or marine. It classifies and administers all the
90
designated protected areas to maintain essential ecological processes and life-support systems, to
preserve genetic diversity, to ensure sustainable use of resources found therein, and to maintain
their natural conditions to the greatest extent possible. The following categories of protected areas
91
were established under the NIPAS Act:
a. Strict nature reserve;
b. Natural park;
c. Natural monument;
d. Wildlife sanctuary;
e. Protected landscapes and seascapes;
f. Resource reserve;
g. Natural biotic areas; and
h. Other categories established by law, conventions or international agreements which the

Philippine Government is a signatory. 92
Under Section 4 of the NIP AS Act, a protected area refers to portions of land and water, set aside
due to their unique physical and biological significance, managed to enhance biological diversity and
protected against human exploitation.
The Tañon Strait, pursuant to Proclamation No. 1234, was set aside and declared a protected area
under the category of Protected Seascape. The NIP AS Act defines a Protected Seascape to be an
area of national significance characterized by the harmonious interaction of man and land while
providing opportunities for public enjoyment through recreation and tourism within the normal
lifestyle and economic activity of this areas; thus a management plan for each area must be
93
designed to protect and enhance the permanent preservation of its natural conditions. Consistent
94
with this endeavor is the requirement that an Environmental Impact Assessment (EIA) be made prior
to undertaking any activity outside the scope of the management plan. Unless an ECC under the EIA
system is obtained, no activity inconsistent with the goals of the NIP AS Act shall be implemented. 95
The Environmental Impact Statement System (EISS) was established in 1978 under Presidential
Decree No. 1586. It prohibits any person, partnership or corporation from undertaking or operating
any declared environmentally critical project or areas without first securing an ECC issued by the
President or his duly authorized representative. Pursuant to the EISS, which called for the proper
96
management of environmentally critical areas, Proclamation No. 2146 was enacted, identifying the
97 98
areas and types of projects to be considered as environmentally critical and within the scope of the
EISS, while DENR Administrative Order No. 2003-30 provided for its Implementing Rules and
Regulations (IRR).
DENR Administrative Order No. 2003-30 defines an environmentally critical area as "an area
delineated as environmentally sensitive such that significant environmental impacts are expected if
certain types of proposed projects or programs are located, developed, or implemented in it"; thus,
99
before a project, which is "any activity, regardless of scale or magnitude, which may have significant
impact on the environment," is undertaken in it, such project must undergo an EIA to evaluate and
100
predict the likely impacts of all its stages on the environment. An EIA is described in detail as
101
follows:
h. Environmental Impact Assessment (EIA) - process that involves evaluating and predicting the
likely impacts of a project (including cumulative impacts) on the environment during construction,
commissioning, operation and abandonment. It also includes designing appropriate preventive,
mitigating and enhancement measures addressing these consequences to protect the environment
and the community's welfare. The process is undertaken by, among others, the project proponent
and/or EIA Consultant, EMB, a Review Committee, affected communities and other stakeholders. 102
Under Proclamation No. 2146, the Tañon Strait is an environmentally critical area, having been
declared as a protected area in 1998; therefore, any activity outside the scope of its management
plan may only be implemented pursuant to an ECC secured after undergoing an EIA to determine
the effects of such activity on its ecological system.
The public respondents argue that they had complied with the procedures in obtaining an ECC and 103
that SC-46 falls under the exceptions in Section 14 of the NIP AS Act, due to the following reasons:
1) The Tañon Strait is not a strict nature reserve or natural park;
2) Exploration is only for the purpose of gathering information on possible energy resources;
and 3) Measures are undertaken to ensure that the exploration is being done with the least
damage to surrounding areas. 104
We do not agree with the arguments raised by the public respondents.
Sections 12 and 14 of the NIPAS Act read:
SECTION 12. Environmental Impact Assessment. - Proposals for activities which are outside the
scope of the management plan for protected areas shall be subject to an environmental impact
assessment as required by law before they are adopted, and the results thereof shall be taken into
consideration in the decision-making process.
No actual implementation of such activities shall be allowed without the required Environmental
Compliance Certificate (ECC) under the Philippine Environmental Impact Assessment (EIA) system.
In instances where such activities are allowed to be undertaken, the proponent shall plan and carry
them out in such manner as will minimize any adverse effects and the preventive and remedial
action when appropriate. The proponent shall be liable for any damage due to lack of caution or
indiscretion.
SECTION 14. Survey for Energy Resources. - Consistent with the policies declared in Section 2
hereof, protected areas, except strict nature reserves and natural parks, may be subjected to
exploration only for the purpose of gathering information on energy resources and only if such
activity is carried out with the least damage to surrounding areas. Surveys shall be conducted only in
accordance with a program approved by the DENR, and the result of such surveys shall be made
available to the public and submitted to the President for recommendation to Congress. Any
exploitation and utilization of energy resources found within NIP AS areas shall be allowed only
through a law passed by Congress.
It is true that the restrictions found under the NIP AS Act are not without exceptions. However, while
an exploration done for the purpose of surveying for energy resources is allowed under Section 14 of
the NIP AS Act, this does not mean that it is exempt from the requirement to undergo an EIA under
Section 12. In Sotto v. Sotto, this Court explained why a statute should be construed as a whole:
105
A statute is passed as a whole and not in parts or sections and is animated by one general purpose
and intent. Consequently each part or section should be construed in connection with every other
part or section and so as to produce a harmonious whole. It is not proper to confine the attention to
the one section to be construed. It is always an unsafe way of construing a statute or contract to
divide it by a process of etymological dissection, into separate words, and then apply to each, thus
separated from its context, some particular definition given by lexicographers, and then reconstruct
the instrument upon the basis of these definitions. An instrument must always be construed as a
whole, and the particular meaning to be attached to any word or phrase is usually to be ascertained
from the context, the nature of the subject treated of and the purpose or intention of the parties who
executed the contract, or of the body which enacted or framed the statute or constitution. x x x.
Surveying for energy resources under Section 14 is not an exemption from complying with the EIA
requirement in Section 12; instead, Section 14 provides for additional requisites before any
exploration for energy resources may be done in protected areas.
The rationale for such additional requirements are incorporated m Section 2 of the NIP AS Act, to
wit:
SECTION 2. Declaration of Policy - Cognizant of the profound impact of man's activities on all
components of the natural environment particularly the effect of increasing population, resource
exploitation and industrial advancement and recognizing the critical importance of protecting and
maintaining the natural biological and physical diversities of the environment notably on areas with
biologically unique features to sustain human life and development, as well as plant and animal life,
it is hereby declared the policy of the State to secure for the Filipino people of present and future
generations the perpetual existence of all native plants and animals through the establishment of a
comprehensive system of integrated protected areas within the classification of national park as
provided for in the Constitution.
It is hereby recognized that these areas, although distinct in features, possess common ecological
values that may be incorporated into a holistic plan representative of our natural heritage; that
effective administration of this area is possible only through cooperation among national
government, local government and concerned private organizations; that the use and enjoyment of
these protected areas must be consistent with the principles of biological diversity and sustainable
development.
To this end, there is hereby established a National Integrated Protected Areas System (NIPAS),
which shall encompass outstandingly remarkable areas and biologically important public lands that
are habitats of rare and endangered species of plants and animals, biogeographic zones and related
ecosystems, whether terrestrial, wetland or marine, all of which shall be designated as "protected
areas."
The public respondents themselves admitted that JAPEX only started to secure an ECC prior to the
second sub-phase of SC-46, which required the drilling of an oil exploration well. This means that
when the seismic surveys were done in the Tañon Strait, no such environmental impact evaluation
was done. Unless seismic surveys are part of the management plan of the Tañon Strait, such
surveys were done in violation of Section 12 of the NIPAS Act and Section 4 of Presidential Decree
No. 1586, which provides:
Section 4. Presidential Proclamation of Environmentally Critical Areas and Projects. - The President
of the Philippines may, on his own initiative or upon recommendation of the National Environmental
Protection Council, by proclamation declare certain projects, undertakings or areas in the country as
environmentally critical. No person, partnership or corporation shall undertake or operate any such
declared environmentally critical project or area without first securing an Environmental Compliance
Certificate issued by the President or his duly authorized representative. For the proper
management of said critical project or area, the President may by his proclamation reorganize such
government offices, agencies, institutions, corporations or instrumentalities including the re-
alignment of government personnel, and their specific functions and responsibilities.
For the same purpose as above, the Ministry of Human Settlements shall: (a) prepare the proper
land or water use pattern for said critical project(s) or area(s); (b) establish ambient environmental
quality standards; (c) develop a program of environmental enhancement or protective measures
against calamitous factors such as earthquakes, floods, water erosion and others, and (d) perform
such other functions as may be directed by the President from time to time.
The respondents' subsequent compliance with the EISS for the second sub-phase of SC-46 cannot
and will not cure this violation. The following penalties are provided for under Presidential Decree
No. 1586 and the NIPAS Act.
Section 9 of Presidential Decree No. 1586 provides for the penalty involving violations of the ECC
requirement:
Section 9. Penalty for Violation. - Any person, corporation or partnership found violating Section 4 of
this Decree, or the terms and conditions in the issuance of the Environmental Compliance
Certificate, or of the standards, rules and regulations issued by the National Environmental
Protection Council pursuant to this Decree shall be punished by the suspension or cancellation of
his/its certificates and/or a fine in an amount not to exceed Fifty Thousand Pesos (₱50,000.00) for
every violation thereof, at the discretion of the National Environmental Protection Council. (Emphasis
supplied.)
Violations of the NIP AS Act entails the following fines and/or imprisonment under Section 21:
SECTION 21. Penalties. - Whoever violates this Act or any rules and regulations issued by the
Department pursuant to this Act or whoever is found guilty by a competent court of justice of any of
the offenses in the preceding section shall be fined in the amount of not less than Five thousand
pesos (₱5,000) nor more than Five hundred thousand pesos (₱500,000), exclusive of the value of
the thing damaged or imprisonment for not less than one (1) year but not more than six (6) years, or
both, as determined by the court: Provided, that, if the area requires rehabilitation or restoration as
determined by the court, the offender shall be required to restore or compensate for the restoration
to the damages: Provided, further, that court shall order the eviction of the offender from the land
and the forfeiture in favor of the Government of all minerals, timber or any species collected or
removed including all equipment, devices and firearms used in connection therewith, and any
construction or improvement made thereon by the offender. If the offender is an association or
corporation, the president or manager shall be directly responsible for the act of his employees and
laborers: Provided, finally, that the DENR may impose administrative fines and penalties consistent
with this Act. (Emphases supplied.) Moreover, SC-46 was not executed for the mere purpose of
gathering information on the possible energy resources in the Tañon Strait as it also provides for the
parties' rights and obligations relating to extraction and petroleum production should oil in
commercial quantities be found to exist in the area. While Presidential Decree No. 87 may serve as
the general law upon which a service contract for petroleum exploration and extraction may be
authorized, the exploitation and utilization of this energy resource in the present case may be
allowed only through a law passed by Congress, since the Tañon Strait is a NIPAS area. Since
106
there is no such law specifically allowing oil exploration and/or extraction in the Tañon Strait, no
energy resource exploitation and utilization may be done in said protected seascape.
In view of the foregoing premises and conclusions, it is no longer necessary to discuss the other
issues raised in these consolidated petitions.
WHEREFORE, the Petitions in G.R. Nos. 180771 and 181527 are GRANTED, Service Contract No.
46 is hereby declared NULL AND VOID for violating the 1987 Constitution, Republic Act No. 7586,
and Presidential Decree No. 1586.
SO ORDERED.
Roy III v. Chairperson Herbosa, G.R. No. 207246, 22 November 2016
G.R. No. 207246, November 22, 2016
JOSE M. ROY III, Petitioner, v. CHAIRPERSON TERESITA HERBOSA,THE

SECURITIES AND EXCHANGE COMMISSION, AND PHILILIPPINE LONG
DISTANCE TELEPHONE COMPANY, Respondents.
WILSON C. GAMBOA, JR., DANIEL V. CARTAGENA, JOHN WARREN P.

GABINETE, ANTONIO V. PESINA, JR., MODESTO MARTIN Y. MAMON III,
AND GERARDO C. EREBAREN, Petitioners-in-Intervention,
PHILIPPINE STOCK EXCHANGE, INC., Respondent-in-Intervention,
SHAREHOLDERS' ASSOCIATION OF THE PHILIPPINES, INC., Respondent-in-

Intervention.
DECISION
CAGUIOA, J.:
The petitions1 before the Court are special civil actions for certiorari under Rule 65
of the Rules of Court seeking to annul Memorandum Circular No. 8, Series of 2013
("SEC-MC No. 8") issued by the Securities and Exchange Commission ("SEC") for
allegedly being in violation of the Court's Decision2 ("Gamboa Decision") and
Resolution3 ("Gamboa Resolution") in Gamboa v. Finance Secretary Teves, G.R. No.
176579, respectively promulgated on June 28, 2011, and October 9, 2012, which
jurisprudentially established the proper interpretation of Section 11, Article XII of
the Constitution. chanroblesvirtuallawlibrary
The Antecedents
On June 28, 2011, the Court issued the Gamboa Decision, the dispositive portion of
which reads: chanRoblesvirtualLawlibrary
WHEREFORE, we PARTLY GRANT the petition and rule that the term "capital" in
Section 11, Article XII of the 1987 Constitution refers only to shares of stock
entitled to vote in the election of directors, and thus in the present case only to
common shares, and not to the total outstanding capital stock (common and non-
voting preferred shares). Respondent Chairperson of the Securities and Exchange
Commission is DIRECTED to apply this definition of the term "capital" in
determining the extent of allowable foreign ownership in respondent Philippine Long
Distance Telephone Company, and if there is a violation of Section 11, Article XII of
the Constitution, to impose the appropriate sanctions under the law.
SO ORDERED.4
Several motions for reconsideration were filed assailing the Gamboa Decision. They
were denied in the Gamboa Resolution issued by the Court on October 9,
2012, viz:chanRoblesvirtualLawlibrary
WHEREFORE, we DENY the motions for reconsideration WITH FINALITY. No

further pleadings shall be entertained.
SO ORDERED.5
The Gamboa Decision attained finality on October 18, 2012, and Entry of Judgment
was thereafter issued on December 11, 2012. 6
On November 6, 2012, the SEC posted a Notice in its website inviting the public to
attend a public dialogue and to submit comments on the draft memorandum
circular (attached thereto) on the guidelines to be followed in determining
compliance with the Filipino ownership requirement in public utilities under Section
11, Article XII of the Constitution pursuant to the Court's directive in
the Gamboa Decision.7
On November 9, 2012, the SEC held the scheduled dialogue and more than 100
representatives from various organizations, government agencies, the academe and
the private sector attended.8
On January 8, 2013, the SEC received a copy of the Entry of Judgment 9 from the
Court certifying that on October 18, 2012, the Gamboa Decision had
become final and executory.10
On March 25, 2013, the SEC posted another Notice in its website soliciting from the
public comments and suggestions on the draft guidelines. 11
On April 22, 2013, petitioner Atty. Jose M. Roy III ("Roy") submitted his written
comments on the draft guidelines.12
On May 20, 2013, the SEC, through respondent Chairperson Teresita J. Herbosa,
issued SEC-MC No. 8 entitled "Guidelines on Compliance with the Filipino-Foreign
Ownership Requirements Prescribed in the Constitution and/or Existing Laws by
Corporations Engaged in Nationalized and Partly Nationalized Activities." It was
published in the Philippine Daily Inquirer and the Business Mirror on May 22,
2013.13 Section 2 of SEC-MC No. 8 provides: chanRoblesvirtualLawlibrary
Section 2. All covered corporations shall, at all times, observe the constitutional or
statutory ownership requirement. For purposes of determining compliance
therewith, the required percentage of Filipino ownership shall be applied to BOTH
(a) the total number of outstanding shares of stock entitled to vote in the election
of directors; AND (b) the total number of outstanding shares of stock, whether or
not entitled to vote in the election of directors.
Corporations covered by special laws which provide specific citizenship

requirements shall comply with the provisions of said law.14
On June 10, 2013, petitioner Roy, as a lawyer and taxpayer, filed the
Petition,15 assailing the validity of SEC-MC No. 8 for not conforming to the letter and
spirit of the Gamboa Decision and Resolution and for having been issued by the SEC
with grave abuse of discretion. Petitioner Roy seeks to apply the 60-40 Filipino
ownership requirement separately to each class of shares of a public utility
corporation, whether common, preferred nonvoting, preferred voting or any other
class of shares. Petitioner Roy also questions the ruling of the SEC that respondent
Philippine Long Distance Telephone Company ("PLDT") is compliant with the
constitutional rule on foreign ownership. He prays that the Court declare SEC-MC
No. 8 unconstitutional and direct the SEC to issue new guidelines regarding the
determination of compliance with Section 11, Article XII of the Constitution in
accordance with Gamboa.
Wilson C. Gamboa, Jr.,16 Daniel V. Cartagena, John Warren P. Gabinete, Antonio V.

Pesina, Jr., Modesto Martin Y. Mamon III, and Gerardo C. Erebaren ("intervenors
Gamboa, et al.") filed a Motion for Leave to File Petition-in-Intervention 17 on July
30, 2013, which the Court granted. The Petition-in-Intervention 18 filed by
intervenors Gamboa, et al. mirrored the issues, arguments and prayer of petitioner
Roy.
On September 5, 2013, respondent PLDT filed its Comment (on the Petition dated
10 June 2013).19 PLDT posited that the Petition should be dismissed because it
violates the doctrine of hierarchy of courts as there are no compelling reasons to
invoke the Court's original jurisdiction; it is prematurely filed because petitioner Roy
failed to exhaust administrative remedies before the SEC; the principal
actions/remedies of mandamus and declaratory relief are not within the exclusive
and/or original jurisdiction of the Court; the petition for certiorari is an
inappropriate remedy since the SEC issued SEC-MC No. 8 in the exercise of
its quasi-legislative power; it deprives the necessary and indispensable parties of
their constitutional right to due process; and the SEC merely implemented the
dispositive portion of the Gamboa Decision.
On September 20, 2013, respondents Chairperson Teresita Herbosa and SEC filed
their Consolidated Comment.20 They sought the dismissal of the petitions on the
following grounds: (1) the petitioners do not possess locus standi to assail the
constitutionality of SEC-MC No. 8; (2) a petition for certiorari under Rule 65 is not
the appropriate and proper remedy to assail the validity and constitutionality of the
SEC-MC No. 8; (3) the direct resort to the Court violates the doctrine of hierarchy
of courts; (4) the SEC did not abuse its discretion; (5) on PLDT's compliance with
the capital requirement as stated in the Gamboa ruling, the petitioners' challenge is
premature considering that the SEC has not yet issued a definitive ruling thereon.
On October 22, 2013, PLDT filed its Comment (on the Petition-in-Intervention dated
16 July 2013).21 PLDT adopted the position that intervenors Gamboa, et al. have no
standing and are not the proper party to question the constitutionality of SEC-MC
No. 8; they are in no position to assail SEC-MC No. 8 considering that they did not
participate in the public consultations or give comments thereon; and their Petition-
in-Intervention is a disguised motion for reconsideration of the Gamboa Decision
and Resolution.
On May 7, 2014, Petitioner Roy and intervenors Gamboa, et al.22 filed their Joint
Consolidated Reply with Motion for Issuance of Temporary Restraining Order. 23
On May 22, 2014, PLDT filed its Rejoinder [To Petitioner and Petitioners-in-
Intervention's Joint Consolidated Reply dated 7 May 2014] and Opposition [To
Petitioner and Petitioners-in-Intervention's Motion for Issuance of a Temporary
Restraining Order dated 7 May 2014].24
On June 18, 2014, the Philippine Stock Exchange, Inc. ("PSE") filed its Motion to
Intervene with Leave of Court25 and its Comment-in Intervention.26 The PSE alleged
that it has standing to intervene as the primary regulator of the stock exchange and
will sustain direct injury should the petitions be granted. The PSE argued that in
the Gamboa ruling, "capital" refers only to shares entitled to vote in the election of
directors, and excludes those not so entitled; and the dispositive portion of the
decision is the controlling factor that determines and settles the questions
presented in the case. The PSE further argued that adopting a new interpretation of
Section 11, Article XII of the Constitution violates the policy of conclusiveness of
judgment, stare decisis, and the State's obligation to maintain a stable and
predictable legal framework for foreign investors under international treaties; and
adopting a new definition of "capital" will prove disastrous for the Philippine stock
market. The Court granted the Motion to Intervene filed by PSE. 27
PLDT filed its Consolidated Memorandum28 on February 10, 2015.
On June 1, 2016, Shareholders' Association of the Philippines, Inc. 29 ("SHAREPHIL")

filed an Omnibus Motion [1] For Leave to Intervene; and [2] To Admit Attached
Comment-in-Intervention.30 The Court granted the Omnibus Motion of
SHAREPHIL.31
On June 30, 2016, petitioner Roy filed his Opposition and Reply to Interventions of
Philippine Stock Exchange and Sharephil.32 Intervenors Gamboa, et al. then filed on
September 14, 2016, their Reply (to Interventions by Philippine Stock Exchange
and Sharephil).33
The Issues
The twin issues of the Petition and the Petition-in-Intervention are: (1) whether the
SEC gravely abused its discretion in issuing SEC-MC No. 8 in light of
the Gamboa Decision and Gamboa Resolution, and (2) whether the SEC gravely
abused its discretion in ruling that PLDT is compliant with the constitutional
limitation on foreign ownership.chanroblesvirtuallawlibrary
The Court's Ruling
At the outset, the Court disposes of the second issue for being without merit. In its
Consolidated Comment dated September 13, 2013, 34 the SEC already clarified that
it "has not yet issued a definitive ruling anent PLDT's compliance with the limitation
on foreign ownership imposed under the Constitution and relevant laws [and i]n
fact, a careful perusal of x x x SEC-MC No. 8 readily reveals that all existing
covered corporations which are non-compliant with Section 2 thereof were given a
period of one (1) year from the effectivity of the same within which to comply with
said ownership requirement. x x x."35 Thus, in the absence of a definitive ruling by
the SEC on PLDT's compliance with the capital requirement pursuant to
the Gamboa Decision and Resolution, any question relative to the inexistent ruling
is premature.
Also, considering that the Court is not a trier of facts and is in no position to make a
factual determination of PLDT's compliance with the constitutional provision under
review, the Court can only resolve the first issue, which is a pure question of law.
However, before the Court tackles the first issue, it has to rule on certain
procedural challenges that have been raised. chanroblesvirtuallawlibrary
The Procedural Issues
The Court may exercise its power of judicial review and take cognizance of a case
when the following specific requisites are met: (1) there is an actual case or
controversy calling for the exercise of judicial power; (2) the petitioner has standing
to question the validity of the subject act or issuance, i.e., he has a personal and
substantial interest in the case that he has sustained, or will sustain, direct injury
as a result of the enforcement of the act or issuance; (3) the question of
constitutionality is raised at the earliest opportunity; and (4) the constitutional
question is the very lis mota of the case.36
The first two requisites of judicial review are not met.
Petitioners' failure to sufficiently allege, much less establish, the existence of the
first two requisites for the exercise of judicial review warrants the perfunctory
dismissal of the petitions.
a. No actual controversy.
Regarding the first requisite, the Court in Belgica v. Ochoa37 stressed anew that an
actual case or controversy is one which involves a conflict of legal rights, an
assertion of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute since the courts will decline to
pass upon constitutional issues through advisory opinions, bereft as they are of
authority to resolve hypothetical or moot questions. Related to the requirement of
an actual case or controversy is the requirement of "ripeness", and a question is
ripe for adjudication when the act being challenged has a direct adverse effect on
the individual challenging it.
Petitioners have failed to show that there IS an actual case or controversy which is
ripe for adjudication.
The Petition and the Petition-in-Intervention identically allege: chanRoblesvirtualLawlibrary
3. The standing interpretation of the SEC found in MC8 practically encourages

circumvention of the 60-40 ownership rule by impliedly allowing the creation of
several classes of voting shares with different degrees of beneficial ownership over
the same, but at the same time, not imposing a 40% limit on foreign ownership of
the higher yielding stocks.38
4. For instance, a situation may arise where a corporation may issue several classes
of shares of stock, one of which are common shares with rights to elect directors,
another are preferred shares with rights to elect directors but with much lesser
entitlement to dividends, and still another class of preferred shares with no rights to
elect the directors and even less dividends. In this situation, the corporation may
issue common shares to foreigners amounting to forty percent (40%) of the
outstanding capital stock and issue preferred shares entitled to vote the directors of
the corporation to Filipinos consisting of 60% 39 percent (sic) of the outstanding
capital stock entitled to vote. Although it may appear that the 60-40 rule has been
complied with, the beneficial ownership of the corporation remains with the foreign
stockholder since the Filipino owners of the preferred shares have only a miniscule
share in the dividends and profit of the corporation. Plainly, this situation runs
contrary to the Constitution and the ruling of this x x x Court. 40
Petitioners' hypothetical illustration as to how SEC-MC No. 8 "practically encourages
circumvention of the 60-40 ownership rule" is evidently speculative and fraught
with conjectures and assumptions. There is clearly wanting specific facts against
which the veracity of the conclusions purportedly following from the speculations
and assumptions can be validated. The lack of a specific factual milieu from which
the petitions originated renders any pronouncement from the Court as a purely
advisory opinion and not a decision binding on identified and definite parties and on
a known set of facts.
Firstly, unlike in Gamboa, the identity of the public utility corporation, the capital of
which is at issue, is unknown. Its outstanding capital stock and the actual
composition thereof in terms of numbers, classes, preferences and features are all
theoretical. The description "preferred shares with rights to elect directors but with
much lesser entitlement to dividends, and still another class of preferred shares
with no rights to elect the directors and even less dividends" is ambiguous. What
are the specific dividend policies or entitlements of the purported preferred shares?
How are the preferred shares' dividend policies different from those of the common
shares? Why and how did the fictional public utility corporation issue those
preferred shares intended to be owned by Filipinos? What are the actual features of
the foreign-owned common shares which make them superior over those owned by
Filipinos? How did it come to be that Filipino holders of preferred shares ended up
with "only a miniscule share in the dividends and profit of the [hypothetical]
corporation"? Any answer to any of these questions will, at best, be contingent,
conjectural, indefinite or anticipatory.
Secondly, preferred shares usually have preference over the common shares in the
payment of dividends. If most of the "preferred shares with rights to elect directors
but with much lesser entitlement to dividends" and the other "class of preferred
shares with no rights to elect the directors and even less dividends" are owned by
Filipinos, they stand to receive their dividend entitlement ahead of the foreigners,
who are common shareholders. For the common shareholders to have "bigger
dividends" as compared to the dividends paid to the preferred shareholders, which
are supposedly predominantly owned by Filipinos, there must still be unrestricted
retained earnings of the fictional corporation left after payment of the dividends
declared in favor of the preferred shareholders. The fictional illustration does not
even intimate how this situation can be possible. No permutation of unrestricted
retained earnings of the hypothetical corporation is shown that makes the present
conclusion of the petitioners achievable. Also, no concrete meaning to the
petitioners' claim of the Filipinos' "miniscule share in the dividends and profit of the
[fictional] corporation" is demonstrated.
Thirdly, petitioners fail to allege or show how their hypothetical illustration will
directly and adversely affect them. That is impossible since their relationship to the
fictional corporation is a matter of guesswork.
From the foregoing, it is evident that the Court can only surmise or speculate on
the situation or controversy that the petitioners contemplate to present for judicial
determination. Petitioners are likewise conspicuously silent on the direct adverse
impact to them of the implementation of SEC-MC No. 8. Thus, the petitions must
fail because the Court is barred from rendering a decision based on assumptions,
speculations, conjectures and hypothetical or fictional illustrations, more so in the
present case which is not even ripe for decision.
b. No locus standi.
The personal and substantial interest that enables a party to have legal standing is
one that is both material, an interest in issue and to be affected by the
government action, as distinguished from mere interest in the issue involved, or a
mere incidental interest, and real, which means a present substantial interest, as
distinguished from a mere expectancy or a future, contingent, subordinate, or
consequential interest.41cralawred
As to injury, the party must show that (1) he will personally suffer some actual or
threatened injury because of the allegedly illegal conduct of the government; (2)
the injury is fairly traceable to the challenged action; and (3) the injury is likely to
be redressed by a favorable action.42 If the asserted injury is more imagined than
real, or is merely superficial and insubstantial, an excursion into constitutional
adjudication by the courts is not warranted.43
Petitioners have no legal standing to question the constitutionality of SEC-MC No. 8.
To establish his standing, petitioner Roy merely claimed that he has standing to
question SEC-MC No. 8 "as a concerned citizen, an officer of the Court and as a
taxpayer" as well as "the senior law partner of his own law firm[, which] x x x is a
subscriber of PLDT."44 On the other hand, intervenors Gamboa, et al. allege, as
basis of their locus standi, their "[b]eing lawyers and officers of the Court" and
"citizens x x x and taxpayers."45
The Court has previously emphasized that the locus standi requisite is not met by
the expedient invocation of one's citizenship or membership in the bar who has an
interest in ensuring that laws and orders of the Philippine government are legally
and validly issued as these supposed interests are too general, which are shared by
other groups and by the whole citizenry.46 Per their allegations, the personal
interest invoked by petitioners as citizens and members of the bar in the validity or
invalidity of SEC-MC No. 8 is at best equivocal, and totally insufficient.
Petitioners' status as taxpayers is also of no moment. As often reiterated by the

Court, a taxpayer's suit is allowed only when the petitioner has demonstrated the
direct correlation of the act complained of and the disbursement of public funds in
contravention of law or the Constitution, or has shown that the case involves the
exercise of the spending or taxing power of Congress. 47 SEC-MC No. 8 does not
involve an additional expenditure of public funds and the taxing or spending power
of Congress.
The allegation that petitioner Roy's law firm is a "subscriber of PLDT" is ambiguous.
It is unclear whether his law firm is a "subscriber" of PLDT's shares of stock or of its
various telecommunication services. Petitioner Roy has not identified the specific
direct and substantial injury he or his law firm stands to suffer as "subscriber of
PLDT" as a result of the issuance of SEC-MC No. 8 and its enforcement.
As correctly observed by respondent PLDT, "(w]hether or not the constitutionality of

SEC-MC No. 8 is upheld, the rights and privileges of all PLDT subscribers, as with all
the rest of subscribers of other corporations, are necessarily and equally preserved
and protected. Nothing is added [to] or removed from a PLDT subscriber in terms of
the extent of his or her participation, relative to what he or she had originally
enjoyed from the beginning. In the most practical sense, a PLDT subscriber loses or
gains nothing in the event that SEC-MC No. 8 is either sustained or struck down by
[the Court]."48
More importantly, the issue regarding PLDT's compliance with Section 11, Article
XII of the Constitution has been earlier ruled as premature and beyond the Court's
jurisdiction. Thus, petitioner Roy's allegation that his law firm is a "subscriber of
PLDT" is insufficient to clothe him with locus standi.
Petitioners' cursory incantation of "transcendental importance x x x of the rules on

foreign ownership of corporations or entities vested with public interest" 49 does not
automatically justify the brushing aside of the strict observance of the requisites for
the Court's exercise of judicial review. An indiscriminate disregard of the requisites
every time "transcendental or paramount importance or significance" is invoked
would result in an unacceptable corruption of the settled doctrine of locus standi, as
every worthy cause is an interest shared by the general public. 50
In the present case, the general and equivocal allegations of petitioners on their
legal standing do not justify the relaxation of the locus standi rule. While the Court
has taken an increasingly liberal approach to the rule of locus standi, evolving from
the stringent requirements of personal injury to the broader transcendental
importance doctrine, such liberality is not to be abused. 51
The Rule on the Hierarchy of Courts has been violated.
The Court in Bañez, Jr. v. Concepcion52 stressed that: chanRoblesvirtualLawlibrary
The Court must enjoin the observance of the policy on the hierarchy of courts, and
now affirms that the policy is not to be ignored without serious consequences. The
strictness of the policy is designed to shied the Court from having to deal with
causes that are also well within the competence of the lower courts, and thus leave
time to the Court to deal with the more fundamental and more essential tasks that
the Constitution has assigned to it. The Court may act on petitions for the
extraordinary writs of certiorari, prohibition and mandamus only when absolutely
necessary or when serious and important reasons exist to justifY an exception to
the policy. x x x
x x x Where the issuance of an extraordinary writ is also within the competence of
the Court of Appeals or a Regional Trial Court, it is in either of these courts that the
specific action for the writ's procurement must be presented. This is and should
continue to be the policy in this regard, a policy that courts and lawyers must
strictly observe. x x x53
Petitioners' invocation of "transcendental importance" is hollow and does not merit
the relaxation of the rule on hierarchy of courts. There being no special, important
or compelling reason that justified the direct filing of the petitions in the Court in
violation of the policy on hierarchy of courts, their outright dismissal on this ground
is further warranted.54
The petitioners failed to implead indispensable parties.
The cogent submissions of the PSE in its Comment-in-Intervention dated June 16,
201455 and SHAREPHIL in its Omnibus Motion [1] For Leave to Intervene; and [2]
To Admit Attached Comment-in-Intervention dated May 30, 2016 56 demonstrate
how petitioners should have impleaded not only PLDT but all other corporations in
nationalized and partlynationalized industries because the propriety of the SEC's
enforcement of the Court's interpretation of "capital" through SEC-MC No. 8 affects
them as well.
Under Section 3, Rule 7 of the Rules of Court, an indispensable party is a party-in-

interest without whom there can be no final determination of an action.
Indispensable parties are those with such a material and direct interest in the
controversy that a final decree would necessarily affect their rights, so that the
court cannot proceed without their presence.57 The interests of such indispensable
parties in the subject matter of the suit and the relief are so bound with those of
the other parties that their legal presence as parties to the proceeding is an
absolute necessity and a complete and efficient determination of the equities and
rights of the parties is not possible if they are not joined. 58
Other than PLDT, the petitions failed to join or implead other public utility
corporations subject to the same restriction imposed by Section 11, Article XII of
the Constitution. These corporations are in danger of losing their franchise and
property if they are found not compliant with the restrictive interpretation of the
constitutional provision under review which is being espoused by petitioners. They
should be afforded due notice and opportunity to be heard, lest they be deprived of
their property without due process.
Not only are public utility corporations other than PLDT directly and materially
affected by the outcome of the petitions, their shareholders also stand to suffer in
case they will be forced to divest their shareholdings to ensure compliance with the
said restrictive interpretation of the term "capital". As explained by SHAREPIDL, in
five corporations alone, more than Php158 Billion worth of shares must be divested
by foreign shareholders and absorbed by Filipino investors if petitioners' position is
upheld.59
Petitioners' disregard of the rights of these other corporations and numerous

shareholders constitutes another fatal procedural flaw, justifYing the dismissal of
their petitions. Without giving all of them their day in court, they will
definitely be deprived of their property without due process of law.
During the deliberations, Justice Velasco stressed on the foregoing procedural

objections to the granting of the petitions; and Justice Bersamin added that the
special civil action for certiorari and prohibition is not the proper remedy to assail
SEC-MC No. 8 because it was not issued under the adjudicatory or quasi-judicial
functions of the SEC. chanroblesvirtuallawlibrary
The Substantive Issue
The only substantive issue that the petitions assert is whether the SEC's issuance of
SEC-MC No. 8 is tainted with grave abuse of discretion.
The Court holds that, even if the resolution of the procedural issues were conceded
in favor of petitioners, the petitions, being anchored on Rule 65, must nonetheless
fail because the SEC did not commit grave abuse of discretion amounting to lack or
excess of jurisdiction when it issued SEC-MC No. 8. To the contrary, the Court
finds SEC-MC No. 8 to have been issued in fealty to the Gamboa Decision and
Resolution.
The ratio in the Gamboa Decision and Gamboa Resolution.
To determine what the Court directed the SEC to do - and therefore resolve
whether what the SEC did amounted to grave abuse of discretion - the Court
resorts to the decretal portion of the Gamboa Decision, as this is the portion of the
decision that a party relies upon to determine his or her rights and duties, 60viz:chanRoblesvirtualLawlibrary
WHEREFORE, we PARTLY GRANT the petition and rule that the term "capital" in
Section II, Article XII of the I987 Constitution refers only to shares of stock entitled
to vote in the election of directors, and thus in the present case only to common
shares, and not to the total outstanding capital stock (common and non-voting
preferred shares). Respondent Chairperson of the Securities and Exchange
Commission is DIRECTED to apply this definition of the term "capital" in
determining the extent of allowable foreign ownership in respondent Philippine Long
Distance Telephone Company, and if there is a violation of Section II, Article XII of
the Constitution, to impose the appropriate sanctions under the law. 61
In turn, the Gamboa Resolution stated: chanRoblesvirtualLawlibrary
In any event, the SEC has expressly manifested62 that it will abide by the Court's
decision and defer to the Court's definition of the term "capital" in Section II, Article
XII of the Constitution. Further, the SEC entered its special appearance in this case
and argued during the Oral Arguments, indicating its submission to the Court's
jurisdiction. It is clear, therefore, that there exists no legal impediment against the
proper and immediate implementation of the Court's directive to the SEC.
xxxx
x x x The dispositive portion of the Court's ruling is addressed not to PLDT

but solely to the SEC, which is the administrative agency tasked to enforce
the 60-40 ownership requirement in favor of Filipino citizens in Section 11,
Article XII of the Constitution.63
To recall, the sole issue in the Gamboa case was: "whether the term 'capital' in
Section 11, Article XII of the Constitution refers to the total common shares only or
to the total outstanding capital stock (combined total of common and non-voting
preferred shares) of PLDT, a public utility."64
The Court directly answered the Issue and consistently defined the term "capital"
as follows:chanRoblesvirtualLawlibrary
x x x The term "capital" in Section 11, Article XII of the Constitution refers only to
shares of stock entitled to vote in the election of directors, and thus in the present
case only to common shares, and not to the total outstanding capital stock
comprising both common and non voting preferred shares.
xxxx
Considering that common shares have voting rights which translate to control, as
opposed to preferred shares which usually have no voting rights, the term "capital"
in Section 11, Article XII of the Constitution refers only to common shares.
However, if the preferred shares also have the right to vote in the election of
directors, then the term "capital" shall include such preferred shares because the
right to participate in the control or management of the corporation is exercised
through the right to vote in the election of directors. In short, the term "capital"
in Section 11, Article XII of the Constitution refers only to shares of stock
that can vote in the election of directors.65
The decretal portion of the Gamboa Decision follows the definition of the term
"capital" in the body of the decision, to wit: "x x x we x x x rule that the term
'capital' in Section 11, Article XII of the 1987 Constitution refers only to shares of
stock entitled to vote in the election of directors, and thus in the present case only
to common shares, and not to the total outstanding capital stock (common and
non-voting preferred shares)."66
The Court adopted the foregoing definition of the term "capital" in Section 11,
Article XII of the 1987 Constitution in furtherance of "the intent and letter of the
Constitution that the 'State shall develop a self-reliant and independent national
economy effectively controlled by Filipinos' [because a] broad definition
unjustifiably disregards who owns the all-important voting stock, which necessarily
equates to control of the public utility."67 The Court, recognizing that the provision
is an express recognition of the sensitive and vital position of public utilities both in
the national economy and for national security, also pronounced that the evident
purpose of the citizenship requirement is to prevent aliens from assuming control of
public utilities, which may be inimical to the national interest. 68 Further, the Court
noted that the foregoing interpretation is consistent with the intent of the framers
of the Constitution to place in the hands of Filipino citizens the control and
management of public utilities; and, as revealed in the deliberations of the
Constitutional Commission, "capital" refers to the voting stock or controlling
interest of a corporation.69
In this regard, it would be apropos to state that since Filipinos own at least 60% of
the outstanding shares of stock entitled to vote directors, which is what the
Constitution precisely requires, then the Filipino stockholders control the
corporation, i.e., they dictate corporate actions and decisions, and they have all the
rights of ownership including, but not limited to, offering certain preferred shares
that may have greater economic interest to foreign investors - as the need for
capital for corporate pursuits (such as expansion), may be good for the corporation
that they own. Surely, these "true owners" will not allow any dilution of their
ownership and control if such move will not be beneficial to them.
As owners of the corporation, the economic benefits will necessarily accrue to them.
There is thus no logical reason why Filipino shareholders will allow foreigners to
have greater economic benefits than them. It is illogical to speculate that they will
create shares which have features that will give greater economic interests or
benefits than they are holding and not benefit from such offering, or that they will
allow foreigners to profit more than them from their own corporation - unless they
are dummies. But, Commonwealth Act No. 108, the Anti-Dummy Law, is NOT in
issue in these petitions. Notably, even if the shares of a particular public utility were
owned 100% Filipino, that does not discount the possibility of a dummy situation
from arising. Hence, even if the 60-40 ownership in favor of Filipinos rule is applied
separately to each class of shares of a public utility corporation, as the petitioners
insist, the rule can easily be side-stepped by a dummy relationship. In other words,
even applying the 60-40 Filipino foreign ownership rule to each class of shares will
not assure the lofty purpose enunciated by petitioners.
The Court observed further in the Gamboa Decision that reinforcing this

interpretation of the term "capital", as referring to interests or shares entitled to
vote, is the definition of a Philippine national in the Foreign Investments Act of
1991 ("FIA"), which is explained in the Implementing Rules and Regulations of the
FIA ("FIA-IRR"). The FIA-IRR provides: chanRoblesvirtualLawlibrary
Compliance with the required Filipino ownership of a corporation shall be

determined on the basis of outstanding capital stock whether fully paid or not, but
only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or Philippine

nationals, mere legal title is not enough to meet the required Filipino equity. Full
beneficial ownership of the stocks, coupled with appropriate voting rights is
essential. Thus, stocks, the voting rights of which have been assigned or
transferred to aliens cannot be considered held by Philippine citizens or Philippine
nationals.70
Echoing the FIA-IRR, the Court stated in the Gamboa Decision that: chanRoblesvirtualLawlibrary
Mere legal title is insufficient to meet the 60 percent Filipinoowned "capital"

required in the Constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is required.
The legal and beneficial ownership of 60 percent of the outstanding capital stock
must rest in the hands of Filipino nationals in accordance with the constitutional
mandate. Otherwise, the corporation is "considered as non-Philippine national[s]."
xxxx
must rest in the hands of Filipinos in accordance with the constitutional mandate.
Full beneficial ownership of 60 percent of the outstanding capital stock, coupled
with 60 percent of the voting rights, is constitutionally required for the State's grant
of authority to operate a public utility. x x x71
Was the definition of the term "capital" in Section 11, Article XII of the 1987
Constitution declared for the first time by the Court in the Gamboa Decision
modified in the Gamboa Resolution?
The Court is convinced that it was not. The Gamboa Resolution consists of 51 pages

(excluding the dissenting opinions of Associate Justices Velasco and Abad). For the
most part of the Gamboa Resolution, the Court, after reviewing SEC and
DOJ72 Opinions as well as the provisions of the FIA and its predecessor
statutes,73 reiterated that both the Voting Control Test and the Beneficial Ownership
Test must be applied to determine whether a corporation is a "Philippine
national"74 and that a "Philippine national," as defined in the FIA and all its
predecessor statutes, is "a Filipino citizen, or a domestic corporation "at least
sixty percent (60%) of the capital stock outstanding and entitled to
vote," is owned by Filipino citizens. A domestic corporation is a "Philippine
national" only if at least 60% of its voting stock is owned by Filipino
citizens."75 The Court also reiterated that, from the deliberations of the
Constitutional Commission, it is evident that the term "capital" refers
to controlling interest of a corporation,76 and the framers of the Constitution
intended public utilities to be majority Filipino-owned and controlled.
The "Final Word" of the Gamboa Resolution put to rest the Court's interpretation
of the term "capital", and this is quoted verbatim, to wit:chanRoblesvirtualLawlibrary
XII.
Final Word
The Constitution expressly declares as State policy the development of an economy

"effectively controlled" by Filipinos. Consistent with such State policy, the
Constitution explicitly reserves the ownership and operation of public utilities to
Philippine nationals, who are defined in the Foreign Investments Act of 1991 as
Filipino citizens, or corporations or associations at least 60 percent of whose
capital with voting rights belongs to Filipinos. The FIA's implementing rules
explain that "[f]or stocks to be deemed owned and held by Philippine citizens or
Philippine nationals, mere legal title is not enough to meet the required Filipino
equity. Full beneficial ownership of stocks, coupled with appropriate voting
rights is essential." In effect, the FIA clarifies, reiterates and confirms the
interpretation that the term "capital" in Section 11, Article XII of the 1987
Constitution refers to shares with voting rights, as well as with full beneficial
ownership. This is precisely because the right to vote in the election of directors,
coupled with full beneficial ownership of stocks, translates to effective control of a
corporation.77
Everything told, the Court, in both the Gamboa Decision and Gamboa Resolution,
finally settled with the PIA's definition of "Philippine national" as expounded in the
FIA-IRR in construing the term "capital" in Section 11, Article XII of the 1987
Constitution.
The assailed SEC-MC No. 8.
The relevant provision in the assailed SEC-MC No. 8 IS Section 2, which

provides:chanRoblesvirtualLawlibrary
Section 2. All covered corporations shall, at all times, observe the constitutional or
statutory ownership requirement. For purposes of determining compliance
therewith, the required percentage of Filipino ownership shall be applied to BOTH
(a) the total number of outstanding shares of stock entitled to vote in the election
of directors; AND (b) the total number of outstanding shares of stock, whether or
not entitled to vote in the election of directors. 78
Section 2 of SEC-MC No. 8 clearly incorporates the Voting Control Test or the
controlling interest requirement. In fact, Section 2 goes beyond requiring a 60-
40 ratio in favor of Filipino nationals in the voting stocks; it moreover
requires the 60-40 percentage ownership in the total number of
outstanding shares of stock, whether voting or not. The SEC formulated SEC-
MC No. 8 to adhere to the Court's unambiguous pronouncement that "[f]ull
beneficial ownership of 60 percent of the outstanding capital stock, coupled with 60
percent of the voting rights is required."79 Clearly, SEC-MC No. 8 cannot be said to
have been issued with grave abuse of discretion.
A simple illustration involving Company X with three kinds of shares of stock, easily
shows how compliance with the requirements of SEC-MC No. 8 will necessarily
result to full and faithful compliance with the Gamboa Decision as well as
the Gamboa Resolution.
The following is the composition of the outstanding capital stock of Company X: chanRoblesvirtualLawlibrary
100 common shares

100 Class A preferred shares (with right to elect directors)
100 Class B preferred shares (without right to elect directors)
SEC-MC No. 8 GAMBOA DECISION

(1) 60% (required percentage of Filipino) "shares of stock entitled to vote in the election
applied to the total number of outstanding of directors"80 (60% of the voting rights)
shares of stock entitled to vote in the election
of directors
If at least a total of 120 of common shares and Class A preferred shares (in any
combination) are owned and controlled by Filipinos, Company X is compliant with
the 60% of the voting rights in favor of Filipinos requirement of both SEC-MC No. 8
and the Gamboa Decision.
SEC-MC No. 8 GAMBOA DECISION/RESOLUTION

(2) 60% (required percentage of Filipino) "Full beneficial ownership of 60 percent of the
applied to BOTH (a) the total number of outstanding capital stock, coupled with 60
outstanding shares of stock, entitled to vote in percent of the voting rights"81 or "Full
the election of directors; AND (b) the total beneficial ownership of the stocks, coupled
number of outstanding shares of stock, with appropriate voting rights x x x shares
whether or not entitled to vote in the election with voting rights, as well as with full
of directors. beneficial ownership"82
If at least a total of 180 shares of all the outstanding capital stock of Company X
are owned and controlled by Filipinos, provided that among those 180 shares a
total of 120 of the common shares and Class A preferred shares (in any
combination) are owned and controlled by Filipinos, then Company X is compliant
with both requirements of voting rights and beneficial ownership under SEC-MC No.
8 and the Gamboa Decision and Resolution.
From the foregoing illustration, SEC-MC No. 8 simply implemented, and is fully in
accordance with, the Gamboa Decision and Resolution.
While SEC-MC No. 8 does not expressly mention the Beneficial Ownership Test or
full beneficial ownership of stocks requirement in the FIA, this will not, as it does
not, render it invalid meaning, it does not follow that the SEC will not apply this test
in determining whether the shares claimed to be owned by Philippine nationals are
Filipino, i.e., are held by them by mere title or in full beneficial ownership. To be
sure, the SEC takes its guiding lights also from the FIA and its implementing rules,
the Securities Regulation Code (Republic Act No. 8799; "SRC") and its
implementing rules.83
The full beneficial ownership test.
The minority justifies the application of the 60-40 Filipino-foreign ownership rule
separately to each class of shares of a public utility corporation in this fashion:
chanRoblesvirtualLawlibrary
x x x The words "own and control," used to qualify the minimum Filipino
participation in Section 11, Article XII of the Constitution, reflects the importance of
Filipinos having both the ability to influence the corporation through voting rights
and economic benefits. In other words, full ownership up to 60% of a public
utility encompasses both control and economic rights, both of which must stay
in Filipino hands. Filipinos, who own 60% of the controlling interest, must also
own 60% of the economic interest in a public utility.
x x x In mixed class or dual structured corporations, however, there is variance in

the proportion of stockholders' controlling interest visa-vis their economic
ownership rights. This resulting variation is recognized by the Implementing Rules
and Regulations (IRR) of the Securities Regulation Code, which defined beneficial
ownership as that may exist either through voting power and/or through
investment returns. By using and/or in defining beneficial ownership, the IRR, in
effect, recognizes a possible situation where voting power is not commensurate to
investment power.
The definition of "beneficial owner" or "beneficial ownership" in the Implementing
Rules and Regulations of the Securities Regulation Code ("SRC-IRR") is consistent
with the concept of"full beneficial ownership" in the FIA-IRR.
As defined in the SRC-IRR, "[b]eneficial owner or beneficial ownership means

any person who, directly or indirectly, through any contract, arrangement,
understanding, relationship or otherwise, has or shares voting power (which
includes the power to vote or direct the voting of such security) and/or investment
returns or power (which includes the power to dispose of, or direct the disposition
of such security) x x x."84
While it is correct to state that beneficial ownership is that which may exist either
through voting power and/or investment returns, it does not follow, as espoused by
the minority opinion, that the SRC-IRR, in effect, recognizes a possible situation
where voting power is not commensurate to investment power. That is a wrong
syllogism. The fallacy arises from a misunderstanding on what the definition is for.
The "beneficial ownership" referred to in the definition, while it may ultimately and
indirectly refer to the overall ownership of the corporation, more pertinently refers
to the ownership of the share subject of the question: is it Filipino-owned or not?
As noted earlier, the FIA-IRR states: chanRoblesvirtualLawlibrary
Compliance with the required Filipino ownership of a corporation shall be

determined on the basis of outstanding capital stock whether fully paid or not, but
only such stocks which are generally entitled to vote are considered.
For stocks to be deemed owned and held by Philippine citizens or

Philippine nationals, mere legal title is not enough to meet the required Filipino
equity. Full beneficial ownership of the stocks, coupled with appropriate voting
rights is essential. Thus, stocks, the voting rights of which have been assigned or
transferred to aliens cannot be considered held by Philippine citizens or Philippine
nationals.85
The emphasized portions in the foregoing provision is the equivalent of the so-
called "beneficial ownership test". That is all.
The term "full beneficial ownership" found in the FIA-IRR is to be understood in the
context of the entire paragraph defining the term "Philippine national". Mere legal
title is not enough to meet the required Filipino equity, which means that it is not
sufficient that a share is registered in the name of a Filipino citizen or national, i.e.,
he should also have full beneficial ownership of the share. If the voting right of a
share held in the name of a Filipino citizen or national is assigned or transferred to
an alien, that share is not to be counted in the determination of the required
Filipino equity. In the same vein, if the dividends and other fruits and accessions of
the share do not accrue to a Filipino citizen or national, then that share is also to be
excluded or not counted.
In this regard, it is worth reiterating the Court's pronouncement in

the Gamboa Decision, which is consistent with the FIA-IRR, viz: chanRoblesvirtualLawlibrary
Mere legal title is insufficient to meet the 60 percent Filipinoowned "capital"

required in the Constitution. Full beneficial ownership of 60 percent of the
outstanding capital stock, coupled with 60 percent of the voting rights, is
required. x x x
xxxx
must rest in the hands of Filipinos in accordance with the constitutional
mandate. Full beneficial ownership of 60 percent of the outstanding capital
stock, coupled with 60 percent of the voting rights, is constitutionally
required (or the State's grant of authority to operate a public utility. x x x.86
And the "Final Word" of the Gamboa Resolution is in full accord with the foregoing
pronouncement of the Court, to wit: chanRoblesvirtualLawlibrary
XII.
Final Word
x x x The FIA's implementing rules explain that "[f]or stocks to be deemed owned
and held by Philippine citizens or Philippine nationals, mere legal title is not enough
to meet the required Filipino equity. Full beneficial ownership of the stocks,
coupled with appropriate voting rights is essential."87
Given that beneficial ownership of the outstanding capital stock of the public utility
corporation has to be determined for purposes of compliance with the 60% Filipino
ownership requirement, the definition in the SRC-IRR can now be applied to
resolve only the question of who is the beneficial owner or who has beneficial
ownership of each "specific stock" of the said corporation. Thus, if a "specific stock"
is owned by a Filipino in the books of the corporation, but the stock's voting power
or disposing power belongs to a foreigner, then that "specific stock" will not be
deemed as "beneficially owned" by a Filipino.
Stated inversely, if the Filipino has the "specific stock's" voting power (he can vote
the stock or direct another to vote for him), or the Filipino has the investment
power over the "specific stock" (he can dispose of the stock or direct another to
dispose it for him), or he has both (he can vote and dispose of the "specific stock"
or direct another to vote or dispose it for him), then such Filipino is the "beneficial
owner" of that "specific stock" and that "specific stock" is considered (or counted)
as part of the 60% Filipino ownership of the corporation. In the end, all those
"specific stocks" that are determined to be Filipino (per definition of "beneficial
owner" or "beneficial ownership") will be added together and their sum must be
equivalent to at least 60% of the total outstanding shares of stock entitled to vote
in the election of directors and at least 60% of the total number of outstanding
shares of stock, whether or not entitled to vote in the election of directors.
To reiterate, the "beneficial owner or beneficial ownership" definition in the SRC-

IRR is understood only in determining the respective nationalities of the
outstanding capital stock of a public utility corporation in order to determine its
compliance with the percentage of Filipino ownership required by the Constitution.
The restrictive re-interpretation of "capital" as insisted by the petitioners

is unwarranted.
Petitioners' insistence that the 60% Filipino equity requirement must be applied to
each class of shares is simply beyond the literal text and contemplation of Section
11, Article XII of the 1987 Constitution, viz:chanRoblesvirtualLawlibrary
Sec. 11. No franchise, certificate, or any other form of authorization for the
operation of a public utility shall be granted except to citizens of the Philippines or
to corporations or associations organized under the laws of the Philippines at least
sixty per centum or whose capital is owned by such citizens, nor shall such
franchise, certificate or authorization be exclusive in character or for a longer period
than fifty years. Neither shall any such franchise or right be granted except under
the condition that it shall be subject to amendment, alteration, or repeal by the
Congress when the common good so requires. The State shall encourage equity
participation in public utilities by the general public. The participation of foreign
investors in the governing body of any public utility enterprise shall be limited to
their proportionate share in its capital, and all the executive and managing officers
of such corporation or association must be citizens of the Philippines.
As worded, effective control by Filipino citizens of a public utility is already
assured in the provision. With respect to a stock corporation engaged in the
business of a public utility, the constitutional provision mandates three safeguards:
(1) 60% of its capital must be owned by Filipino citizens; (2) participation of foreign
investors in its board of directors is limited to their proportionate share in its
capital; and (3) all its executive and managing officers must be citizens of the
Philippines.
In the exhaustive review made by the Court in the Gamboa Resolution of the

deliberations of the Constitutional Commission, the opinions of the framers of the
1987 Constitution, the opinions of the SEC and the DOJ as well as the provisions of
the FIA, its implementing rules and its predecessor statutes, the intention to apply
the voting control test and the beneficial ownership test was not mentioned in
reference to "each class of shares." Even the Gamboa Decision was silent on this
point.
To be sure, the application of the 60-40 Filipino-foreign ownership requirement

separately to each class of shares, whether common, preferred non-voting,
preferred voting or any other class of shares fails to understand and appreciate the
nature and features of stocks as financial instruments. 88
There are basically only two types of shares or stocks, i.e., common stock and
preferred stock. However, the classes and variety of shares that a corporation may
issue are dictated by the confluence of the corporation's financial position and
needs, business opportunities, short-term and long term targets, risks involved, to
name a few; and they can be classified and re-classified from time to time. With
respect to preferred shares, there are cumulative preferred shares, non-cumulative
preferred shares, convertible preferred shares, participating preferred shares.
Because of the different features of preferred shares, it is required that the

presentation and disclosure of these financial instruments in financial statements
should be in accordance with the substance of the contractual arrangement and the
definitions of a financial liability, a financial asset and an equity instrument. 89
Under IAS90 32.16, a financial instrument is an equity instrument only if (a) the

instrument includes no contractual obligation to deliver cash or another financial
asset to another entity, and (b) if the instrument will or may be settled in the
issuer's own equity instruments, it is either: (i) a non derivative that includes no
contractual obligation for the issuer to deliver a variable number of its own equity
instruments; or (ii) a derivative that will be settled only by the issuer exchanging a
fixed amount of cash or another financial asset for a fixed number of its own equity
instruments.91
The following are illustrations of how preferred shares should be presented and
disclosed:chanRoblesvirtualLawlibrary
Illustration - preference shares
If an entity issues preference (preferred) shares that pay a fixed rate of dividend
and that have a mandatory redemption feature at a future date, the substance is
that they are a contractual obligation to deliver cash and, therefore, should be
recognized as a liability. [IAS 32.18(a)] In contrast, preference shares that do not
have a fixed maturity, and where the issuer does not have a contractual obligation
to make any payment are equity. In this example even though both instruments
are legally termed preference shares they have different contractual terms and one
is a financial liability while the other is equity.
Illustration - issuance of fixed monetary amount of equity instruments

A contractual right or obligation to receive or deliver a number of its own shares or
other equity instruments that varies so that the fair value of the entity's own equity
instruments to be received or delivered equals the fixed monetary amount of the
contractual right or obligation is a financial liability. [IAS 32.20]
Illustration - one party bas a choice over bow an instrument is settled
When a derivative financial instrument gives one party a choice over how it is
settled (for instance, the issuer or the holder can choose settlement net in cash or
by exchanging shares for cash), it is a financial asset or a financial liability unless
all of the settlement alternatives would result in it being an equity instrument. [IAS
32.26]92
The fact that from an accounting standpoint, the substance or essence of the
financial instrument is the key determinant whether it should be categorized as a
financial liability or an equity instrument, there is no compelling reason why the
same treatment may not be recognized from a legal perspective. Thus, to require
Filipino shareholders to acquire preferred shares that are substantially debts, in
order to meet the "restrictive" Filipino ownership requirement that petitioners
espouse, may not bode well for the Philippine corporation and its Filipino
shareholders.
Parenthetically, given the innumerable permutations that the types and classes of
stocks may take, requiring the SEC and other government agencies to keep track of
the ever-changing capital classes of corporations will be impracticable, if not
downright impossible. And the law does not require the impossible. (Lex non cogit
ad impossibilia.)93
That stock corporations are allowed to create shares of different classes with
varying features is a flexibility that is granted, among others, for the corporation to
attract and generate capital (funds) from both local and foreign capital markets.
This access to capital - which a stock corporation may need for expansion, debt
relief/repayment, working capital requirement and other corporate pursuits - will be
greatly eroded with further unwarranted limitations that are not articulated in the
Constitution. The intricacies and delicate balance between debt instruments
(liabilities) and equity (capital) that stock corporations need to calibrate to fund
their business requirements and achieve their financial targets are better left to the
judgment of their boards and officers, whose bounden duty is to steer their
companies to financial stability and profitability and who are ultimately answerable
to their shareholders.
Going back to the illustration above, the restrictive meaning of the term "capital"
espoused by petitioners will definitely be complied with if 60% of each of the three
classes of shares of Company X, consisting of 100 common shares, 100 Class A
preferred shares (with right to elect directors) and 100 Class B preferred shares
(without right to elect directors), is owned by Filipinos. However, what if the 60%
Filipino ownership in each class of preferred shares, i.e., 60 Class A preferred
shares and 60 Class B preferred shares, is not fully subscribed or achieved because
there are not enough Filipino takers? Company X will be deprived of capital that
would otherwise be accessible to it were it not for this unwarranted "restrictive"
meaning of "capital".
The fact that all shares have the right to vote in 8 specific corporate actions as
provided in Section 6 of the Corporation Code does not per se justify the favorable
adoption of the restrictive re-interpretation of "capital" as the petitioners espouse.
As observed in the Gamboa Decision, viz: chanRoblesvirtualLawlibrary
The Corporation Code of the Philippines classifies shares as common or preferred,

thus:chanRoblesvirtualLawlibrary
Sec. 6. Classification of shares. The shares of stock of stock corporations may be

divided into classes or series of shares, or both, any of which classes or series of
shares may have such rights, privileges or restrictions as may be stated in the
articles of incorporation: Provided, That no share may be deprived of voting
rights except those classified and issued as "preferred" or "redeemable"
shares, unless otherwise provided in this Code: Provided, further, That there
shall always be a class or series of shares which have complete voting rights. Any
or all of the shares or series of shares may have a par value or have no par value
as may be provided for in the articles of incorporation: Provided, however, That
banks, trust companies, insurance companies, public utilities, and building and loan
associations shall not be permitted to issue no-par value shares of stock.
Preferred shares of stock issued by any corporation may be given preference in the
distribution of the assets of the corporation in case of liquidation and in the
distribution of dividends, or such other preferences as may be stated in the articles
of incorporation which are not violative of the provisions of this Code: Provided,
That preferred shares of stock may be issued only with a stated par value. The
Board of Directors, where authorized in the articles of incorporation, may fix the
terms and conditions of preferred shares of stock or any series thereof: Provided,
That such terms and conditions shall be effective upon the filing of a certificate
thereof with the Securities and Exchange Commission.
xxxx
A corporation may, furthermore, classify its shares for the purpose of insuring
compliance with constitutional or legal requirements.
Except as otherwise provided in the articles of incorporation and stated in the

certificate of stock, each share shall be equal in all respects to every other share.
Where the articles of incorporation provide for non voting shares in the cases
allowed by this Code, the holders of such shares shall nevertheless be entitled to
vote on the following matters: cralawlawlibrary
1. Amendment of the articles of incorporation; ChanRoblesVirtualawlibrary
2. Adoption and amendment of by-laws; ChanRoblesVirtualawlibrary

3. Sale, lease, exchange, mortgage, pledge or other disposition of all or
substantially all of the corporate property; ChanRoblesVirtualawlibrary
4. Incurring, creating or increasing bonded indebtedness; ChanRoblesVirtualawlibrary
5. Increase or decrease of capital stock; ChanRoblesVirtualawlibrary
6. Merger or consolidation of the corporation with another corporation or other

corporations;ChanRoblesVirtualawlibrary
7. Investment of corporate funds in another corporation or business in accordance

with this Code; and
8. Dissolution of the corporation.
Except as provided in the immediately preceding paragraph, the vote necessary to

approve a particular corporate act as provided in this Code shall be deemed to refer
only to stocks with voting rights.
Indisputably, one of the rights of a stockholder is the right to participate in the
control or management of the corporation. This is exercised through his vote in the
election of directors because it is the board of directors that controls or manages
the corporation. In the absence of provisions in the articles of incorporation denying
voting rights to preferred shares, preferred shares have the same voting rights as
common shares. However, preferred shareholders are often excluded from any
control, that is, deprived of the right to vote in the election of directors and on
other matters, on the theory that the preferred shareholders are merely investors
in the corporation for income in the same manner as bondholders. In fact, under
the Corporation Code only preferred or redeemable shares can be deprived of the
right to vote. Common shares cannot be deprived of the right to vote in any
corporate meeting, and any provision in the articles of incorporation restricting the
right of common shareholders to vote is invalid.
Considering that common shares have voting rights which translate to control, as
opposed to preferred shares which usually have no voting rights, the term "capital"
in Section 11, Article XII of the Constitution refers only to common shares.
However, if the preferred shares also have the right to vote in the election of
directors, then the term "capital" shall include such preferred shares because the
right to participate in the control or management of the corporation is exercised
through the right to vote in the election of directors. In short, the term "capital"
in Section 11, Article XII of the Constitution refers only to shares of stock
that can vote in the election of directors.
This interpretation is consistent with the intent of the framers of the Constitution to
place in the hands of Filipino citizens the control and management of public utilities.
As revealed in the deliberations of the Constitutional Commission, "capital" refers to
the voting stock or controlling interest of a corporation x x x.94
The Gamboa Decision held that preferred shares are to be factored in only if they
are entitled to vote in the election of directors. If preferred shares have no voting
rights, then they cannot elect members of the board of directors, which wields
control of the corporation. As to the right of non voting preferred shares to vote in
the 8 instances enumerated in Section 6 of the Corporation Code,
the Gamboa Decision considered them but, in the end, did not find them significant
in resolving the issue of the proper interpretation of the word "capital" in Section
11, Article XII of the Constitution.
Therefore, to now insist in the present case that preferred shares be regarded
differently from their unambiguous treatment in the Gamboa Decision is enough
proof that the Gamboa Decision, which had attained finality more than 4 years ago,
is being drastically changed or expanded.
In this regard, it should be noted that the 8 corporate matters enumerated in

Section 6 of the Corporation Code require, at the outset, a favorable
recommendation by the management to the board. As mandated by Section 11,
Article XII of the Constitution, all the executive and managing officers of a public
utility company must be Filipinos. Thus, the all-Filipino management team must
first be convinced that any of the 8 corporate actions in Section 6 will be to the best
interest of the company. Then, when the all-Filipino management team
recommends this to the board, a majority of the board has to approve the
recommendation and, as required by the Constitution, foreign participation in the
board cannot exceed 40% of the total number of board seats. Since the Filipino
directors comprise the majority, they, if united, do not even need the vote of the
foreign directors to approve the intended corporate act. After approval by the
board, all the shareholders (with and without voting rights) will vote on the
corporate action. The required vote in the shareholders' meeting is 2/3 of the
outstanding capital stock.95 Given the super majority vote requirement, foreign
shareholders cannot dictate upon their Filipino counterpart. However, foreigners (if
owning at least a third of the outstanding capital stock) must agree with Filipino
shareholders for the corporate action to be approved. The 2/3 voting requirement
applies to all corporations, given the significance of the 8 corporate actions
contemplated in Section 6 of the Corporation Code.
In short, if the Filipino officers, directors and shareholders will not approve of the
corporate act, the foreigners are helpless.
Allowing stockholders holding preferred shares without voting rights to vote in the 8
corporate matters enumerated in Section 6 is an acknowledgment of their right of
ownership. If the owners of preferred shares without right to vote/elect directors
are not allowed to vote in any of those 8 corporate actions, then they will not be
entitled to the appraisal right provided under Section 81 96 of the Corporation Code
in the event that they dissent in the corporate act. As required in Section 82, the
appraisal right can only be exercised by any stockholder who voted against the
proposed action. Thus, without recognizing the right of every stockholder to vote in
the 8 instances enumerated in Section 6, the stockholder cannot exercise his
appraisal right in case he votes against the corporate action. In simple terms, the
right to vote in the 8 instances enumerated in Section 6 is more in furtherance of
the stockholder's right of ownership rather than as a mode of control.
As to financial interest, giving short-lived preferred or superior terms to certain

classes or series of shares may be a welcome option to expand capital, without the
Filipino shareholders putting up additional substantial capital and/or losing
ownership and control of the company. For shareholders who are not keen on the
creation of those shares, they may opt to avail themselves of their appraisal right.
As acknowledged in the Gamboa Decision, preferred shareholders are merely
investors in the company for income in the same manner as bondholders. Without a
lucrative package, including an attractive return of investment, preferred shares will
not be subscribed and the much-needed additional capital will be elusive. A too
restrictive definition of "capital", one which was never contemplated in
the Gamboa Decision, will surely have a dampening effect on the business milieu by
eroding the flexibility inherent in the issuance of preferred shares with varying
terms and conditions. Consequently, the rights and prerogatives of the owners of
the corporation will be unwarrantedly stymied.
Moreover, the restrictive interpretation of the term "capital" would have a

tremendous impact on the country as a whole and to all Filipinos.
The PSE's Comment-in-Intervention dated June 16, 2014 97 warns that: chanRoblesvirtualLawlibrary
80. [R]edefining "capital" as used in Section 11, Article XII of the 1987 Constitution
and adopting the supposed "Effective Control Test" will lead to disastrous
consequences to the Philippine stock market.
81. Current data of the PSE show that, if the "Effective Control Test" were applied,
the total value of shares that would be deemed in excess of the foreign-ownership
limits based on stock prices as of 30 April 2014 is One Hundred Fifty Nine Billion
Six Hundred Thirty Eight Million Eight Hundred Forty Five Thousand Two
Hundred Six Pesos and Eighty Nine Cents (Php159,638,845,206.89).
82. The aforementioned value of investments would have to be discharged by

foreign holders, and consequently must be absorbed by Filipino investors. Needless
to state, the lack of investments may lead to shutdown of the affected enterprises
and to immeasurable consequences to the Philippine economy. 98
In its Omnibus Motion [1] For Leave to Intervene; and [2] To Admit Attached
Comment-in-Intervention dated May 30, 2016,99 SHAREPHIL further warns that
"[t]he restrictive re-interpretation of the term "capital" will result in massive forced
divestment of foreign stockholdings in Philippine corporations." 100 SHAREPHIL
explains:chanRoblesvirtualLawlibrary
4.51. On 16 October 2012, Deutsche Bank released a Market Research Study,

which analyzed the implications of the ruling in Gamboa. The Market Research
Study stated that: chanRoblesvirtualLawlibrary
"If this thinking is applied and becomes established precedent, it would significantly
expand on the rules for determining nationality in partially nationalized industries.
If that were to happen, not only will PLDT's move to issue the 150m voting prefs be
inadequate to address the issue, a large number of listed companies with similar
capital structures could also be affected."
4.52. In five (5) companies alone, One Hundred Fifty Eight Billion Pesos
(PhP158,000,000,000.00) worth of shares will have to be sold by foreign
shareholders in a forced divestment, if the obiter in Gamboa were to be
implemented. Foreign shareholders of PLDT will have to divest One Hundred Three
Billion Eight Hundred Sixty Million Pesos (PhP103,860,000,000.00) worth of shares.
a. Foreign shareholders of Globe Telecom will have to divest Thirty Eight

Billion Two Hundred Fifty Million Pesos (PhP38,250,000,000.00) worth
of shares.
b. Foreign shareholders of Ayala Land will have to divest Seventeen

Billion Five Hundred Fifty Million Pesos (PhP17,550,000,000.00) worth
of shares.
c. Foreign shareholders of ICTSI will have to divest Six Billion Four

Hundred Ninety Million Pesos (PhP6,490,000,000.00) worth of shares.
d. Foreign shareholders of MWC will have to divest Seven Billion Seven

Hundred Fourteen Million Pesos (PhP7,714,000,000.00) worth of
shares.
4.53. Clearly, the local stock market which has an average value turn-over of
Seven Billion Pesos cannot adequately absorb the influx of shares caused by the
forced divestment. As a result, foreign stockholders will have to sell these shares at
bargain prices just to comply with the Obiter.
4.54. These shares being part of the Philippine index, their forced divestment vis-a-
vis the inability of the local stock market to absorb these shares will necessarily
bring immense downward pressure on the index. A domino-effect implosion of the
Philippine stock market and the Philippine economy, in general is not remote. x x
x.101
Petitioners have failed to counter or refute these submissions of the PSE and
SHAREPHIL. These unrefuted observations indicate to the Court that a restrictive
interpretation - or rather, re-interpretation, of "capital", as already defined with
finality in the Gamboa Decision and Resolution - directly affects the well-being of
the country and cannot be labelled as "irrelevant and impertinent concerns x x x
add[ing] burden [to] the Court."102 These observations by the PSE103 and
SHAREPHIL,104 unless refuted, must be considered by the Court to be valid and
sound.
The Court in Abacus Securities Corp. v. Ampil105 observed that: "[s]tock market

transactions affect the general public and the national economy. The rise and fall of
stock market indices reflect to a considerable degree the state of the economy.
Trends in stock prices tend to herald changes in business conditions. Consequently,
securities transactions are impressed with public interest x x x."106 The importance
of the stock market in the economy cannot simply be glossed over.
In view of the foregoing, the pronouncement of the Court in the Gamboa Resolution

- the constitutional requirement to apply uniformly and across the board to all
classes of shares, regardless of nomenclature and category, comprising the capital
of a corporation107 - is clearly an obiter dictum that cannot override the Court's
unequivocal definition of the term "capital" in both the Gamboa Decision and
Resolution.
Nowhere in the discussion of the definition of the term "capital" in Section 11,
Article XII of the 1987 Constitution in the Gamboa Decision did the Court mention
the 60% Filipino equity requirement to be applied to each class of shares. The
definition of "Philippine national" in the FIA and expounded in its IRR, which the
Court adopted in its interpretation of the term "capital", does not support such
application. In fact, even the Final Word of the Gamboa Resolution does not even
intimate or suggest the need for a clarification or re-interpretation.
To revisit or even clarify the unequivocal definition of the term "capital" as referring
"only to shares of stock entitled to vote in the election of directors" and apply the
60% Filipino ownership requirement to each class of share is effectively and
unwarrantedly amending or changing the Gamboa Decision and Resolution.
The Gamboa Decision and Resolution Doctrine did NOT make any definitive ruling
that the 60% Filipino ownership requirement was intended to apply to each class of
share.
In Malayang Manggagawa ng Stayfast Phils., Inc. v. NLRC,108 the Court stated: chanRoblesvirtualLawlibrary
Where a petition for certiorari under Rule 65 of the Rules of Court alleges grave

abuse of discretion, the petitioner should establish that the respondent court
or tribunal acted in a capricious, whimsical, arbitrary or despotic manner in
the exercise of its jurisdiction as to be equivalent to lack of jurisdiction.
This is so because "grave abuse of discretion" is well-defined and not an amorphous
concept that may easily be manipulated to suit one's purpose. In this
connection, Yu v. Judge Reyes-Carpio, is instructive: chanRoblesvirtualLawlibrary
The term "grave abuse of discretion" has a specific meaning. An act of a court or
tribunal can only be considered as with grave abuse of discretion when such act is
done in a "capricious or whimsical exercise of judgment as is equivalent to lack of
jurisdiction." 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 and hostility." Furthermore, the
use of a petition for certiorari is restricted only to "truly extraordinary cases
wherein the act of the lower court or quasi-judicial body is wholly void." From the
foregoing definition, it is clear that the special civil action of certiorari under Rule 65
can only strike an act down for having been done with grave abuse of discretion if
the petitioner could manifestly show that such act was patent and gross. x
x x.
The onus rests on petitioners to clearly and sufficiently establish that the SEC, in
issuing SEC-MC No. 8, acted in a capricious, whimsical, arbitrary or despotic
manner in the exercise of its jurisdiction as to be equivalent to lack of jurisdiction or
that the SEC's abuse of discretion is 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 and the Gamboa Decision and
Resolution. Petitioners miserably failed in this respect.
The clear and unequivocal definition of "capital" in Gamboa has attained

finality.
It is an elementary principle in procedure that the resolution of the court in a given

issue as embodied in the dispositive portion or fallo of a decision controls the
settlement of rights of the parties and the questions, notwithstanding statement in
the body of the decision which may be somewhat confusing, inasmuch as the
dispositive part of a final decision is definite, clear and unequivocal and can be
wholly given effect without need of interpretation or construction. 109
As explained above, the fallo or decretal/dispositive portions of both

the Gamboa Decision and Resolution are definite, clear and unequivocaL While
there is a passage in the body of the Gamboa Resolution that might have appeared
contrary to the fallo of the Gamboa Decision - capitalized upon by petitioners to
espouse a restrictive re-interpretation of "capital" - the definiteness and clarity of
the fallo of the Gamboa Decision must control over the obiter dictum in
the Gamboa Resolution regarding the application of the 60-40 Filipino-foreign
ownership requirement to "each class of shares, regardless of differences in voting
rights, privileges and restrictions."
The final judgment as rendered is the judgment of the court irrespective of all
seemingly contrary statements in the decision because at the root of the doctrine
that the premises must yield to the conclusion is, side by side with the need of
writing finis to litigations, the recognition of the truth that "the trained intuition of
the judge continually leads him to right results for which he is puzzled to give
unimpeachable legal reasons."110
Petitioners cannot, after Gamboa has attained finality, seek a belated correction or

reconsideration of the Court's unequivocal definition of the term "capital". At the
core of the doctrine of finality of judgments is that public policy and sound practice
demand that, at the risk of occasional errors, judgments of courts should become
final at some definite date fixed by law and the very objects for which courts were
instituted was to put an end to controversies. 111 Indeed, the definition of the term
"capital" in the fallo of the Gamboa Decision has acquired finality.
Because the SEC acted pursuant to the Court's pronouncements in both

the Gamboa Decision and Gamboa Resolution, then it could not have gravely
abused its discretion. That portion found in the body of the Gamboa Resolution
which the petitioners rely upon is nothing more than an obiter dictum and the SEC
could not be expected to apply it as it was not - is not - a binding pronouncement
of the Court.112
Furthermore, as opined by Justice Bersamin during the deliberations, the doctrine
of immutability of judgment precludes the Court from re examining the definition of
"capital" under Section 11, Article XII of the Constitution. Under the doctrine of
finality and immutability of judgment, a decision that has acquired finality becomes
immutable and unalterable, and may no longer be modified in any respect, even if
the modification is meant to correct erroneous conclusions of fact and law, and
even if the modification is made by the court that rendered it or by the Highest
Court of the land. Any act that violates the principle must be immediately stricken
down.113 The petitions have not succeeded in pointing to any exceptions to the
doctrine of finality of judgments, under which the present case falls, to wit: (1) the
correction of clerical errors; (2) the so-called nunc pro tunc entries which cause no
prejudice to any party; (3) void judgments; and (4) whenever circumstances
transpire after the finality of the decision rendering its execution unjust and
inequitable.114
With the foregoing disquisition, the Court rules that SEC-MC No. 8 is not contrary
to the Court's definition and interpretation of the term "capital". Accordingly, the
petitions must be denied for failing to show grave abuse of discretion in the
issuance of SEC-MC No. 8.
The petitions are second motions for Reconsideration, which are

proscribed.
As Justice Bersamin further noted during the deliberations, the petitions are in
reality second motions for reconsideration prohibited by the Internal Rules of the
Supreme Court.115 The parties, particularly intervenors Gamboa, et al., could have
filed a motion for clarification in Gamboa in order to fill in the perceived
shortcoming occasioned by the non-inclusion in the dispositive portion of
the Gamboa Resolution of what was discussed in the body.116 The statement in
the fallo of the Gamboa Resolution to the effect that "[n]o further pleadings shall be
entertained" could not be a hindrance to a motion for clarification that sought an
unadulterated inquiry arising upon an ambiguity in the decision. 117
Closing
Ultimately, the key to nationalism is in the individual. Particularly for a public utility
corporation or association, whether stock or non-stock, it starts with the Filipino
shareholder or member who, together with other Filipino shareholders or members
wielding 60% voting power, elects the Filipino director who, in turn, together with
other Filipino directors comprising a majority of the board of directors or trustees,
appoints and employs the all-Filipino management team. This is what is envisioned
by the Constitution to assure effective control by Filipinos. If the safeguards,
which are already stringent, fail, i.e., a public utility corporation whose voting
stocks are beneficially owned by Filipinos, the majority of its directors are Filipinos,
and all its managing officers are Filipinos, is proalien (or worse, dummies), then
that is not the fault or failure of the Constitution. It is the breakdown of nationalism
in each of the Filipino shareholders, Filipino directors and Filipino officers of that
corporation. No Constitution, no decision of the Court, no legislation, no matter how
ultranationalistic they are, can guarantee nationalism.
WHEREFORE, premises considered, the Court DENIES the Petition and Petition-in-

Intervention.
SO ORDERED. ChanRoblesVirtualawlibrary
Philippine National Oil Company (PNOC) v. Keppel Philippines
Holdings, Inc., G.R. No. 202050, 25 July 2016
G.R. No. 202050, July 25, 2016
PHILIPPINE NATIONAL OIL COMPANY AND PNOC DOCKYARD &

ENGINEERING CORPORATION, Petitioners, v. KEPPEL PHILIPPINES
HOLDINGS, INC., Respondent.
DECISION
BRION, J.:
Before the Court is a petition for review on certiorari filed under Rule 45 of the
Rules of Court, appealing the decision dated 19 December 2011 1 and resolution
dated 14 May 20122 of the Court of Appeals (CA) in CA-G.R. CV No. 86830. These
assailed CA rulings affirmed in toto the decision dated 12 January 20063 of the
Regional Trial Court (RTQ of Batangas City, Branch 84, in Civil Case No. 7364.
THE FACTS
The 1976 Lease Agreement and Option to Purchase
Almost 40 years ago or on 6 August 1976, the respondent Keppel Philippines

Holdings, Inc.4 (Keppel) entered into a lease agreement5 (the agreement) with
Luzon Stevedoring Corporation (Lusteveco) covering 11 hectares of land located in
Bauan, Batangas. The lease was for a period of 25 years for a consideration of P2.1
million.6 At the option of Lusteveco, the rental fee could be totally or partially
converted into equity shares in Keppel.7 chanrobleslaw
At the end of the 25-year Jease period, Keppel was given the "firm and absolute
option to purchase8the land for P4.09 million, provided that it had acquired
the necessary qualification to own land under Philippine laws at the time
the option is exercised.9 Apparently, when the lease agreement was executed,
less than 60% of Keppel's shareholding was Filipino-owned, hence, it was not
constitutionally qualified to acquire private lands in the country. 10
chanrobleslaw
If, at the end of the 25-year lease period (or in 2001), Keppel remained unqualified
to own private lands, the agreement provided that the lease would be automatically
renewed for another 25 years.11 Keppel was further allowed to exercise the option
to purchase the land up to the 30th year of the lease (or in 2006), also on the
condition that, by then, it would have acquired the requisite qualification to own
land in the Philippines.12
chanrobleslaw
Together with Keppel's lease rights and option to purchase, Lusteveco warranted
not to sell the land or assign its rights to the land for the duration of the lease
unless with the prior written consent of Keppel.13 Accordingly, when the petitioner
Philippine National Oil Corporation14 (PNOC) acquired the land from Lusteveco and
took over the rights and obligations under the agreement, Keppel did not object to
the assignment so long as the agreement was annotated on PNOC's title. 15 With
PNOC's consent and cooperation, the agreement was recorded as Entry No. 65340
on PNOC's Transfer of Certificate of Title No. T-50724. 16 chanrobleslaw
The Case and the Lower Court Rulings
On 8 December 2000, Keppel wrote PNOC informing the latter that at least 60% of
its shares were now owned by Filipinos17 Consequently, Keppel expressed its
readiness to exercise its option to purchase the land. Keppel reiterated its demand
to purchase the land several times, but on every occasion, PNOC did not favourably
respond.18chanrobleslaw
To compel PNOC to comply with the Agreement, Keppel instituted a complaint for
specific performance with the RTC on 26 September 2003 against PNOC.19 PNOC
countered Keppel's claims by contending that the agreement was illegal for
circumventing the constitutional prohibition against aliens holding lands in the
Philippines.20 It further asserted that the option contract was void, as it was
unsupported by a separate valuable consideration.21 It also claimed that it was not
privy to the agreement.22 chanrobleslaw
After due proceedings, the RTC rendered a decision23in favour of Keppel and

ordered PNOC to execute a deed of absolute sale upon payment by Keppel of
the purchase price of P4.09 million.24 chanrobleslaw
PNOC elevated the case to the CA to appeal the RTC decision.25 Affirming the RTC cralawred
decision in toto, the CA upheld Keppel's right to acquire the land.26 It found

that since the option contract was embodied in the agreement - a reciprocal
contract - the consideration was the obligation that each of the contracting party
assumed.27 Since Keppel was already a Filipino-owned corporation, it satisfied the
condition that entitled it to purchase the land.28 chanrobleslaw
Failing to secure a reconsideration of the CA decision, 29 PNOC filed the present Rule
45 petition before this Court to assail the CA rulings.
THE PARTIES' ARGUMENTS and THE ISSUES
PNOC argues that the CA failed to resolve the constitutionality of the agreement. It
contends that the terms of the agreement amounted to a virtual sale of the land to
Keppel who, at the time of the agreement's enactment, was a foreign corporation
and, thus, violated the 1973 Constitution.
Specifically, PNOC refers to (a) the 25-year duration of the lease that was
automatically renewable for another 25 years30; (b) the option to purchase the land
for a nominal consideration of P100.00 if the option is exercised anytime between
the 25th and the 30th year of the lease31; and (c) the prohibition imposed on
Lusteveco to sell the land or assign its rights therein during the lifetime of the
lease.32 Taken together, PNOC submits that these provisions amounted to a virtual
transfer of ownership of the land to an alien which act the 1973 Constitution
prohibited.
PNOC claims that the agreement is no different from the lease contract in Philippine
Banking Corporation v. Lui She,33 which the Court struck down as unconstitutional.
In Lui She, the lease contract allowed the gradual divestment of ownership rights
by the Filipino owner-lessor in favour of the foreigner-lessee. 34 The arrangement in
Lui She was declared as a scheme designed to enable the parties to circumvent the
constitutional prohibition.35 PNOC posits that a similar intent is apparent from the
terms of the agreement with Keppel and accordingly should also be nullified. 36 chanrobleslaw
PNOC additionally contends the illegality of the option contract for lack of a
separate consideration, as required by Article 1479 of the Civil Code. 37 It claims
that the option contract is distinct from the main contract of lease and must be
supported by a consideration other than the rental fees provided in the
agreement.38 chanrobleslaw
On the other hand, Keppel maintains the validity of both the agreement and the
option contract it contains. It opposes the claim that there was "virtual sale" of the
land, noting that the option is subject to the condition that Keppel becomes
qualified to own private lands in the Philippines.39 This condition ripened in 2000,
when at least 60% of Keppel's equity became Filipino-owned.
Keppel contends that the agreement is not a scheme designed to circumvent the
constitutional prohibition. Lusteveco was not proscribed from alienating its
ownership rights over the land but was simply required to secure Keppel's prior
written consent.40 Indeed, Lusteveco was able to transfer its interest to PNOC
without any objection from Keppel.41 chanrobleslaw
Keppel also posits that the requirement of a separate consideration for an option to
purchase applies only when the option is granted in a separate contract. 42 In the
present case, the option is embodied in a reciprocal contract and, following the
Court's ruling in Vda. De Quirino v. Palarca,43 the option is supported by the same
consideration supporting the main contract.
From the parties' arguments, the following ISSUES emerge:
First, the constitutionality of the Agreement, i.e., whether the terms of the

chanRoblesvirtualLawlibrary
Agreement amounted to a virtual sale of the land to Keppel that was designed to
circumvent the constitutional prohibition on aliens owning lands in the Philippines.
Second, the validity of the option contract, i.e., whether the option to purchase the

land given to Keppel is supported by a separate valuable consideration.
If these issues are resolved in favour of Keppel, a third issue emerges - one that
was not considered by the lower courts, but is critical in terms of determining
Keppel's right to own and acquire full title to the land, i.e., whether Keppel's equity
ownership meets the 60% Filipino-owned capital requirement of trie Constitution, in
accordance with the Court's ruling in Gamboa v. Teves.44 chanrobleslaw
THE COURT'S RULING
I. The constitutionality of the Agreement
The Court affirms the constitutionality of the Agreement.
Preserving the ownership of land, whether public or private, in Filipino hands is the
policy consistently adopted in all three of our constitutions. 45 Under the
1935,46 1973,47 and 198748 Constitutions, no private land shall be transferred,
assigned, or conveyed except to individuals, corporations, or associations qualified
to acquire or hold lands of the public domain. Consequently, only Filipino citizens,
or corporations or associations whose capital is 60% owned by Filipinos citizens, are
constitutionally qualified to own private lands.
Upholding this nationalization policy, the Court has voided not only outright
conveyances of land to foreigners, 49: but also arrangements where the rights of
ownership were gradually transferred to foreigners. 50 In Lui Shui,51 we considered a
99-year lease agreement, which gave the foreigner-lessee the option to buy the
land and prohibited the Filipino owner-lessor from selling or otherwise disposing the
land, amounted to -
a virtual transfer of ownership whereby the owner divests himself in stages not
only of the right to enjoy the land (Jus possidendi, jus utendi, jus fruendi, and jus
abutendi) but also of the right to dispose of it (jus disponendi) — rights the sum
total of which make up ownership.52 [Emphasis supplied]
In the present case, PNOC submits that a similar scheme is apparent from the
agreement's terms, but a review of the overall circumstances leads us to reject
PNOC's claim.
The agreement was executed to enable Keppel to use the land for its shipbuilding
and ship repair business.53 The industrial/commercial purpose behind the
agreement differentiates the present case from Lui She where the leased property
was primarily devoted to residential use.54 Undoubtedly, the establishment and
operation of a shipyard business involve significant investments. Keppel's
uncontested testimony showed that it incurred P60 million costs solely for
preliminary activities to make the land suitable as a shipyard, and subsequently
introduced improvements worth P177 million.55 Taking these investments into
account and the nature of the business that Keppel conducts on the land, we find it
reasonable that the agreement's terms provided for an extended duration of the
lease and a restriction on the rights of Lusteveco.
We observe that, unlike in Lui She,56 Lusteveco was not completely denied its
ownership rights during the course of the lease. It could dispose of the lands or
assign its rights thereto, provided it secured Keppel's prior written consent. 57 That
Lusteveco was able to convey the land in favour of PNOC during the pendency of
the lease58 should negate a finding that the agreement's terms amounted to a
virtual transfer of ownership of the land to Keppel.
II. The validity of the option contract

II.A An option contract must be supported by a separate consideration that is either clearly
specified as such in the contract or duly proven by the offeree/promisee.
An option contract is defined in the second paragraph of Article 1479 of the Civil
Code: ChanRoblesVirtualawlibrary
Article 14791 x x x An accepted promise to buy or to sell a determinate thing for a

price certain is binding upon the promissor if the promise is supported by a
consideration distinct from the price.
An option contract is a contract where one person (the offeror/promissor) grants
to another person (the offeree/promisee) the right or privilege to buy (or to sell) a
determinate thing at a fixed price, if he or she chooses to do so within an agreed
period.59 chanrobleslaw
As a contract, it must necessarily have the essential elements of subject matter,

consent, and consideration.60 Although an option contract is deemed a preparatory
contract to the principal contract of sale,61 it is separate and distinct
therefrom,62 thus, its essential elements should be distinguished from those of a
sale.63 chanrobleslaw
In an option contract, the subject matter is the right or privilege to buy (or to

sell) a determinate thing for a price certain,64 while in a sales contract, the subject
matter is the determinate thing itself.65 The consent in an option contract is the
acceptance by the offeree of the offerer's promise to sell (or to buy) the
determinate thing, i.e., the offeree agrees to hold the right or privilege to buy (or
to sell) within a specified period. This acceptance is different from the acceptance of
the offer itself whereby the offeree asserts his or her right or privilege to buy (or to
sell), which constitutes as his or her consent to the sales contract.
The consideration in an option contract may be anything of value, unlike in a sale
where the purchase price must be in money or its equivalent. 66 There is sufficient
consideration for a promise if there is any benefit to the offeree or any detriment to
the offeror.67 chanrobleslaw
In the present case, PNOC claims the option contract is void for want of
consideration distinct from the purchase price for the land. 68 The option is
incorporated as paragraph 5 of the Agreement and reads as
5. If within the period of the first [25] years [Keppel] becomes qualified to own land
under the laws of the Philippines, it has the firm and absolute option to purchase
the above property for a total price of [P-4,090,000.00] at the end of the 25th
year, discounted at 16% annual for every year before the end of the 25th year,
which amount may be converted into equity of [Keppel] at book value prevailing at
the time of sale, or paid in cash at Lusteveco's option.
However, if after the first [25] years, [Keppel] is still not qualified to own land
under the laws of the Republic of the Philippines, [Keppel's] lease of the above
stated property shall be automatically renewed for another [25] years, under the
same terms and conditions save for the rental price which shall be for the sum of
P4,090,000.00... and which sum may be totally converted into equity of [Keppel] at
book value prevailing at the time of conversion, or paid in cash at Lusteveco's
option.
If anytime within the second [25] years up to the [30th] year from the date of this
agreement, [Keppel] becomes qualified to own land under the laws of the Republic
of the Philippines, [Keppel] has the firm and absolute option to buy and Lusteveco
hereby undertakes to sell the above stated property for the nominal consideration
of [P100.00.00]...69
Keppel counters that a separate consideration is not necessary to support its option
to buy because the option is one of the stipulations of the lease contract. It claims
that a separate consideration is required only when an option to buy is embodied in
an independent contract.70 It relies on Vda. de Quirino v. Palarca,71 where the Court
declared that the option to buy the leased property is supported by the same
consideration as that of the lease itself: "in reciprocal contracts [such as lease], the
obligation or promise of each party is the consideration for that of the other. 72chanrobleslaw
In considering Keppel's submission, we note that the Court's ruling in 1969 in Vda.
de Quirino v. Palarca has been taken out of context and erroneously applied in
subsequent cases. In 2004, through Bible Baptist Church v. CA73 we revisited Vda.
de Quirino v. Palarca and observed that the option to buy given to the lessee
Palarca by the lessor Quirino was in fact supported by a separate consideration:
Palarca paid a higher amount of rent and, in the event that he does not exercise the
option to buy the leased property, gave Quirino the option to buy the improvements
he introduced thereon. These additional concessions were separate from the
purchase price and deemed by the Court as sufficient consideration to support the
option contract.
Vda. de Quirino v. Palarca, therefore, should not be regarded as authority that the
mere inclusion of an option contract in a reciprocal lease contract provides it with
the requisite separate consideration for its validity. The reciprocal contract
should be closely scrutinized and assessed whether it contains additional
concessions that the parties intended to constitute as a consideration for
the option contract, separate from that of the purchase price.
In the present case, paragraph 5 of the agreement provided that should Keppel
exercise its option to buy, Lusteveco could opt to convert the purchase price into
equity in Keppel. May Lusteveco's option to convert the price for shares be deemed
as a sufficient separate consideration for Keppel's option to buy?
As earlier mentioned, the consideration for an option contract does not need to be
monetary and may be anything of value.74 However, when the consideration is
not monetary, the consideration must be clearly specified as such in the
option contract or clause.75 chanrobleslaw
In Villamor v. CA,76 the parties executed a deed expressly acknowledging that the

purchase price of P70.00 per square meter "was greatly higher than the actual
reasonable prevailing value of lands in that place at that time."77 The difference
between the purchase price and the prevailing value constituted as the
consideration for the option contract. Although the actual amount of the
consideration was not stated, it was ascertainable from the contract whose terms
evinced the parties' intent to constitute this amount as consideration for the option
contract.78 Thus, the Court upheld the validity of the option contract. 79 In the light
of the offeree's acceptance of the option, the Court further declared that a bilateral
contract to sell and buy was created and that the parties' respective obligations
became reciprocally demandable.80 chanrobleslaw
When the written agreement itself does not state the consideration for the
option contract, the offeree or promisee bears the burden of proving the
existence of a separate consideration for the option.81 The offeree cannot rely
on Article 1354 of the Civil Code,82 which presumes the existence of consideration,
since Article 1479 of the Civil Code is a specific provision on option contracts that
explicitly requires the existence of a consideration distinct from the purchase
price.83
chanrobleslaw
In the present case, none of the above rules were observed. We find nothing in
paragraph 5 of the Agreement indicating that the grant to Lusteveco of the option
to convert the purchase price for Keppel shares was intended by the parties as the
consideration for Keppel's option to buy the land; Keppel itself as the offeree
presented no evidence to support this finding. On the contrary, the option to
convert the purchase price for shares should be deemed part of the consideration
for the contract of sale itself, since the shares are merely an alternative to the
actual cash price.
There are, however cases where, despite the absence of an express intent in the
parties' agreements, the Court considered the additional concessions stipulated in
an agreement to constitute a sufficient separate consideration for the option
contract.
In Teodoro v. CA,84 the sub-lessee (Teodoro) who was given the option to buy the
land assumed .the obligation to pay not only her rent as sub-lessee, but also the
rent of the sub-lessor (Ariola) to the primary lessor (Manila Railroad Company).85 In
other words, Teodoro paid an amount over and above the amount due for her own
occupation of the property, and this amount was found by the Court as sufficient
consideration for the option contract.86 chanrobleslaw
In Dijamco v. CA,87 the spouses Dijamco failed to pay their loan with the bank,
allowing the latter to foreclose the mortgage.88 Since the spouses Dijamco did not
exercise their right to redeem, the bank consolidated its ownership over the
mortgaged property.89 The spouses Dijamco later proposed to purchase the same
property by paying a purchase price of P622,095.00 (equivalent to their principal
loan) and a monthly amount of P13,478.00 payable for 12 months (equivalent to
the interest on their principal loan). They further stated that should they fail to
make a monthly payment, the proposal should be automatically revoked and all
payments be treated as rentals for their continued use of the property. 90 The Court
treated the spouses Dijamco's proposal to purchase the property as an option
contract, and the consideration for which was the monthly interest
payments.91 Interestingly, this ruling was made despite the categorical stipulation
that the monthly interest payments should be treated as rent for the spouses
Dijamco's continued possession and use of the foreclosed property.
At the other end of the jurisprudential spectrum are cases where the Court refused
to consider the additional concessions stipulated in agreements as separate
consideration for the option contract.
In Bible Baptist Church v. CA,92 the lessee (Bible Baptist Church) paid in advance
P84,000.00 to the lessor in order to free the property from an encumbrance. The
lessee claimed that the advance payment constituted as the separate consideration
for its option to buy the property.93 The Court, however, disagreed noting that the
P84,000.00 paid in advance was eventually offset against the rent due for the first
year of the lease, "such that for the entire year from 1985 to 1986 the [Bible
Baptist Church] did not pay monthly rent."94 Hence, the Court refused to recognize
the existence of a valid option contract.95 chanrobleslaw
What Teodoro, Dijamco, and Bible Baptist Church show is that the determination of

whether the additional concessions in agreements are sufficient to support an
option contract, is fraught with danger; in ascertaining the parties' intent on this
matter, a court may read too much or too little from the facts before it.
For uniformity and consistency in contract interpretation, the better rule to follow is
that the consideration for the option contract should be clearly specified as
such in the option contract or clause. Otherwise, the offeree must bear the
burden of proving that a separate consideration for the option contract
exists.
Given our finding that the Agreement did not categorically refer to any
consideration to support Keppel's option to buy and for Keppel's failure to present
evidence in this regard, we cannot uphold the existence of an option contract in this
case.
II. An option, though unsupported by a separate consideration, remains an offer that, if
B. duly accepted, generates into a contract to sell where the parties' respective
obligations become reciprocally demandable
The absence of a consideration supporting the option contract, however, does not
invalidate an offer to buy (or to sell). An option unsupported by a separate
consideration stands as an unaccepted offer to buy (or to sell) which,
when properly accepted, ripens into a contract to sell. This is the rule
established by the Court en banc as early as 1958 in Atkins v. Cua Hian Tek,96 and
upheld in 1972 in Sanchez v. Rigos.97 chanrobleslaw
Sanchez v. Rigos reconciled the apparent conflict between Articles 1324 and 1479
of the Civil Code, which are quoted below: ChanRoblesVirtualawlibrary
Article 1324. When the offerer has allowed the offeree a certain period to accept,
the offer may be withdrawn at any time before acceptance by communicating such
withdrawal, except when the option is founded upon a consideration, as
something paid or promised.
Article 1479. A promise to buy and sell a determinate thing for a price certain is
reciprocally demandable.
An accepted unilateral promise to buy or to sell a determinate thing for a
price certain is binding upon the promissor if the promise is supported by a
consideration distinct from the price, [emphases supplied]
The Court en banc declared that there is no distinction between these two
provisions because the scenario contemplated in the second paragraph of
Article 1479 is the same as that in the last clause of Article 1324. 98 Instead of
finding a conflict, Sanchez v. Rigos harmonised the two provisions, consistent with
the established rules of statutory construction. 99chanrobleslaw
Thus, when an offer is supported by a separate consideration, a valid

option contract exists, i.e., there is a contracted offer100 which the offerer cannot
withdraw from without incurring liability in damages.
On the other hand, when the offer is not supported by a separate consideration, the
offer stands but, in the absence of a binding contract, the offeror may withdraw it
any time.101 In either case, once the acceptance of the offer is duly
communicated before the withdrawal of the offer, a bilateral contract to buy and
sell is generated which, in accordance with the first paragraph of Article 1479 of the
Civil Code, becomes reciprocally demandable.102 chanrobleslaw
Sanchez v. Rigos expressly overturned the 1955 case of Southwestern Sugar v.

AGPC,103 which declared that
a unilateral promise to buy or to sell, even if accepted, is only binding if supported
by a consideration... In other words, an accepted unilateral promise can only
have a binding effect if supported by a consideration, which means that the
option can still be withdrawn, even if accepted, if the same is not
supported by any consideration.104 [Emphasis supplied]
The Southwestern Sugar doctrine was based on the reasoning that Article 1479 of
the Civil Code is distinct from Article 1324 of the Civil Code and is a provision that
specifically governs options to buy (or to sell). 105 As mentioned, Sanchez v. Rigos
found no conflict between these two provisions and accordingly abandoned
the Southwestern Sugar doctrine.
Unfortunately, without expressly overturning or abandoning the Sanchez ruling,

subsequent cases reverted back to the Southwestern Sugar doctrine.106 In
2009, Eulogio v Apeles107 referred to Southwestern Sugar v. AGPC as the controlling
doctrine108 and, due to the lack of a separate consideration, refused to recognize
the option to buy as an offer that would have resulted in a sale given its timely
acceptance by the offeree. In 2010, Tuazon v. Del Rosario-Suarez109 referred
to Sanchez v. Rigos but erroneously cited as part of its ratio decidendi that portion
of the Southwestern Sugar doctrine that Sanchez had expressly abandoned. 110 chanrobleslaw
Given that! the issue raised in the present case involves the application of Article
1324 and 1479 of the Civil Code, it becomes imperative for the Court [en banc] to
clarify and declare here which between Sanchez and Southwestern Sugar is the
controlling doctrine.
The Constitution itself declares that "no doctrine or principle of law laid down by the
court in a decision rendered en banc or in division may be modified or reversed
except by the court sitting en banc.111Sanchez v. Rigos was an en banc decision
which was affirmed in 1994 in Asuncion v. CA,112 also an en banc decision, while the
decisions citing the Southwestern Sugar doctrine are all division cases.113 Based on
the constitutional rule (as well as the inherent logic in reconciling Civil Code
provisions), there should be no doubt that Sanchez v. Rigos remains as the
controlling doctrine.
Accordingly, when an option to buy or to sell is not supported by a consideration

separate from the purchase price, the option constitutes as an offer to buy or to
sell, which may be withdrawn by the offeror at any time prior to the communication
of the offeree's acceptance. When the offer is duly accepted, a mutual promise to
buy and to sell under the first paragraph of Article 1479 of the Civil Code ensues
and the parties' respective obligations become reciprocally demandable.
Applied to the present case, we find that the offer to buy the land was timely
accepted by Keppel.
As early as 1994, Keppel expressed its desire to exercise its option to buy the land.
Instead of rejecting outright Keppel's acceptance, PNOC referred the matter to the
Office of the Government Corporate Counsel (OGCC). In its Opinion No. 160, series
of 1994, the OGCC opined that Keppel "did not yet have the right to purchase the
Bauan lands."114 On account of the OGCC opinion, the PNOC did not agree with
Keppel's attempt to buy the land;115 nonetheless, the PNOC made no categorical
withdrawal of the offer to sell provided under the Agreement.
By 2000, Keppel had met the required Filipino equity proportion and duly
communicated its acceptance of the offer to buy to PNOC.116 Keppel met with the
board of directors and officials of PNOC who interposed no objection to the
sale.117 It was only when the amount of purchase price was raised that the conflict
between the parties arose,118 with PNOC backtracking in its position and questioning
the validity of the option.119 chanrobleslaw
Thus, when Keppel communicated its acceptance, the offer to purchase the Bauan
land stood, not having been withdrawn by PNOC. The offer having been duly
accepted, a contract to sell the land ensued which Keppel can rightfully
demand PNOC to comply with.
III. Keppel's constitutional right to acquire full title to the land
Filipinization is the spirit that pervades the constitutional provisions on national
patrimony and economy. The Constitution has reserved the ownership of public and
private lands,120 the ownership and operation of public utilities, 121 and certain areas
of investment122 to Filipino citizens, associations, and corporations. To qualify, sixty
per cent (60%) of the association or corporation's capital must be owned by Filipino
citizens. Although the 60% Filipino equity proportion has been adopted in our
Constitution since 1935, it was only in 2011 that the Court interpreted what the
term capital constituted.
In Gamboa v. Teves,123 the Court declared that the "legal and beneficial

ownership of 60 percent of the outstanding capital stock must rest in the hands of
Filipino nationals." 124 Clarifying the ruling, the Court decreed that the 60% Filipino
ownership requirement applies separately to each class of shares, whether
with or without voting rights,125 thus:ChanRoblesVirtualawlibrary
Applying uniformly the 60-40 ownership requirement in favour of Filipino citizens to

each class of shares, regardless of differences in voting rights, privileges and
restrictions, guarantees effective Filipino control of public utilities, as mandated by
the Constitution.126
Although the ruling was made in the context of ownership and operation of public
utilities, the same should be applied to the ownership of public and private lands,
since the same proportion of Filipino ownership is required and the same nationalist
policy pervades.
The uncontested fact is that, as of November 2000, Keppel's capital is 60% Filipino-
owned.127 However, there is nothing in the records showing the nature and
composition of Keppel's shareholdings, i.e., whether its shareholdings are divided
into different classes, and 60% of each share class is legally and beneficially owned
by Filipinos - understandably because when Keppel exercised its option to buy the
land in 2000, the Gamboa ruling had not yet been promulgated. The Court cannot
deny Keppel its option to buy the land by retroactively applying the Gamboa ruling
without violating Keppel's vested right. Thus, Keppel's failure to prove the nature
and composition of its shareholdings in 2000 could not prevent it from validly
exercising its option to buy the land.
Nonetheless, the Court cannot completely disregard the effect of

the Gamboa ruling; the 60% Filipino equity proportion is a continuing requirement
to hold land in the Philippines. Even in Gamboa, the Court prospectively applied its
ruling, thus enabling the public utilities to meet the nationality requirement before
the Securities and Exchange Commission commences administrative investigation
and cases, and imposes sanctions for noncompliance on erring corporations. 128 In
this case, Keppel must be allowed to prove whether it meets the required Filipino
equity ownership and proportion in accordance with the Gamboa ruling before it can
acquire full title to the land.
In view of the foregoing, the Court AFFIRMS the decision dated 19 December 2011

and the resolution dated 14 May 2012 of the CA in CA-G.R. CV No. 86830 insofar as
these rulings uphold the respondent Keppel Philippines Holdings, Inc.'s option to
buy the land, and REMANDS the case to the Regional Trial Court of Batangas City,
Branch 84, for the determination of whether the respondent Keppel Philippines
Holdings, Inc. meets the required Filipino equity ownership and proportion in
accordance with the Court's ruling in Gamboa v. Teves, to allow it to acquire full
title to the land.
SO ORDERED. chanRoblesvirtualLawlibrary
Council of Teachers and Staff of Colleges and Universities of the
Philippines (CoTeSCUP) v. Secretary of Education, G.R. No. 216930,
October 09, 2018
G.R. No. 216930, October 09, 2018
COUNCIL OF TEACHERS AND STAFF OF COLLEGES AND UNIVERSITIES OF

THE PHILIPPINES (CoTeSCUP), SENTRO NG MGA NAGKAKAISANG
PROGRESIBONG MGA MANGGAGAWA (SENTRO), FEDERATION OF FREE
WORKERS (FFW), NATIONAL CONFEDERATION OF LABOR (NCL), PUBLIC
SERVICES LABOR INDEPENDENT CONFEDERATION (PSLINK), PARTIDO
MANGGAGAWA (PM), ADAMSON UNIVERSITY FACULTY AND EMPLOYEES
ASSOCIATION, FACULTY ALLIED AND WORKER UNION OF CENTRO
ESCOLAR UNIVERSITY, FACULTY ASSOCIATION MAPUA INSTITUTE OF
TECHNOLOGY, FAR EASTERN UNIVERSITY FACULTY ASSOCIATION, HOLY
ANGEL UNIVERSITY TEACHERS AND EMPLOYEES UNION, LYCEUM FACULTY
ASSOCIATION, SAN BEDA COLLEGE ALABANG EMPLOYEES ASSOCIATION,
SILIMAN UNIVERSITY FACULTY ASSOCIATION, UNIVERSITY OF THE EAST
RAMON MAGSAYSAY EMPLOYEES ASSOCIATION-FFW (UERMEA-FFW),
UNION OF FACULTY AND EMPLOYEES OF ST. LOUIS UNIVERSITY,
UNIVERSITY OF SANTO TOMAS FACULTY UNION, PROF. FLORDELIZ
ABANTO (IN HER CAPACITY AS VICE PRESIDENT OF ST. SCHOLASTICA'S
COLLEGE FACULTY ASSOCIATION), PROF. REBECCA T. AÑONUEVO (IN HER
CAPACITY AS PRESIDENT OF MIRIAM COLLEGE FACULTY ASSOCIATION),
PROF. MARIA RITA REYES CUCIO (IN HER CAPACITY AS FACULTY OF SAN
BEDA COLLEGE), AND MR. JOMEL B. GENERAL (IN HIS CAPACITY AS
EMPLOYEE OF PHILIPPINE SCHOOL OF BUSINESS ADMINISTRATION AND
OFFICER OF THE FFW), Petitioners, v. SECRETARY OF EDUCATION,
SECRETARY OF LABOR AND EMPLOYMENT, CHAIRPERSON OF THE
COMMISSION ON HIGHER EDUCATION, SECRETARY OF THE TECHNICAL
EDUCATION AND SKILLS DEVELOPMENT AUTHORITY, SECRETARY GENERAL
OF THE HOUSE OF REPRESENTATIVES, AND MIRIAM COLLEGE, Respondents.
[G.R. NO. 217451, October 9, 2018]
DR. BIENVENIDO LUMBERA (PAMBANSANG ALAGAD NG SINING AT

PROFESSOR EMERITUS, UNIVERSITY OF THE PHILIPPINES/UP); CONG.
ANTONIO TINIO (ACT TEACHERS' PARTYLIST); CONG. FERNANDO "KA
PANDO" HICAP (ANAKPAWIS PARTYLIST AT TAGAPANGULO NG
PAMALAKAYA); CONG. JAMES MARK TERRY RIDON (KABATAAN
PARTYLIST); DR. RHODERICK NUNCIO (VICE-DEAN, NG KOLEHIYO NG
MALALAYANG SINING, DE LA SALLE UNIVERSITY/DLSU); PROP. AURA
ABIERA (TAGAPANGULO NG DEPARTAMENTO NG FILIPINO AT PANITIKAN
NG PILIPINAS SA UNIVERSITY OF THE PHILIPPINES-DILIMAN); DR.
ERNESTO CARANDANG II (TAGAPANGULO NG DEPARTAMENTO NG
FILIPINO, DE LA SALLE UNIVERSITY-MANILA); DR. ROBERTO AMPIL
(TAGAPANGULO NG DEPARTAMENTO NG FILIPINO NG UNIVERSITY OF
SANTO TOMAS); PROP. MARVIN LAI (TAGAPANGULO NG DEPARTAMENTO
NG FILIPINOLOHIYA NG POLYTECHNIC UNIVERSITY OF THE
PHILIPPINES/PUP); PROP. NELSON RAMIREZ (TAGAPANGULO NG
DEPARTAMENTO NG FILIPINO, UNIVERSITY OF THE EAST/UE-MANILA);
DR. ESTER RADA (TAGAPANGULO NG KAGAWARAN NG FILIPINO, SAN
BEDA COLLEGE-MANILA); PROP. JORGE PACIFICO CUIBILLAS
(TAGAPANGULO NG DEPARTAMENTO NG FILIPINO, FAR EASTERN
UNIVERSITY-MANILA); PROP. ANDREW PADERNAL (TAGAPANGULO NG
KAGAWARAN NG FILIPINO, PAMANTASAN NG LUNGSOD NG PASIG/PLP);
PROP. MICHAEL DOMINGO PANTE (FACULTY MEMBER SA HISTORY
DEPARTMENT, ATENEO DE MANILA UNIVERSITY); BENJAMIN VALBUENA
(TAGAPANGULO NG ALLIANCE OF CONCERNED TEACHERS/ACT-
PHILIPPINES); DR. PRISCILLA AMPUAN (PANGULO NG QUEZON CITY
PUBLIC SCHOOL TEACHERS' ASSOCIATION/QCPSTA); PROP. CARL MARC
RAMOTA (PANGULO NG ALLIANCE OF CONCERNED TEACHERS-STATE
UNIVERSITIES AND COLLEGES/ACTSUC); DR. ROWELL MADULA (PANGULO
NG ALLIANCE OF CONCERNED TEACHERS-PRIVATE SCHOOLS/ACT-
PRIVATE); DR. AURORA BATNAG (PANGULO NG PAMBANSANG SAMAHAN
SA LINGGWISTIKA AT LITERATURANG FILIPINO/PSLLF); DR. JUDY
TAGUIWALO (FULL PROFESSOR SA COLLEGE OF SOCIAL WORK AND
COMMUNITY DEVELOPMENT, UP DILIMAN); DR. DANILO ARAO (ASSOCIATE
PROFESSOR SA DEPARTMENT OF JOURNALISM, COLLEGE OF MASS
COMMUNICATION, UP DILIMAN); DR. DAVID MICHAEL SAN JUAN
(EXECUTIVE COUNCIL MEMBER NG NATIONAL COMMISSION FOR CULTURE
AND THE ARTS-NATIONAL COMMITTEE ON LANGUAGE AND
TRANSLATION/NCCANCLT); RONNEL B. AGONCILLO JR., (PANGULO NG
PHILIPPINE NORMAL UNIVERSITY/PNU-STUDENT GOVERNMENT); DR.
REUEL MOLINA AGUILA (PALANCA HALL OF FAMER AT TAGAPAYO NG
KATAGASAMAHAN NG MGA MANUNULAT SA PILIPINAS); ERICSON ACOSTA
(MANUNULAT AT DATING BILANGGONG POLITIKAL, AT KASAPI NG
ANAKPAWIS PARTYLIST); PROP. ADRIAN BALAGOT (DIREKTOR NG CENTER
FOR CONTINUING EDUCATION, PAMANTASAN NG LUNGSOD NG
MARIKINA/PLMar); PROP. PENAFRANCIA RANIELA BARRAZA (ASSOCIATE
PROFESSOR, DEPARTAMENTO NG FILIPINO AT PANITIKAN NG PILIPINAS,
UNIVERSITY OF THE PHILIPPINES-DILIMAN); PROP. HERMAN MANALO
BOGNOT (FACULTY MEMBER SA DEPARTMENT OF EUROPEAN LANGUAGES,
UNIVERSITY OF THE PHILIPPINES); PROP. LAURENCE MARVIN CASTILLO
(INSTRUCTOR SA DEPARTMENT OF HUMANITIES, UNIVERSITY OF THE
PHILIPPINES-LOS BAÑOS); DR. ANTONIO CONTRERAS (FULL PROFESSOR
SA POLITICAL SCIENCE DEPARTMENT, DE LA SALLE UNIVERSITY/DLSU);
PROP. RAMILITO CORREA (PANGULO NG SANGGUNIAN SA
FILIPINO/SANGFIL); GEROME NICOLAS DELA PEÑA (PANGULO NG
SAMAHAN NG MGA MAG-AARAL SA ASIGNATURANG FILIPINO, SAMFIL-
PAMANTASAN NG LUNGSOD NG PASIG/PLP); PROP. WENNIELYN FAJILAN
(FACULTY MEMBER NG DEPARTAMENTO NG FILIPINO, UNIVERSITY OF
SANTO TOMAS); FLODY FERNANDEZ (PANGULO NG RAMON MAGSAYSAY
HIGH SCHOOL (CUBAO) FACULTY CLUB); PROP. SANTIAGO FLORA (VICE-
PRESIDENT FOR OPERATIONS NG QUEZON CITY POLYTECHNIC
UNIVERSITY); PROP. MELANIA FLORES (NATIONAL PRO NG ALL UP
ACADEMIC EMPLOYEES' UNION, UNIVERSITY OF THE PHILIPPINES/UP);
DR. LAKANDUPIL GARCIA (FULL PROFESSOR NG DEPARTAMENTO NG
FILIPINO, DE LA SALLE UNIVERSITY-DASMARIÑAS); DR. FANNY GARCIA
(PALANCA AWARDEE AT FACULTY MEMBER NG DEPARTAMENTO NG
FILIPINO, DE LA SALLE UNIVERSITY/DLSU); PROP. JONATHAN GERONIMO
(COORDINATOR NG KATAGA-MANILA UNIVERSITY OF SANTO
TOMAS/UST); PROP. VLADIMEIR GONZALES (ASSISTANT PROFESSOR SA
DEPARTAMENTO NG FILIPINO AT PANITIKAN NG PILIPINAS-UNIVERSITY
OF THE PHILIPPINES-DILIMAN); PROP. FERDINAND PISIGAN JARIN
(PALANCA AWARDEE AT PANGULO NG KATAGA-SAMAHAN NG MGA
MANUNULAT SA PILIPINAS); JOHN ROBERT MAGSOMBOL (PANGULO NG
UNIVERSITY OF SANTO TOMAS-PANULAT); PROP. JOEL MALABANAN
(TAGAPAYO NG KAPISANANG DIWA AT PANITIK/KADIPAN SA PHILIPPINE
NORMAL UNIVERSITY/PNU); PROP. DENNIS MANGUBAT (FACULTY
MEMBER NG DEPARTAMENTO NG FILIPINO NG SAN BEDA COLLEGE-
MANILA); PROP. JOANNE MANZANO (FACULTY MEMBER NG
DEPARTAMENTO NG FILIPINO AT PANITIKAN NG PILIPINAS-UNIVERSITY
OF THE PHILIPPINES-DILIMAN); PROP. BERNADETTE NERI (ASSISTANT
PROFESSOR SA DEPARTAMENTO NG FILIPINO AT PANITIKAN NG
PILIPINAS, UNIVERSITY OF THE PHILIPPINES-DILIMAN); RAYMOND
PALATINO (TAGAPANGULO NG BAGONG ALYANSANG MAKABAYAN/BAYAN-
NATIONAL CAPITAL REGION); PROP. APRIL PEREZ (ASSISTANT
PROFESSOR SA DEPARTAMENTO NG FILIPINO AT PANITIKAN NG
PILIPINAS, UNIVERSITY OF THE PHILIPPINES-DILIMAN); PROP. JAYSON
PETRAS (DEPUTY DIRECTOR NG INSTITUTE OF CREATIVE WRITING,
UNIVERSITY OF THE PHILIPPINESDILIMAN); PROP. CRIZEL SICAT-DE
LAZA (KATUWANG NG KALIHIM NG SANGGUNIAN NG FILIPINO/SANGFIL
AT FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO NG UNIVERSITY OF
SANTO TOMAS/UST); PROP. DENNIS JOSEPH RAYMUNDO (FACULTY
MEMBER NG KALAYAAN COLLEGE); DR. BEVERLY SARZA (FACULTY MEMBER
NG PHILOSOPHY DEPARTMENT, DE LA SALLE UNIVERSITY-MANILA); DR.
RAQUEL SISON-BUBAN (ASSOCIATE PROFESSOR SA DEPARTAMENTO NG
FILIPINO NG DE LA SALLE UNIVERSITY-MANILA); PROP. VIVENCIO M.
TALEGON, JR. (FULL-TIME FACULTY SA UNIVERSITY OF ASIA AND THE
PACIFIC, ORTIGAS CENTER, PASIG); ISAAC ALI TAPAR (PANGULO NG
MANILA SCIENCE HIGH SCHOOL FACULTY ASSOCIATION); DR. DOLORES
TAYLAN (ASSOCIATE PROFESSOR SA DEPARTAMENTO NG FILIPINO, DE LA
SALLE UNIVERSITY-MANILA); DR. ALITA TEPACE (PROPESOR SA
PHILIPPINE NORMAL UNIVERSITY-MANILA); PROP. OM NARAYAN
VELASCO (INSTRUCTOR SA UNIVERSITY OF THE PHILIPPINES-LOS
BAÑOS); ANDREA JEAN YASOÑA (PANGULO NG KAPISANANG DIWA AT
PANITIK-PNU); PROP. REYNELE BREN ZAFRA (FACULTY MEMBER NG
DEPARTAMENTO NG FILIPINO NG UNIVERSITY OF SANTO TOMAS); DR.
RUBY ALUNEN (FACULTY MEMBER NG DEPARTAMENTO NG FILIPINO NG DE
LA SALLE UNIVERSITY-MANILA); PROP. BAYANI SANTOS, JR. (FACULTY
MEMBER NG DEPARTAMENTO NG FILIPINO NG MANUEL LUIS QUEZON
UNIVERSITY/MLQU); PROP. CHRISTO REY ALBASON (GURO SA SINING NG
BAYAN/GUSI); PROP. LILIBETH OBLENA-QUIORE (FACULTY MEMBER NG
DEPARTAMENTO NG FILIPINO NG DE LA SALLE UNIVERSITY-MANILA);
PROP. DANIM MAJERANO (DIREKTOR NG PANANALIKSIK AT EDUKASYON,
SAMAHANG SALIKSIK PASIG, INC.); RUSTUM CASIA (KM 64 POETRY
COLLECTIVE); CHARISSE BERNADINE BAÑEZ (TAGAPAGSALITA NG LEAGUE
OF FILIPINO STUDENTS/LFS); DR. JENNIFOR AGUILAR (CHAIRPERSON NG
DEPARTMENT OF ELEMENTARY AND SECONDARY EDUCATION NG
POLYTECHNIC UNIVERSITY OF THE PHILIPPINES/PUP); PROP. MOREAL
NAGARIT CAMBA (TAGAPANGULO NG DEPARTAMENTO NG FILIPINO,
UNIVERSITY OF ASIA AND THE PACIFIC - PASIG); PROP. CLEVE
ARGUELLES (CHAIRPERSON NG POLITICAL SCIENCE PROGRAM,
DEPARTMENT OF SOCIAL SCIENCES, UNIVERSITY OF THE PHILIPPINES-
MANILA); DR. MARIA LUCILLE ROXAS (FACULTY MEMBER SA
PROP. VOLTAIRE VILLANUEVA (FACULTY MEMBER SA PHILIPPINE NORMAL
UNIVERSITY); DR. JOSEFINA MANGAHIS (FACULTY MEMBER SA
PROP. EMMA SISON (FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO
NG DE LA SALLE UNIVERSITY-MANILA); AYLEEN ORTIZ (MANUNULAT);
PROP. EFREN DOMINGO (FACULTY MEMBER SA DEPARTAMENTO NG
FILIPINO NG DE LA SALLE UNIVERSITYMANILA); PROP. LESLIE ANNE
LIWANAG (FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO NG DE LA
SALLE UNIVERSITY-MANILA); DR. LAKANGITING GARCIA (FACULTY
MEMBER SA DEPARTAMENTO NG FILIPINO NG DE LA SALLE UNIVERSITY-
MANILA); PROP. MIRYLLE CALINDRO (FACULTY MEMBER SA
DEPARTAMENTO NG FILIPINO NG DE LA SALLE UNIVERSITY-MANILA); DR.
LAKANDUPIL GARCIA (FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO
NG DE LA SALLE UNIVERSITYDASMARIÑAS); DR. DEXTER CAYANES
(FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO NG DE LA SALLE
UNIVERSITY-MANILA); DR. TERESITA FORTUNATO (FACULTY MEMBER SA
DEPARTAMENTO NG FILIPINO NG DE LA SALLE UNIVERSITY-MANILA); DR.
MA. RITA ARANDA (FACULTY MEMBER SA DEPARTAMENTO NG FILIPINO NG
DE LA SALLE UNIVERSITYMANILA); DR. EMMA BASCO (FACULTY MEMBER
SA DEPARTAMENTO NG FILIPINO NG DE LA SALLE UNIVERSITY-
MANILA), Petitioners. v. PANGULONG BENIGNO SIMEON "NOYNOY" C.
AQUINO III, AT PUNONG KOMISYUNER NG KOMISYON SA LALONG MATAAS
NA EDUKASYON/COMMISSION ON HIGHER EDUCATION (CHED) DR.
PATRICIA LICUANAN, Respondents.
[G.R. NO. 217752, October 9, 2018]
ANTONIO "SONNY" F. TRILLANES IV, GARY C. ALEJANO AND FRANCISCO

ASHLEY L. ACEDILLO, Petitioners, v. HON. PAQUITO N. OCHOA, JR., IN HIS
CAPACITY AS EXECUTIVE SECRETARY, HON. ARMIN A. LUISTRO, IN HIS
CAPACITY AS SECRETARY OF EDUCATION AND THE DEPARTMENT OF
EDUCATION, Respondents.
[G.R. NO. 218045, October 9, 2018]
EDUARDO R. ALICIAS, JR. AND AURELIO P. RAMOS,

JR., Petitioners, v. DEPARTMENT OF EDUCATION (DepEd) AND THE
SECRETARY OF THE DepEd, Respondents.
[G.R. NO. 218098, October 9, 2018]
RICHARD TROY A COLMENARES, RENE LUIS M. TADLE, ERLINDA C.

PALAGANAS, RUTH THELMA P. TINGDA, RONALD TAGGAOA, JOSEPH
PORFIRIO ANDAYA, FLORANTE DULACA, FROILAN A. ALIPAO; KATHLEA
FRANCYNN GAWANI D. YAÑGOT, MIEL ALEXANDRE A. TAGGAOA, AGATHA
ZITA DISTOR, ISABELLE C. UMINGA, ALDWIN GABRIEL M. PINAS, ATREENA
MARIE DULAY, ZION GABRIEL SANTOS, SIBLINGS BRENNAN KEANE, BREN
KIMI, AND BASLEY KICH, ALL SURNAMED DELA CRUZ, JASSEL ANGELO
ENRIQUEZ, SIBLINGS GYRO MATTHEW AND MARGA RAUXIELLE AGLAIA,
BOTH SURNAMED GUEVARRA, SIBLINGS ALTHEA, ALEXA, AND AMANDA,
ALL SURNAMED ABEJO, AND ELEANNIE JERECE S. CAWIS, REPRESENTED
BY THEIR PARENTS LEANDRO B. YAÑGOT, JR., JENNIFER A. TAGGAOA,
MILO DISTOR, JOSE MARI UMINGA, GABRIEL PAUL PINAS, SOFRONIO
DULAY, LUZ A. SANTOS, BARBY M. DELA CRUZ, RUBY G. ENRIQUEZ,
ROWENA C. GUEVARRA, MARISEL P. ABEJO, AND VITTORIO JERICO L.
CAWIS, RESPECTIVELY, FOR THEMSELVES AND THE CLASS THEY
REPRESENT; REVENENDO R. VARGAS, ANNIELA R. YU-SOLIVEN, VILMA C.
BENIGNO, MARIA CRISTINA F. DUNGCA, LIZA DAOANIS, ROMMEL M.
FRANCISCO, FELIZA G. AGUSTIN, EMELITA C. VIDAL, ROMMEL D.
RAMISCAL, JOCELYN ELEAZAR DE GUZMAN, ANDREA P. VILLALON, AND
JOYCE FE T. ALMENARIO, FOR THEMSELVES AND THE CLASS THEY
REPRESENT, Petitioners, v. DEPARTMENT OF EDUCATION SECRETARY ARMIN
A. LUISTRO, COMMISSION ON HIGHER EDUCATION CHAIRPERSON
PATRICIA B. LICUANAN, TECHNICAL SKILLS AND DEVELOPMENT
AUTHORITY DIRECTOR-GENERAL JOEL J. VILLANUEVA, DEPARTMENT OF
LABOR AND EMPLOYMENT SECRETARY ROSALINDA D. BALDOZ,
DEPARTMENT OF FINANCE SECRETARY CESAR V. PURISIMA, SENATE
PRESIDENT FRANKLIN M. DRILON, AND HOUSE OF REPRESENTATIVES
SPEAKER FELICIANO R. BELMONTE, Respondents.
[G.R. NO. 218123, October 9, 2018]
CONG. ANTONIO TINIO (REPRESENTATIVE, ACT TEACHERS PARTY-LIST);

CONG. NERI COLMENARES (REPRESENTATIVE, BAYAN MUNA PARTY-LIST);
DR. BIENVENIDO LUMBERA (NATIONAL ARTIST FOR LITERATURE AND
PROFESSOR EMERITUS, UP); CONG. CARLOS ZARATE (REPRESENTATIVE,
BAYAN MUNA PARTY-LIST); CONG. FERNANDO "KA PANDO" HICAP
(REPRESENTATIVE, ANAKPAWIS PARTY-LIST; CHAIRPERSON,
PAMALAKAYA); CONG. LUZVIMINDA ILAGAN (REPRESENTATIVE, GABRIELA
WOMEN'S PARTY); CONG. EMMI DE JESUS (REPRESENTATIVE, GABRIELA
PARTY-LIST); CONG. TERRY RIDON (REPRESENTATIVE, KABATAAN PARTY-
LIST); RENATO REYES, JR. (SECRETARY-GENERAL, BAGONG ALYANSANG
MAKABAYAN/ BAYAN AND PARENT OF AN ELEMENTARY STUDENT);
BENJAMIN VALBUENA (CHAIRPERSON, ALLIANCE OF CONCERNED
TEACHERS-PHILIPPINES); MARTIN DIÑO (CHAIRPERSON OF THE
VOLUNTEERS AGAINST CRIME AND CORRUPTION); JOVITA MONTES
(SPOKESPERSON, PARENTS' MOVEMENT AGAINST K TO 12); KHARLO
FELIPE MANANO (SECRETARY-GENERAL, SALINLAHI ALLIANCE FOR
CHILDREN'S CONCERNS); GERTRUDES LIBANG, (NATIONAL VICE-
CHAIRPERSON, GABRIELA); RONEL AGONCILLO (STUDENT REGENT, PNU);
VENCER MARIE CRISOSTOMO (NATIONAL CHAIRPERSON, ANAKBAYAN);
CHARISSE BERNADINE BAÑEZ (NATIONAL SPOKESPERSON, LEAGUE OF
FILIPINO STUDENTS/LFS); EINSTEIN RECEDES (NATIONAL CHAIRPERSON
STUDENT CHRISTIAN MOVEMENT OF THE PHILIPPINES); MICHAEL
BELTRAN (NATIONAL SPOKESPERSON, KABATAANG ARTISTA PARA SA
TUNAY NA KALAYAAN); SARAH JANE ELAGO (NATIONAL PRESIDENT,
NATIONAL UNION OF STUDENTS OF THE PHILIPPINES); MARC LINO ABILA
(NATIONAL PRESIDENT, COLLEGE EDITORS GUILD OF THE PHILIPPINES);
VANESSA FAYE BOLIBOL (CONVENOR, STOP K TO 12); DR. ROLANDO
TOLENTINO (DEAN, COLLEGE OF MASS COMMUNICATION, UP); DR.
FEDELIZ TUY (ASSOCIATE VICE DEAN, COLLEGE OF ARTS AND SCIENCES,
SBC MANILA); DR. ERNESTO CARANDANG II (CHAIRPERSON, FILIPINO
DEPARTMENT, DLSU MANILA); PROF. MARIA LOURDES AGUSTIN
(CHAIRPERSON, INSTITUTE OF TEACHING AND LEARNING, PNU); PROF.
ROWENA RIVERO (CHAIR, ENGLISH, FOREIGN LANGUAGES AND
LITERATURE DEPARTMENT, SBC MANILA); PROF. CLEVE ARGUELLES
(CHAIRPERSON, POLITICAL SCIENCE PROGRAM, DLSU MANILA); DR.
ANNABEL QUILON (CHAIR, PSYCHOLOGY DEPARTMENT, SBC MANILA); DR.
BAYANI MATITU (CHAIR, HUMAN KINETICS DEPARTMENT, SBC MANILA);
PROF. MARVIN LAI (CHAIRPERSON, DEPARTAMENTO NG FILIPINOLOHIYA,
PUP MANILA); PROF. MERDEKA C. MORALES (CHIEF, PUP CENTER FOR
CREATIVE WRITING); DR. ROBERTO AMPIL (CHAIRPERSON, FILIPINO
DEPARTMENT, UST); PROF. NELSON RAMIREZ (CHAIRPERSON, FILIPINO
DEPARTMENT, UNIVERSITY OF THE EAST MANILA); DR. JENNIFOR
AGUILAR (CHAIRPERSON, MA FILIPINO PROGRAM, GRADUATE SCHOOL,
PUP); DR. LIWAYWAY ACERO (CHAIRPERSON, HUMAN BIOLOGY AND
SCIENCES DEPARTMENT, SBC MANILA); DR. ESTER RADA (CHAIRPERSON,
FILIPINO DEPARTMENT, SBC MANILA); DR. MARVIN REYES (PREFECT OF
STUDENT ACTIVITIES, COLLEGE OF ARTS AND SCIENCES, SBC MANILA);
PROF. NEILIA BALANON-RAMIREZ (ASSISTANT PREFECT OF STUDENT
DISCIPLINE, COLLEGE OF ARTS AND SCIENCES, SBC MANILA); PROF.
LUISITO MACAPAGAL (CHAIRPERSON, MATHEMATICS DEPARTMENT, SBC
MANILA); DR. NOEL SANTANDER (CHAIRPERSON, THEOLOGY
DEPARTMENT, SBC MANILA); PROF. GERARD SANTOS (ASSISTANT
PREFECT OF STUDENT DISCIPLINE, COLLEGE OF ARTS AND SCIENCES, SBC
MANILA); PROF. ALBERT OASAN (ASSISTANT PREFECT OF STUDENT
DISCIPLINE, COLLEGE OF ARTS AND SCIENCES, SBC MANILA); PROF.
JULIUS TUTOR (ASSISTANT PREFECT OF STUDENT ACTIVITIES, COLLEGE
OF ARTS AND SCIENCES, SBC MANILA); PROF. SYBIL AGREDA (ASSISTANT
PREFECT OF STUDENT ACTIVITIES, COLLEGE OF ARTS AND SCIENCES, SBC
MANILA); PROF. LEOMAR REQUEJO (CHIEF, MUSIC SECTION, PUP); DR.
AURORA BATNAG (PANGULO, PAMBANSANG SAMAHAN SA LINGGWISTIKA
AT LITERATURANG FILIPINO); PROF. RAMILITO CORREA (PRESIDENT,
SANGGUNIAN SA FILIPINO/SANGFIL); PROF. CHRISTO RAY ALBAZON
(PRO, GURO SA SINING NG BAYAN, PUP); DR. RAMON GUILLERMO
(PRESIDENT, ALL UP ACADEMIC EMPLOYEES' UNION); PROF. MELANIA
FLORES (NATIONAL PRO, ALL UP ACADEMIC EMPLOYEES' UNION); PROF.
ORESTES DE LOS REYES (PRESIDENT, ADAMSON UNIVERSITY FACULTY
AND EMPLOYEES); PROF. JAMES PLATON (VICE PRESIDENT FOR LABOR
EDUCATION, UST FACULTY UNION); MR. FELIX PARINAS, JR., (PUBLIC
RELATIONS OFFICER, ALL UP WORKERS' UNION); PROF. MICHAEL PANTE
(FACULTY, HISTORY DEPARTMENT, ATENEO DE MANILA UNIVERSITY);
PROF. VLADIMEIR B. GONZALES (FACULTY, UP-DILIMAN); PROF.
LAURENCE MARVIN S. CASTILLO (FACULTY, UP-LOS BAÑOS); DR. ROMMEL
RODRIGUEZ (ASSOCIATE PROFESSOR, UP-DILIMAN); DR. DOLORES
TAYLAN (FACULTY MEMBER, FILIPINO DEPARTMENT, DLSU MANILA); DR.
TERESITA FORTUNATO (FACULTY MEMBER, FILIPINO DEPARTMENT, DLSU
MANILA); DR. RAQUEL SISONBUBAN (FACULTY MEMBER, FILIPINO
DEPARTMENT, DLSU MANILA); PROF. LILIBETH QUIORE (FACULTY
MEMBER, FILIPINO DEPARTMENT, DLSU MANILA); DR. MA. RITA ARANDA
(FACULTY MEMBER, FILIPINO DEPARTMENT, DLSU MANILA); PROF.
PORTIA PLACINO (FACULTY MEMBER, UP DILIMAN); PROF. JOEL
MALABANAN (FACULTY MEMBER, COLLEGE OF LANGUAGE AND
LITERATURE, PNU); DR. LUCIA B. DELA CRUZ (REGISTERED GUIDANCE
COUNSELOR; PROFESSOR, UNIVERSITY OF MAKATI); PROF. GERARDO
LANUZA (PROFESSOR, DEPARTMENT OF SOCIOLOGY, UP DILIMAN); PROF.
SARAH JANE S. RAYMUNDO (ASSISTANT PROFESSOR, CENTER FOR
INTERNATIONAL STUDIES, UP DILIMAN); PROF. FERDINAND JARIN
(FACULTY MEMBER, PHILIPPINE NORMAL UNIVERSITY); PROF. EMELITO
SARMAGO (FACULTY MEMBER, UST); PROF. MARY ANNE MALLARI
(FACULTY MEMBER, UST); PROF. WENNIELYN FAJILAN (FACULTY MEMBER,
UST); PROF. REYNELE BREN ZAFRA (FACULTY MEMBER, UST); PROF. JOHN
KELVIN BRIONES (FACULTY MEMBER, ENGLISH DEPARTMENT, COLLEGE OF
ARTS AND LETTERS, BULACAN STATE UNIVERSITY); PROF. DENNIS
MANGUBAT (FACULTY MEMBER, FILIPINO DEPARTMENT, SBC MANILA);
PROF. MINERVA SERRANO (FACULTY MEMBER, MATHEMATICS
DEPARTMENT, SBC MANILA); PROF. MARIE JOCELYN BENGCO (FACULTY
MEMBER, PSYCHOLOGY DEPARTMENT, SBC MANILA); PROF. CLYDE CORPUZ
(FACULTY MEMBER, SOCIAL SCIENCES DEPARTMENT, SBC MANILA); DR.
LIZA CRUZ (FACULTY MEMBER, HUMAN BIOLOGY AND SCIENCES
DEPARTMENT, SBC MANILA); DR. SOCORRO DE JESUS (FACULTY MEMBER,
ENGLISH, FOREIGN LANGUAGES, AND LITERATURE DEPARTMENT); PROF.
TERESITA DULAY (FACULTY MEMBER, MATHEMATICS DEPARTMENT, SBC
MANILA); PROF. JULIO CASTILLO, JR. (FACULTY MEMBER, DEPARTMENT OF
MANAGEMENT, SBC MANILA); PROF. ESTHER CUARESMA (FACULTY
MEMBER, INFORMATION AND COMMUNICATION TECHNOLOGY
DEPARTMENT, SBC MANILA); PROF. ARNOLD DONOZO (FACULTY MEMBER,
MATH DEPARTMENT, SBC MANILA); PROF. ROAN DINO (FACULTY MEMBER,
KAGAWARAN NG FILIPINOHIYA, PUP); DR. MARIA ELIZA CRUZ (FACULTY
MEMBER, NATURAL SCIENCES DEPARTMENT, SBC MANILA); PROF.
JOSEPHINE DANGO (FACULTY, THEOLOGY DEPARTMENT, SBC MANILA);
PROF. HIPOLITO RUZOL (FACULTY, KAGAWARAN NG FILIPINO, SBC
MANILA); PROF. KERWIN MARK MARTINEZ (FACULTY, SOCIAL SCIENCES
AND HUMANITIES DEPARTMENT, SBC MANILA); DR. VIOLETA REYES
(FACULTY, SOCIAL SCIENCES AND HUMANITIES DEPARTMENT, SBC
MANILA); PROF. LUISITO DE LA CRUZ (FACULTY, SOCIAL SCIENCES AND
HUMANITIES DEPARTMENT, SBC MANILA); ATTY. ALDEN REUBEN LUNA
(FACULTY, SOCIAL SCIENCES AND HUMANITIES DEPARTMENT, SBC
MANILA); PROF. DON SANTANA (FACULTY, MATHEMATICS DEPARTMENT,
SBC MANILA); PROF. CHARLES BROÑASA (FACULTY, MATHEMATICS
DEPARTMENT, SBC MANILA); PROF. JESSTER FONSECA (FACULTY,
THEOLOGY DEPARTMENT, SBC MANILA); DR. NERISSA REVILLA (FACULTY,
ENGLISH, FOREIGN LANGUAGES AND LITERATURE DEPARTMENT, SBC
MANILA); PROF. ROMANA ALIPIO (FACULTY, ENGLISH, FOREIGN
LANGUAGES AND LITERATURE DEPARTMENT, SBC MANILA); PROF.
JOSEPHINE PAZ ANDAL (FACULTY, ENGLISH, FOREIGN LANGUAGES AND
LITERATURE DEPARTMENT SBC MANILA); PROF. MIGUELA MIGUEL
(FACULTY, ENGLISH, FOREIGN LANGUAGES AND LITERATURE
DEPARTMENT, SBC MANILA); PROF. ARJAN ESPIRITU (FACULTY, ENGLISH,
FOREIGN LANGUAGES AND LITERATURE DEPARTMENT, SBC MANILA);
PROF. PILIPINO RAMOS (FACULTY, ACCOUNTANCY DEPARTMENT, SBC
MANILA); PROF. KIM GUIA (FACULTY, PSYCHOLOGY DEPARTMENT, SBC
MANILA); PROF. JONA IRIS TRAMBULO (FACULTY, TECHNOLOGICAL
UNIVERSITY OF THE PHILIPPINES/TUP); ELIZABETH ANTHONY
(UNIVERSITY OF SANTO TOMAS); EMELITO SARMAGO (UNIVERSITY OF
SANTO TOMAS); RONALD P.TAGGAOA (ASSOCIATE PROFESSOR,
PHILOSOPHY DEPARTMENT, SAINT LOUIS UNIVERSITY); TERESITA MENNA
K. DE GUZMAN (FACULTY, PHYSICAL EDUCATION DEPARTMENT, SAINT
LOUIS UNIVERSITY); SAMUEL D. BARTOLOME (PROFESSOR, RELIGION
DEPARTMENT, SAINT LOUIS UNIVERSITY); REYNALDO O. DUMPAYAN
(PROFESSOR, RELIGION DEPARTMENT, SAINT LOUIS UNIVERSITY);
JEROME P. ARO (FACULTY, CAD-SCIS DEPARTMENT, SAINT LOUIS
UNIVERSITY); SAMUEL D. SILOG (FACULTY, RELIGION DEPARTMENT,
SAINT LOUIS UNIVERSITY); ROSALINDA P. SEGUNDO; (PROFESSOR,
SOCIAL SCIENCES DEPARTMENT, SAINT LOUIS UNIVERSITY); BRIGITTE P.
AWISAN (FACULTY, RELIGION DEPARTMENT, SAINT LOUIS UNIVERSITY);
RAUL LEANDRO R. VILLANUEVA (ASSISTANT PROFESSOR, PHILOSOPHY
DEPARTMENT, SAINT LOUIS UNIVERSITY); LAWRENCE DEXTER D. LADIA
(PROFESSOR, RELIGION DEPARTMENT, SAINT LOUIS UNIVERSITY);
GEORGE M. TAWAO (SPECIAL SERVICES DEPARTMENT, SAINT LOUIS
UNIVERSITY); DONNIE D. EVARISTO (SPECIAL SERVICES DEPARTMENT,
SAINT LOUIS UNIVERSITY); CHERRY M. RAFANAN (NURSING AIDE,
HOSPITAL OF THE SACRED HEART SLU); JULIO U. BERSAMIRA, JR.
(PRINTING PRESS ASSISTANT, PRINTING PRESS OFFICE SLU); JONES Q.
CALINGAYAN (FACULTY, PHYSICAL EDUCATION DEPARTMENT, SAINT
LOUIS UNIVERSITY); BRIAN LORENZO A. SALVALEON (KITCHEN HELPER,
SLU LADIES' RESIDENCE HALLS); ROLLY L. MARANES (LABORATORY
TECHNICIAN, SCHOOL OF ENGINEERING, SLU); CAROL ANN F. BALAUS
(ACCOUNTING CLERK, UFESLU SLU EMPLOYEES UNION); MICHELLE B.
BRAGAS (ACCOUNTING CLERK, UFESLU SLU EMPLOYEES UNION); ERNESTO
JOEY F. CHOMAWIN (SPECIAL SERVICES DEPARTMENT, SAINT LOUIS
UNIVERSITY); GIAN CARLO C. GEGUIERA (FACULTY, RELIGION
DEPARTMENT, SAINT LOUIS UNIVERSITY); MON KARLO MANGARAN
(BARANGAY COUNCILOR, CANIOGAN, MALOLOS, BULACAN); MARY
ANGELICA H. REGINALDO (STUDENT, M.A. MALIKHAING PAGSULAT, DFPP-
KAL, UP DILIMAN); RUSTUM CASIA (KM64 POETRY COLLECTIVE);
ELIZABETH ANTHONY (PRESIDENT, UST PANULAT); ARIES GUPIT (LEAGUE
OF FILIPINO STUDENTS); BRIX JUSTINE PAGTALUNAN (PARTIDO-
PAGKAKAISA NG DEMOKRATIKONG MAG-AARAL/PDM-BULACAN STATE
UNIVERSITY); FRANCIS JAMES PAGDANGANAN (PARTIDOPAGKAKAISA NG
DEMOKRATIKONG MAG-AARAL/BULSU); ANGELO SUALIBIO (STUDENTS
FOR THE ADVANCEMENT OF DEMOCRATIC RIGHTS IN BULACAN STATE
UNIVERSITY/STAND BULSU); MARK JOSEPH DOMASIG (STUDENTS FOR
THE ADVANCEMENT OF DEMOCRATIC RIGHTS IN BULSU); JOHN RAVEN
BALDOVINO (STUDENTS FOR THE ADVANCEMENT OF DEMOCRATIC RIGHTS
IN STAND BULSU); CEDRIQ CLEMENTE (STUDENTS FOR THE ADVANCEMENT
OF DEMOCRATIC RIGHTS IN STAND BULSU); MARIE ANTONETTE VALENCIA
(STUDENTS FOR THE ADVANCEMENT OF DEMOCRATIC RIGHTS IN STAND
BULSU); REINARD SANCHEZ (STAND BULSU); RICHARD PATRIARCA
(STUDENTS FOR THE ADVANCEMENT OF DEMOCRATIC RIGHTS IN BULACAN
STATE UNIVERSITY/STAND BULSU); JOEL A. CAPULONG (TONTONGAN TI
UMILI, BAGUIO CITY); JEANETTE R. CAWIDING (TONTONGAN TI UMILI);
MILAGROS K. AO-WAT (TONTONGAN TI UMILI); HILDRINE L. ALVAREZ
(TONTONGAN TI UMILI); VICENTE R. TOCA III (TONTONGAN TI UMILI);
TRACY ANNE D. DUMALO (TONTONGAN TI UMILI); KING CRIS P. PULMANO
(TONTONGAN TI UMILI); MARBEN M. PANLASIGUI (TONTONGAN TI
UMILI); LUKE T. BAGANGAN (TONTONGAN TI UMILI); NINO JOSEPH Q.
OCONER (TONTONGAN TI UMILI); DR. PRISCILLA AMPUAN (PRESIDENT,
QUEZON CITY PUBLIC SCHOOL TEACHERS' ASSOCIATION/ QCPSTA);
JACKSON BACABAC (TREASURER, QCPSTA); RAYMOND PALATINO
(CHAIRPERSON, BAYAN-NATIONAL CAPITAL REGION); LOUIE ZABALA
(PRESIDENT, MANILA PUBLIC SCHOOL TEACHERS' ASSOCIATION); PROF.
CARL MARC RAMOTA (PRESIDENT, ACT SUC); DR. ROWELL MADULA
(PRESIDENT, ACT PRIVATE); PROF. JONATHAN GERONIMO (SECRETARY
GENERAL, ACT PRIVATE SCHOOLS); MICHAEL ESPOSO (AUDITOR, ACT
PRIVATE SCHOOLS); DR. DAVID MICHAEL SAN JUAN (PUBLIC
INFORMATION OFFICER, ACT PRIVATE SCHOOLS); MR. ISAAC ALI TAPAR
(PRESIDENT, MANILA SCIENCE HIGH SCHOOL FACULTY ASSOCIATION);
PROF. RAMIR M. CRUZ (PRESIDENT, FACULTY ASSOCIATION, COLLEGE OF
ENGINEERING, PUP), Petitioners, v. PRESIDENT BENIGNO SIMEON
"NOYNOY" C. AQUINO, COMMISSION ON HIGHER EDUCATION (CHED)
CHAIRPERSON DR. PATRICIA LICUANAN, DEPARTMENT OF EDUCATION
(DEPED) SECRETARY BR. ARMIN LUISTRO, TECHNICAL EDUCATION AND
SKILLS DEVELOPMENT AUTHORITY (TESDA) DIRECTOR JOEL
VILLANUEVA, Respondents.
[G.R. NO. 218465, October 9, 2018]
MA. DOLORES M. BRILLANTES, SEVERO L. BRILLANTES, EMELITA C. VIDAL,

FELIZA G. AGUSTIN, EVELYN G. ASTILLA, BRENDA P. BASCOS, ENRICO C.
PUNO, MERIAM N. CHAMACKALAYIL, MA LINDA T. FERNANDO, MARIBEL R.
LORENZO, CARMELO A. YAMBAO, JOSEPHINE M. DE GUZMAN, ELENA B.
CABARLES, GIRLIE M. TALISIC, JACQUELYN N. MARQUEZ, VIVIAN G.
SADAC, FELIZA G. AGUSTIN, MARIBEL R. LORENZO, GRACE G. ORALLO,
ROSARIO ANTES, GERALDINE G. LUI, WALLY Y. CAMACHO, STANLEY
FRANCIS M. LIBERATO, MARJORIE M. SUN, BELEN PANTALEON, IRENE N.
ROCHA, CRISTINA T. SANTOS, MARIFE P. OROLFO, CRISTINA L. GANALON,
MARITES R. LAZARO, JUANITO SALAZAR, CHRISTINA G. CRUZ, RAMONETTE
P. SONCUYA, PAUL ROMMEL C. CAPISTRANO, EDGARDO B. ALVINEZ,
JENNIFER C. RODELAS, MARIA VILMA M. ANOS, TERESITA F. ESPEJO,
CHRIS C. KATAPANG, FERDINAND BADULIS, MELODY M. RAMIREZ,
MINERVA DV. CRUZ, MARIA BERNADETTE A. CALORACAN, MA. CINDERELLA
B. ESPIQUE, EVANGELINE A. OBNIAL, ANALYN B. REYES, MARY E.
BALLELOS, ANALEA A. RIVERA, HELEN T. TABIOS, VALENTINE B.
CUSTODIO, ROSE ANDRADE, CHERYL JOY MIRANDA, JOCELYN MARIANO,
REBECCA C. CUARTERO, MARIA MARIETES B. LAURETA, SPS. GIL L. ANISTA
& MARLYN P. ANISTA, MARLOUE ABAINZA, FLORDELIZA C. DE VERA, MA.
MARGIE G. MIRALLES, MILAGROS M. ESTABILLO, ANGELICA D. BINGCO,
ROSFELIZ GEMINI CATIPAY, CHERRYL C. MIRHAN, ROGER S. BERNAL,
SAMUEL C. EGUIA, LIZA C. SALVADOR, SLENDA CAGAS, MA. FRANCISCA
ANTONIO, EVELYN R. SUMAYLO, LESLEY V. ARGUELLES, FOR THEMSELVES
AND ON BEHALF OF THEIR MINOR CHILDREN, MATTHEW M. BRILLANTES,
PATRICIA GINGER C. VIDAL, JELIZA G. AGUSTIN, ANGELO JOSE G.
ASTILLA, BRYAN CHRISTOPHER P. BASCOS, RENEE LOUISE L. PUNO,
RUBEENA N. CHAMACKALAYIL, KIMBERLY T. FERNANDO, SHANAYAH R.
LORENZO, MICHAEL ADRIAND G. YAMBAO, JOHANSSON EDWARD DE
GUZMAN, RANIER B. CABARLES, JAELA MARIE TALISIC, JANUS ROMELL N.
MARQUEZ, RYAN DAVID G. SADAC, SHANAYAH R. LORENZO, PAUL ORALLO,
EMILSON RYAN ANTES, GRACE ANN ERICKA LUI, SOFIA MARIYA KYSHA
CAMACHO, BEATRICE COLLEEN LIBERATO, CHLOE SOFIA SUN, GELAH
PANTALEON, JUSTINE ELIZA N. ROCHA, EDRIN CLYDE T. SANTOS,
CONSTANCIO P. OROLFO III, RONIN RIC GANALON, SOFIA KAYLE LAZARO,
DJ SALAZAR, DAN PRECIOSO G. CRUZ, JULIE ANNE LOI P. SONCUYA, RICCI
PAULINE CATHERINE J. CAPISTRANO, PAUL ED JEREMY M. ALVINEZ,
JOSEPH C. RODELAS, RONALD M. ANOS, JASON F. ESPEJO, LAURA
CHRISTINE C. KATAPANG, KEITH GABRIEL BADULIS, RON EDRICH
RAMIREZ, TOMMIE DANIEL DV. CRUZ, DENISE ANN A. CALORACAN, ELLA
MAE B. ESPIQUE, ROSEMARY KEITHLEY A. OBNIAL, RONALDO B. REYES, JR.
& ANNA LETICIA B. REYES, CARYLLE ALEX E. BALLELOS, JACKLORENZ A.
RIVERA, KARL ADRIAN TABIOS, BREN CHRISTIAN B. CUSTODIO, SHANIA
CHIER ANDRADE, CARL JUSTINE MIRANDA, ERIN MARIANO, DENISE
NICOLE CUARTERO, GRANT PAUL LAURETA, MA. PATRICIA ANN P. ANISTA,
MARDI LOUISE ABAINZA, JAYLORD MOSES C. DE VERA, HANNAH MARIE
MIRALLES, SANREE M. ESTABILLO, GIO ANN TRINIDAD BINGCO, ARFEL
DOMINICK B. CATIPAY, KITH CEAZAR MIRHAN, JEAN RYAN A. BERNAL,
SAMANTHA NICOLE EGUIA; OFFICERS OF THE MANILA SCIENCE HIGH
SCHOOL FACULTY AND EMPLOYEES CLUB, REPRESENTED BY: ISAAC ALI
TAPAR, RUTH DAYRIT, RAYMOND APOSTOL, GINAROSE HABAL, CYNTHIA
LYNNE CAUZON, ANABELLE BAYSIC, CRISTINA RICO, KRISTIN
MACARANAS, ROMEO BINAMIRA, AND THE CLASS HEREIN
REPRESENTED, Petitioners, v. PRESIDENT BENIGNO SIMEON C. AQUINO III,
DEPT. OF EDUCATION SECRETARY BR. ARMIN LUISTRO, NCR REGIONAL
DIRECTOR LUZ S. ALMEDA, MANILA SCHOOLS DIVISION SUPERINTENDENT
PRISCILA C. DE SAGUN, MANILA SCIENCE HIGH SCHOOL PRINCIPAL
MARIA EVA S. NACION, SENATE PRESIDENT FRANKLIN M. DRILON AND
HOUSE OF REPRESENTATIVES SPEAKER FELICIANO R.
BELMONTE, Respondents.
DECISION
CAGUIOA, J.:
Doon sa ang trona’y ginawa ng dunong, bagong kabataa’y sadyang umuusbong,

mga kamalia’y kanyang natutunton, at dangal ng diwa ang pinayayabong; ang liig
ng bisyo’y kanyang napuputol; sala’y namumutla kung nasasalubong; sinusupil
niya ang bansang ulupong, at hangal mang tao’y kanyang inaampon.
- Jose Rizal1
Before the Court are consolidated petitions under Rule 65, assailing the
constitutionality of Republic Act (RA) No. 105332 (K to 12 Law), RA No.
101573 (Kindergarten Education Act), and related issuances of the Department of
Education (DepEd), Commission on Higher Education (CHED), Department of Labor
and Employment (DOLE) and Technical Education and Skills Development Authority
(TESDA) implementing the K to 12 Basic Education Program.
History of the Philippines' Basic

Education System
On January 21, 1901, the Philippine Commission created the Department of Public
Instruction4 through Act No. 745. All schools established under the auspices of the
Military Government were made under the control of the officers of the Department
of Public Instruction6 and as early as this law, the primary education established
through it was considered free.7 Act No. 74 also made English language as the basis
of all public school instruction8 and allowed optional religious instruction in all
schools.9
On March 10, 1917, Act No. 270610 was passed mandating the recognition and
inspection of private schools and colleges by the Secretary of Public Instruction in
order to maintain a general standard of efficiency in all private schools and
colleges.11 The authority of the Secretary over private schools and colleges was
later on expanded under Commonwealth Act (CA) No. 180 12. The Secretary was
vested with the power "to supervise, inspect and regulate said schools and colleges
in order to determine the efficiency of instruction given in the same." 13
The concept of free public primary instruction was also enshrined in the 1935
Philippine Constitution. Specifically, the State's interest in a complete and adequate
system of public education was stated in Section 5, Article XIV:
SEC. 5. All educational institutions shall be under the supervision of and subject to
regulation by the State. The Government shall establish and maintain a
complete and adequate system of public education, and shall provide at
least free public primary instruction, and citizenship training to adult
citizens. All schools shall aim to develop moral character, personal discipline, civic
conscience, and vocational efficiency, and to teach the duties of citizenship.
Optional religious instruction shall be maintained in the public schools as now
authorized by law. Universities established by the State shall enjoy academic
freedom. The State shall create scholarships in arts, science, and letters for
specially gifted citizens. (Emphasis supplied)
On August 7, 1940, CA No. 586,14 otherwise known as the Educational Act of 1940,

was enacted to comply with the constitutional mandate on free public primary
education. This resulted in the revision of the public elementary system, 15 which
had the following objectives:
x x x (a) to simplify, shorten, and render more practical and economical both the
primary and intermediate courses of instruction so as to place the same within the
reach of the largest possible number of school children; (b) to afford every child of
school age adequate facilities to commence and complete at least the primary
course of instruction; (c) to give every child completing the primary course an
adequate working knowledge of reading and writing, the fundamentals of
arithmetic, geography, Philippine history and government, and character and civic
training; and (d) to insure that all children attending the elementary schools shall
remain literate and become useful, upright and patriotic citizens. 16
To give effect to the foregoing objectives, the Department of Public Instructions

was authorized to revise the elementary school curriculum, to be approved by the
President, and adjust the academic school calendar to coincide with the working
season in the Philippines.17 In addition, Section 4 set standards for the age of
admission to public elementary schools and the minimum length of time for the
completion of primary and intermediate courses, to wit:
SEC. 4. With the approval of the President of the Philippines, the required age for
admission to the public elementary schools may be raised to not more than nine
years and the length of time required for the completion of the elementary
instruction comprising both the primary and intermediate courses reduced to not
less than five years. Any increase that may be approved in accordance with this
section regarding the minimum age of school children shall not affect those already
enrolled before the school year 1940-1941.
The law also made compulsory the attendance and completion of elementary
education, except when the child was mentally or physically incapable of attending
school or when it was inconvenient to do so considering the means of
transportation available or on account of economic condition of the parents the child
could not afford to continue in school.18 The parents or guardians or those having
control of children therein required to attend school without justification were liable
to a fine of not less than twenty nor more than fifty pesos. 19
In 1947, Executive Order (EO) No. 9420 was issued renaming the Department of
Instructions to the Department of Education.
In 1953, RA No. 89621 or the Elementary Education Act of 1953 was passed, again

revising the elementary school system and instituting a primary course composed
of Grades I to IV, and an intermediate course composed of Grades V to VII, thus:
SEC. 3. To put into effect the educational policy established by this Act, the
Department of Education is hereby authorized to revise the elementary-school
system on the following basis: The primary course shall be composed of four grades
(Grades I to IV) and the intermediate course of three grades (Grade V to VII).
Pupils who are in the sixth grade of the time this Act goes into effect will not be
required to complete the seventh grade before being eligible to enroll in the first
year of the secondary school: Provided, That they shall be allowed to elect to enroll
in Grade VII if they so desire.
This law also made the enrollment and completion of elementary education
mandatory.22 Every parent or guardian or other person having custody of any child
was required to enroll such child in a public school upon attaining seven years of
age except when: (1) the child enrolled in or transferred in a private school, (2) the
distance from the home of the child to the nearest public school exceeded three
kilometers or the said public school was not safely or conveniently accessible, (3)
on account of indigence, the child could not afford to be in school, (4) child could
not be accommodated because of excess enrollment, and (5) child was being
homeschooled, under the conditions prescribed by the Secretary of Education. 23
The revision of the elementary school system was guided by the policy stated in
Section 5, Article XIV of the 1935 Philippine Constitution and with the consideration
that it was "the main function of the elementary school to develop healthy citizens
of good moral character, equipped with the knowledge, habits, and ideals needed
for a happy and useful home and community life." 24
In 1972, the Department of Education was again renamed to Department of

Education and Culture, through Proclamation No. 1081; 25 and was later on
converted to Ministry of Education and Culture in 1978. 26
The 1973 Philippine Constitution maintained the State's interest in a free public
elementary education. This concept of free education was, however, expanded to
the secondary level, if the finances of the State permitted it, thus:
Article XV
SEC. 8. (1) All educational institutions shall be under the supervision of, and
subject to regulation by, the State. The State shall establish and maintain a
complete, adequate, and integrated system of education relevant to the
goals of national development.
xxxx
(5) The State shall maintain a system of free public elementary education
and, in areas where finances permit, establish and maintain a system of
free public education at least up to the secondary level. (Emphasis supplied)
Legislations under the 1973 Philippine Constitution implemented the foregoing

policies. In Batas Pambansa (BP) Blg. 232,27 or the Education Act of 1982, it was
declared as a policy of the State "to establish and maintain a complete, adequate
and integrated system of education relevant to the goals of national
development."28 And under BP Blg. 232, "Formal Education" was defined as the
hierarchically structured and chronologically graded learnings organized and
provided by the formal school system and for which certification was required in
order for the learner to progress through the grades or move to higher levels." 29 It
corresponded to (1) elementary education, which was primarily concerned with
providing basic education and usually corresponds to six or seven years, including
the preschool programs;30 and (2) secondary education as "the state of formal
education following the elementary level concerned primarily with continuing
basic education and expanding it to include the learning of employable gainful
skills, usually corresponding to four years of high school." 31 This law also created
the Ministry of Education, Culture and Sports,32 which later on became the
Department of Education Culture and Sports by virtue of EO No. 117. 33
As shown above, both the 1935 and 1973 Philippine Constitution did not state that
education at any level was compulsory. This changed in the 1987 Philippine
Constitution, which made elementary education mandatory, thus:
Article XIV
SEC. 1. The State shall protect and promote the right of all citizens to quality
education at all levels and shall take appropriate steps to make such
education accessible to all.
SEC. 2. The State shall:
xxxx
(2) Establish and maintain a system of free public education in the
elementary and high school levels. Without limiting the natural right of parents
to rear their children, elementary education is compulsory for all children of
school age[.] (Emphasis supplied)
Subsequent legislations implemented the policies stated in the 1987 Philippine

Constitution. Thus, secondary education was provided for free in RA No.
6655,34 otherwise known as the Free Public Secondary Education Act of 1988. Under
RA No. 6655, students in public high schools were free from payment of tuition and
other school fees.35 And in response to the mandate of the Constitution to promote
and make quality education accessible to all Filipino citizens, RA No.
6728,36 otherwise known as Government Assistance To Students and Teachers In
Private Education Act, was enacted in 1989 where the voucher system under the
Private Education Student Financial Assistance Program (PESFA)37 was implemented
as follows:
SEC. 5. Tuition Fee Supplement for Student in Private High School. — (1) Financial
assistance for tuition for students in private high schools shall be provided by the
government through a voucher system in the following manner:
(a) For students enrolled in schools charging less than one

thousand five hundred pesos (P1,500) per year in tuition and
other fees during school year 1988-1989 or such amount in
subsequent years as may be determined from time to time by
the State Assistance Council: The Government shall provide
them with a voucher equal to two hundred ninety pesos
(P290.00): Provided, That the student pays in the 1989-1990
school year, tuition and other fees equal to the tuition and
other fees paid during the preceding academic year: Provided,
further, That the Government shall reimburse the vouchers
from the schools concerned within sixty (60) days from the
close of the registration period: Provided, furthermore, That
the student's family resides in the same city or province in
which the high school is located unless the student has been
enrolled in that school during the previous academic year.
(b) For students enrolled in schools charging above one thousand
five hundred pesos (P1,500) per year in tuition and other fees
during the school year 1988-1989 or such amount in
subsequent years as may be determined from time to time by
the State Assistance Council, no assistance for tuition fees
shall be granted by the Government: Provided, however, That
the schools concerned may raise their tuition fees subject to
Section 10 hereof.
(2) Assistance under paragraph (1), subparagraphs (a) and (b) shall be granted
and tuition fees under subparagraph (c) may be increased, on the condition that
seventy percent (70%) of the amount subsidized allotted for tuition fee or of the
tuition fee increases shall go to the payment of salaries, wages, allowances and
other benefits of teaching and non-teaching personnel except administrators who
are principal stockholders of the school, and may be used to cover increases as
provided for in the collective bargaining agreements existing or in force at the time
when this Act is approved and made effective: Provided, That government subsidies
are not used directly for salaries of teachers of non-secular subjects. At least
twenty percent (20%) shall go to the improvement or modernization of buildings,
equipment, libraries, laboratories, gymnasia and similar facilities and to the
payment of other costs of operation. For this purpose, school shall maintain a
separate record of accounts for all assistance received from the government, any
tuition fee increase, and the detailed disposition and use thereof, which record shall
be made available for periodic inspection as may be determined by the State
Assistance Council, during business hours, by the faculty, the non-teaching
personnel, students of the school concerned, the Department of Education, Culture
and Sports and other concerned government agencies.
The voucher system was expanded in RA No. 8545, 38 or the Expanded Government
Assistance to Students and Teachers in Private Education Act, as follows:
SEC. 5. Tuition Fee Supplements for Students in Private High Schools.— (1)
Financial Assistance for tuition for students in private high schools shall be provided
by the government through a voucher system in the following manner:
(a) For students enrolled in schools charging an amount as may be determined by

the State Assistance Council, the government shall provide them with a voucher in
such an amount as may be determined by the council: Provided, That the
government shall reimburse the vouchers from the schools concerned within one
hundred twenty (120) days from the close of the registration period.
(2) Assistance under paragraph (1), subparagraph (a) shall be guaranteed to all
private high schools participating in the program for a number of slots as of the
effectivity of this Act as the total number of students who availed of tuition fee
supplements for school year 1997-1998: Provided, That the State Assistance
Council may in subsequent years determine additional slots and/or additional
participating high schools as may be deemed necessary.
In the same law, elementary and secondary education were redefined. Elementary
education was the first six (6) years of basic education, excluding pre-school and
grade seven;39 while secondary education was the next four (4) years after
completion of basic education.40
In 2001, RA No. 898041 or the Early Childhood Care and Development (ECCD)

Act was implemented. This law established a national ECCD system which "refers to
the full range of health, nutrition, early education and social services programs that
provide for the basic holistic needs of young children from birth to age six (6), to
promote their optimum growth and development."42 These programs include,
among others, optional center-based and home-based early childhood education. 43
In the same year, RA No. 915544 or the Governance of Basic Education Act of
2001 was enacted. Section 2 thereof declared it as a State policy "to protect and
promote the right of all citizens to quality basic education and to make such
education accessible to all by providing all Filipino children a free and compulsory
education in the elementary level and free education in the high school
level."45 Basic education was defined in this law as "the education intended to meet
basic learning needs which lays the foundation on which subsequent learning can
be based. It encompasses early childhood, elementary and high school education as
well as alternative learning systems for out-of-school youth and adult learners and
includes education for those with special needs."46 It was also in this law where the
then Department of Education Culture and Sports was renamed the DepEd. 47
Education for All 2015 and the

Kindergarten Education Act
In 2000, at the World Education Forum in Dakar, Senegal, one hundred sixty four
(164) governments, including the Philippines, pledged to achieve, by 2015, the
following six (6) Education for All (EFA) goals: (1) expansion and improvement of
early childhood care and education; (2) universal access to complete free and
compulsory primary education of good quality; (3) equitable access to appropriate
learning and life skills program for youth and adult; (4) improvement of levels of
adult literacy, especially for women; (5) gender parity and equality in education;
and (6) improvement of all aspects of the quality of education and ensuring their
excellence.48
In consonance with the country's agreement to achieve these goals, the DepEd, in
2002, undertook the preparation of the Philippine EFA 2015 Plan of Action, in
collaboration with various stakeholders at the national and field levels, including
relevant government agencies and civil society groups.49 The primary goal of the
Philippine EFA 2015 Plan of Action, which the government officially adopted in
2006,50 is to provide "basic competencies for all that will bring about functional
literacy."51 The Philippine EFA 2015 Plan of Action translated the sic (6) Dakar goals
into four (4) objectives and nine (9) critical tasks, to wit:
Universal Goals and Objectives of Philippine EFA 2015
1. Universal Coverage of out of school youth and adults in providing

learning needs;
2. Universal school participation and total elimination of dropouts and
repeaters in grades 1-3;
3. Universal completion of the full basic education cycle with satisfactory
annual achievement levels; and
4. Total community commitment to attain basic education competencies
for all.
Nine Urgent and Critical Tasks
1. Make every school continuously improve its performance.

2. Expand early childhood care and development coverage to yield more
EFA benefits.
3. Transform existing non-formal and informal learning options into a
truly viable alternative learning system yielding more EFA benefits;
4. Get all teachers to continuously improve their teaching practices.
5. Increase the cycle of schooling to reach 12 years of formal basic
education.
6. Continue enrichment of curriculum development in the context of
pillars of new functional literacy;
7. Provide adequate and stable public funding for country-wide
attainment of EFA goals;
8. Create network of community-based groups for local attainment of EFA
goals; Monitor progress in effort towards attainment of EFA goals. 52
On January 20, 2012, the Philippine Congress took a pivotal step towards the
realization of the country's EFA goals with the enactment of the Kindergarten
Education Act. Section 2 thereof declared it the policy of the State "to provide equal
opportunities for all children to avail of accessible mandatory and compulsory
kindergarten education that effectively promotes physical, social, intellectual,
emotional and skills stimulation and values formation to sufficiently prepare them
for formal elementary schooling" and "to make education learner-oriented and
responsive to the needs, cognitive and cultural capacity, the circumstances and
diversity of learners, schools and communities through the appropriate languages
of teaching and learning."
The Kindergarten Education Act institutionalized kindergarten education, which is

one (1) year of preparatory education for children at least five years old, 53 as part
of basic education, and is made mandatory and compulsory for entrance to Grade
1.54 It also mandated the use of the learner's mother tongue, or the language first
learned by a child,55 as the primary medium of instruction in the kindergarten level
in public schools, except for the following cases wherein the primary medium of
instruction would be determined by the DepEd:
a. When the pupils in the kindergarten classroom have different mother tongues
or when some of them speak another mother tongue;
b. When the teacher does not speak the mother tongue of the learners;
c. When resources, in line with the use of the mother tongue, are not yet
available; and
d. When teachers are not yet trained how to use the Mother Tongue Based
Multilingual Education (MTB-MLE) program.56
On April 17, 2012, DepEd, in consultation with the Department of Budget and
Management, issued DepEd Order (DO) No. 32,57 the Kindergarten Education Act's
implementing rules and regulations. DO No. 32 provides that the Kindergarten
Education General Curriculum (KEGC) shall focus on the child's total development
according to his/her individual needs and socio-cultural background. The KEGC shall
be executed in a play-based manner and shall address the unique needs of diverse
learners, including gifted children, children with disabilities, and children belonging
to indigenous groups.58
The K to 12 Law and related issuances.
Before the enactment of the K to 12 Law, the Philippines was the only country in
Asia and among the three remaining countries in the world that had a 10-year basic
education program.59 The expansion of the basic education program, however, is an
old proposal dating to 1925. The studies are as follows: (a) the Monroe Survey
(1925) stated that secondary education did not prepare for life and recommended
training in agriculture, commerce, and industry; (b) the Prosser Survey (1930)
recommended to improve phases of vocational education such as 7th grade
shopwork, provincial schools, practical arts training in the regular high schools,
home economics, placement work, gardening, and agricultural education; (c) the
UNESCO Mission Survey (1949) recommended the restoration of Grade 7; (d)
the Education Act of 1953 mandated that the primary course be composed of four
grades (Grades I to IV) and the intermediate course of three grades (Grade V to
VII); (e) the Swanson Survey (1960) recommended the restoration of Grade 7; (f)
Presidential Commission to Survey Philippine Education (PCSPE) (1970) gave high
priority to the implementation of an 11-year program, consisting of six years of
compulsory elementary education and five years of secondary education; (g)
Congressional Commission on Education (EDCOM) Report (1991), recommended
that if one year was to be added, it might either be seven years of elementary
education or five years of secondary education; (h) Presidential Commission on
Educational Reforms (2000) proposed to include the establishment of a one-year
pre-baccalaureate system that would also bring the Philippines at par with other
countries; and (i) Presidential Task Force on Education (2008) emphasized that in a
12-year pre-university program, it was important "to specify the content of the
11th and the 12th years and benchmark these with programs abroad." 60
Despite these proposals, the 10-year basic education cycle remained in force. Thus,
prior to the enactment of the K to 12 Law, the Philippines, joined only by Djibouti
and Angola, were the only countries in the world with a 10-year basic education
system.61
To be at par with international standards and in line with the country's commitment
in EFA 2015, the Philippine Congress, on May 15, 2013, passed the K to 12 Law,
which took effect on June 8, 2013. The K to 12 Law seeks to achieve, among
others, the following objectives: (1) decongest the curriculum; (2) prepare the
students for higher education; (3) prepare the students for the labor market; and
(4) comply with global standards.62
One of the salient features of the K to 12 Law is the expansion of basic education
from ten (10) years to thirteen (13) years, encompassing "at least one (1) year of
kindergarten education, six (6) years of elementary education, and six (6) years of
secondary education x x x. Secondary education includes four (4) years of junior
high school and two (2) years of senior high school education." 63
The K to 12 Law also adopts the following key changes in the Basic Education
Curriculum (BEC): (1) Mother Tongue (MT) will be used as a primary medium of
instruction from Kindergarten to Grade 3 and an additional learning area in Grades
1 to 3;64 (2) the time allotted per learning area in elementary will generally be
reduced to allow off-school learning experiences at home or in the community;
while the time allotment in secondary level will generally increase in view of the
additional two (2) years in Senior High School;65 (3) the spiral progression approach
will be used in Science, Mathematics, Araling Panlipunan, MAPEH and Edukasyon sa
Pagpapakatao, wherein the learning process is built upon previously learned
knowledge for students to master their desired competencies by revisiting the
subject several times and relating new knowledge or skills with the previous
one;66 and (4) specialization courses will be offered to prepare students for
employment or engage in profitable enterprise after high school. 67
Apart from mastering core subjects, the additional two (2) years of Senior High
School will allow students to choose among academic, technical-vocational, or
sports and arts, as specialization, based on aptitude, interest and school
capacity.68 Hence, graduates of Senior High School under the K to 12 BEC are
envisioned to already be prepared for employment, entrepreneurship, or middle-
level skills development should they opt not to pursue college education. 69
Furthermore, the K to 12 Law extends the benefits provided under RA No. 8545 to

qualified students.70 DepEd is mandated to engage the services of private education
institutions and non-DepEd schools offering Senior High School through the
programs under RA No. 8545 and other financial arrangements based on the
principle of public-private partnership.
The K to 12 Law also imposes upon the DepEd, CHED, and TESDA, the task to
promulgate the implementing rules and regulations, which shall provide, among
others, appropriate strategies and mechanisms to ensure the smooth transition
from the existing 10-year basic education cycle to the K to 12 cycle addressing
issues such as multi-year low enrollment and displacement of faculty of Higher
Education Institutions (HEIs) and Technical Vocational Institutions (TVIs). 71
DepEd is likewise mandated to coordinate with TESDA and CHED in designing the
enhanced BEC to ensure college readiness and avoid remedial and duplication of
basic education subjects;72 and to consult other national government agencies and
other stakeholders in developing the K to 12 BEC, which shall adhere to the
following standards:
(a) The curriculum shall be learner-centered, inclusive and developmentally

appropriate;
(b) The curriculum shall be relevant, responsive and research-based;
(c) The curriculum shall be culture-sensitive;
(d) The curriculum shall be contextualized and global;
(e) The curriculum shall use pedagogical approaches that are constructivist,
inquiry-based, reflective, collaborative and integrative;
(f) The curriculum shall adhere to the principles and framework of Mother
Tongue-Based Multilingual Education (MTB-MLE) which starts from
where the learners are and from what they already knew proceeding from
the known to the unknown; instructional materials and capable teachers to
implement the MTB-MLE curriculum shall be available;
(g) The curriculum shall use the spiral progression approach to ensure
mastery of knowledge and skills after each level; and
(h) The curriculum shall be flexible enough to enable and allow schools to
localize, indigenize and enhance the same based on their respective
educational and social contexts. The production and development of
locally produced teaching materials shall be encouraged and approval of
these materials shall devolve to the regional and division education units.73
On September 4, 2013, the K to 12 implementing rules and regulation (K to 12

IRR) were issued.74 Rule VI of the K to 12 IRR covers the implementation of RA No.
8545 for qualified students enrolled in senior high school. The programs of
assistance are available primarily to students who complete junior high school in
public schools and taking into consideration other factors such as income
background and financial needs of the students. 75 The forms of assistance that the
DepEd may provide include a voucher system, "where government issues a coupon
directly to students to enable them to enroll in eligible private education institutions
or non-DepEd public schools of their choice under a full or partial tuition or
schooling subsidy".76
Further, Section 31 of the K to 12 IRR confers upon the DepEd, in collaboration with

the DOLE, CHED and TESDA, the duty to promulgate the appropriate joint
administrative issuance to ensure the sustainability of the private and public
educational institutions, and the promotion and protection of the rights, interests
and welfare of teaching and non-teaching personnel. For this purpose, the DOLE
was tasked to convene a technical panel with representatives from the DepEd,
CHED, TESDA and representatives from both teaching and non-teaching personnel
organizations, and administrators of educational institutions. 77
In compliance with the foregoing mandate, DOLE organized three area-wide

tripartite education fora on K to 12 in Luzon, Visayas and Mindanao. DOLE also
conducted regional consultations with HEIs, teaching and non teaching personnel.78
As a result of the tripartite consultations, DOLE, DepEd, TESDA and CHED issued on
May 30, 2014 the Joint Guidelines on the Implementation of the Labor and
Management Component of Republic Act No. 10533 (Joint Guidelines). The Joint
Guidelines was issued to (a) ensure the sustainability of private and public
educational institutions; (b) protect the rights, interests, and welfare of teaching
and non-teaching personnel; and (c) optimize employment retention or prevent, to
the extent possible, displacement of faculty and non-academic personnel in private
and public HEIs during the transition from the existing 10 years basic education
cycle to the enhanced K to 12 basic education.79
To achieve these goals, the Joint Guidelines provides that the following, in the
exercise of management prerogative, shall be observed:
a. ensure the participation of workers in decision and policy making processes

affecting their rights, duties, and welfare;
b. the DepEd and private educational institutions may hire, as may be relevant
to the particular subject, graduates of science, mathematics, statistics,
engineering, music and other degree courses needed to teach in their
specialized subjects in elementary and secondary education, provided they
passed the Licensure Examination for Teachers;
c. graduates of technical-vocational courses may teach in their specialized

subjects in secondary education, provided that they possess the necessary
certification from TESDA and undergo in-service training;
d. the DepEd and private educational institutions may hire practitioners, with
expertise in the specialized learning areas, to teach in the secondary level,
provided that they teach on part-time basis only;
e. faculty of HEIs offering secondary education shall be given priority in hiring,

provided said faculty is a holder of a relevant Bachelor's degree and must
have satisfactorily served as a full time HEI faculty;
f. if it is impossible for the affected HEI faculty members and academic support
personnel to be placed within the institution, they shall be prioritized in hiring
in other private and public senior high schools (SHS);
g. faculty of HEIs may be allowed to teach in their general education or subject

specialties in secondary education, provided said faculty is a holder of a
relevant Bachelor's degree and must have satisfactorily served as a full time
HEI faculty;
h. without prejudice to existing collective bargaining agreements or institutional

policies, HEI faculty and non-teaching personnel who may not be considered
may avail of the retrenchment program pursuant to the provisions of the
Labor Code; and
i. in educational institutions where there is no collective agreement or

organized labor union, management may adopt policies in consultation with
faculty or non-academic clubs or associations in the school consistent and in
accordance with the aforementioned criteria.80
K to 12 Program Implementation
and CHED Memorandum Order
(CMO) No. 20, Series of 2013
The K to 12 basic education was implemented in parts. Universal kindergarten was
offered starting School Year (SY) 2011-2012. 81 In 2012, DepEd started unclogging
the BEC to conform to the K to 12 Curriculum. Thus, DO No. 31 was issued setting
forth policy guidelines in the implementation of the Grades 1 to 10 of the K to 12
Curriculum. DO No. 31 provides that effective SY 2012-2013, the new K to 12 BEC,
which follows a spiral approach across subjects and uses the mother tongue as a
medium of instruction from Grades 1 to 3, shall be first implemented in Grades 1
and 7 of all public elementary and secondary schools; and while private schools are
enjoined to do the same, they may further enhance the curriculum to suit their
school's vision/mission.82
Five (5) school years from SY 2012-2013, the implementation of the K to 12 basic
education was to be completed. In 2018, the first group of Grade 6 and Grade 12
students under the K to 12 BEC are set to graduate.
Accordingly, to accommodate the changes brought about by the K to 12 Law, and

after several public consultations with stakeholders were held, 83 CMO No. 20,
entitled General Education Curriculum: Holistic Understandings, Intellectual and
Civic Competencies was issued on June 28, 2013. CMO No. 20 provides the
framework and rationale of the revised General Education (GE) curriculum. It sets
the minimum standards for the GE component of all degree programs that applies
to private and public HEIs in the country. 84
Previously, there were two General Education Curricula (GECs), GEC-A and GEC-B.
CMO No. 59, Series of 1996 provided for GEC-A, which required 63 units divided
into 24 units of language and literature, 15 units of mathematics and natural
sciences, 6 units of humanities, 12 units of social sciences, and 6 units of mandated
subjects. This was taken by students majoring in the humanities, social sciences, or
communication. Meanwhile, CMO No. 4, series of 1997 implemented GEC-B, which
was taken by all other students. GEC-B required 51 units divided into 21 units of
language and humanities, 15 units of mathematics, natural sciences, and
information technology, 12 units of social sciences, and 3 units of mandated
subjects.
Under CMO No. 20, the GE curriculum became outcome-oriented and categorized
into: (a) Intellectual Competencies; (b) Personal and Civic Competencies; and (c)
Practical Responsibilities.85 This GE curriculum requires the completion of 36 units
as compared to the previous 63/51 units requirement. These 36 units are
distributed as follows: 24 units of core courses; 9 units of elective courses; and 3
units on the life and works of Rizal.86 The required GE core courses are: (1)
Understanding the Self; (2) Readings in Philippine History; (3) The Contemporary
World; (4) Mathematics in the Modern World; (5) Purposive Communication; (6) Art
Appreciation; (7) Science, Technology and Society; and (8) Ethics.87 Further, the GE
curriculum provided an element of choice88 through elective courses which include
the following: (1) Mathematics, Science and Technology; (2) Social Sciences and
Philosophy; and (3) Arts and Humanities.89
The Petitions
Claiming that the K to 12 Basic Education Program violates various constitutional
provisions, the following petitions were filed before the Court praying that
the Kindergarten Education Act, K to 12 Law, K to 12 IRR, DO No. 31, Joint
Guidelines, and CMO No. 20, be declared unconstitutional:
1. Petition for Certiorari90 filed by Council for Teachers and Staff of Colleges and

Universities of the Philippines and several other organizations duly organized
under Philippine laws, representing faculty and staff of colleges and
universities in the Philippines, docketed as G.R. No. 216930;
2. Petition to Declare Republic Act No. 10533, otherwise known as the

"Enhanced Basic Education Act of 2013," as Unconstitutional and/or
Illegal91 filed by petitioners Antonio "Sonny" Trillanes, Gary C. Alejano, and
Francisco Ashley L. Acedillo, in their capacities as citizens, taxpayers, and
members of Congress, docketed as G.R. No. 217752;
3. Petition to Declare Unconstitutional, Null, Void, and Invalid Certain Provisions

of R.A. No. 10533 And Related Department of Education (DepEd)
Implementing Rules and Regulations, Guidelines or Orders92 filed by
petitioners Eduardo R. Alicias, Jr. and Aurelio P. Ramos, Jr., in their
capacities as citizen, taxpayer, parent and educator, docketed as G.R. No.
218045;
4. Petition for Certiorari, Prohibition and Mandamus93 filed by petitioner Richard

Troy A. Colmenares in his capacity as citizen invoking strong public interest
and transcendental importance, petitioners Kathlea Francynn Gawani D.
Yañgot and several others, as a class, and on behalf of others who stand to
suffer direct injury as a result of the implementation of the K to 12 Basic
Education Program, and petitioners Rene Luis Tadle and several others, in
their capacities as taxpayers concerned that public funds are being illegally
and improperly disbursed through the enforcement of the invalid or
unconstitutional laws and issuances, docketed as G.R. No. 218098;
5. Petition for Certiorari and Prohibition,94 docketed as G.R. No. 218123, filed by

Antonio Tinio, et al., suing in their capacities as taxpayers and concerned
citizens;
6. Petition for Certiorari, Prohibition and Mandamus95 filed by petitioners

Spouses Ma. Dolores M. Brillantes and Severo L. Brillantes and several
others, as students, parents and teachers, who stand to suffer direct injury
from the K to 12 BEC and implementation of the two (2) additional years of
high school, docketed as G.R. No. 218465; and
7. Petition for Certiorari and Prohibition filed by Dr. Bienvenido Lumbera and

several others who are faculty and staff of colleges and universities in the
Philippines who stand to suffer direct injury in the implementation of CMO
No. 20 and Congressman Antonio Tinio and other party-list representatives in
their capacities as members of the Congress, who are also collectively suing
in their capacities as taxpayers and concerned citizens, docketed as G.R. No.
217451.96
The present consolidated petitions pray for the issuance of a Temporary Restraining
Order (TRO) and/or Writ of Preliminary Injunction against the implementation of
the K to 12 Law and other administrative issuances in relation thereto.
The Solicitor General, on behalf of the public respondents, opposed these

petitions.97 Private respondent Miriam College in G.R. No. 216930 also filed its
Comment/Opposition.98
On April 21, 2015, the Court issued a TRO in G.R. No. 217451, enjoining the
implementation of CMO No. 20 insofar only as it excluded from the curriculum for
college the course Filipino and Panitikan as core courses.99
However, in G.R. Nos. 216930, 217752, 218045, 218098, 218923 and 218465, the
Court denied petitioners' prayer for issuance of TRO and/or Writ of Preliminary
Injunction on the implementation of the K to 12 Law, its implementing rules,
the Kindergarten Education Act, and other administrative issuances in relation
thereto, for lack of merit. 100
In the Resolutions dated April 5, 2016101 and April 12, 2016,102 the Court directed
the parties to submit their respective memoranda.
The Issues
Culled from the submissions of petitioners, public respondents, through the Office
of the Solicitor General (OSG), and respondent Miriam College, the following are the
issues for the Court's resolution:
A. Procedural:
1. Whether the Court may exercise its power of judicial review over the
controversy;
2. Whether certiorari, prohibition and mandamus are proper remedies to

assail the laws and issuances.
B. Substantive:
1. Whether the K to 12 Law was duly enacted;
2. Whether the K to 12 Law constitutes an undue delegation of legislative

power;
3. Whether DO No. 31 is valid and enforceable;

4. Whether the K to 12 Law, K to 12 IRR, DO No. 31 and/or the Joint
Guidelines contravene provisions of the Philippine Constitution on:
a. establishing and maintaining a system of free elementary and

high school education and making elementary education
compulsory for all children of school age (Section 2[2], Article
XIV);
b. the right to accessible and quality education at all levels and

duty of the State to make such education accessible to all
(Section 1, Article XIV);
c. the primary duty of parents to rear and prepare their children

(Section 2[2], Article XIV);
d. the right of every citizen to select a profession or course of

study (Section 5[3], Article XIV);
e. patriotism and nationalism (Sections 13 and 17, Article II,

Section 3[1] and [2], Article XIV);
f. the use of Filipino as medium of official communication and as

language of instruction in the educational system (Section 6,
Article XIV); and regional languages as auxiliary media of
instruction (Section 7, Article XIV);
g. academic freedom (Section 5[2], Article XIV); and
h. the right of labor to full protection (Section 18, Article II,

Section 3, Article XIII and Section 5[4], Article XIV);
5. Whether CMO No. 20 contravenes provisions of the Philippine

Constitution on:
a. the use of Filipino as medium of official communication and as

language of instruction in the educational system (Section 6,
Article XIV);
b. preservation, enrichment, and dynamic evolution of a Filipino

national culture (Sections 14, 15, and 16, Article XIV);
c. inclusion of the study of the Philippine Constitution as part of

the curriculum of all educational institutions (Section 3[1],
Article XIV);
d. giving priority to education to foster patriotism and nationalism

(Section 17, Article II and Sections 2 and 3, Article XIV); and
e. the protection of the rights of workers and promotion of their
welfare (Section 18, Article II and Section 3, Article XIII).
6. Whether CMO No. 20 violates the following laws:
a. RA No. 7104 or the Commission on the Filipino Language Act;
b. BP Blg. 232 or the Education Act of 1982; and
c. RA No. 7356 or the Act Creating the National Commission for

Culture and the Arts, Establishing National Endowment Fund for
Culture and the Arts and For Other Purposes.
7. Whether the K to 12 Law violates petitioners' right to substantive due

process and equal protection of the laws.
THE COURT'S RULING
Procedural Issues
Power of Judicial Review and the

Remedies of Certiorari,
Prohibition and Mandamus
The OSG submits that the cases filed by petitioners involve the resolution of purely
political questions which go into the wisdom of the law: they raise questions that
are clearly political and non-justiciable and outside the power of judicial
review.103 The OSG further asserts that the remedies of certiorari and prohibition
sought by petitioners are unwarranted because Congress, DepEd and CHED did not
exercise judicial, quasi-judicial or ministerial function, nor did they unlawfully
neglect the performance of an act which the law specifically enjoins as a duty, with
regard to the assailed issuances.104
The Court disagrees.
The political question doctrine is "no longer the insurmountable obstacle to the
exercise of judicial power or the impenetrable shield that protects executive and
legislative actions from judicial inquiry or review"105 under the expanded definition
of judicial power of the 1987 Philippine Constitution. Section 1, Article VIII thereof
authorizes courts of justice not only "to settle actual case controversies involving
rights which are legally demandable and enforceable" but also "to determine
whether there has been grave abuse of discretion amounting to lack or excess of
jurisdiction on the part of any branch or instrumentality of the Government."
In determining whether grave abuse of discretion amounting to excess or lack of

jurisdiction has been committed by any branch or instrumentality of the
government, the Court is guided primarily, by the Constitution, and secondarily, by
existing domestic and international law, which set limits or conditions to the powers
and functions conferred upon these political bodies. 106 Thus, when a case is brought
before the Court with serious allegations that a law or executive issuance infringes
upon the Constitution, as in these consolidated cases, it becomes not only the right
but in fact the duty of the Court to settle the dispute.107 In doing so, the Court is
"not judging the wisdom of an act of a coequal department, but is merely ensuring
that the Constitution is upheld."108 And, if after said review, the Court does not find
any constitutional infringement, then, it has no more authority to proscribe the
actions under review.109
Moreover, that the assailed laws and executive issuances did not involve the
exercise of judicial or quasi-judicial function is of no moment. Contrary to the
Solicitor General's assertion, it has long been judicially settled that under the
Court's expanded jurisdiction, the writs of certiorari and prohibition are appropriate
remedies to raise constitutional issues and to review and/or prohibit or nullify, on
the ground of grave abuse of discretion, any act of any branch or instrumentality of
the government, even if the latter does not exercise judicial, quasi-judicial or
ministerial functions.110
That said, the Court's power is not unbridled authority to review just any claim of
constitutional violation or grave abuse of discretion. The following requisites must
first be complied with before the Court may exercise its power of judicial review,
namely: (1) there is an actual case or controversy calling for the exercise of judicial
power; (2) the petitioner has standing to question the validity of the subject act or
issuance, i.e., he has a personal and substantial interest in the case that he has
sustained, or will sustain, direct injury as a result of the enforcement of the act or
issuance; (3) the question of constitutionality is raised at the earliest opportunity;
and (4) the constitutional question is the very lis mota of the case.111 Of these four,
the most important are the first two requisites, and thus will be the focus of the
following discussion.
Actual case or controversy
An actual case or controversy is one which involves a conflict of legal rights, an

assertion of opposite legal claims, susceptible of judicial resolution as distinguished
from a hypothetical or abstract difference or dispute since the courts will decline to
pass upon constitutional issues through advisory opinions, bereft as they are of
authority to resolve hypothetical or moot questions.112 Related to the requirement
of an actual case or controversy is the requirement of "ripeness," and a question is
ripe when the act being challenged has a direct effect on the individual challenging
it.113 For a case to be considered ripe for adjudication, it is a prerequisite that an act
had been accomplished or performed by either branch of government before a court
may interfere, and the petitioner must allege the existence of an immediate or
threatened injury to himself as a result of the challenged action. 114
Relevantly, in Sps. Imbong v. Ochoa, Jr.,115 (Imbong) where the constitutionality of

the Reproductive Health Law was challenged, the Court found that an actual case or
controversy existed and that the same was ripe for judicial determination
considering that the RH Law and its implementing rules had already taken effect
and that budgetary measures to carry out the law had already been passed.
Moreover, the petitioners therein had sufficiently shown that they were in danger of
sustaining some direct injury as a result of the act complained of. 116
Similar to Imbong, these consolidated cases present an actual case or controversy

that is ripe for adjudication. The assailed laws and executive issuances have already
taken effect and petitioners herein, who are faculty members, students and
parents, are individuals directly and considerably affected by their implementation.
Legal Standing
Legal standing refers to 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.117 In constitutional cases, which are often brought through public
actions and the relief prayed for is likely to affect other persons, 118 non-traditional
plaintiffs have been given standing by this Court provided specific requirements
have been met.119
When suing as a concerned citizen, the person complaining must allege that he has
been or is about to be denied some right or privilege to which he is lawfully entitled
or that he is about to be subjected to some burdens or penalties by reason of the
statute or act complained of.120
In the case of taxpayers, they are allowed to sue where there is a claim that public
funds are illegally disbursed or that public money is being deflected to any improper
purpose, or that public funds are wasted through the enforcement of an invalid or
unconstitutional law.121
On the other hand, legislators have standing to maintain inviolate the prerogatives,
powers, and privileges vested by the Constitution in their office and are allowed to
sue to question the validity of any official action which infringe upon their legislative
prerogatives.122
An organization, asserting the rights of its members, may also be granted standing
by the Court.123
Petitioners in G.R. Nos. 216930 and 218465 include organizations/federations duly

organized under the laws of the Philippines, representing the interest of the faculty
and staff of their respective colleges and universities, who allegedly are threatened
to be demoted or removed from employment with the implementation of the K to
12 Law. Petitioners in G.R. Nos. 217752 and 218045 are suing as citizens,
taxpayers and in their personal capacities as parents whose children would be
directly affected by the law in question. Petitioners in G.R. Nos. 218123 and 217451
are suing in their capacities as teachers who allegedly are or will be negatively
affected by the implementation of the K to 12 Law and CMO No. 20, respectively,
through job displacement and diminution of benefits; and as taxpayers who have
the right to challenge the K to 12 Law and CMO No. 20 as public funds are spent
and will be spent for its implementation.
Under the circumstances alleged in their respective petitions, the Court finds that
petitioners have sufficient legal interest in the outcome of the controversy. And,
considering that the instant cases involve issues on education, which under the
Constitution the State is mandated to promote and protect, the stringent
requirement of direct and substantial interest may be dispensed with, and the mere
fact that petitioners are concerned citizens asserting a public right, sufficiently
clothes them with legal standing to initiate the instant petition.124
Substantive Issues
I.
K to 12 Law was duly enacted
Petitioners question the validity of the enactment of the K to 12 Law claiming that:

(1) sectors which would be directly affected by the K to 12 Basic Education Program
were deprived of their right, under Section 16, Article XIII of the 1987 Constitution,
to be consulted or participate in matters which involved their interest prior to the
passage of the law;125 (2) the enrolled bill which the President signed into law varies
significantly from the reconciled version of the bill as approved by Congress and
reported in the Senate Journal on January 30, 2013, 126 and that the Court, pursuant
to its ruling in Astorga v. Villegas,127 (Astorga) should look into the entries in the
Journal to determine whether the K to 12 Law was duly enacted;128 and (3) the K to
12 Law was incomplete because it failed to provide sufficient standards by which
the DepEd, CHED and TESDA, might be guided in addressing the possible impact of
the implementation of the K to 12 Law on labor; thus, Section 31 of the K to 12
IRR and the Joint Guidelines, which spring forth from such undue delegation of
legislative power, are invalid and unconstitutional.129
For its part, the OSG contends that the K to 12 Law was enacted in accordance with
the procedure prescribed in the Constitution and that contrary to petitioners'
assertion, the text of the enrolled bill which was eventually signed into law is not
different from the consolidated bill drafted by the Bicameral Conference Committee
and approved by the Senate and House of Representatives. 130 Further, the OSG
argues that there is no undue delegation of legislative power because the K to 12
Law provides a sufficient standard on the impact on labor due to its
implementation.131
Private respondent Miriam College shares the same view that the K to 12
Law sufficiently provided standards to guide the relevant administrative agencies
and the private educational institutions in the implementation of the K to 12
Law and address all issues on labor.132
The Court holds that, contrary to petitioners' contention, the K to 12 Law was

validly enacted.
First, petitioners' claim of lack of prior consultations is belied by the nationwide

regional consultations conducted by DepEd pursuant DepEd Memorandum Nos.
38133 and 98,134 series of 2011. The regional consultations, which aimed "to inform
the public [and] to elicit their opinions, thoughts, and suggestions about the K to 12
program,"135 ran from February to March 2011 and were participated in by students,
parents, teachers and administrators, government representatives, and
representatives from private schools and private sectors. 136
The Philippine Congress, in the course of drafting the K to 12 Law, also conducted
regional public hearings between March 2011 to February 2012, wherein
representatives from parents-teachers' organizations, business, public/private
school heads, civil society groups/non-government organizations/private
organizations and local government officials and staffs were among the
participants.137 And even assuming that no consultations had been made prior to
the adoption of the K to 12, it has been held that the "[p]enalty for failure on the
part of the government to consult could only be reflected in the ballot box and
would not nullify government action."138
Second, the enrolled bill doctrine applies in this case. 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 is conclusive not only as to its provisions but also as to its due
enactment.139 The rationale behind the enrolled bill doctrine rests on the
consideration that "[t]he respect due to coequal and independent departments
requires the [Judiciary] 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, [as in the instant consolidated
cases], whether the Act, so authenticated, is in conformity with the Constitution." 140
Jurisprudence will show that the Court has consistently adhered to the enrolled bill
doctrine. Claims that the required three-fourths vote for constitutional amendment
has not been obtained,141 that irregularities attended the passage of the law,142 that
the tenor of the bill approved in Congress was different from that signed by the
President,143 that an amendment was made upon the last reading of the bill, 144 and
even claims that the enrolled copy of the bill sent to the President contained
provisions which had been "surreptitiously" inserted by the conference
committee,145 had all failed to convince the Court to look beyond the four corners of
the enrolled copy of the bill.
As correctly pointed out by private respondent Miriam College, petitioners' reliance

on Astorga is quite misplaced. They overlooked that in Astorga, the Senate
President himself, who authenticated the bill, admitted a mistake and withdrew his
signature, so that in effect there was no longer an enrolled bill to
consider.146 Without such attestation, and consequently there being no enrolled bill
to speak of, the Court was constrained to consult the entries in the journal to
determine whether the text of the bill signed by the Chief Executive was the same
text passed by both Houses of Congress. 147
In stark contrast to Astorga, this case presents no exceptional circumstance to

justify the departure from the salutary rule. The K to 12 Law was passed by the
Senate and House of Representatives on January 20, 2013, approved by the
President on May 15, 2013, and, after publication, took effect on June 8, 2013.
Thus, there is no doubt as to the formal validity of the K to 12 Law.
Third, there is no undue delegation of legislative power in the enactment of the K to

12 Law.
In determining whether or not a statute constitutes an undue delegation of

legislative power, the Court has adopted two tests: the completeness test and the
sufficient standard test. Under the first test, the law must be complete in all its
terms and conditions when it leaves the legislature such that when it reaches the
delegate, the only thing he will have to do is to enforce it.148 The policy to be
executed, carried out or implemented by the delegate must be set forth
therein.149 The sufficient standard test, on the other hand, mandates adequate
guidelines or limitations in the law to determine the boundaries of the delegate's
authority and prevent the delegation from running riot. To be sufficient, the
standard must specify the limits of the delegate's authority, announce the
legislative policy and identify the conditions under which it is to be implemented. 150
The K to 12 Law adequately provides the legislative policy that it seeks to

implement. Section 2 of the K to 12 Law provides:
SEC. 2. Declaration of Policy. – The State shall establish, maintain and support a
complete, adequate, and integrated system of education relevant to the needs of
the people, the country and society-at-large.
Likewise, it is hereby declared the policy of the State that every graduate of basic
education shall be an empowered individual who has learned, through a program
that is rooted on sound educational principles and geared towards excellence, the
foundations for learning throughout life, the competence to engage in work and be
productive, the ability to coexist in fruitful harmony with local and global
communities, the capability to engage in autonomous, creative, and critical
thinking, and the capacity and willingness to transform others and one's self.
For this purpose, the State shall create a functional basic education system that will
develop productive and responsible citizens equipped with the essential
competencies, skills and values for both life-long learning and employment. In
order to achieve this, the State shall:
(a) Give every student an opportunity to receive quality education that is globally
competitive based on a pedagogically sound curriculum; that is at par with
international standards;
(b) Broaden the goals of high school education for college preparation, vocational
and technical career opportunities as well as creative arts, sports and
entrepreneurial employment in a rapidly changing and increasingly globalized
environment; and
(c) Make education learner-oriented and responsive to the needs, cognitive and
cultural capacity, the circumstances and diversity of learners, schools and
communities through the appropriate languages of teaching and learning, including
mother tongue as a learning resource.
Moreover, scattered throughout the K to 12 Law are the standards to guide the

DepEd, CHED and TESDA in carrying out the provisions of the law, from the
development of the K to 12 BEC, to the hiring and training of teaching personnel
and to the formulation of appropriate strategies in order to address the changes
during the transition period.
SEC. 5. Curriculum Development. — The DepEd shall formulate the design and
details of the enhanced basic education curriculum. It shall work with the
Commission on Higher Education (CHED) to craft harmonized basic and tertiary
curricula for the global competitiveness of Filipino graduates. To ensure college
readiness and to avoid remedial and duplication of basic education subjects, the
DepED shall coordinate with the CHED and the Technical Education and Skills
Development Authority (TESDA).
To achieve an effective enhanced basic education curriculum, the DepED shall

undertake consultations with other national government agencies and other
stakeholders including, but not limited to, the Department of Labor and
Employment (DOLE), the Professional Regulation Commission (PRC), the private
and public schools associations, the national student organizations, the national
teacher organizations, the parents-teachers associations and the chambers of
commerce on matters affecting the concerned stakeholders.
The DepED shall adhere to the following standards and principles in developing the
enhanced basic education curriculum:

appropriate;
(f) The curriculum shall adhere to the principles and framework of Mother Tongue-
Based Multilingual Education (MTB-MLE) which starts from where the learners are
and from what they already knew proceeding from the known to the unknown;
instructional materials and capable teachers to implement the MTB-MLE curriculum
shall be available;
(g) The curriculum shall use the spiral progression approach to ensure mastery of
knowledge and skills after each level; and
(h) The curriculum shall be flexible enough to enable and allow schools to localize,
indigenize and enhance the same based on their respective educational and social
contexts. The production and development of locally produced teaching materials
shall be encouraged and approval of these materials shall devolve to the regional
and division education units.
xxxx
SEC. 7. Teacher Education and Training. — To ensure that the enhanced basic
education program meets the demand for quality teachers and school leaders, the
DepED and the CHED, in collaboration with relevant partners in government,
academe, industry, and nongovernmental organizations, shall conduct teacher
education and training programs, as specified:
(a) In-service Training on Content and Pedagogy. — Current DepED teachers shall
be retrained to meet the content and performance standards of the new K to 12
curriculum. The DepED shall ensure that private education institutions shall be
given the opportunity to avail of such training.
(b) Training of New Teachers. — New graduates of the current Teacher Education
curriculum shall undergo additional training, upon hiring, to upgrade their skills to
the content standards of the new curriculum. Furthermore, the CHED, in
coordination with the DepED and relevant stakeholders, shall ensure that the
Teacher Education curriculum offered in these Teacher Education Institutes (TEIs)
will meet the necessary quality standards for new teachers. Duly recognized
organizations acting as TEIs, in coordination with the DepED, the CHED, and other
relevant stakeholders, shall ensure that the curriculum of these organizations meet
the necessary quality standards for trained teachers.
(c) Training of School Leadership. — Superintendents, principals, subject area

coordinators and other instructional school leaders shall likewise undergo
workshops and training to enhance their skills on their role as academic,
administrative and community leaders.
Henceforth, such professional development programs as those stated above shall

be initiated and conducted regularly throughout the school year to ensure constant
upgrading of teacher skills.
SEC. 8. Hiring of Graduates of Science, Mathematics, Statistics, Engineering and

Other Specialists in Subjects with a Shortage of Qualified Applicants, Technical-
Vocational Courses and Higher Education Institution Faculty. — Notwithstanding the
provisions of Sections 26, 27 and 28 of Republic Act No. 7836, otherwise known as
the "Philippine Teachers Professionalization Act of 1994", the DepED and private
education institutions shall hire, as may be relevant to the particular subject:
(a) Graduates of science, mathematics, statistics, engineering, music and other
degree courses with shortages in qualified Licensure Examination for Teachers
(LET) applicants to teach in their specialized subjects in the elementary and
secondary education. Qualified LET applicants shall also include graduates admitted
by foundations duly recognized for their expertise in the education sector and who
satisfactorily complete the requirements set by these organizations: Provided, That
they pass the LET within five (5) years after their date of hiring: Provided,
further, That if such graduates are willing to teach on part-time basis, the
provisions of LET shall no longer be required;
(b) Graduates of technical-vocational courses to teach in their specialized subjects

in the secondary education: Provided, That these graduates possess the necessary
certification issued by the TESDA: Provided, further, That they undergo appropriate
in-service training to be administered by the DepED or higher education institutions
(HEIs) at the expense of the DepED;
(c) Faculty of HEIs be allowed to teach in their general education or subject

specialties in the secondary education: Provided, That the faculty must be a holder
of a relevant Bachelor's degree, and must have satisfactorily served as a full-time
HEI faculty;
(d) The DepED and private education institutions may hire practitioners, with
expertise in the specialized learning areas offered by the Basic Education
Curriculum, to teach in the secondary level: Provided, That they teach on part-time
basis only. For this purpose, the DepED, in coordination with the appropriate
government agencies, shall determine the necessary qualification standards in
hiring these experts.
xxxx
SEC. 12. Transitory Provisions. — The DepED, the CHED and the TESDA shall
formulate the appropriate strategies and mechanisms needed to ensure smooth
transition from the existing ten (10) years basic education cycle to the enhanced
basic education (K to 12) cycle. The strategies may cover changes in physical
infrastructure, manpower, organizational and structural concerns, bridging models
linking grade 10 competencies and the entry requirements of new tertiary curricula,
and partnerships between the government and other entities. Modeling for senior
high school may be implemented in selected schools to simulate the transition
process and provide concrete data for the transition plan.
To manage the initial implementation of the enhanced basic education program and
mitigate the expected multi-year low enrolment turnout for HEIs and Technical
Vocational Institutions (TVIs) starting School Year 2016-2017, the DepED shall
engage in partnerships with HEIs and TVIs for the utilization of the latter's human
and physical resources. Moreover, the DepED, the CHED, the TESDA, the TVIs and
the HEIs shall coordinate closely with one another to implement strategies that
ensure the academic, physical, financial, and human resource capabilities of HEIs
and TVIs to provide educational and training services for graduates of the enhanced
basic education program to ensure that they are not adversely affected. The faculty
of HEIs and TVIs allowed to teach students of secondary education under Section 8
hereof, shall be given priority in hiring for the duration of the transition period. For
this purpose, the transition period shall be provided for in the implementing rules
and regulations (IRR).151
Clearly, under the two tests, the K to 12 Law, read and appreciated in its entirety,
is complete in all essential terms and conditions and contains sufficient parameters
on the power delegated to the DepEd, CHED and TESDA. The fact that the K to 12
Law did not have any provision on labor does not make said law incomplete. The
purpose of permissible delegation to administrative agencies is for the latter to
"implement the broad policies laid down in a statute by 'filling in' the details which
the Congress may not have the opportunity or competence to provide." 152 With the
proliferation of specialized activities and their attendant peculiar problems, the
legislature has found it necessary to entrust to administrative agencies, who are
supposed to be experts in the particular fields assigned to them, the authority to
provide direct and efficacious solutions to these problems. 153 This is effected by the
promulgation of supplementary regulations, such as the K to 12 IRR jointly issued
by the DepEd, CHED and TESDA and the Joint Guidelines issued in coordination with
DOLE, to address in detail labor and management rights relevant to implementation
of the K to 12 Law.
DO No. 31 is valid and enforceable
Petitioners also claim that DO No. 31 is a usurpation of legislative authority as it

creates a law without delegation of power.154 According to petitioners, DO No. 31,
which changed the curriculum and added two (2) more years to basic education,
has no statutory basis. It also violates the constitutional right of parents to
participate in planning programs that affect them and the right to information on
matters of public concern.155 Petitioners further contend that since DO No. 31
imposes additional obligations to parents and children, public consultations should
have been conducted prior to its adoption and that the assailed DO should have
been published and registered first with the Office of the National Administrative
Register before it can take effect.156
Again, petitioners' arguments lack factual and legal bases. DO No. 31 did not add
two (2) years to basic education nor did it impose additional obligations to parents
and children. DO No. 31 is an administrative regulation addressed to DepEd
personnel providing for general guidelines on the implementation of a new
curriculum for Grades 1 to 10 in preparation for the K to 12 basic education. DO No.
31 was issued in accordance with the DepEd's mandate to establish and maintain a
complete, adequate and integrated system of education relevant to the goals of
national development,157 formulate, plan, implement, and coordinate and ensure
access to, promote equity in, and improve the quality of basic education; 158 and
pursuant to the Secretary's authority to formulate and promulgate national
educational policies,159 under existing laws.
Moreover, more than a year prior to adoption of DO No. 31, and contrary to
petitioners' assertions, DepEd conducted regional consultations and focus group
discussions, participated in by students, parents, teachers and administrators,
government representatives, and representatives from private schools and private
sector,160 to elicit opinions, thoughts and suggestions about the K to 12 basic
education.161
There is also no merit in petitioners' claim that publication is necessary for DO No.
31 to be effective. Interpretative regulations and those merely internal in nature,
including the rules and guidelines to be followed by subordinates in the
performance of their duties are not required to be published. 162 At any rate, the
Court notes that DO No. 31 was already forwarded to the University of the
Philippines Law Center for filing in accordance with Sections 3 and 4 of
the Administrative Code of 1987 and took effect pursuant to said provisions. 163
Having established that the K to 12 Law and its related issuances were duly enacted
and/or validly issued, the Court now discusses whether they contravene provisions
of the Constitution.
II.
Police power of the State
Police power is defined broadly as the State's authority to enact legislation that may
interfere with personal liberty or property in order to promote the general welfare.
This all-comprehensive definition provides ample room for the State to meet the
exigencies of the times depending on the conditions and circumstances. As the
Court eruditely explained in Basco v. Philippine Amusements and Gaming
Corp.164 (Basco):
The concept of police power is well-established in this jurisdiction. It has been

defined as the "state authority to enact legislation that may interfere with personal
liberty or property in order to promote the general welfare." (Edu v. Ericta, 35
SCRA 481, 487) As defined, it consists of (1) an imposition or restraint upon liberty
or property, (2) in order to foster the common good. It is not capable of an exact
definition but has been, purposely, veiled in general terms to underscore its all-
comprehensive embrace. (Philippine Association of Service Exporters, Inc. v. Drilon,
163 SCRA 386).
Its scope, ever-expanding to meet the exigencies of the times, even to anticipate
the future where it could be done, provides enough room for an efficient and
flexible response to conditions and circumstances thus assuming the greatest
benefits. (Edu v. Ericta, supra).
It finds no specific Constitutional grant for the plain reason that it does not owe its
origin to the charter. Along with the taxing power and eminent domain, it is inborn
in the very fact of statehood and sovereignty. It is a fundamental attribute of
government that has enabled it to perform the most vital functions of governance.
Marshall, to whom the expression has been credited, refers to it succinctly as the
plenary power of the state "to govern its citizens". (Tribe, American Constitutional
Law, 323, 1978). The police power of the State is a power co-extensive with self-
protection and is most aptly termed the "law of overwhelming necessity." (Rubi v.
Provincial Board of Mindoro, 39 Phil. 660, 708) It is "the most essential, insistent,
and illimitable of powers." (Smith Bell & Co. v. National, 40 Phil. 136) It is a
dynamic force that enables the state to meet the exigencies of the winds of
change.165
From the legislative history of the Philippine education system as detailed above,
one can easily discern that the enactment of education laws, including the K to 12
Law and the Kindergarten Education Act, their respective implementing rules and
regulations and the issuances of the government agencies, are an exercise of the
State's police power. The State has an interest in prescribing regulations to
promote the education and the general welfare of the people. In Wisconsin v.
Yoder,166 the U.S. Supreme Court ruled that "[t]here is no doubt as to the power of
a State, having a high responsibility for education of its citizens, to impose
reasonable regulations for the control and duration of basic education."167
Here, petitioners essentially assail the State's exercise of police power to regulate
education through the adoption of the K to 12 Basic Education Program, because
the K to 12 Law and its related issuances purportedly violate the Constitutional
provisions as enumerated in the outline of issues above.
Every law has in its favor the presumption of constitutionality. 168 For a law to be
nullified, it must be shown that there is a clear and unequivocal breach of the
Constitution.169 The grounds for nullity must be clear beyond reasonable
doubt.170 Hence, for the Court to nullify the assailed laws, petitioners must clearly
establish that the constitutional provisions they cite bestow upon them demandable
and enforceable rights and that such rights clash against the State's exercise of its
police power under the K to 12 Law.
To be sure, the Court's role is to balance the State's exercise of its police power as
against the rights of petitioners. The Court's pronouncement in Secretary of Justice
v. Lantion171 (Lantion) instructs:
x x x The clash of rights demands a delicate balancing of interests approach which

is a "fundamental postulate of constitutional law." The approach requires that we
"take conscious and detailed consideration of the interplay of interests observable
in a given situation or type of situation." These interests usually consist in the
exercise by an individual of his basic freedoms on the one hand, and the
government's promotion of fundamental public interest or policy objectives on the
other.172
In fact, in Wisconsin v. Yoder,173 where the question was the validity of a statute

criminalizing the failure of parents to allow their children to attend compulsory high
school education, the U.S. Supreme Court ruled that although the State's interest in
universal education is highly ranked in terms of State functions, this does not free
this exercise of State function from the balancing process when it impinges on
fundamental rights and interests, specifically the Free Exercise Clause, thus:
There is no doubt as to the power of a State, having a high responsibility for

education of its citizens, to impose reasonable regulations for the control and
duration of basic education. See, e.g., Pierce v Society of Sisters, 268 US 510, 534,
69 L Ed 1070, 1077, 45 S Ct 571, 39 ALR 468 (1925). Providing public schools
ranks at the very apex of the function of a State. Yet even this paramount
responsibility was, in Pierce, made to yield to the right of parents to provide an
equivalent education in a privately operated system. There the Court held that
Oregon's statute compelling attendance in a public school from age eight to age 16
unreasonably interfered with the interest of parents in directing the rearing of their
offspring, including their education in church-operated schools. As that case
suggests, the values of parental direction of the religious upbringing and education
of their children in their early and formative years have a high place in our society.
See also Ginsberg v New York, 390 US 629, 639 20 L Ed 2d 195, 203, 88 S Ct 1274
(1968); Meyer v Nebraska, 262 US 390, 67 L Ed 1042, 43 S Ct 625, 29 ALR 1446
(1923); cf. Rowan v Post Office Dept., 397 US 728, 25 L Ed 2d 736, 90 S Ct 1484
(1970). Thus, a State's interest in universal education, however highly we
rank it, is not totally free from a balancing process when it impinges on
fundamental rights and interests, such as those specifically protected by
the Free Exercise Clause of the First Amendment, and the traditional
interest of parents with respect to the religious upbringing of their children
so long as they, in the words of Pierce, "prepare [them] for additional
obligations." 268 US at 535, 69 L Ed AT 1078.174
As quoted above, this balancing of interest approach has been applied in this
jurisdiction in Lantion in determining whether there was a violation of the private
respondent's right to due process when he was not furnished a copy of the request
for his extradition. This right was balanced against the country's commitment under
the RP-US Extradition Treaty to extradite to the United States of America persons
who were charged with the violation of some of its laws. 175
The Court held in Lantion that at the stage of the extradition, it was only at an
evaluation stage; thus there was yet no requirement that he be given notice of the
proceedings. At that stage, the balance was tilted in favor of the interest of the
State in helping suppress crime by facilitating the extradition of persons covered by
treaties entered into by the government.176
It is with these standards and framework that the Court examines whether the
enactments of the Kindergarten Education Act, the K to 12 Law and their
implementing rules and regulations, were valid exercises of the State's police power
to regulate education.
In this regard, and to digress, only self-executing provisions of the Constitution

embody judicially enforceable rights and therefore give rise to causes of action in
court.177 Accordingly, it is necessary to determine first whether the constitutional
provisions invoked by petitioners are self-executing; and if they are, is there a
conflict between these rights and the State's police power to regulate education? If
a conflict does exist, do the rights of petitioners yield to the police power of the
State?
Non-self-executing constitutional provisions
As defined, "a constitutional provision is self-executing if the nature and extent of

the right conferred and the liability imposed are fixed by the constitution itself, so
that they can be determined by an examination and construction of its terms, and
there is no language indicating that the subject is referred to the legislature for
action."178
In Manila Prince Hotel v. Government Service Insurance System,179 it was ruled that
all provisions of the Constitution are presumed self-executing, 180 because to treat
them as requiring legislation would result in giving the legislature "the power to
ignore and practically nullify the mandate of the fundamental law." 181 And this could
result in a cataclysm.182
This pronouncement notwithstanding, however, the Court has, in several cases, had
occasion to already declare several Constitutional provisions as not self-executory.
In Tanada v. Angara,183 it was settled that the sections found under Article II of the
1987 Philippine Constitution are not self-executing provisions. In fact, in the cases
of Basco,184Kilosbayan, Inc. v. Morato,185 and Tondo Medical Center Employees
Association v. Court of Appeals,186 the Court categorically ruled that Sections 11,
12, 13, 17 and 18 of Article II, Section 13 of Article XIII, and Section 2 of Article
XIV, of the 1987 Philippine Constitution, respectively, are non-self-executing. The
very terms of these provisions show that they are not judicially enforceable
constitutional rights but merely guidelines for legislation.187 And the failure of the
legislature to pursue the policies embodied therein does not give rise to a cause of
action in the courts.188
In specific application to the present petitions, in Tolentino v. Secretary of

Finance,189 the Court also ruled that Section 1, Article XIV on the right of all citizens
to quality education is also not self-executory. The provision "for the promotion of
the right to 'quality education' x x x [was] put in the Constitution as moral
incentives to legislation, not as judicially enforceable rights." 190
Further, Section 6, Article XIV on the use of the Filipino language as a medium of
instruction is also not self-executory. The deliberations of the Constitutional
Commission confirm this:
MR. DE CASTRO. Madam President.
THE PRESIDENT. Commissioner de Castro is recognized.

MR. DE CASTRO. Just a matter of clarification. On the first sentence, we use Filipino
as an official medium of communication in all branches of government. Is that
correct?
MR. VILLACORTA. Yes.
MR. DE CASTRO. And when we speak of Filipino, can it be a combination of Tagalog

and the local dialect, and, therefore, can be "Taglish"? Is that right?
MR. VILLACORTA. Not really "Taglish," Madam President.
MR. BENNAGEN. It can be standard.
MR. DE CASTRO. Or the combination of the local language and Tagalog?
MR. VILLACORTA. As it naturally evolves.
MR. DE CASTRO. Suppose I am a Muslim official from Sulu and I will use Filipino in
my communication. So I will write: "Di makadiari ang iniisip mo." It is a
combination of Tausog — "di makadiari" and Tagalog — "ang iniisip mo." The one
receiving in the main office may not understand the whole thing. I am just
clarifying because when we use Filipino as a medium of official communication,
there is a possibility that the message may not be understood when it reaches the
central office or when it goes to another area.
MR. VILLACORTA. That is why the wording is, "The government shall take steps to
initiate and sustain the use of Filipino." And in Section 1, it says: "as it evolves, it
shall be further developed and enriched," the implication being that it will be
standardized as a national language.
MR. DE CASTRO. Yes, but then in Section 2, we come out with Filipino as a medium
of official communication. I am just giving an example that as an official
communication, it may not be understood by the one at the receiving end,
especially if one comes from the South and whose message is received in the North
or in the center. As I said, "Di makadiari ang iniisip mo," is half Tausog and half
Tagalog.
MR. VILLACORTA. Commissioner Bennagen, who is an expert on culture and

minorities, will answer the question of the Gentleman.
MR. BENNAGEN. I think what we envision to happen would be for government

agencies, as well as other nongovernmental agencies involving this, to start
immediately the work of standardization — expanding the vocabularies,
standardizing the spelling and all appropriate measures that have to do with
propagating Filipino.
MR. DE CASTRO. In short?

MR. BENNAGEN. The work will codify this national lingua franca as it is taking place
and will be subjected to other developmental activities.
MR. OPLE. Madam President, may I say a word?
MR. DE CASTRO. In short, does the committee want us to understand that

Section 2, even if ratified, will not as yet be effective because it is still
subject to the provisions of law and as Congress may deem appropriate?
So the medium of official communication among branches of government
cannot as yet be Filipino until subject to provisions of law and as Congress
may deem appropriate. Is that correct?
MR. OPLE. Madam President.
MR. DE CASTRO. No, I am asking the committee, please.
THE PRESIDENT. What is the answer of the committee?
MR. VILLACORTA. That is correct, Madam President.
MR. DE CASTRO. Thank you.
MR. OPLE. I just wanted to point out that when the words "official communication''
is used, this must satisfy the standards of accuracy, precision and, perhaps, clarity
or lack of ambiguity; otherwise, it will not be communication. One can lose a war
through imprecise communication in government and, therefore, I think the word
"communication" should be understood in its correct light — that when one writes
from Sulu, as in the example given by Commissioner de Castro, he has to consider
the following: Is his communication clear? Is it unambiguous? Is it precise? I just
want to point out that when we speak of official communication, these normal
standards of good communication ought to be recognized as controlling, otherwise,
the interest of public administration will be vitally affected.
Thank you, Madam President.
THE PRESIDENT. Shall we vote now on the first sentence?
MR. RODRIGO. I think it should be on the first two sentences.
THE PRESIDENT. There was a suggestion, and that was accepted by the committee,
to vote on the first sentence.
MR. RODRIGO. Only on the first sentence? But there are two sentences.
THE PRESIDENT. No, that was already approved.

MR. VILLACORTA. Madam President, may I ask for a vote now because this has
been extensively discussed.
THE PRESIDENT. Will the chairman read what is to be voted upon?
MR. VILLACORTA. Madam President, the first sentence reads: "SUBJECT TO

PROVISIONS OF LAW AND AS CONGRESS MAY DEEM APPROPRIATE, THE
GOVERNMENT SHALL TAKE STEPS TO INITIATE AND SUSTAIN THE USE OF
FILIPINO AS A MEDIUM OF OFFICIAL COMMUNICATION AND AS LANGUAGE OF
INSTRUCTION IN THE EDUCATIONAL SYSTEM."
VOTING
THE PRESIDENT. As many as are in favor of the first sentence, please raise their
hand. (Several Members raised their hand.)
As many as are against, please raise their hand. (No Member raised his hand.)
The results show 37 votes in favor and none against; the first sentence is
approved.191
Section 3, Article XIII, on the protection of labor and security of tenure, was also
declared by the Court in Agabon v. National Labor Relations
Commission,192 (Agabon) as not self-executory. Reiterating Agabon, the Court
explained in Serrano v. Gallant Maritime Services, Inc.,193 that Section 3, Article
XIII, does not automatically confer judicially demandable and enforceable rights
and cannot, on its own, be a basis for a declaration of unconstitutionality, to wit:
While all the provisions of the 1987 Constitution are presumed self-executing, there
are some which this Court has declared not judicially enforceable, Article XIII
being one, particularly Section 3 thereof, the nature of which, this Court, in Agabon
v. National Labor Relations Commission, has described to be not self-actuating:
Thus, the constitutional mandates of protection to labor and security of tenure may
be deemed as self-executing in the sense that these are automatically
acknowledged and observed without need for any enabling legislation. However, to
declare that the constitutional provisions are enough to guarantee the full exercise
of the rights embodied therein, and the realization of ideals therein expressed,
would be impractical, if not unrealistic. The espousal of such view presents the
dangerous tendency of being overbroad and exaggerated. The guarantees of "full
protection to labor" and "security of tenure", when examined in isolation, are
facially unqualified, and the broadest interpretation possible suggests a blanket
shield in favor of labor against any form of removal regardless of circumstance. This
interpretation implies an unimpeachable right to continued employment — a
utopian notion, doubtless — but still hardly within the contemplation of the framers.
Subsequent legislation is still needed to define the parameters of these guaranteed
rights to ensure the protection and promotion, not only the rights of the labor
sector, but of the employers' as well. Without specific and pertinent legislation,
judicial bodies will be at a loss, formulating their own conclusion to approximate at
least the aims of the Constitution.
Ultimately, therefore, Section 3 of Article XIII cannot, on its own, be a

source of a positive enforceable right to stave off the dismissal of an employee
for just cause owing to the failure to serve proper notice or hearing. As manifested
by several framers of the 1987 Constitution, the provisions on social justice require
legislative enactments for their enforceability. (Emphasis added)
Thus, Section 3, Article XIII cannot be treated as a principal source of direct

enforceable rights, for the violation of which the questioned clause may be declared
unconstitutional. It may unwittingly risk opening the floodgates of litigation to every
worker or union over every conceivable violation of so broad a concept as social
justice for labor.
It must be stressed that Section 3, Article XIII does not directly bestow on the
working class any actual enforceable right, but merely clothes it with the status of a
sector for whom the Constitution urges protection through executive or legislative
action and judicial recognition. Its utility is best limited to being an impetus not
just for the executive and legislative departments, but for the judiciary as well, to
protect the welfare of the working class. And it was in fact consistent with that
constitutional agenda that the Court in Central Bank (now Bangko Sentral ng
Pilipinas) Employee Association, Inc. v. Bangko Sentral ng Pilipinas, penned by then
Associate Justice now Chief Justice Reynato S. Puno, formulated the judicial precept
that when the challenge to a statute is premised on the perpetuation of prejudice
against persons favored by the Constitution with special protection — such as the
working class or a section thereof — the Court may recognize the existence of a
suspect classification and subject the same to strict judicial scrutiny.
The view that the concepts of suspect classification and strict judicial scrutiny
formulated in Central Bank Employee Association exaggerate the significance of
Section 3, Article XIII is a groundless apprehension. Central Bank applied Article
XIII in conjunction with the equal protection clause. Article XIII, by itself, without
the application of the equal protection clause, has no life or force of its own as
elucidated in Agabon. 194
Here, apart from bare allegations that the K to 12 Law does not provide
mechanisms to protect labor, which, as discussed, have no legal bases, petitioners
have not proffered other bases in claiming that the right to protect labor and/or
security of tenure was violated with the implementation of the K to 12 Law. To be
sure, the protection of labor from illegal dismissal has already been set in stone
with the enactment of the Labor Code and the Civil Service Law.
Given the foregoing, petitioners cannot claim that the K to 12 Law and/or any of its
related issuances contravene or violate any of their rights under the foregoing
constitutional provisions because these provisions simply state a policy that may be
"used by the judiciary as aids or as guides in the exercise of its power of judicial
review, and by the legislature in its enactment of laws." 195 They do not embody
judicially enforceable constitutional rights.196 In other words, the Kindergarten
Education Act, the K to 12 Law and its related issuances cannot be nullified based
solely on petitioners' bare allegations that they violate general provisions of the
Constitution which are mere directives addressed to the executive and legislative
departments. If these directives are unheeded, the remedy does not lie with the
courts, but with the power of the electorate in casting their votes. 197 As held
in Tañada v. Angara:198 "The reasons for denying a cause of action to an alleged
infringement of broad constitutional principles are sourced from basic
considerations of due process and the lack of judicial authority to wade 'into the
uncharted ocean of social and economic policy-making."' 199
In view of the foregoing, the Court shall now proceed to discuss the remaining
constitutional provisions, international treaties, and other special laws invoked by
petitioners, which have allegedly been violated by the implementation of the K to
12 Law. For the constitutional provisions, the Court shall determine whether these
constitutional provisions are in conflict with the police power of the State in
enacting and implementing the K to 12 Law, and if so, whether these constitutional
provisions yield to the police power of the State.
Compulsory Elementary and High

School Education
Petitioners argue that the legislature violated the Constitution when they made
kindergarten and senior high school compulsory. For petitioners, compulsory
kindergarten and senior high school expanded the constitutional definition of
elementary education and that the Congress violated the rule of constitutional
supremacy when it made kindergarten and senior high school compulsory. 200
On the other hand, the OSG contends that while Section 2, Article XIV states that
elementary education shall be compulsory, it did not preclude Congress from
making kindergarten and secondary education mandatory (based on the clear
wording of the law and deliberations of the Constitutional Commission). 201 Further,
the laws advance the right of child to education, and they do not violate any
international agreement (Universal Declaration of Human Rights [UDHR], the
International Covenant of Economic, Social and Cultural Rights [ICESCR] and the
Convention on the Rights of the Child [CRC]) to which the Philippines is a
signatory.202
The State's policy in implementing the K to 12 Program is stated as follows:
x x x [I]t is hereby declared the policy of the State that every graduate of basic
that is rooted on sound educational principles and geared towards excellence, the
foundations for learning throughout life, the competence to engage in work and be
productive, the ability to coexist in fruitful harmony with local and global
communities, the capability to engage in autonomous, creative, and critical
thinking, and the capacity and willingness to transform others and one's self.
For this purpose, the State shall create a functional basic education system that will
develop productive and responsible citizens equipped with the essential
competencies, skills and values for both life-long learning and employment. In
order to achieve this, the State shall:
competitive based on a pedagogically sound curriculum that is at par with
environment; and
mother tongue as a learning resource.203
There is no conflict between the K to 12 Law and related issuances and the

Constitution when it made kindergarten and senior high school compulsory. The
Constitution is clear in making elementary education compulsory; and the K to 12
Law and related issuances did not change this as, in fact, they affirmed it.
As may be gleaned from the outlined history of education laws in the Philippines,
the definition of basic education was expanded by the legislature through the
enactment of different laws, consistent with the State's exercise of police power. In
BP Blg. 232, the elementary and secondary education were considered to be the
stage where basic education is provided.204 Subsequently, in RA No. 9155, the
inclusion of elementary and high school education as part of basic education was
affirmed.205
The legislature, through the Kindergarten Education Act, further amended the

definition of basic education to include kindergarten. Thereafter, the legislature
expanded basic education to include an additional two (2) years of senior high
school. Thus, by then, basic education comprised of thirteen (13) years, divided
into one (1) year of kindergarten, six (6) years of elementary education, and six (6)
years of secondary education — which was divided into four (4) years of junior high
school and two (2) years of senior high school.
The Constitution did not curtail the legislature's power to determine the extent of
basic education. It only provided a minimum standard: that elementary education
be compulsory. By no means did the Constitution foreclose the possibility that the
legislature provides beyond the minimum set by the Constitution.
Petitioners also contend that the expansion of compulsory education to include

kindergarten and secondary education violates the UDHR, the ICESCR and the
CRC.206
Petitioners' argument is misleading.
There is nothing in the UDHR, ICESCR and CRC which proscribes the expansion of
compulsory education beyond elementary education.
Article 26 of the UDHR states:
1. Everyone has the right to education. Education shall be free, at least in

the elementary and fundamental stages. Elementary education shall
be compulsory. Technical and professional education shall be made
generally available and higher education shall be equally accessible to all on
the basis of merit.
2. Education shall be directed to the full development of the human personality

and to the strengthening of respect for human rights and fundamental
freedoms. It shall promote understanding, tolerance and friendship among all
nations, racial or religious groups, and shall further the activities of the
United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given
to their children. (Emphasis and underscoring supplied)
There is absolutely nothing in Article 26 that would show that the State is
prohibited from making kindergarten and high school compulsory. The UDHR
provided a minimum standard for States to follow. Congress complied with this
minimum standard; as, in fact, it went beyond the minimum by making
kindergarten and high school compulsory. This action of Congress is, in turn,
consistent with Article 41 of the CRC which provides that "[n]othing in the present
Convention shall affect any provisions which are more conducive to the realization
of the rights of the child and which may be contained in: (a) [t]he law of a State
party; or (b) [i]nternational law in force for that State.''
The enactment of the K to 12 Law was the manner by which the Congress sought to
realize the right to education of its citizens. It is indeed laudable that Congress
went beyond the minimum standards and provided mechanisms so that its citizens
are able to obtain not just elementary education but also kindergarten and high
school. Absent any showing of a violation of any Constitutional self-executing right
or any international law, the Court cannot question the desirability, wisdom, or
utility of the K to 12 Law as this is best addressed by the wisdom of Congress. As
the Court held in Tablarin v. Gutierrez207:
x x x The petitioners also urge that the NMAT prescribed in MECS Order No. 52, s.
1985, is an "unfair, unreasonable and inequitable requirement," which results in a
denial of due process. Again, petitioners have failed to specify just what factors or
features of the NMAT render it "unfair" and "unreasonable" or "inequitable." They
appear to suggest that passing the NMAT is an unnecessary requirement when
added on top of the admission requirements set out in Section 7 of the Medical Act
of 1959, and other admission requirements established by internal regulations of
the various medical schools, public or private. Petitioners' arguments thus appear to
relate to utility and wisdom or desirability of the NMAT requirement. But
constitutionality is essentially a question of power or authority: this Court has
neither commission nor competence to pass upon questions of the desirability or
wisdom or utility of legislation or administrative regulation. Those questions must
be addressed to the political departments of the government not to the courts.
There is another reason why the petitioners' arguments must fail: the legislative
and administrative provisions impugned by them constitute, to the mind of the
Court, a valid exercise of the police power of the state. The police power, it is
commonplace learning, is the pervasive and non-waivable power and authority of
the sovereign to secure and promote all the important interests and needs — in a
word, the public order — of the general community. An important component of
that public order is the health and physical safety and well being of the population,
the securing of which no one can deny is a legitimate objective of governmental
effort and regulation.208
Petitioners also claim that the K to 12 basic education and the two (2) additional
years in high school should not have been applied retroactively in violation of Article
4 of the Civil Code.209 Petitioners assert that students who had already began
schooling prior to 2013 or upon the passage of the K to 12 Law already acquired a
"vested right" to graduate after the completion of four (4) years of high school,
pursuant to Sections 9(2) and 20 of BP Blg. 232; thus, the K to 12 BEC cannot be
applied to them.210
Again, petitioners' contentions are without merit.
The K to 12 Basic Education Program is not being retroactively applied because only
those currently enrolled at the time the K to 12 Law took effect and future students
will be subject to the K to 12 BEC and the additional two (2) years of senior high
school. Students who already graduated from high school under the old curriculum
are not required by the K to 12 Law to complete the additional two (2) years of
senior high school.
More importantly, BP Blg. 232 does not confer any vested right to four (4) years of
high school education. Rights are vested when the right to enjoyment, present or
prospective, has become the property of some particular person or persons as a
present interest. The right must be absolute, complete, and unconditional,
independent of a contingency, and a mere expectancy of future benefit, or a
contingent interest in property founded on anticipated continuance of existing laws,
does not constitute a vested right.211 Contrary to petitioners' assertion, the rights of
students under Section 9 of BP Blg. 232 are not absolute. These are subject to
limitations prescribed by law and regulations. In fact, while Section 9(2) of BP Blg.
232 states that students have the right to continue their course up to graduation,
Section 20 of the same law does not restrict elementary and high school education
to only six (6) and four (4) years. Even RA No. 9155 or the Governance of Basic
Education Act of 2001, which was enacted under the 1987 Philippine Constitution,
does not specify the number of years in elementary and high school. In other
words, BP Blg. 232 or RA No. 9155 does not preclude any amendment or repeal on
the duration of elementary and high school education. In adding two (2) years of
secondary education to students who have not yet graduated from high school,
Congress was merely exercising its police power and legislative wisdom in imposing
reasonable regulations for the control and duration of basic education, in
compliance with its constitutional duty to promote quality education for all.
Right to select a profession or course of study
Petitioners in G.R. No. 218123 insist that the implementation of the K to 12 Law is
a limitation on the right of senior high school students to choose their
professions.212 For petitioners, a number of prospective senior high school students
will be unable to choose their profession or vocation because of the limit on what
senior high schools can offer and the availability of the different strands. This lacks
basis.
There is no conflict between the K to 12 Law and its IRR and the right of the senior
high school students to choose their profession or course of study. The senior high
school curriculum is designed in such a way that students have core subjects and
thereafter, they may choose among four strands: 1) Accountancy, Business and
Management (ABM) Strand; 2) Science, Technology, Engineering and Mathematics
(STEM) Strand; 3) Humanities and Social Sciences (HUMSS) Strand; and 4) General
Academic (GA) Strand.213
Petitioners have failed to show that the State has imposed unfair and inequitable
conditions for senior high schools to enroll in their chosen path. The K to 12
Program is precisely designed in such a way that students may choose to enroll in
public or private senior high schools which offer the strands of their choice. For
eligible students, the voucher program also allows indigent senior high school
students to enroll in private institutions that offer the strands of their choice.
Mother Tongue as medium of instruction
Petitioners argue that the use of the MT or the regional or native language as
primary medium of instruction for kindergarten and the first three (3) years of
elementary education contravenes Section 7, Article XIV of the 1987 Philippine
Constitution, which expressly limits and constrains regional languages simply as
auxiliary media of instruction.214 This is an argument of first blush. A closer look at
the pertinent provisions of the Constitution and the deliberations of the
Constitutional Commission reveal the contrary. In fine, there is no conflict between
the use of the MT as a primary medium of instruction and Section 7, Article XIV of
the 1987 Philippine Constitution.
Sections 6 and 7, Article XIV of the 1987 Philippine Constitution provides:
SEC. 6. The national language of the Philippines is Filipino. As it evolves, it shall be

further developed and enriched on the basis of existing Philippine and other
languages.
Subject to provisions of law and as the Congress may deem appropriate, the
Government shall take steps to initiate and sustain the use of Filipino as a medium
of official communication and as language of instruction in the educational system.
SEC. 7. For purposes of communication and instruction, the official languages of the
Philippines are Filipino and, until otherwise provided by law, English.
The regional languages are the auxiliary official languages in the regions and shall
serve as auxiliary media of instruction therein.
The deliberations of the Constitutional Commission also confirm that MT or regional

languages may be used as a medium of instruction:
MR. SUAREZ. Thank you, Madam President. When the Commissioner speaks of
auxiliary official languages in their respective regions, what exactly does he have in
mind?
MR. BENNAGEN. In addition to Filipino and English, they can be accepted

also as official languages, even in government and in education.
MR. SUAREZ. So that not only will they be a medium of instruction or

communication but they can be considered also as official languages.
MR. BENNAGEN. That is the intention of the committee. We should respect also the
regional languages. x x x215 (Emphasis and underscoring supplied)
xxxx
MR. DAVIDE. May I be enlightened on some of the aspects of this proposed

substitute amendment? The first is, does it follow from the wording that the
regional languages shall serve as an auxiliary media of instruction and no law can
prohibit their use as such? This means that subject to provisions of law and as
Congress may deem appropriate, it would refer only to what are included in the first
sentence. It will not apply to the second sentence relating to regional languages as
auxiliary media of instruction.
MR. TREÑAS. That is correct. Precisely, there is a period after "educational system"
and that is a new sentence.
MR. DAVIDE. As an auxiliary medium of instruction, it can actually be the

primary medium, until Congress shall provide otherwise.
MR. TREÑAS. It shall be auxiliary.
MR. DAVIDE. But in the meantime that Congress shall not have deemed appropriate
or that there is no provision of law relating to the use of Filipino as the medium of
instruction, it can itself be the primary medium of instruction in the regions.
MR. TREÑAS. That is correct because of the provision of the first sentence.
MR. DAVIDE. On the supposition that there is already a law that Congress had
deemed it appropriate, the regional language shall go hand in hand with Filipino as
a medium of instruction. It cannot be supplanted in any way by Filipino as the only
medium of instruction in the regional level.
xxxx
VOTING
xxxx
MR. VILLACORTA. Shall we vote now on the next sentence, Madam President?
THE PRESIDENT. Will the chairman please read the next sentence.
MR. VILLACORTA. The next sentence, Madam President, reads: "THE REGIONAL
LANGUAGES SHALL SERVE AS AUXILIARY MEDIA OF INSTRUCTION IN THE
RESPECTIVE REGIONS."
THE PRESIDENT. Commissioner Padilla is recognized before we proceed to vote.
MR. PADILLA. Section 2 of the committee report states:
The official languages of the Philippines are Filipino and English, until otherwise
provided by law. The regional languages are the auxiliary official languages in their
respective regions.
That second sentence in Section 2 of the committee report may be amended by

that second sentence which says: "THE REGIONAL LANGUAGES SHALL SERVE AS
AUXILIARY MEDIA OF INSTRUCTION IN THE RESPECTIVE REGIONS." I believe we
should consider the first sentence of Section 2 and then say: "THE REGIONAL
LANGUAGES SHALL SERVE AS AUXILIARY MEDIA OF INSTRUCTION IN THE
RESPECTIVE REGIONS." That is my proposal.
THE PRESIDENT. In other words, the Commissioner's point is that this particular
second sentence here should be transposed to Section 2 of the other committee
report.
MR. PADILLA. Yes, Madam President.
THE PRESIDENT. What does the committee say?
REV. RIGOS. Madam President, perhaps if we approve the second sentence, we can
delete the second sentence in Section 2. Is that the idea?
MR. PADILLA. That is correct.
REV. RIGOS. Since we are talking about medium of instruction here, we would
rather retain it in the first section.
MR. PADILLA. Madam President, but if no mention is made of English, it might be

the impression contrary to what has already been agreed upon — that English may
not be used as a medium of instruction. And it shall be clear that the first
preference is Filipino, the national language, without prejudice to the use
of English and also the regional languages.
REV. RIGOS. Madam President, do we understand the Commissioner correctly that

he would rather delete that in the first section and amend the second sentence in
Section 2?
MR. PADILLA. Yes, Madam President. That is the reason I suggested that the
proposal be divided into two sentences. We approved the first sentence. The second
sentence should be corrected to Section 2 of the committee report.
MR. VILLACORTA. Madam President, the committee is divided; therefore, we would

like the floor to decide on this matter.
MR. PADILLA. The only reason I am saying this is to make clear in the

Constitution that the medium of communication and the language of
instruction are not only Filipino as a national language, and that the
medium of instruction is the regional languages, otherwise, there would be
no mention of English. I believe that we are all agreed that the first
preference is the national language, Filipino, but it does not prevent the
use of English and also of the regional languages. 216 (Emphasis and
underscoring supplied)
It is thus clear from the deliberations that it was never the intent of the framers of
the Constitution to use only Filipino and English as the exclusive media of
instruction. It is evident that Congress has the power to enact a law that designates
Filipino as the primary medium of instruction even in the regions but, in the
absence of such law, the regional languages may be used as primary media of
instruction. The Congress, however, opted not to enact such law. On the contrary,
the Congress, in the exercise of its wisdom, provided that the regional languages
shall be the primary media of instruction in the early stages of schooling. Verily,
this act of Congress was not only Constitutionally permissible, but was likewise an
exercise of an exclusive prerogative to which the Court cannot interfere with.
Petitioners further contend that the MTB-MLE is counter-productive, anti-

developmental and does not serve the people's right to quality of education, which
the State, under the Constitution, is mandated to promote. 217 Moreover, in contrast
to the benefits of the MTB-MLE that respondents assert, petitioners claim that
comparative international and domestic data have shown MT monolingualism to be
inferior; while high literacy and proficiency in English indicates human development,
makes people more globally competitive and relatively happier.218
Petitioners' arguments are again misplaced. While the Constitution indeed

mandates the State to provide quality education, the determination of what
constitutes quality education is best left with the political departments who have
the necessary knowledge, expertise, and resources to determine the same. The
deliberations of the Constitutional Commission again are very instructive:
Now, Madam President, we have added the word "quality" before "education"
to send appropriate signals to the government that, in the exercise of its
supervisory and regulatory powers, it should first set satisfactory minimum
requirements in all areas: curriculum, faculty, internal administration, library,
laboratory class and other facilities, et cetera, and it should see to it that
satisfactory minimum requirements are met by all educational institutions, both
public and private.
When we speak of quality education we have in mind such matters, among

others, as curriculum development, development of learning resources and
instructional materials, upgrading of library and laboratory facilities, innovations in
educational technology and teaching methodologies, improvement of research
quality, and others. Here and in many other provisions on education, the principal
focus of attention and concern is the students. I would like to say that in my view
there is a slogan when we speak of quality of education that I feel we should be
aware of, which is, "Better than ever is not enough." In other words, even if the
quality of education is good now, we should attempt to keep on improving
it.219 (Emphasis supplied)
Clearly, when the government, through the K to 12 Law and the DepEd issuances,
determined that the use of MT as primary medium of instruction until Grade 3
constitutes a better curriculum, it was working towards discharging its
constitutional duty to provide its citizens with quality education. The Court, even in
the exercise of its jurisdiction to check if another branch of the government
committed grave abuse of discretion, will not supplant such determination as it
pertains to the wisdom of the policy.
Petitioners in G.R. No. 218045 also claim that the provision on the use of MT
violates the natural and primary right and duty of parents in the rearing of the
youth, recognized under Section 12, Article II of the 1987 Philippine Constitution.
Petitioners aver that by using the MT in teaching the students, it compels parents to
do something utterly redundant, inefficient, and wasteful, as the students are
presumably already fluent in speaking their MT.220 In other words, they no longer
need to be taught their native language.
Petitioners are once again incorrect as there is no conflict between the use of MT as
a primary medium of instruction and the right of parents in rearing their children.
While Section 12, Article II grants parents the primary right to rear and educate
their children, the State, as parens patriae, has the inherent right and duty to
support parents in the exercise of this constitutional right. In other words, parents'
authority and the State's duty are not mutually exclusive but complement each
other.221 In the matter of education, a parent is always the first teacher. The
language first learned by the child or his "mother tongue", which the child
understands best and hence, an effective tool for further learning, is first and
foremost taught by the parent. The inclusion in the K to 12 Program of the MT as a
medium of instruction and a subject in the early years of learning is, therefore, not
intended to curtail the parents' right but to complement and enhance the same.
Moreover, despite the provision on the use of MT as primary medium of instruction

for kindergarten and Grades 1 to 3, Filipino and English remain as subjects in the
curriculum during the earlier stages of schooling and will later on be used as
primary medium of instruction from Grade 4 onwards. In other words, in addition to
the MT, the basics of Filipino and English will still be taught at the early stages of
formal schooling; and should the parents, in the exercise of their primary right and
duty to rear their children, so desire to give additional Filipino and English lessons
to their children, they have the absolute right to do so. Nothing in the K to 12
Law prohibits the parents from doing so.
Academic freedom
Petitioners in G.R. No. 216930 also allege that faculty from HEI stand to lose their
academic freedom when they are transferred to senior high school level as provided
in the K to 12 Law, the K to 12 Law IRR and the Joint Guidelines.222
Without question, petitioners, who are faculty members in HEIs, indeed possess the
academic freedom granted by Constitution. This Court, in its previous decisions, has
defined academic freedom for the individual member of the academe as "the right
of a faculty member to pursue his studies in his particular specialty and thereafter
to make known or publish the result of his endeavors without fear that retribution
would be visited on him in the event that his conclusions are found distasteful or
objectionable to the powers that be, whether in the political, economic, or academic
establishments."223
However, the Court does not agree with petitioners that their transfer to the
secondary level, as provided by the K to 12 Law and the assailed issuances,
constitutes a violation of their academic freedom. While the Court agrees, in
principle, that security of tenure is an important aspect of academic freedom — that
the freedom is only meaningful if the faculty members are assured that they are
free to pursue their academic endeavors without fear of reprisals — it is likewise
equally true that convergence of security of tenure and academic freedom does not
preclude the termination of a faculty member for a valid cause. 224 Civil servants,
like petitioners, may be removed from service for a valid cause, such as when there
is a bona fide reorganization, or a position has been abolished or rendered
redundant, or there is a need to merge, divide, or consolidate positions in order to
meet the exigencies of the service.225 Hence, petitioners' contention that the law is
unconstitutional based on this ground is specious.
Free public education in the

elementary and high school levels
Petitioners claim that making kindergarten compulsory limits access to

education;226 that 400,000 to 500,000 Grade 11 students will be forced to enroll in
private schools, pushed by government towards a more expensive, not free
education;227 and that there will be a de facto privatization of senior high school
education (through the voucher system) and that this is a violation of the
constitutional provision mandating free high school education. 228
The OSG counters that the Senior High School Voucher program (subsidy given to
those who will enroll in non-DepEd schools) does not force students to enroll in
private SHS. It simply offers a viable alternative to both student and government —
to the student, a subsidized private education; and to the government, decongested
public schools.229
The Court fully agrees with the OSG.
Petitioners' argument that the establishment of the voucher system will result in
the de facto privatization of senior high school is not only speculative, it is also
without any basis. The voucher system is one of the mechanisms established by the
State through RA No. 6728, otherwise known as the Government Assistance to
Students and Teachers in Private Education Act. In Mariño, Jr. v. Gamilla,230 the
Court recognized that RA No. 6728 was enacted in view of the declared policy of the
State, in conformity with the mandate of the Constitution, to promote and make
quality education accessible to all Filipino citizens, as well as the recognition of the
State of the complementary roles of public and private educational institutions in
the educational system and the invaluable contribution that the private schools
have made and will make to education."231 Through the law, the State provided "the
mechanisms to improve quality in private education by maximizing the use of
existing resources of private education x x x."232 One of these is the voucher system
where underprivileged high school students become eligible for full or partial
scholarship for degree or vocational/technical courses.
The program was later expanded through RA No. 8545. In the K to 12 Law, the
benefits under RA No. 8545, including the voucher system, were made applicable to
qualified students under the enhanced basic education, specifically to the qualified
students enrolled in senior high school.233
The establishment and expansion of the voucher system is the State's way of
tapping the resources of the private educational system in order to give Filipinos
equal access to quality education. The Court finds that this manner of implementing
the grant of equal access to education is not constitutionally infirm.
CMO No. 20 is constitutional

Petitioners assert that CMO No. 20 is violative of the Constitution because the study
of Filipino, Panitikan and the Philippine Constitution are not included as core
subjects.
The Court disagrees.
First, the constitutional provisions alleged by petitioners to be violated are non-self-

executing provisions. As discussed above, the framers of the Constitution, in
discussing Section 6 of Article XIV, explained that the use of Filipino as a medium of
official communication is still subject to provisions of law. 234
In Knights of Rizal v. DMCI Homes, Inc.,235 the Court held that Section 15 on arts
and culture of Article XIV is not self-executory because Congress passed laws
dealing with the preservation and conservation of our cultural heritage. 236 The Court
was of the view that all sections in Article XIV pertaining to arts and culture are all
non-self-executing, which includes Section 14 on Filipino national culture and
Section 18 on access to cultural opportunities. The Court in Basco237 also ruled that
Section 17, Article II on giving priority to education, science and technology, arts,
culture, and sports, and Section 2, Article XIV on educational values, are non-self-
executing.
Thus, the Court reiterates that these constitutional provisions are only policies that
may be "used by the judiciary as aids or as guides in the exercise of its power of
judicial review, and by the legislature in its enactment of laws." 238 The Court
reiterates that they do not embody judicially enforceable constitutional rights. 239
Second, it is misleading for petitioners to allege that there is a violation of the

constitutional provisions for the simple reason that the study of
Filipino, Panitikan and the Constitution are actually found in the basic education
curriculum from Grade 1 to 10 and senior high school. To be sure, the changes in
the GE curriculum were implemented to ensure that there would be no duplication
of subjects in Grade 1 to 10, senior high school and college. Thus, the allegation of
petitioners that CMO No. 20 "removed" the study of Filipino, Panitikan and the
Constitution in the GE curriculum is incorrect.
As regards Section 3(1), Article XIV on the requirement that all educational
institutions shall include the study of the Constitution as part of the curricula, the
deliberations of the Constitutional Commission confirm that the intention was for it
to be constitutionally mandated. The Court agrees that there is indeed a
constitutional mandate that the study of the Constitution should be part of the
curriculum of educational institutions. However, the mandate was general and did
not specify the educational level in which it must be taught. Hence, the inclusion of
the study of the Constitution in the basic education curriculum satisfies the
constitutional requirement.
In this regard, it must be emphasized that CMO No. 20 only provides for
the minimum standards for the GE component of all degree programs. Under
Section 13 of RA No. 7722 or the Higher Education Act of 1994, the CHED is
authorized to determine the (a) minimum unit requirements for specific academic
programs; (b) general education distribution requirements as may be
determined by the Commission; and (c) specific professional subjects as may be
stipulated by the various licensing entities. The provision further provides that this
authority shall not be construed as limiting the academic freedom of universities
and colleges. Therefore, HEIs are given the freedom to require additional Filipino
or Panitikan courses to these minimum requirements if they wish to.
Third, petitioners aver that non-inclusion of these subjects in the GE curriculum will
result to job displacement of teachers and professors, which contravenes the
constitutional provisions on protection of labor and security of tenure. Once more,
Section 3, Article XIII and Section 18, Article II do not automatically confer
judicially demandable and enforceable rights and cannot, on their own, be a basis
for a declaration of unconstitutionality. Further, the Court finds that, in fact,
teachers and professors were given the opportunity to participate in the various
consultations and decision-making processes affecting their rights as workers. 240
CMO No. 20 does not contravene

any other laws
As claimed by petitioners, CMO No. 20 violated Section 14 of RA No. 7104 or

the Commission on the Filipino Language Act because it interfered with the
authority of the Commission on the Filipino Language (CFL) on matters of language.
Petitioners reiterate that it is the CFL who has the authority to formulate policies,
plans and programs to ensure the further development, enrichment, propagation
and preservation of Filipino and other Philippine language241 and thus, CMO No. 20
should have retained the nine (9) units of Filipino in the GE curriculum, as proposed
by the CFL.
Petitioners also aver that CMO No. 20 violates RA No. 7356 or the Law Creating the
National Commission for Culture and the Arts because the non-inclusion of Filipino
and Panitikan as subjects in the GE curriculum is a violation of our "duty x x x to
preserve and conserve the Filipino historical and cultural heritage and resources." 242
Lastly, petitioners allege that CMO No. 20 violates BP Blg. 232 or the Education Act
of 1982, specifically, Section 3 on the role of the educational community to promote
the social and economic status of all school personnel and Section 23 on the
objectives of tertiary education which includes a general education program that
will promote national identity and cultural consciousness.
Again, the Court disagrees.
It must be noted that nothing in these laws requires

that Filipino and Panitikan must be included as subjects in the tertiary level.
Further, as already established, it is within the authority of the CHED to determine
the GE distribution requirements. The Court also reiterates that the study
of Filipino and Panitikan can easily be included as courses in the tertiary level, if the
HEIs wish to. Thus, petitioners' arguments that CMO No. 20 violates the
aforementioned laws must fail.
III.
The K to 12 Law does not violate

substantive due process and equal
protection of the laws.
Petitioners also assert that the K to 12 Law is unconstitutional for violating the due
process clause, as the means employed is allegedly not proportional to the end to
be achieved, and that there is supposedly an alternative and less intrusive way of
accomplishing the avowed objectives of the law. They point to studies which
showed that lengthening the time did not necessarily lead to better student
performance. They further assert that "[g]iven adequate instruction, armed with
sufficient books, and a conducive learning environment, the Filipino student does
not need at all two (2) additional years of senior high school" and hence the
imposition of additional years in senior high school is "unduly oppressive an
unwarranted intrusion into the right to education of all Filipino students, thus
violating their right to substantive due process."243 In addition, they claim that the
assailed law is violative of the due process clause because, allegedly, the law
served the interests of only a select few. According to them, majority of the
Filipinos will never apply for graduate school admission to a foreign university or for
professional work in a foreign corporation, and these are the only people who
supposedly need the additional two years of basic education. They point to the fact
that Filipinos are being currently employed as caregivers, seafarers, house helpers,
etc. despite the fact that they have undergone only ten (10) years of basic
education. Hence, the assailed law is unconstitutional for serving the interests of
only a select few.244
Again, the Court disagrees. There is no conflict between the K to 12 Law and right
of due process of the students.
It is established that due process is comprised of two components, namely,

substantive due process which requires the intrinsic validity of the law in interfering
with the rights of the person to his life, liberty, or property, and procedural due
process which consists of the two basic rights of notice and hearing, as well as the
guarantee of being heard by an impartial and competent tribunal. 245
Substantive due process, the aspect of due process invoked in this case, requires
an inquiry on the intrinsic validity of the law in interfering with the rights of the
person to his property. In Abakada Guro Party List vs. Ermita,246 the Court held:
x x x The inquiry in this regard is not whether or not the law is being enforced in
accordance with the prescribed manner but whether or not, to begin with, it is
a proper exercise of legislative power.
To be so, the law must have a valid governmental objective, i.e., the interest of
the public as distinguished from those of a particular class, requires the intervention
of the State. This objective must be pursued in a lawful manner, or in other
words, the means employed must be reasonably related to the accomplishment of
the purpose and not unduly oppressive.247 (Emphasis supplied)
Hence, two things must concur: (1) the interest of the public, in general, as
distinguished from those of a particular class, requires the intervention of the
State; and (2) the means employed are reasonably necessary for the
accomplishment of the purpose, and not unduly oppressive on individuals.
Here, the K to 12 Law does not offend the substantive due process of petitioners.
The assailed law's declaration of policy itself reveals that, contrary to the claims of
petitioners, the objectives of the law serve the interest of the public and not only of
a particular class:248
SEC. 2. Declaration of Policy. — The State shall establish, maintain and support a
complete, adequate, and integrated system of education relevant to the needs of
the people, the country and society-at-large.
Likewise, it is hereby declared the policy of the State that every graduate of basic
that is rooted on sound educational principles and geared towards
excellence, the foundations for learning throughout life, the competence to
engage in work and be productive, the ability to coexist in fruitful harmony
with local and global communities, the capability to engage in autonomous,
creative, and critical thinking, and the capacity and willingness to
transform others and one's self.
For this purpose, the State shall create a functional basic education system
that will develop productive and responsible citizens equipped with the
essential competencies, skills and values for both life-long learning and
employment. In order to achieve this, the State shall:
competitive based on a pedagogically sound curriculum that is at par with
environment; and
mother tongue as a learning resource. (Emphasis supplied)
All students are intended to benefit from the law. Without ruling on the
effectiveness of the revised curriculum, it is erroneous to view the K to 12 Law and
the DepEd Orders in question extending basic education by two (2) years simply to
comply with international standards; rather, the basic education curriculum was
restructured according to what the political departments believed is the best
approach to learning, or what they call as the "spiral approach." This approach,
according to respondent, will yield the following benefits for all students: (1) it is
decongested and offers a more balanced approach to learning; (2) it would help in
freeing parents of the burden of having to spend for college just to make their
children employable; (3) it would prepare students with life skills that they learn
while schooling; (4) it is seamless; (5) it is relevant and responsive, age-
appropriate, and focused on making learners succeed in the 21st century; and (6) it
is enriched and learner-centered.249 Thus, contrary to the claims of petitioners, the
assailed law caters to the interest of the public in general, as opposed to only a
particular group of people.
Furthermore, the means employed by the assailed law are commensurate with its
objectives. Again, the restructuring of the curriculum with the corresponding
additional years in senior high school were meant to improve the quality of basic
education and to make the country's graduates more competitive in the
international arena.
Respondents proffer, and petitioners concede, that the Philippines is the last
country to adopt a 12-year basic education curriculum. However, petitioners submit
that adding two (2) years in the basic education curriculum is not the answer to
achieve these objectives, and that there is supposedly a less intrusive way to
achieve these goals, namely, to increase the salaries of the teachers, invest in
better and more resource materials, and building of more classrooms to achieve the
goal of improving the quality of education in the Philippines. Petitioners ought to be
reminded, however, that the objectives of the law are two-pronged. It was meant
not only to (1) improve the basic education in the country, but also to (2) make it
at par with international standards. It is in this second purpose that the means
employed by the assailed law is justified. Thus, having established that the interest
of the public in general is at the heart of the law, and that the means employed are
commensurate to its objectives, the Court holds that the K to 12 Law is not
violative of the due process clause.
The students of Manila Science High School (MSHS), petitioners in G.R. No.
218465, aver, in particular, that the decongestion of the originally existing basic
education curriculum and the lengthening of the basic education cycle do not, and
should not, be made to apply to them as their curriculum is supposedly congested
on purpose.250 It supposedly should not apply to them because "[they] are gifted
and thus are advanced for their age, with the capability to learn better and faster
compared to other high school students. Because of their higher mental capabilities,
they neither need decongesting nor a longer period of time or any spiral approach,
for them to in fact master their heavier in scope and more advanced math and
science subjects."251 They are supposedly "not being trained for immediate
employment after high school but for them to pursue tertiary education, particularly
career paths either as mathematicians, scientists or engineers, which the country
needs most for its development."252 This, these petitioners asseverate, makes the
means employed by the K to 12 Law not reasonably necessary for the
accomplishment of its intended purpose. Thus, as applied to MSHS students, the K
to 12 Law is arbitrary, unfair, oppressive, discriminatory and unreasonable and thus
violative of their substantive due process. 253 They further allege that the law is
violative of the equal protection clause for treating them in the same way as all
other high school students when they are supposed to be treated differently for not
being similarly situated with the rest.254
In essence, what these petitioners are saying is that the K to 12 Law did not make
a substantial distinction between MSHS students and the rest of the high school
students in the country when it, in fact, should have done so.
This contention is without merit.
To assure that the general welfare is promoted, which is the end of the law, a
regulatory measure may cut into the rights to liberty and property. 255 Those
adversely affected may invoke the equal protection clause only if they can show
that the governmental act assailed, far from being inspired by the attainment of the
common goal, was prompted by the spirit of hostility, or at the very least,
discrimination that finds no support in reason.256 This, petitioners' failed to
sufficiently show. For this reason, the Court holds that the K to 12 Law did not
violate petitioners' right to due process nor did it violate the equal protection
clause. In JMM Promotion and Management, Inc. v. Court of Appeals,257 the Court
explained the object and purpose of the equal protection clause in this wise:
The equal protection clause is directed principally against undue favor and
individual or class privilege. It is not intended to prohibit legislation which is
limited to the object to which it is directed or by the territory in which it is to
operate. It does not require absolute equality, but merely that all persons be
treated alike under like conditions both as to privileges conferred and
liabilities imposed. We have held, time and again, that the equal protection
clause of the Constitution does not forbid classification for so long as such
classification is based on real and substantial differences having a reasonable
relation to the subject of the particular legislation. If classification is germane to the
purpose of the law, concerns all members of the class, and applies equally to
present and future conditions, the classification does not violate the equal
protection guarantee.258 (Emphasis supplied)
To emphasize, valid classifications require real and substantial differences to justify

the variance of treatment between the classes. The MSHS students did not offer
any substantial basis for the Court to create a valid classification between them and
the rest of the high school students in the Philippines. Otherwise stated, the equal
protection clause would, in fact, be violated if the assailed law treated the MSHS
students differently from the rest of the high school students in the country.
To be clear, the Court is not saying that petitioners are not gifted, contrary to their
claims. The Court is merely saying that the K to 12 Law was not infirm in treating
all high school students equally. The MSHS students are, after all, high school
students just like all the other students who are, and will be, subjected to the
revised curriculum.
The Court agrees with these petitioners to the extent of their claim that they have
the right granted by Article 3(3) and (6) of Presidential Decree No. 603, or
the Child and Youth Welfare Code, to education commensurate with their
abilities.259 However, the Court disagrees that the said right granted by the Child
and Youth Welfare Code was violated when the revised curriculum under the K to
12 Law was applied to them. It bears repeating that the law is being merely applied
to the whole segment of the population to which petitioners belong. Further, the
basic education under the K to 12 was intended to meet the basic learning needs of
the students and it is broad enough to cover alternative learning systems for out-
of-school learners and those with special needs.260
This is not to say that they shall be continually subjected strictly to the K to 12
curriculum which they describe as "inferior," "diluted," and "anemic." 261 The K to 12
Law explicitly recognized the right of schools to modify their curricula subject, of
course, to the minimum subjects prescribed by the DepEd: 262
SEC. 5. Curriculum Development. — The DepED shall formulate the design and
details of the enhanced basic education curriculum. It shall work with the
Commission on Higher Education (CHED) to craft harmonized basic and tertiary
curricula for the global competitiveness of Filipino graduates. To ensure college
readiness and to avoid remedial and duplication of basic education subjects, the
DepED shall coordinate with the CHED and the Technical Education and Skills
Development Authority (TESDA).
To achieve an effective enhanced basic education curriculum, the DepED shall

undertake consultations with other national government agencies and other
stakeholders including, but not limited to, the Department of Labor and
Employment (DOLE), the Professional Regulation Commission (PRC), the private
and public schools associations, the national student organizations, the national
teacher organizations, the parents-teachers associations and the chambers of
commerce on matters affecting the concerned stakeholders.
The DepED shall adhere to the following standards and principles in developing the
enhanced basic education curriculum:

appropriate;

(f) The curriculum shall adhere to the principles and framework of Mother Tongue-
Based Multilingual Education (MTB-MLE) which starts from where the learners are
and from what they already knew proceeding from the known to the unknown;
instructional materials and capable teachers to implement the MTB-MLE curriculum
shall be available;
(g) The curriculum shall use the spiral progression approach to ensure mastery of
knowledge and skills after each level; and
(h) The curriculum shall be flexible enough to enable and allow schools

to localize, indigenize and enhance the same based on their respective
educational and social contexts. The production and development of locally
produced teaching materials shall be encouraged and approval of these materials
shall devolve to the regional and division education units. (Emphasis supplied)
In fact, the K to 12 IRR confirms the inclusiveness of the design of the Enhanced

Basic Education in mandating that the enhanced basic education programs should
be able to address the physical, intellectual, psychosocial, and cultural needs of
learners.263 The IRR mandates that the Basic Education Program should include
programs for the gifted and talented, those with disabilities, the Madrasah Program
for Muslim learners, Indigenous Peoples Programs, and Programs for Learners
under Difficult Circumstances.264 The K to 12 IRR also allows the acceleration of
learners in public and private educational institutions. 265 Therefore, the remedy of
petitioner students is with MSHS and/or DepEd, and not with this Court.
Petitioners in G.R. No. 218045 also challenge the K to 12 Law on the ground of
violation of the equal protection clause by arguing that private schools are allowed
to offer extra and optional curriculum subjects in addition to those required by
the K to 12 Law and DepEd Orders, and thus, rich families will tend to enroll their
children in private schools while poor families will be constrained to enroll their
children in English starved public schools.266
The argument is untenable.
The Court, no matter how vast its powers are, cannot trample on the previously
discussed right of schools to enhance their curricula and the primary right of
parents to rear their children, which includes the right to determine which schools
are best suited for their children's needs. Even before the passage of the K to 12
Law, private educational institutions had already been allowed to enhance the
prescribed curriculum, considering the State's recognition of the complementary
roles of public and private institutions in the educational system. 267 Hence, the
Court cannot sustain petitioners' submission that the assailed law is invalid based
on this ground.
Other arguments against the
constitutionality of the K to 12
Law
Petitioners in G.R. No. 217752 argue that DepEd's use of global competitiveness as
justification in the policy shift to K to 12 is not relevant to the needs of the people
and society, as not everyone will be working abroad.268 Essentially, they are
assailing the validity of the law for allegedly violating Section 2(1), Article XIV of
the 1987 Philippine Constitution, which states that:
SEC. 2. The State shall:
(1) Establish, maintain, and support a complete, adequate, and integrated system
of education relevant to the needs of the people and society[.]
As previously discussed, however, Section 2, Article XIV of the 1987 Philippine

Constitution is a non-self-executing provision of the Constitution. Again, as the
Court already held in Basco, "Section 2 (Educational Values) of Article XIV of the
1987 [Philippine] Constitution x x x are merely statements of principles and
policies. As such, they are basically not self-executing, meaning a law should be
passed by Congress to clearly define and effectuate such principles." 269 The K to 12
Law is one such law passed by the Legislature to bring the said guiding principle to
life. The question of what is 'relevant to the needs of the people and society' is, in
turn, within the sole purview of legislative wisdom in which the Court cannot
intervene.
Another assertion against the constitutionality of the K to 12 Law is that it allegedly

violates the constitutional State duty to exercise reasonable supervision and
regulation of educational institutions mandated by Section 4, Article XIV of the
1987 Constitution. Petitioners in G.R. No. 218123 allege that DepEd's Basic
Education Sector Transformation Program (BEST) is supported by Australian Aid
and managed by CardNo, a foreign corporation listed in the Australian Securities
Exchange. CardNo allegedly hires specialists for the implementation of the K to 12
curriculum.270 This partnership between CardNo and DepEd is allegedly violative of
the above Constitutional provision, which reads:
SEC. 4. (1) The State recognizes the complementary roles of public and private
institutions in the educational system and shall exercise reasonable supervision
and regulation of all educational institutions.
(2) Educational institutions, other than those established by religious groups and
mission boards, shall be owned solely by citizens of the Philippines or corporations
or associations at least sixty per centum of the capital of which is owned by such
citizens. The Congress may, however, require increased Filipino equity participation
in all educational institutions.
The control and administration of educational institutions shall be vested

in the citizens of the Philippines.
No educational institution shall be established exclusively for aliens and no group of
aliens shall comprise more than one-third of the enrollment in any school. The
provisions of this subsection shall not apply to schools established for foreign
diplomatic personnel and their dependents and, unless otherwise provided by law,
for other foreign temporary residents.
(3) All revenues and assets of non-stock, non-profit educational institutions used
actually, directly, and exclusively for educational purposes shall be exempt from
taxes and duties. Upon the dissolution or cessation of the corporate existence of
such institutions, their assets shall be disposed of in the manner provided by law.
Proprietary educational institutions, including those cooperatively owned, may

likewise be entitled to such exemptions subject to the limitations provided by law
including restrictions on dividends and provisions for reinvestment.
(4) Subject to conditions prescribed by law, all grants, endowments, donations, or

contributions used actually, directly, and exclusively for educational purposes shall
be exempt from tax. (Emphasis supplied)
Petitioners point to Section 4(1) and Section 4(2), paragraph 2, as legal basis for
the supposed unconstitutionality of the partnership between DepEd and CardNo in
the implementation of the K to 12 curriculum.
Petitioners' reading of the above Constitutional provisions is erroneous. Sections

4(1) and 4(2) deal with two separate matters that the Framers of the Constitution
sought to address. Section 4(1) was a provision added by the Framers to crystallize
the State's recognition of the importance of the role that the private sector plays in
the quality of the Philippine education system. Despite this recognition, the Framers
added the second portion of Section 4(2) to emphasize that the State, in the
exercise of its police power, still possesses the power of supervision over private
schools. The Framers were explicit, however, that this supervision refers to external
governance, as opposed to internal governance which was reserved to the
respective school boards, thus:
Madam President, Section 2(b) introduces four changes: one, the addition of the
word "reasonable" before the phrase "supervision and regulation"; two, the addition
of the word "quality" before the word "education"; three, the change of the
wordings in the 1973 Constitution referring to a system of education, requiring the
same to be relevant to the goals of national development, to the present expression
of "relevant to the needs of the people and society"; and four, the explanation of
the meaning of the expression "integrated system of education" by defining the
same as the recognition and strengthening of the complementary roles of
public and private educational institutions as separate but integral parts of
the total Philippine educational system.
When we speak of State supervision and regulation, we refer to the

external governance of educational institutions, particularly private
educational institutions as distinguished from the internal governance by their
respective boards of directors or trustees and their administrative officials. Even
without a provision on external governance, the State would still have the inherent
right to regulate educational institutions through the exercise of its police power.
We have thought it advisable to restate the supervisory and regulatory functions of
the State provided in the 1935 and 1973 Constitutions with the addition of the word
"reasonable." We found it necessary to add the word "reasonable" because of
an obiter dictum of our Supreme Court in a decision in the case of Philippine
Association of Colleges and Universities vs. The Secretary of Education and the
Board of Textbooks in 1955. In that case, the court said, and I quote:
It is enough to point out that local educators and writers think the Constitution
provides for control of education by the State.
The Solicitor General cites many authorities to show that the power to regulate
means power to control, and quotes from the proceedings of the Constitutional
Convention to prove that State control of private education was intended by organic
law.
The addition, therefore, of the word "reasonable" is meant to underscore

the sense of the committee, that when the Constitution speaks of State
supervision and regulation, it does not in any way mean control. We refer
only to the power of the State to provide regulations and to see to it that
these regulations are duly followed and implemented. It does not include the
right to manage, dictate, overrule and prohibit. Therefore, it does not include the
right to dominate.271 (Emphasis supplied)
In stark contrast, Section 4(2), Article XIV, which was copied from the 1973
Philippine Constitution, refers to ownership and administration of individual schools.
This interpretation is clear both from a plain reading of the provision itself, and
from the deliberations of the Framers of the Constitution:
MR. GUINGONA. The committee refers to both ownership and administration. If I

may be allowed to continue, may I refer the Commissioner to the same section that
I have specified in the 1973 Constitution. The Commissioner will notice that this
particular provision does not only refer to administration because it speaks also of
educational institution which should be owned solely by citizens or corporations of
the Philippines.
MR. REGALADO. Yes.
MR. GUINGONA. In other words, even in the 1973 Constitution, the contemplation
or the intention of the fundamental law was to include both ownership and
administration.
MR. REGALADO. They are not merely these, because otherwise there is an error of
language in the Constitution then. Paragraph 7 of Section 8 states: "Educational
institutions, other than those established by religious orders, mission boards, or
charitable organizations."
MR. GUINGONA. Yes.
MR. REGALADO. In other words, with the exception of educational institutions

established by religious orders, mission boards, or charitable organizations, then all
educational institutions shall be owned solely by citizens of the Philippines and at
the time, of course, by corporations or associations 60 per centum of the capital of
which is owned by citizens. In other words, educational institutions of religious
orders were exempted from that requirement by the very constitutional provision
which was further implemented and ramified with clarity in P.D. No. 176. 272
Thus, petitioners are mistaken in applying Section 4(2), Article XIV to Section 4(1),
Article XIV as they deal with completely different matters. The restrictions
expressed in Section 4(2), Article XIV only refer to ownership, control,
and administration of individual schools, and these do not apply to the State's
exercise of reasonable supervision and regulation of educational institutions under
Section 4(1), Article XIV. Hence, there is nothing under the provisions of the
Constitution which prohibits the State to forge a partnership with a foreign entity,
like CardNo, in the exercise of this supervision and regulation of educational
institutions.
Further, it is asserted that the K to 12 Law violates the constitutional duty of the

State to provide adult citizens, the disabled, and out-of-school youth with training
in civics, vocational efficiency, and other skills as commanded by Section 2, Article
XIV of the 1987 Philippine Constitution. Petitioners decry the supposed lack of
mechanisms in the K to 12 Law to accommodate groups with special needs.273 As
previously discussed, Section 2, Article XIV of the 1987 Philippine Constitution is
not a self-executing provision. Furthermore, petitioners' argument has no factual
basis because DepEd has already put in place programs to address the needs of
indigenous peoples, Muslim children, adult learners, PWDs, out of school youth and
other sectors of society in keeping with the aforesaid constitutional provisions, in
line with the K to 12 Law. The Court agrees with the following discussion by the
OSG in its Comment on this point:
The petitioners' argument has no factual basis because the DepEd has already put
in place programs to address the needs of the indigenous peoples, Muslim
schoolchildren, adult learners, and persons with disabilities (PWDs) in line with the
K-12 program. DepEd Order No. 103, s. 2011 directed the creation of the
Indigenous Peoples Education Office (IPsEO), which is a mechanism for the
mobilization, implementation, and coordination of all the programs and projects of
DepEd pertaining to IPs education, pursuant to "The Indigenous Peoples Rights Act
of 1997." This law mandates all government agencies to recognize and promote the
rights of Indigenous Cultural Communities and Indigenous Peoples within the
framework of national unity and development.
Dep[E]d Order No. 62, s. 2011 entitled "The National Indigenous Peoples Education
Policy Framework," was issued to serve as an instrument in promoting shared
accountability, continuous dialogue, engagement, and partnership among
governments, IPs communities, civil society, and other education stakeholders in
upholding the IPs Learners' education rights. In support of DepEd's commitment to
strengthen its policy on Indigenous Peoples Education (IPEd), DepEd Order No. 26,
s. 2013 promulgated the Implementing Guidelines on the Allocation and Utilization
of the Indigenous Peoples Education (IPEd) Program Support Fund.
Likewise, DepEd Order No. 46, s. 2013, entitled "Guidelines on the Madrasah
Education Program and Utilization of the Support Fund," was issued to engage
Muslim learners with relevant educational opportunities and processes.
On the other hand, DepEd Order No. 39, s. 2013 was issued in support of DepEd's
Special Education Program for learners with special needs and disabilities, including
those who are gifted and talented. DepEd Memorandum No. 108, s. 2013 entitled
"2013 Alternative Learning System Accreditation and Equivalency (ALS & ALE) Test
Registration and Administration" was promulgated to facilitate the ALS & ALE Test,
designed to measure the competencies of those who have neither attended nor
finished the elementary or secondary education in the formal school system.
Passers of this test are given a certificate/diploma (which bears the seal and the
signature of the Secretary of the Department of Education) certifying their
competencies as comparable to graduates of the formal school system. Hence, they
are qualified to enroll in the secondary and post secondary schools.
DepEd Order No. 17, s. 2014 was also issued to provide the guidelines on the Abot-
Alam Program, a convergence program that is being undertaken by a consortium of
various national government agencies, non government organizations, the National
Youth Commission, and institutions under the leadership of DepEd to locate the
out-of-school youth (OSY) nationwide who are 15-30 years old and who have not
completed basic/higher education or who are unemployed, and to mobilize and
harmonize programs which will address the OSY's needs and aspirations.
DepEd Order No. 77, s. 2011 organized the Advisory Council for the Education of
Children and Youth with Disabilities (ACECYD) to formulate an agenda for action
and the framework for collaboration between the DepEd and the disability sector
and other stakeholders in providing education to children and youth with
disabilities.
DepEd Order No. 64, s. 2011 directed all Schools Division and City Superintendents
(SDSs) and District Supervisors to strictly implement relevant policies and best
practices on the promotion and compensation of all Alternative Learning System
(ALS) mobile teachers and implementers to ensure equal opportunities and
standard implementation on the promotion and compensation of the ALS
implementers.
Likewise, DepEd Order No. 22, s. 2010, entitled "Mainstreaming and

Institutionalizing Madrasah Education Program by Transferring Its Developed
Components to the Bureau of Elementary Education, Regional and Division Offices,
and the Establishment of Madrasah Education Unit," was promulgated with the
ultimate objective of peace building, national unity and understanding. Under this
scheme, DepEd shall develop the Standard Madrasah Curriculum (SMC) for Pre-
elementary and Secondary levels, along with the development of instructional and
learning materials, to complete the cycle of basic education Madrasah.
These inclusion programs are continuously being implemented to respond to the

needs of the education sector during the transition period. They show the resolve of
the DepEd to harness the necessary systems and structures to respond to the
needs of the indigenous peoples, Muslim schoolchildren, adult learners, PWDs,
OSYs, and the other sectors of society, in keeping with the constitutional provisions
on the rights of indigenous peoples to preserve and develop their cultures, and to
provide training in civics, vocational efficiency, and other skills to adult, disabled,
and out-of-school youth.274
In fine, the contentions of petitioners are therefore without any factual basis and
utterly devoid of merit.
IV.
Policy issues
In an attempt to bolster their case against the K to 12 Law, petitioners also raised
the following policy issues:
a) K to 12 only increases the resource gap by creating more need for

resources. The solution to the problem is closing the resource gap by
giving priority to education in the budget and public spending program of
the government and addressing the issue of poverty and malnutrition and
programs aimed at alleviating if not eradicating poverty in the long run but
instead government comes up with the K to 12 Law which is a copycat and
elitist solution.275
b) K to 12 is problem-ridden. Instead, what we need is to prioritize
deficiencies in personnel, facilities and materials; and a nationalist-oriented
curriculum relevant to the needs of the people.276
c) The Philippine government does not have enough funds to add two (2)
more years of senior high school.277
d) Student-teacher ratio is far from ideal.278
e) Teachers are paid low salaries.279
f) There is no assurance that senior high school results in good
employment.280
Policy matters are not the concern of the Court. To reiterate, government policy is
within the exclusive dominion of the political branches of the government. It is not
for the Court to look into the wisdom or propriety of legislative
determination.281 Stated otherwise, the judiciary does not pass upon questions of
wisdom, justice or expediency of legislation.282 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 —
all these 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.
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.283 In the case of Tañada v. Cuenco,284 the Court,
quoting American authorities, held:
"Elsewhere in this treatise the well-known and well-established principle is

considered that it is not within the province of the courts to pass judgment upon
the policy of legislative or executive action. Where, therefore, discretionary powers
are granted by the Constitution or by statute, the manner in which those powers
are exercised is not subject to judicial review. The courts, therefore, concern
themselves only with the question as to the existence and extent of these
discretionary powers.
"As distinguished from the judicial, the legislative and executive departments are
spoken of as the political departments of government because in very many cases
their action is necessarily dictated by considerations of public or political
policy. These considerations of public or political policy of course will not permit the
legislature to violate constitutional provisions, or the executive to exercise authority
not granted him by the Constitution or by statute, but, within these limits, they do
permit the departments, separately or together, to recognize that a certain set of
facts exists or that a given status exists, and these determinations, together with
the consequences that flow therefrom, may not be traversed in the
courts."285 (Emphasis in the original)
Similarly, in Department of Environment and Natural Resources v. DENR Region 12

Employees,286 the Court held that:
x x x. However, these concern issues addressed to the wisdom of the transfer

rather than to its legality. It is basic in our form of government that the judiciary
cannot inquire into the wisdom or expediency of the acts of the executive or the
legislative department, for each department is supreme and independent of the
others, and each is devoid of authority not only to encroach upon the powers or
field of action assigned to any of the other department, but also to inquire into or
pass upon the advisability or wisdom of the acts performed, measures taken or
decisions made by the other departments.
The Supreme Court should not be thought of as having been tasked with
the awesome responsibility of overseeing the entire bureaucracy. Unless
there is a clear showing of constitutional infirmity or grave abuse of discretion
amounting to lack or excess of jurisdiction, the Court's exercise of the judicial
power, pervasive and limitless it may seem to be, still must succumb to the
paramount doctrine of separation of powers. After a careful review of the
records of the case, we find that this jurisprudential element of abuse of discretion
has not been shown to exist.287 (Emphasis supplied)
Further, the 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
government.288 The Court, despite its vast powers, will not review the wisdom,
merits, or propriety of governmental policies, but will strike them down only on
either of two grounds: (1) unconstitutionality or illegality and/or (2) grave abuse of
discretion.289 For having failed to show any of the above in the passage of the
assailed law and the department issuances, the petitioners' remedy thus lies not
with the Court, but with the executive and legislative branches of the
government.290
WHEREFORE, the consolidated petitions are hereby DENIED. Accordingly, the

Court declares Republic Act No. 10533, Republic Act No. 10157, CHED
Memorandum Order No. 20, Series of 2013, Department of Education Order No. 31,
Series of 2012, and Joint Guidelines on the Implementation of the Labor and
Management Component of Republic Act No. 10533, as CONSTITUTIONAL. The
Temporary Restraining Order dated April 21, 2015 issued in G.R. No. 217451 is
hereby LIFTED.
SO ORDERED.
Lagman v. Executive Secretary, G.R. No. 231658, 4 July 2017
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 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 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.
388 expressing full support to the martial law proclamation and finding Proclamation No. 216 "to be
8
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. 1050 "EXPRESSING THE FULL SUPPORT
10
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 a Petition Under the Third Paragraph
11
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 rebellion since there is no proof that its purpose is to
12
remove Mindanao or any part thereof from allegiance to the Philippines, its laws, or its territory. It
13
labels the flying of ISIS flag by the Maute Group in Marawi City and other outlying areas as mere
propaganda1 and not an open attempt to remove such areas from the allegiance to the Philippine
14
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". The Lagman Petition insists that during the briefing, representatives of the
15
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 answer that "there is ISIS in the Philippines". The
16 17
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. Based on said statement, it concludes that the objective of the Maute Group's armed
18
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. It then posits
19
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. The
22
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. It also labels as false the
23
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. Lastly, it points out as false the report on
24
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 official before making the proclamation.
27
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" which indicates that there are only a meager number of foreign
28
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 Resolution dated June 6, 2017, the Court required respondents to comment on the Lagman
31
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" of the Constitution, likewise seeks the
33
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," "failed to allege any act of rebellion outside Marawi City, much less x x x allege that
35
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" does not rise to the level of rebellion
37
sufficient to declare martial law in the whole of Mindanao. It also posits that there is no lawless
38
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 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," labels itself as "a special proceeding" or an "appropriate proceeding filed by any
43 44
citizen" authorized under Section 18, Article VII of the Constitution.

45
The Mohamad Petition posits that martial law is a measure of last resort and should be invoked by
46
the President only after exhaustion of less severe remedies. It contends that the extraordinary
47
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. It maintains that the President has no discretion to choose which
48
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. It asserts that the Marawi incidents "do not equate to the existence of a
50
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". It proposes that "[m]artial law
51
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" which, it believes, is not yet present in Mindanao.
52
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". Further, it asserts that since it is making a negative assertion, then the
54
burden to prove the sufficiency of the factual basis is shifted to and lies on the respondents. It thus
55
asks the Court "to compel the [r]espondents to divulge relevant information" in order for it to review
56
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" and declare as
57
unconstitutional Proclamation No. 216 for lack of sufficient factual basis.
The Consolidated Comment
The respondents' Consolidated Comment was filed on June 12, 2017, as required by the Court.
58
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. The
60
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. Corollarily, the OSG maintains that the review power is not mandatory, but discretionary only,
61
on the part of the Court. The Court has the discretion not to give due course to the petition.
62 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" and not the yardstick of correctness of the facts. Arbitrariness, not correctness, should
64 65
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. It thus takes issue with petitioners' attempt to
1âwphi1
shift the burden of proof when they asked the Court "to compel [the] respondents to present proof on
the factual basis" of Proclamation No. 216. For the OSG, "he who alleges must prove" and that
66 67
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. It argues that the sufficiency of the factual basis should be
69
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. It reiterates that the President's decision should be guided only by the
70
information and data available to him at the time he made the determination. The OSG thus asserts
71
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; and that he could not be expected to personally
73
determine the veracity of thecontents of the reports. Also, since the power to impose martial law is
74
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 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," and thus
75
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 Advisory are as follows:

78
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." As a general rule, the
79
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." Over the years, there has been a trend
80
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;" similarly, petitioners in the Mohamad Petition all claim to be "Filipino citizens, all women,
82
all of legal [age], and residents of Marawi City". In the Lagman Petition, however, petitioners therein
83
did not categorically mention that they are suing's citizens but merely referred to themselves as duly
elected Representatives. That they are suing in their official capacities as Members of Congress
84
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-
restraint and will not venture into this matter. After all, "the Court is not entirely without discretion to
85
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." In any case, the Court can take judicial cognizance of the fact that petitioners in the
86
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 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. It is a special and specific jurisdiction of the
87
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. Unless jurisdiction has been specifically conferred by the Constitution or by some legislative
89
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. It must appear clearly from the law or it will not be held
90
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, to wit: that the factual basis of the declaration of martial law or the
92
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." Fr. Joaquin G. Bernas, S.J. (Fr. Bernas), a member of the Constitutional Commission
93
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. (Emphasis supplied)
94
To recall, the Court held in the 1951 case of Montenegro v. Castaneda that the authority to decide
95
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. However, in 1983, or after the declaration
96
of martial law by former President Ferdinand E. Marcos, the Court, in Garcia-Padilla v.

Enrile, abandoned the ruling in Lansang and reverted to Montenegro. According to the Supreme
97
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. This is
99
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 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 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. The power of the Court to review on certiorari the decision, order, or ruling of the
102
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." In fine, the phrase "in an appropriate proceeding"
104
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, the OSG urged the Court to give! deference to the actions of the two co-
105
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." On106
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 x 107
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-Arroyo to the effect that:
108
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
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 x 110
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. These powers may be resorted to only under specified conditions.
112
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. The President may resort to this extraordinary power whenever it becomes
114
necessary to prevent or suppress lawless violence, invasion, or rebellion. "[T]he power to call is fully
discretionary to the President;" the only limitations being that he acts within permissible
115
constitutional boundaries or in a manner not constituting grave abuse of discretion. In fact,
116
"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. They perceived the phrase "imminent danger" to be "fraught with possibilities of
119
abuse;" besides, the calling out power of the President "is sufficient for handling imminent
120
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. As such, their exercise requires more stringent safeguards by the
122
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 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, the Court, quoting Justice Vicente V. Mendoza's (Justice
127
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, the
130
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." It must
131
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 x 135
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 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. The Court, as Congress does, must thus accord the President
138
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 "other rebel groups" in its Whereas Clause and for lack of available guidelines
139
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." "[A] statute or act may be
140
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. A facial challenge is
142
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. Justice Mendoza explained the
144
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 x
145
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. "Such invalidation would constitute a departure from the
146
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. What it seeks to penalize is conduct, not speech.
148
As held by the Court in David v. President Macapagal-Arroyo, the facial review of Proclamation No.
149
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, the Court enunciated that:

150
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
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, the Court ruled that the President's calling out power is in a different
152
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, the President's exercise of his power
154
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, without the need to prove
157
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 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, which was decided under the 1935 Constitution, held that it can inquire into, within
160 161
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. "Lansang limited the review function of the Court to a very prudentially narrow test of
162
arbitrariness." Fr. Bernas described the "proper bounds" in Lansang as follows:

163
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. As Commander-in-Chief, he has sole discretion to determine what to include and what
165
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". Possibly, by the time the President is satisfied with the correctness of the facts in his
166
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.
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, as 167
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." Without the concurrence of the two conditions, the President's declaration of martial law
170
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. Since the Constitution did not define the term
171
"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 x 173
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. To require him to satisfy a higher standard of proof would restrict the exercise of his
176
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 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. However, they insist that
179
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
Since the President supposedly signed Proclamation No. 216 on May 23, 2017 at 10:00 PM, the 180
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 acts committed by the Maute terrorist group including:

182
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 Report submitted
184
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
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; and 219
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 reasonable doubt, which is the standard of
proof required for convicting an accused charged with a criminal offense.x x x
xxxx
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
FACTUAL STATEMENTS COUNTER-EVIDENCE

(1) that the Maute group attacked Amai Statements made by:
Pakpak Hospital and hoisted the DAESH flag (a) Dr. Amer Saber, Chief of the Hospital
there, among several locations. As of 0600H (b) Health Secretary Paulyn Ubial;
of 24 May 2017, members of the Maute Group (c) PNP Spokesperson Senior Supt. Dionardo
were seen guarding the entry gates of the Carlos;
Amai Pakpak Hospital and that they held (d) AFP Public Affairs Office Chief Co. Edgard
hostage the employees of the Hospital and Arevalo; and
took over the PhilHealth office located thereat (e) Marawi City Mayor Majul Gandamra
(Proclamation No. 216 and Report); denying that the hospital was attacked by the
Maute Group citing online news articles of
Philstar, Sunstar, Inquirer, and Bombo
Radyo. 232
2. that the Maute Group ambushed and Statements made by PNP Director General
burned the Marawi Police Station Ronald dela Rosa and Marawi City Mayor
(Proclamation No. 216 and the Report); Majul Gandamra in the online news reports of
ABS-CBN News and CNN
Philippines denying that the Maute group
233
occupied the Marawi Police Station.

3. that lawless armed groups likewise Statement made by the bank officials in the
ransacked the Landbank of the Philippines on-line news article of Philstar that the
234
and commandeered one of its armored Marawi City branch was not ransacked but
vehicles (Report); sustained damages from the attacks.
4. that the Marawi Central Elementary Pilot Statements in the on-line news article of
School was burned (Proclamation No. 216 and Philstar made by the Marawi City Schools
235
the Report); Division Assistant Superintendent Ana Alonto
denying that the school was burned and
Department of Education Assistant Secretary
Tonisito Umali stating that they have not
received any report of damage.
5. that the Maute Group attacked various Statement in the on-line news article of
government facilities (Proclamation No. 216 Inquirer made by Marawi City Mayor Majul
236
and the Report). Gandamra stating that the ASG and the Maute
Terror Groups have not taken over any
government facility in Marawi City.
However, the so-called counter-evidence were derived solely from unverified news articles on the
internet, with neither the authors nor the sources shown to have affirmed the contents thereof It was
not even shown that efforts were made to secure such affirmation albeit the circumstances proved
futile. As the Court has consistently ruled, news articles are hearsay evidence, twice removed, and
are thus without any probative value, unless offered for a purpose other than proving the truth of the
matter asserted. This pronouncement applies with equal force to the Cullamat Petition which
237
likewise submitted online news articles as basis for their claim of insufficiency of factual basis.
238
Again, it bears to reiterate that the maxim falsus in uno, falsus in omnibus finds no application in
these cases. As long as there are other facts in the proclamation and the written Report indubitably
showing the presence of an actual invasion or rebellion and that public safety requires the
declaration and/or suspension, the finding of sufficiency of factual basis, stands.
d) Ruling in Bedol v.
Commission on Elections not
Applicable.
Petitioners, however, insist that in Bedol v. Commission on Elections, news reports may be
239
admitted on grounds of relevance, trustworthiness, and necessity. Petitioners' reliance on this case
is misplaced. The Court in Bedol made it clear that the doctrine of independent relevant statement,
which is an ·exception to the hearsay rule, applies in cases "where only the fact that such
statements were made is relevant, and the truth or falsity thereof is immaterial." Here, the question
240
is not whether such statements were made by Saber, et. al., but rather whether what they said are
true. Thus, contrary to the view of petitioners, the exception in Bedol finds no application here.
e) There are other independent

facts which support the finding that,
more likely than not, rebellion exists
and that public safety requires it.
Moreover, the alleged false and/or inaccurate statements are just pieces and parcels of the Report;
along with these alleged false data is an arsenal of other independent facts showing that more likely
than not, actua1 rebellion exists, and public safety requires the declaration of martial law or
suspension of the privilege of the writ of habeas corpus. To be precise, the alleged false and/or
inaccurate statements are only five out of the severa1 statements bulleted in the President's Report.
Notably, in the interpellation by Justice Francis H. Jardeleza during the second day of the oral
argument, petitioner Lagman admitted that he was not aware or that he had no personal knowledge
of the other incidents cited. As it thus stands, there is no question or challenge with respect to the
241
reliability of the other incidents, which by themselves are ample to preclude the conclusion that the
President's report is unreliable and that Proclamation No. 216 was without sufficient factual basis.
Verily, there is no credence to petitioners' claim that the bases for the President's imposition of
martial law and suspension of the writ of habeas corpus were mostly inaccurate, simulated, false
and/or hyperbolic.
X. 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.
Invasion or rebellion alone may justify resort to the calling out power but definitely not the declaration
of martial law or suspension of the privilege of the writ of habeas corpus. For a declaration of martial
law or suspension of the privilege of the writ of habeas corpus to be valid, there must be a
concurrence of actual rebellion or invasion and 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 establishments but likewise against civilians and their
properties. In addition and in relation to the armed hostilities, bomb threats were issued; road
242 243
blockades and checkpoints were set up; schools and churches were burned; civilian hostages
244 245
were taken and killed; non-Muslims or Christians were targeted; young male Muslims were forced
246 247
to join their group; medical services and delivery of basic services were
248
hampered; reinforcements of government troops and civilian movement were hindered; and the
249 250
security of the entire Mindanao Island was compromised. 251
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. In the last paragraph of his Report, the President declared:
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. 252
Based on the foregoing, we hold that the parameters for the declaration of martial law and
suspension of the privilege of the writ f habeas corpus have been properly and fully complied with.
Proclamation No. 216 has sufficient factual basis there being probable cause to believe that rebellion
exists and that public safety requires the martial law declaration and the suspension of the privilege
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". Commissioner Ople referred to the suspension of the privilege of the writ of habeas
253
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 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." Significantly, respect to these so-called classified documents is accorded even "when
256
[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, cautioned not to
258
"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;" in turn, the Executive
259
Department will have to open its findings to the Court, which it did during the closed door session
260
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." Not 261
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. Xxx 263
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 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 x (Emphasis supplied)
264
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
x (Emphasis supplied)
265
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." We understand this
267
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." Public safety is
268
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." Rebellion absorbs "other acts committed in its pursuance". Direct
269 270
assault, murder, homicide, arson, robbery, and kidnapping, just to name a few, are
271 272 273 274 275 276
absorbed in the crime of rebellion if committed in furtherance of rebellion; "[i]t cannot be made a
basis of a separate charge." Jurisprudence also teaches that not only common crimes may be
277
absorbed in rebellion but also "offenses under special laws [such as Presidential Decree No.
1829] which are perpetrated in furtherance of the political offense". "All crimes, whether
278 279
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 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. For the Court to overreach is to infringe
1âwphi1
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" by attempting to impose another
282
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." On 285
April 15, 1980, it was conferred the official title of "Islamic City of Marawi." The city's first name,
286
"Dansalan," "was derived from the word 'dansal', meaning a destination point or rendezvous.
Literally, it also means arrival or coming." Marawi lies in the heart of Mindanao. In fact, the
287
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;" there is also the plan to establish
288
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 Cagayan de Oro for bombing operations, carnapping, and the murder of military
and police personnel, must also be considered. Indeed, there is some semblance of truth to the
289
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. The Court cannot simply
298
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. However, while the scope of terrorism may be comprehensive,
299
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.
Antonio F. Trillanes IV v. Hon. Oscar Pimentel, Sr., in His Capacity as
Presiding Judge, RTC – Branch 148, Makati City et al., GR No. 179817,
27 June 2008
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.:
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 branches of Government;
(e) With prior notice to the Honorable Court and to the accused and his custodians, to be
allowed to receive, on Tuesdays and Fridays, reporters and other members of the
media who may wish to interview him and/or to get his comments, reactions and/or opinion
at his place of confinement at the Marine Brig, Marine Barracks Manila, Fort Bonifacio,
Taguig City, particularly when there are no sessions, meetings or hearings at the Senate or
when the Senate is not in session; and
(f) To be allowed to attend the organizational meeting and election of officers of the Senate
and related activities scheduled in the morning (9:00 or 10:00 a.m.) of 23 July 2007 at the
Senate of the Philippines located at the GSIS Financial Center, Pasay City. 5
By Order of July 25, 2007,6 the trial court denied all the requests in the Omnibus Motion. Petitioner
moved for reconsideration in which he waived his requests in paragraphs (b), (c) and (f) to thus trim
them down to three.7 The trial court just the same denied the motion by Order of September 18,
2007.8
Hence, the present petition for certiorari to set aside the two Orders of the trial court, and
for prohibition and mandamus to (i) enjoin respondents from banning the Senate staff, resource
persons and guests from meeting with him or transacting business with him in his capacity as
Senator; and (ii) direct respondents to allow him access to the Senate staff, resource persons and
guests and permit him to attend all sessions and official functions of the Senate. Petitioner
preliminarily prayed for the maintenance of the status quo ante of having been able hitherto to
convene his staff, resource persons and guests9 at the Marine Brig.
Impleaded as co-respondents of Judge Oscar Pimentel, Sr. are AFP Chief of Staff, Gen.
Hermogenes Esperon (Esperon); Philippine Navy’s Flag Officer-in-Command, Vice Admiral Rogelio
Calunsag; Philippine Marines’ Commandant, Major Gen. Benjamin Dolorfino; and Marine Barracks
Manila Commanding Officer, Lt. Col. Luciardo Obeña (Obeña).
Petitioner later manifested, in his Reply of February 26, 2008, that he has, since November 30,
2007, been in the custody of the Philippine National Police (PNP) Custodial Center following the
foiled take-over of the Manila Peninsula Hotel 10 the day before or on November 29, 2007.
Such change in circumstances thus dictates the discontinuation of the action as against the above-
named military officers-respondents. The issues raised in relation to them had ceased to present a
justiciable controversy, so that a determination thereof would be without practical value and use.
Meanwhile, against those not made parties to the case, petitioner cannot ask for reliefs from this
Court.11 Petitioner did not, by way of substitution, implead the police officers currently exercising
custodial responsibility over him; and he did not satisfactorily show that they have adopted or
continued the assailed actions of the former custodians. 12
Petitioner reiterates the following grounds which mirror those previously raised in his Motion for
Reconsideration filed with the trial court:
I.
THE JURISPRUDENCE CITED BY THE HONORABLE COURT A QUO IS CLEARLY

INAPPLICABLE TO THE INSTANT CASE BECAUSE OF THE FOLLOWING REASONS:
A.
UNLIKE IN THIS CASE, THE ACCUSED IN THE JALOSJOS CASE WAS ALREADY
CONVICTED AT THE TIME HE FILED HIS MOTION. IN THE INSTANT CASE,
ACCUSED/PETITIONER HAS NOT BEEN CONVICTED AND, THEREFORE, STILL
ENJOYS THE PRESUMPTION OF INNOCENCE;
B.
THE ACCUSED IN THE JALOJOS (SIC) CASE WAS CHARGED WITH TWO (2)
COUNTS OF STATUTORY RAPE AND SIX (6) COUNTS OF ACTS OF
LASCIVIOUSNESS, CRIMES INVOLVING MORAL TURPITUDE. HEREIN
ACCUSED/PETITIONER IS CHARGED WITH THE OFFENSE OF "COUP D’ETAT",
A CHARGE WHICH IS COMMONLY REGARDED AS A POLITICAL OFFENSE;
C.
THE ACCUSED IN THE JALOSJOS CASE ATTEMPTED TO FLEE PRIOR TO

BEING ARRESTED. THE ACCUSED/ PETITIONER VOLUNTARILY
SURRENDERED TO THE AUTHORITIES AND AGREED TO TAKE
RESPONSIBILITY FOR HIS ACTS AT OAKWOOD;
II.
GEN. ESPERON DID NOT OVERRULE THE RECOMMENDATION OF THE MARINE

BRIG’S COMMANDING OFFICER TO ALLOW PETITIONER TO ATTEND THE SENATE
SESSIONS;
III.
ACCUSED/PETITIONER SUBMITS THAT THE FACT THAT THE PEOPLE, IN THEIR

SOVEREIGN CAPACITY, ELECTED HIM TO THE POSITION OF SENATOR OF THE
REPUBLIC PROVIDES THE PROPER LEGAL JUSTIFICATION TO ALLOW HIM TO WORK
AND SERVE HIS MANDATE AS A SENATOR;
- AND -
IV.
MOREOVER, THERE ARE ENOUGH PRECEDENTS TO ALLOW LIBERAL TREATMENT

OF DETENTION PRISONERS WHO ARE HELD WITHOUT BAIL AS IN THE CASE OF
FORMER PRESIDENT JOSEPH "ERAP" ESTRADA AND FORMER ARMM GOV. NUR
MISUARI.13
The petition is bereft of merit.
In attempting to strike a distinction between his case and that of Jalosjos, petitioner chiefly points out
that former Rep. Romeo Jalosjos (Jalosjos) was already convicted, albeit his conviction was pending
appeal, when he filed a motion similar to petitioner’s Omnibus Motion, whereas he (petitioner) is
a mere detention prisoner. He asserts that he continues to enjoy civil and political rights since the
presumption of innocence is still in his favor.
Further, petitioner illustrates that Jalosjos was charged with crimes involving moral turpitude, i.e.,
two counts of statutory rape and six counts of acts of lasciviousness, whereas he is indicted for coup
d’etat which is regarded as a "political offense."
Furthermore, petitioner justifies in his favor the presence of noble causes in expressing legitimate
grievances against the rampant and institutionalized practice of graft and corruption in the AFP.
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 bail 21 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, 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 of presumption 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."37 Petitioner’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 Comment 38 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 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.
Aquino v. COMELEC, GR No. 189793, 7 April 2010
G.R. No. 189793 April 7, 2010
SENATOR BENIGNO SIMEON C. AQUINO III and MAYOR JESSE ROBREDO, Petitioners,

vs.
COMMISSION ON ELECTIONS represented by its Chairman JOSE A.R. MELO and its
Commissioners, RENE V. SARMIENTO, NICODEMO T. FERRER, LUCENITO N. TAGLE,
ARMANDO VELASCO, ELIAS R. YUSOPH AND GREGORIO LARRAZABAL, Respondents.
DECISION
PEREZ, J.:
This case comes before this Court by way of a Petition for Certiorari and Prohibition under Rule 65
of the Rules of Court. In this original action, petitioners Senator Benigno Simeon C. Aquino III and
Mayor Jesse Robredo, as public officers, taxpayers and citizens, seek the nullification as
unconstitutional of Republic Act No. 9716, entitled "An Act Reapportioning the Composition of the
First (1st) and Second (2nd) Legislative Districts in the Province of Camarines Sur and Thereby
Creating a New Legislative District From Such Reapportionment." Petitioners consequently pray that
the respondent Commission on Elections be restrained from making any issuances and from taking
any steps relative to the implementation of Republic Act No. 9716.
Republic Act No. 9716 originated from House Bill No. 4264, and was signed into law by President
Gloria Macapagal Arroyo on 12 October 2009. It took effect on 31 October 2009, or fifteen (15) days
following its publication in the Manila Standard, a newspaper of general circulation. 1 In substance,
the said law created an additional legislative district for the Province of Camarines Sur by
reconfiguring the existing first and second legislative districts of the province.
Prior to Republic Act No. 9716, the Province of Camarines Sur was estimated to have a population
of 1,693,821,2 distributed among four (4) legislative districts in this wise:
District Municipalities/Cities Population

1st District Del Gallego Libmanan 417,304
Ragay Minalabac
Lupi Pamplona
Sipocot Pasacao
Cabusao San
Fernando
2nd Gainza Canaman 474,899
District Milaor Camaligan
Naga Magarao
Pili Bombon
Ocampo Calabanga
3rd District Caramoan Sangay 372,548
Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacio Siruma
n
4th District Iriga Buhi 429,070
Baao Bula
Balatan Nabua
Bato
Following the enactment of Republic Act No. 9716, the first and second districts of Camarines Sur
were reconfigured in order to create an additional legislative district for the province. Hence, the first
district municipalities of Libmanan, Minalabac, Pamplona, Pasacao, and San Fernando were
combined with the second district municipalities of Milaor and Gainza to form a new second
legislative district. The following table3 illustrates the reapportionment made by Republic Act No.
9716:
District Municipalities/Cities Population

1st District Del Gallego 176,383
Ragay
Lupi
Sipocot
Cabusao
2nd District Libmanan San 276,777
Minalabac Fernando
Pamplona Gainza
Pasacao Milaor
3rd District (formerly 2nd Naga Camaligan 439,043
District) Pili Magarao
Ocampo Bombon
Canaman Calabanga
4th District (formerly 3rd District) Caramoan Sangay 372,548
Garchitorena San Jose
Goa Tigaon
Lagonoy Tinamba
Presentacion Siruma
5th District (formerly 4th District) Iriga Buhi 429,070
Baao Bula
Balatan Nabua
Bato
Republic Act No. 9716 is a well-milled legislation. The factual recitals by both parties of the origins of
the bill that became the law show that, from the filing of House Bill No. 4264 until its approval by the
Senate on a vote of thirteen (13) in favor and two (2) against, the process progressed step by step,
marked by public hearings on the sentiments and position of the local officials of Camarines Sur on
the creation of a new congressional district, as well as argumentation and debate on the issue, now
before us, concerning the stand of the oppositors of the bill that a population of at least 250,000 is
required by the Constitution for such new district. 4
Petitioner Aquino III was one of two senators who voted against the approval of the Bill by the
Senate. His co-petitioner, Robredo, is the Mayor of Naga City, which was a part of the former
second district from which the municipalities of Gainza and Milaor were taken for inclusion in the
new second district. No other local executive joined the two; neither did the representatives of the
former third and fourth districts of the province.
Petitioners contend that the reapportionment introduced by Republic Act No. 9716, runs afoul of the
explicit constitutional standard that requires a minimum population of two hundred fifty thousand
(250,000) for the creation of a legislative district.5 The petitioners claim that the reconfiguration by
Republic Act No. 9716 of the first and second districts of Camarines Sur is unconstitutional, because
the proposed first district will end up with a population of less than 250,000 or only 176,383.
Petitioners rely on Section 5(3), Article VI of the 1987 Constitution as basis for the cited 250,000
minimum population standard.6 The provision reads:
Article VI
Section 5. (1) x x x x
(2) x x x x
(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) x x x x (Emphasis supplied).
The petitioners posit that the 250,000 figure appearing in the above-cited provision is the minimum
population requirement for the creation of a legislative district. 7 The petitioners theorize that, save in
the case of a newly created province, each legislative district created by Congress must be
supported by a minimum population of at least 250,000 in order to be valid. 8 Under this view, existing
legislative districts may be reapportioned and severed to form new districts, provided each resulting
district will represent a population of at least 250,000. On the other hand, if the reapportionment
would result in the creation of a legislative seat representing a populace of less than 250,000
inhabitants, the reapportionment must be stricken down as invalid for non-compliance with the
minimum population requirement.
In support of their theory, the petitioners point to what they claim is the intent of the framers of the
1987 Constitution to adopt a population minimum of 250,000 in the creation of additional legislative
seats.9 The petitioners argue that when the Constitutional Commission fixed the original number of
district seats in the House of Representatives to two hundred (200), they took into account the
projected national population of fifty five million (55,000,000) for the year 1986. 10 According to the
petitioners, 55 million people represented by 200 district representatives translates to roughly
250,000 people for every one (1) representative. 11 Thus, the 250,000 population requirement found
in Section 5(3), Article VI of the 1987 Constitution is actually based on the population constant used
by the Constitutional Commission in distributing the initial 200 legislative seats.
Thus did the petitioners claim that in reapportioning legislative districts independently from the
creation of a province, Congress is bound to observe a 250,000 population threshold, in the same
manner that the Constitutional Commission did in the original apportionment.
Verbatim, the submission is that:
1. Republic Act 9716 is unconstitutional because the newly apportioned first district of
Camarines Sur failed to meet the population requirement for the creation of the legislative
district as explicitly provided in Article VI, Section 5, Paragraphs (1) and (3) of the
Constitution and Section 3 of the Ordinance appended thereto; and
2. Republic Act 9716 violates the principle of proportional representation as provided in

Article VI, Section 5 paragraphs (1), (3) and (4) of the Constitution. 12
The provision subject of this case states:
Article VI
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.
(2) x x x x
(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.
On the other hand, the respondents, through the Office of the Solicitor General, seek the dismissal
of the present petition based on procedural and substantive grounds.
On procedural matters, the respondents argue that the petitioners are guilty of two (2) fatal technical
defects: first, petitioners committed an error in choosing to assail the constitutionality of Republic Act
No. 9716 via the remedy of Certiorari and Prohibition under Rule 65 of the Rules of Court; and
second, the petitioners have no locus standi to question the constitutionality of Republic Act No.
9716.
On substantive matters, the respondents call attention to an apparent distinction between cities and
provinces drawn by Section 5(3), Article VI of the 1987 Constitution. The respondents concede the
existence of a 250,000 population condition, but argue that a plain and simple reading of the
questioned provision will show that the same has no application with respect to the creation of
legislative districts in provinces.13 Rather, the 250,000 minimum population is only a requirement for
the creation of a legislative district in a city.
In sum, the respondents deny the existence of a fixed population requirement for the
reapportionment of districts in provinces. Therefore, Republic Act No. 9716, which only creates an
additional legislative district within the province of Camarines Sur, should be sustained as a perfectly
valid reapportionment law.
We first pass upon the threshold issues.
The respondents assert that by choosing to avail themselves of the remedies of Certiorari and
Prohibition, the petitioners have committed a fatal procedural lapse. The respondents cite the
following reasons:
1. The instant petition is bereft of any allegation that the respondents had acted without or in
excess of jurisdiction, or with grave abuse of discretion.1avvphi1
2. The remedy of Certiorari and Prohibition must be directed against a tribunal, board, officer
or person, whether exercising judicial, quasi-judicial, or ministerial functions. Respondents
maintain that in implementing Republic Act No. 9716, they were not acting as a judicial or
quasi-judicial body, nor were they engaging in the performance of a ministerial act.
3. The petitioners could have availed themselves of another plain, speedy and adequate
remedy in the ordinary course of law. Considering that the main thrust of the instant petition
is the declaration of unconstitutionality of Republic Act No. 9716, the same could have been
ventilated through a petition for declaratory relief, over which the Supreme Court has only
appellate, not original jurisdiction.
The respondents likewise allege that the petitioners had failed to show that they had sustained, or is
in danger of sustaining any substantial injury as a result of the implementation of Republic Act No.
9716. The respondents, therefore, conclude that the petitioners lack the required legal standing to
question the constitutionality of Republic Act No. 9716.
This Court has paved the way away from procedural debates when confronted with issues that, by
reason of constitutional importance, need a direct focus of the arguments on their content and
substance.
The Supreme Court has, on more than one occasion, tempered the application of procedural
rules,14 as well as relaxed the requirement of locus standi whenever confronted with an important
issue of overreaching significance to society.15
Hence, in Del Mar v. Philippine Amusement and Gaming Corporation (PAGCOR) 16 and Jaworski v.
PAGCOR,17 this Court sanctioned momentary deviation from the principle of the hierarchy of courts,
and took original cognizance of cases raising issues of paramount public importance. The Jaworski
case ratiocinates:
Granting arguendo that the present action cannot be properly treated as a petition for prohibition, the
transcendental importance of the issues involved in this case warrants that we set aside the
technical defects and take primary jurisdiction over the petition at bar. One cannot deny that the
issues raised herein have potentially pervasive influence on the social and moral well being of this
nation, specially the youth; hence, their proper and just determination is an imperative need. This is
in accordance with the well-entrenched principle that rules of procedure are not inflexible tools
designed to hinder or delay, but to facilitate and promote the administration of justice. Their strict and
rigid application, which would result in technicalities that tend to frustrate, rather than promote
substantial justice, must always be eschewed. (Emphasis supplied)
Anent the locus standi requirement, this Court has already uniformly ruled in Kilosbayan v.
Guingona,18 Tatad v. Executive Secretary,19 Chavez v. Public Estates Authority20 and Bagong
Alyansang Makabayan v. Zamora,21 just to name a few, that absence of direct injury on the part of
the party seeking judicial review may be excused when the latter is able to craft an issue of
transcendental importance. In Lim v. Executive Secretary,22 this Court held that in cases of
transcendental importance, the cases must be settled promptly and definitely, and so, the standing
requirements may be relaxed. This liberal stance has been echoed in the more recent decision on
Chavez v. Gonzales.23
Given the weight of the issue raised in the instant petition, the foregoing principles must apply. The
beaten path must be taken. We go directly to the determination of whether or not a population of
250,000 is an indispensable constitutional requirement for the creation of a new legislative district in
a province.
We deny the petition.
We start with the basics. Any law duly enacted by Congress carries with it the presumption of
constitutionality.24 Before a law may be declared unconstitutional by this Court, there must be a clear
showing that a specific provision of the fundamental law has been violated or transgressed. When
there is neither a violation of a specific provision of the Constitution nor any proof showing that there
is such a violation, the presumption of constitutionality will prevail and the law must be upheld. To
doubt is to sustain.25
There is no specific provision in the Constitution that fixes a 250,000 minimum population that must
compose a legislative district.
As already mentioned, the petitioners rely on the second sentence of Section 5(3), Article VI of the
1987 Constitution, coupled with what they perceive to be the intent of the framers of the Constitution
to adopt a minimum population of 250,000 for each legislative district.
The second sentence of Section 5(3), Article VI of the Constitution, succinctly provides: "Each city
with a population of at least two hundred fifty thousand, or each province, shall have at least one
representative."
The provision draws a plain and clear distinction between the entitlement of a city to a district on one
hand, and the entitlement of a province to a district on the other. For while a province is entitled to at
least a representative, with nothing mentioned about population, a city must first meet a population
minimum of 250,000 in order to be similarly entitled.
The use by the subject provision of a comma to separate the phrase "each city with a population of
at least two hundred fifty thousand" from the phrase "or each province" point to no other conclusion
than that the 250,000 minimum population is only required for a city, but not for a province. 26
Plainly read, Section 5(3) of the Constitution requires a 250,000 minimum population only for a city
to be entitled to a representative, but not so for a province.
The 250,000 minimum population requirement for legislative districts in cities was, in turn, the
subject of interpretation by this Court in Mariano, Jr. v. COMELEC. 27
In Mariano, the issue presented was the constitutionality of Republic Act No. 7854, which was the
law that converted the Municipality of Makati into a Highly Urbanized City. As it happened, Republic
Act No. 7854 created an additional legislative district for Makati, which at that time was a lone
district. The petitioners in that case argued that the creation of an additional district would violate
Section 5(3), Article VI of the Constitution, because the resulting districts would be supported by a
population of less than 250,000, considering that Makati had a total population of only 450,000. The
Supreme Court sustained the constitutionality of the law and the validity of the newly created district,
explaining the operation of the Constitutional phrase "each city with a population of at least two
hundred fifty thousand," to wit:
Petitioners cannot insist that the addition of another legislative district in Makati is not in accord with
section 5(3), Article VI of the Constitution for as of the latest survey (1990 census), the population of
Makati stands at only four hundred fifty thousand (450,000). Said section provides, inter alia, that a
city with a population of at least two hundred fifty thousand (250,000) shall have at least one
representative. Even granting that the population of Makati as of the 1990 census stood at four
hundred fifty thousand (450,000), its legislative district may still be increased since it has met the
minimum population requirement of two hundred fifty thousand (250,000). In fact, Section 3 of the
Ordinance appended to the Constitution provides that a city whose population has increased to
more than two hundred fifty thousand (250,000) shall be entitled to at least one congressional
representative.28 (Emphasis supplied)
The Mariano case limited the application of the 250,000 minimum population requirement for cities
only to its initial legislative district. In other words, while Section 5(3), Article VI of the Constitution
requires a city to have a minimum population of 250,000 to be entitled to a representative, it does
not have to increase its population by another 250,000 to be entitled to an additional district.
There is no reason why the Mariano case, which involves the creation of an additional district within
a city, should not be applied to additional districts in provinces. Indeed, if an additional legislative
district created within a city is not required to represent a population of at least 250,000 in order to
be valid, neither should such be needed for an additional district in a province, considering moreover
that a province is entitled to an initial seat by the mere fact of its creation and regardless of its
population.
Apropos for discussion is the provision of the Local Government Code on the creation of a province
which, by virtue of and upon creation, is entitled to at least a legislative district. Thus, Section 461 of
the Local Government Code states:
Requisites for Creation. – (a) A province may be created if it has an average annual income, as
certified by the Department of Finance, of not less than Twenty million pesos (P20,000,000.00)
based on 1991 constant prices and either of the following requisites:
(i) a contiguous territory of at least two thousand (2,000) square kilometers, as certified by
the Lands Management Bureau; or
(ii) a population of not less than two hundred fifty thousand (250,000) inhabitants as certified
by the National Statistics Office.
Notably, the requirement of population is not an indispensable requirement, but is merely

an alternative addition to the indispensable income requirement.
Mariano, it would turn out, is but a reflection of the pertinent ideas that ran through the deliberations
on the words and meaning of Section 5 of Article VI.
The whats, whys, and wherefores of the population requirement of "at least two hundred fifty
thousand" may be gleaned from the records of the Constitutional Commission which, upon framing
the provisions of Section 5 of Article VI, proceeded to form an ordinance that would be appended to
the final document. The Ordinance is captioned "APPORTIONING THE SEATS OF THE HOUSE OF
REPRESENTATIVES OF THE CONGRESS OF THE PHILIPPINES TO THE DIFFERENT
LEGISLATIVE DISTRICTS IN PROVINCES AND CITIES AND THE METROPOLITAN MANILA
AREA." Such records would show that the 250,000 population benchmark was used for the 1986
nationwide apportionment of legislative districts among provinces, cities and Metropolitan Manila.
Simply put, the population figure was used to determine how many districts a province, city, or
Metropolitan Manila should have. Simply discernible too is the fact that, for the purpose, population
had to be the determinant. Even then, the requirement of 250,000 inhabitants was not taken as an
absolute minimum for one legislative district. And, closer to the point herein at issue, in the
determination of the precise district within the province to which, through the use of the population
benchmark, so many districts have been apportioned, population as a factor was not the
sole, though it was among, several determinants.
From its journal,29 we can see that the Constitutional Commission originally divided the entire country
into two hundred (200) districts, which corresponded to the original number of district
representatives. The 200 seats were distributed by the Constitutional Commission in this manner:
first, one (1) seat each was given to the seventy-three (73) provinces and the ten (10) cities with a
population of at least 250,000; 30 second, the remaining seats were then redistributed among the
provinces, cities and the Metropolitan Area "in accordance with the number of their inhabitants on
the basis of a uniform and progressive ratio." 31 Commissioner Davide, who later became a Member
and then Chief Justice of the Court, explained this in his sponsorship remark 32 for the Ordinance to
be appended to the 1987 Constitution:
Commissioner Davide: The ordinance fixes at 200 the number of legislative seats which are, in turn,
apportioned among provinces and cities with a population of at least 250, 000 and the Metropolitan
Area in accordance with the number of their respective inhabitants on the basis of a uniform and
progressive ratio. The population is based on the 1986 projection, with the 1980 official enumeration
as the point of reckoning. This projection indicates that our population is more or less 56
million. Taking into account the mandate that each city with at least 250, 000 inhabitants and each
province shall have at least one representative, we first allotted one seat for each of the 73
provinces, and each one for all cities with a population of at least 250, 000, which are the Cities of
Manila, Quezon, Pasay, Caloocan, Cebu, Iloilo, Bacolod, Cagayan de Oro, Davao and Zamboanga.
Thereafter, we then proceed[ed] to increase whenever appropriate the number of seats for the
provinces and cities in accordance with the number of their inhabitants on the basis of a uniform and
progressive ratio. (Emphasis supplied).
Thus was the number of seats computed for each province and city. Differentiated from this, the
determination of the districts within the province had to consider "all protests and complaints formally
received" which, the records show, dealt with determinants other than population as already
mentioned.
Palawan is a case in point. Journal No. 107 of the Constitutional Commission narrates:
INTERPELLATION OF MR. NOLLEDO:
Mr. Nolledo inquired on the reason for including Puerto Princesa in the northern towns when it was
more affinity with the southern town of Aborlan, Batarasa, Brooke’s Point, Narra, Quezon and
Marcos. He stated that the First District has a greater area than the Second District. He then queried
whether population was the only factor considered by the Committee in redistricting.
Replying thereto, Mr. Davide explained that the Committee took into account the standards set in
Section 5 of the Article on the Legislative Department, namely: 1) the legislative seats should be
apportioned among the provinces and cities and the Metropolitan Manila area in accordance with
their inhabitants on the basis of a uniform and progressive ratio; and 2) the legislative district must
be compact, adjacent and contiguous.
Mr. Nolledo pointed out that the last factor was not met when Puerto Princesa was included with the
northern towns. He then inquired what is the distance between Puerto Princesa from San Vicente.
xxxx
Thereupon, Mr. Nolledo stated that Puerto Princesa has a population of 75,480 and based on the
apportionment, its inclusion with the northern towns would result in a combined population of
265,000 as against only 186,000 for the south. He added that Cuyo and Coron are very important
towns in the northern part of Palawan and, in fact, Cuyo was the capital of Palawan before its
transfer to Puerto Princesa. He also pointed out that there are more potential candidates in the north
and therefore if Puerto Princesa City and the towns of Cuyo and Coron are lumped together, there
would be less candidates in the south, most of whose inhabitants are not interested in politics. He
then suggested that Puerto Princesa be included in the south or the Second District.
Mr. Davide stated that the proposal would be considered during the period of amendments. He
requested that the COMELEC staff study said proposal. 33
"PROPOSED AMENDMENT OF MR. NOLLEDO
On the districting of Palawan, Mr. Nolledo pointed out that it was explained in the interpellations that
District I has a total population of 265,358 including the City of Puerto Princesa, while the Second
District has a total population of 186,733. He proposed, however, that Puerto Princesa be included in
the Second District in order to satisfy the contiguity requirement in the Constitution considering that
said City is nearer the southern towns comprising the Second District.
In reply to Mr. Monsod’s query, Mr. Nolledo explained that with the proposed transfer of Puerto
Princesa City to the Second District, the First District would only have a total population of 190,000
while the Second District would have 262,213, and there would be no substantial changes.
Mr. Davide accepted Mr. Nolledo’s proposal to insert Puerto Princesa City before the Municipality of
Aborlan.
There being no objection on the part of the Members the same was approved by the Body.
APPROVAL OF THE APPORTIONMENT AND DISTRICTING OF PALAWAN
There being no other amendment, on motion of Mr. Davide, there being no objection, the
apportionment and districting for the province of Palawan was approved by the Body. 34
The districting of Palawan disregarded the 250,000 population figure. It was decided by the
importance of the towns and the city that eventually composed the districts.
Benguet and Baguio are another reference point. The Journal further narrates:
At this juncture, Mr. Davide informed the Body that Mr. Regalado made a reservation with the
Committee for the possible reopening of the approval of Region I with respect to Benguet and
Baguio City.
REMARKS OF MR. REGALADO
Mr. Regalado stated that in the formulation of the Committee, Baguio City and Tuba are placed in
one district. He stated that he was toying with the idea that, perhaps as a special consideration for
Baguio because it is the summer capital of the Philippines, Tuba could be divorced from Baguio City
so that it could, by itself, have its own constituency and Tuba could be transferred to the Second
District together with Itogon. Mr. Davide, however, pointed out that the population of Baguio City is
only 141,149.
Mr. Regalado admitted that the regular population of Baguio may be lower during certain times of the
year, but the transient population would increase the population substantially and, therefore, for
purposes of business and professional transactions, it is beyond question that population-wise,
Baguio would more than qualify, not to speak of the official business matters, transactions and
offices that are also there.
Mr. Davide adverted to Director de Lima’s statement that unless Tuba and Baguio City are united,
Tuba will be isolated from the rest of Benguet as the place can only be reached by passing through
Baguio City. He stated that the Committee would submit the matter to the Body.
Upon inquiry of the Chair whether he is insisting on his amendment, Mr. Regalado stated that the
Body should have a say on the matter and that the considerations he had given are not on the
demographic aspects but on the fact that Baguio City is the summer capital, the venue and situs of
many government offices and functions.
On motion of Mr. Davide, there being no objection, the Body approved the reconsideration of the
earlier approval of the apportionment and districting of Region I, particularly Benguet.
Thereafter, on motion of Mr. Davide, there being no objection, the amendment of Mr. Regalado was
put to a vote. With 14 Members voting in favor and none against, the amendment was approved by
the Body.
Mr. Davide informed that in view of the approval of the amendment, Benguet with Baguio City will
have two seats. The First District shall comprise of the municipalities of Mankayan, Buguias, Bakun,
Kabayan, Kibungan, Bokod, Atok, Kapangan, Tublay, La Trinidad, Sablan, Itogon and Tuba. The
Second District shall comprise of Baguio City alone.
There being no objection, the Body approved the apportionment and districting of Region I. 35
Quite emphatically, population was explicitly removed as a factor.
It may be additionally mentioned that the province of Cavite was divided into districts based on the
distribution of its three cities, with each district having a city: one district "supposed to be a fishing
area; another a vegetable and fruit area; and the third, a rice growing area," because such
consideration "fosters common interests in line with the standard of compactness." 36 In the districting
of Maguindanao, among the matters discussed were "political stability and common interest among
the people in the area" and the possibility of "chaos and disunity" considering the "accepted regional,
political, traditional and sectoral leaders." 37 For Laguna, it was mentioned that municipalities in the
highland should not be grouped with the towns in the lowland. For Cebu, Commissioner Maambong
proposed that they should "balance the area and population." 38
Consistent with Mariano and with the framer deliberations on district apportionment, we stated in
Bagabuyo v. COMELEC39 that:
x x x Undeniably, these figures show a disparity in the population sizes of the districts. The
Constitution, however, does not require mathematical exactitude or rigid equality as a standard in
gauging equality of representation. x x x. To ensure quality representation through commonality of
interests and ease of access by the representative to the constituents, all that the Constitution
requires is that every legislative district should comprise, as far as practicable, contiguous, compact
and adjacent territory. (Emphasis supplied).
This 2008 pronouncement is fresh reasoning against the uncompromising stand of petitioner that an
additional provincial legislative district, which does not have at least a 250,000 population is not
allowed by the Constitution.
The foregoing reading and review lead to a clear lesson.
Neither in the text nor in the essence of Section 5, Article VI of the Constitution can, the petition find
support. And the formulation of the Ordinance in the implementation of the provision, nay, even the
Ordinance itself, refutes the contention that a population of 250,000 is a constitutional sine qua non
for the formation of an additional legislative district in a province, whose population growth has
increased beyond the 1986 numbers.
Translated in the terms of the present case:
1. The Province of Camarines Sur, with an estimated population of 1,693,821 in 2007 is ─

based on the formula and constant number of 250,000 used by the Constitutional
Commission in nationally apportioning legislative districts among provinces and cities ─
entitled to two (2) districts in addition to the four (4) that it was given in the 1986
apportionment. Significantly, petitioner Aquino concedes this point. 40 In other words, Section
5 of Article VI as clearly written allows and does not prohibit an additional district for the
Province of Camarines Sur, such as that provided for in Republic Act No. 9786;
2. Based on the pith and pitch of the exchanges on the Ordinance on the protests and
complaints against strict conformity with the population standard, and more importantly
based on the final districting in the Ordinance on considerations other than population, the
reapportionment or the recomposition of the first and second legislative districts in the
Province of Camarines Sur that resulted in the creation of a new legislative district is
valid even if the population of the new district is 176,383 and not 250,000 as insisted upon
by the petitioners.
3. The factors mentioned during the deliberations on House Bill No. 4264, were:
(a) the dialects spoken in the grouped municipalities;
(b) the size of the original groupings compared to that of the regrouped
municipalities;
(c) the natural division separating the municipality subject of the discussion from the
reconfigured District One; and
(d) the balancing of the areas of the three districts resulting from the redistricting of
Districts One and Two.41
Each of such factors and in relation to the others considered together, with the increased population
of the erstwhile Districts One and Two, point to the utter absence of abuse of discretion, much less
grave abuse of discretion,42 that would warrant the invalidation of Republic Act No. 9716.
To be clear about our judgment, we do not say that in the reapportionment of the first and second
legislative districts of Camarines Sur, the number of inhabitants in the resulting additional district
should not be considered. Our ruling is that population is not the only factor but is just one of several
other factors in the composition of the additional district. Such settlement is in accord with both the
text of the Constitution and the spirit of the letter, so very clearly given form in the Constitutional
debates on the exact issue presented by this petition. 1avvphi1
WHEREFORE, the petition is hereby DISMISSED. Republic Act No. 9716 entitled "An Act
Reapportioning the Composition of the First (1st) and Second (2nd) Legislative Districts in the
Province of Camarines Sur and Thereby Creating a New Legislative District From Such
Reapportionment" is a VALID LAW.
SO ORDERED.
Bagabuyo v. COMELEC, 8 December 2008
G.R. No. 176970 December 8, 2008
ROGELIO Z. BAGABUYO, petitioner,
vs.
COMMISSION ON ELECTIONS, respondent.
DECISION
BRION, J.:
Before us is the petition for certiorari, prohibition, and mandamus,1 with a prayer for the issuance of a
temporary restraining order and a writ of preliminary injunction, filed by Rogelio Bagabuyo
(petitioner) to prevent the Commission on Elections (COMELEC) from implementing Resolution No.
7837 on the ground that Republic Act No. 9371 2 - the law that Resolution No. 7837 implements - is
unconstitutional.
BACKGROUND FACTS
On October 10, 2006, Cagayan de Oro's then Congressman Constantino G. Jaraula filed and
sponsored House Bill No. 5859: "An Act Providing for the Apportionment of the Lone Legislative
District of the City of Cagayan De Oro."3 This law eventually became Republic Act (R.A.) No.
9371.4 It increased Cagayan de Oro's legislative district from one to two. For the election of May
2007, Cagayan de Oro's voters would be classified as belonging to either the first or the second
district, depending on their place of residence. The constituents of each district would elect their own
representative to Congress as well as eight members of the Sangguniang Panglungsod.
Section 1 of R.A. No. 9371 apportioned the City's barangays as follows:
Legislative Districts - The lone legislative district of the City of Cagayan De Oro is hereby
apportioned to commence in the next national elections after the effectivity of this Act.
Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi,
Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macasandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo, and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.5
On March 13, 2007, the COMELEC en Banc promulgated Resolution No. 78376 implementing R.A.
No. 9371.
Petitioner Rogelio Bagabuyo filed the present petition against the COMELEC on March 27,
2007.7 On 10 April 2008, the petitioner amended the petition to include the following as respondents:
Executive Secretary Eduardo Ermita; the Secretary of the Department of Budget and Management;
the Chairman of the Commission on Audit; the Mayor and the members of the Sangguniang
Panglungsod of Cagayan de Oro City; and its Board of Canvassers. 8
In asking for the nullification of R.A. No. 9371 and Resolution No. 7837 on constitutional grounds,
the petitioner argued that the COMELEC cannot implement R.A. No. 9371 without providing for the
rules, regulations and guidelines for the conduct of a plebiscite which is indispensable for the
division or conversion of a local government unit. He prayed for the issuance of an order directing
the respondents to cease and desist from implementing R.A. No. 9371 and COMELEC Resolution
No. 7837, and to revert instead to COMELEC Resolution No. 7801 which provided for a single
legislative district for Cagayan de Oro.
Since the Court did not grant the petitioner's prayer for a temporary restraining order or writ of
preliminary injunction, the May 14 National and Local Elections proceeded according to R.A. No.
9371 and Resolution No. 7837.
The respondent's Comment on the petition, filed through the Office of the Solicitor General, argued
that: 1) the petitioner did not respect the hierarchy of courts, as the Regional Trial Court (RTC) is
vested with concurrent jurisdiction over cases assailing the constitutionality of a statute; 2) R.A. No.
9371 merely increased the representation of Cagayan de Oro City in the House of Representatives
and Sangguniang Panglungsod pursuant to Section 5, Article VI of the 1987 Constitution; 3) the
criteria established under Section 10, Article X of the 1987 Constitution only apply when there is a
creation, division, merger, abolition or substantial alteration of boundaries of a province, city,
municipality, or barangay; in this case, no such creation, division, merger, abolition or alteration of
boundaries of a local government unit took place; and 4) R.A. No. 9371 did not bring about any
change in Cagayan de Oro's territory, population and income classification; hence, no plebiscite is
required.
The petitioner argued in his reply that: 1) pursuant to the Court's ruling in Del Mar v. PAGCOR,9 the
Court may take cognizance of this petition if compelling reasons, or the nature and importance of the
issues raised, warrant the immediate exercise of its jurisdiction; 2) Cagayan de Oro City's
reapportionment under R.A. No. 9371 falls within the meaning of creation, division, merger, abolition
or substantial alteration of boundaries of cities under Section 10, Article X of the Constitution; 3) the
creation, division, merger, abolition or substantial alteration of boundaries of local government units
involve a common denominator - the material change in the political and economic rights of the local
government units directly affected, as well as of the people therein; 4) a voter's sovereign power to
decide on who should be elected as the entire city's Congressman was arbitrarily reduced by at least
one half because the questioned law and resolution only allowed him to vote and be voted for in the
district designated by the COMELEC; 5) a voter was also arbitrarily denied his right to elect the
Congressman and the members of the city council for the other legislative district, and 6)
government funds were illegally disbursed without prior approval by the sovereign electorate of
Cagayan De Oro City.10
THE ISSUES
The core issues, based on the petition and the parties' memoranda, can be limited to the following
contentious points:
1) Did the petitioner violate the hierarchy of courts rule; if so, should the instant petition be
dismissed on this ground?
2) Does R.A. No. 9371 merely provide for the legislative reapportionment of Cagayan de Oro
City, or does it involve the division and conversion of a local government unit?
3) Does R.A. No. 9371 violate the equality of representation doctrine?

OUR RULING
Except for the issue of the hierarchy of courts rule, we find the petition totally without merit.
The hierarchy of courts principle.
The Supreme Court has original jurisdiction over petitions for certiorari, prohibition, mandamus, quo
warranto, and habeas corpus.11 It was pursuant to this original jurisdiction that the petitioner filed the
present petition.
While this jurisdiction is shared with the Court of Appeals 12 and the RTCs,13 a direct invocation of the
Supreme Court's jurisdiction is allowed only when there are special and important reasons therefor,
clearly and especially set out in the petition. Reasons of practicality, dictated by an increasingly
overcrowded docket and the need to prioritize in favor of matters within our exclusive jurisdiction,
justify the existence of this rule otherwise known as the "principle of hierarchy of courts." More
generally stated, the principle requires that recourse must first be made to the lower-ranked court
exercising concurrent jurisdiction with a higher court.14
Among the cases we have considered sufficiently special and important to be exceptions to the rule,
are petitions for certiorari, prohibition, mandamus and quo warranto against our nation's lawmakers
when the validity of their enactments is assailed. 15 The present petition is of this nature; its subject
matter and the nature of the issues raised - among them, whether legislative reapportionment
involves a division of Cagayan de Oro City as a local government unit - are reasons enough for
considering it an exception to the principle of hierarchy of courts. Additionally, the petition assails as
well a resolution of the COMELEC en banc issued to implement the legislative apportionment that
R.A. No. 9371 decrees. As an action against a COMELEC en banc resolution, the case falls under
Rule 64 of the Rules of Court that in turn requires a review by this Court via a Rule 65 petition
for certiorari.16 For these reasons, we do not see the principle of hierarchy of courts to be a stumbling
block in our consideration of the present case.
The Plebiscite Requirement.
The petitioner insists that R.A. No. 9371 converts and divides the City of Cagayan de Oro as a local
government unit, and does not merely provide for the City's legislative apportionment. This argument
essentially proceeds from a misunderstanding of the constitutional concepts of apportionment of
legislative districts and division of local government units.
Legislative apportionment is defined by Black's Law Dictionary as the determination of the number

of representatives which a State, county or other subdivision may send to a legislative body. 17It
is the allocation of seats in a legislative body in proportion to the population; the drawing of voting
district lines so as to equalize population and voting power among the districts. 18 Reapportionment,
on the other hand, is the realignment or change in legislative districts brought about by changes in
population and mandated by the constitutional requirement of equality of representation.19
Article VI (entitled Legislative Department) of the 1987 Constitution lays down the rules on legislative
apportionment under its Section 5 which provides:
Sec. 5(1). (1) The House of Representatives shall be composed of not more than two
hundred 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.
xxx
(3) Each legislative district shall comprise, as far as practicable, continuous, compact, and
Separately from the legislative districts that legal apportionment or reapportionment speaks of, are
the local government units (historically and generically referred to as "municipal corporations") that
the Constitution itself classified into provinces, cities, municipalities and barangays.20 In its strict and
proper sense, a municipality has been defined as "a body politic and corporate constituted by the
incorporation of the inhabitants of a city or town for the purpose of local government thereof." 21 The
creation, division, merger, abolition or alteration of boundary of local government units, i.e., of
provinces, cities, municipalities, and barangays, are covered by the Article on Local Government
(Article X). Section 10 of this Article provides:
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 unit directly affected.
Under both Article VI, Section 5, and Article X, Section 10 of the Constitution, the authority to act has
been vested in the Legislature. The Legislature undertakes the apportionment and reapportionment
of legislative districts,22 and likewise acts on local government units by setting the standards for their
creation, division, merger, abolition and alteration of boundaries and by actually creating, dividing,
merging, abolishing local government units and altering their boundaries through legislation. Other
than this, not much commonality exists between the two provisions since they are inherently different
although they interface and relate with one another.
The concern that leaps from the text of Article VI, Section 5 is political representation and the means
to make a legislative district sufficiently represented so that the people can be effectively heard. As
above stated, the aim of legislative apportionment is "to equalize population and voting power
among districts."23 Hence, emphasis is given to the number of people represented; the uniform and
progressive ratio to be observed among the representative districts; and accessibility and
commonality of interests in terms of each district being, as far as practicable, continuous, compact
and adjacent territory. In terms of the people represented, every city with at least 250,000 people
and every province (irrespective of population) is entitled to one representative. In this sense,
legislative districts, on the one hand, and provinces and cities, on the other, relate and interface with
each other. To ensure continued adherence to the required standards of apportionment, Section 5(4)
specifically mandates reapportionment as soon as the given standards are met.
In contrast with the equal representation objective of Article VI, Section 5, Article X, Section 10
expressly speaks of how local government units may be "created, divided, merged, abolished, or its
boundary substantially altered." Its concern is the commencement, the termination, and the
modification of local government units' corporate existence and territorial coverage; and it speaks of
two specific standards that must be observed in implementing this concern, namely, the criteria
established in the local government code and the approval by a majority of the votes cast in a
plebiscite in the political units directly affected. Under the Local Government Code (R.A. No. 7160)
passed in 1991, the criteria of income, population and land area are specified as verifiable indicators
of viability and capacity to provide services.24 The division or merger of existing units must comply
with the same requirements (since a new local government unit will come into being), provided that a
division shall not reduce the income, population, or land area of the unit affected to less than the
minimum requirement prescribed in the Code.25
A pronounced distinction between Article VI, Section 5 and, Article X, Section 10 is on the
requirement of a plebiscite. The Constitution and the Local Government Code expressly require a
plebiscite to carry out any creation, division, merger, abolition or alteration of boundary of a local
government unit.26 In contrast, no plebiscite requirement exists under the apportionment or
reapportionment provision. In Tobias v. Abalos,27 a case that arose from the division of the
congressional district formerly covering San Juan and Mandaluyong into separate districts, we
confirmed this distinction and the fact that no plebiscite is needed in a legislative reapportionment.
The plebiscite issue came up because one was ordered and held for Mandaluyong in the course of
its conversion into a highly urbanized city, while none was held for San Juan. In explaining why this
happened, the Court ruled that no plebiscite was necessary for San Juan because the objective of
the plebiscite was the conversion of Mandaluyong into a highly urbanized city as required by Article
X, Section 10 the Local Government Code; the creation of a new legislative district only followed as
a consequence. In other words, the apportionment alone and by itself did not call for a plebiscite, so
that none was needed for San Juan where only a reapportionment took place.
The need for a plebiscite under Article X, Section 10 and the lack of requirement for one under
Article VI, Section 5 can best be appreciated by a consideration of the historical roots of these two
provisions, the nature of the concepts they embody as heretofore discussed, and their areas of
application.
A Bit of History.
In Macias v. COMELEC,28 we first jurisprudentially acknowledged the American roots of our

apportionment provision, noting its roots from the Fourteenth Amendment 29 of the U.S. Constitution
and from the constitutions of some American states. The Philippine Organic Act of 1902 created the
Philippine Assembly,30 the body that acted as the lower house of the bicameral legislature under the
Americans, with the Philippine Commission acting as the upper house. While the members of the
Philippine Commission were appointed by the U.S. President with the conformity of the U.S. Senate,
the members of the Philippine Assembly were elected by representative districts previously
delineated under the Philippine Organic Act of 1902 pursuant to the mandate to apportion the seats
of the Philippine Assembly among the provinces as nearly as practicable according to population.
Thus, legislative apportionment first started in our country.
The Jones Law or the Philippine Autonomy Act of 1916 maintained the apportionment provision,
dividing the country into 12 senate districts and 90 representative districts electing one delegate
each to the House of Representatives. Section 16 of the Act specifically vested the Philippine
Legislature with the authority to redistrict the Philippine Islands.
Under the 1935 Constitution, Article VI, Section 5 retained the concept of legislative apportionment
together with "district" as the basic unit of apportionment; the concern was "equality of
representation . . . as an essential feature of republican institutions" as expressed in the leading
case of Macias v. COMELEC.31 The case ruled that inequality of representation is a justiciable, not a
political issue, which ruling was reiterated in Montejo v. COMELEC.32 Notably, no issue regarding the
holding of a plebiscite ever came up in these cases and the others that followed, as no plebiscite
was required.
Article VIII, Section 2 of the 1973 Constitution retained the concept of equal representation "in
accordance with the number of their respective inhabitants and on the basis of a uniform and
progressive ratio" with each district being, as far as practicable, contiguous, compact and adjacent
territory. This formulation was essentially carried over to the 1987 Constitution, distinguished only
from the previous one by the presence of party-list representatives. In neither Constitution was a
plebiscite required.
The need for a plebiscite in the creation, division, merger, or abolition of local government units was
not constitutionally enshrined until the 1973 Constitution. However, as early as 1959, R.A. No.
226433 required, in the creation of barrios by Provincial Boards, that the creation and definition of
boundaries be "upon petition of a majority of the voters in the areas affected." In 1961, the Charter of
the City of Caloocan (R.A. No. 3278) carried this further by requiring that the "Act shall take effect
after a majority of voters of the Municipality of Caloocan vote in favor of the conversion of their
municipality into a city in a plebiscite." This was followed up to 1972 by other legislative enactments
requiring a plebiscite as a condition for the creation and conversion of local government units as well
as the transfer of sitios from one legislative unit to another.34 In 1973, the plebiscite requirement was
accorded constitutional status.
Under these separate historical tracks, it can be seen that the holding of a plebiscite was never a
requirement in legislative apportionment or reapportionment. After it became constitutionally
entrenched, a plebiscite was also always identified with the creation, division, merger, abolition and
alteration of boundaries of local government units, never with the concept of legislative
apportionment.
Nature and Areas of Application.
The legislative district that Article VI, Section 5 speaks of may, in a sense, be called a political unit
because it is the basis for the election of a member of the House of Representatives and members
of the local legislative body. It is not, however, a political subdivision through which functions of
government are carried out. It can more appropriately be described as a representative unit that may
or may not encompass the whole of a city or a province, but unlike the latter, it is not a corporate
unit. Not being a corporate unit, a district does not act for and in behalf of the people comprising the
district; it merely delineates the areas occupied by the people who will choose a representative in
their national affairs. Unlike a province, which has a governor; a city or a municipality, which has a
mayor; and a barangay, which has a punong barangay, a district does not have its own chief
executive. The role of the congressman that it elects is to ensure that the voice of the people of the
district is heard in Congress, not to oversee the affairs of the legislative district. Not being a
corporate unit also signifies that it has no legal personality that must be created or dissolved and has
no capacity to act. Hence, there is no need for any plebiscite in the creation, dissolution or any other
similar action on a legislative district.
The local government units, on the other hand, are political and corporate units. They are the
territorial and political subdivisions of the state.35 They possess legal personality on the authority of
the Constitution and by action of the Legislature. The Constitution defines them as entities that
Congress can, by law, create, divide, abolish, merge; or whose boundaries can be altered based on
standards again established by both the Constitution and the Legislature. 36 A local government unit's
corporate existence begins upon the election and qualification of its chief executive and a majority of
the members of its Sanggunian.37
As a political subdivision, a local government unit is an "instrumentality of the state in carrying out
the functions of government."38 As a corporate entity with a distinct and separate juridical personality
from the State, it exercises special functions for the sole benefit of its constituents. It acts as "an
agency of the community in the administration of local affairs" 39 and the mediums through which the
people act in their corporate capacity on local concerns.40 In light of these roles, the Constitution saw
it fit to expressly secure the consent of the people affected by the creation, division, merger, abolition
or alteration of boundaries of local government units through a plebiscite.
These considerations clearly show the distinctions between a legislative apportionment or

reapportionment and the division of a local government unit. Historically and by its intrinsic nature, a
legislative apportionment does not mean, and does not even imply, a division of a local government
unit where the apportionment takes place. Thus, the plebiscite requirement that applies to the
division of a province, city, municipality or barangay under the Local Government Code should not
apply to and be a requisite for the validity of a legislative apportionment or reapportionment.
R.A. No. 9371 and COMELEC Res. No. 7837
R.A. No. 9371 is, on its face, purely and simply a reapportionment legislation passed in accordance
with the authority granted to Congress under Article VI, Section 5(4) of the Constitution. Its core
provision - Section 1 - provides:
SECTION 1. Legislative Districts. - The lone legislative district of the City of Cagayan de Oro
is hereby apportioned to commence in the next national elections after the effectivity of this
Act. Henceforth, barangays Bonbon, Bayabas, Kauswagan, Carmen, Patag, Bulua, Iponan,
Baikingon, San Simon, Pagatpat, Canitoan, Balulang, Lumbia, Pagalungan, Tagpangi,
Taglimao, Tuburan, Pigsag-an, Tumpagon, Bayanga, Mambuaya, Dansulihon, Tignapoloan
and Bisigan shall comprise the first district while barangays Macabalan, Puntod,
Consolacion, Camaman-an, Nazareth, Macansandig, Indahag, Lapasan, Gusa, Cugman, FS
Catanico, Tablon, Agusan, Puerto, Bugo and Balubal and all urban barangays from
Barangay 1 to Barangay 40 shall comprise the second district.
Under these wordings, no division of Cagayan de Oro City as a political and corporate entity takes
place or is mandated. Cagayan de Oro City politically remains a single unit and its administration is
not divided along territorial lines. Its territory remains completely whole and intact; there is only the
addition of another legislative district and the delineation of the city into two districts for purposes of
representation in the House of Representatives. Thus, Article X, Section 10 of the Constitution does
not come into play and no plebiscite is necessary to validly apportion Cagayan de Oro City into two
districts.
Admittedly, the legislative reapportionment carries effects beyond the creation of another
congressional district in the city by providing, as reflected in COMELEC Resolution No. 7837, for
additional Sangguniang Panglunsod seats to be voted for along the lines of the congressional
apportionment made. The effect on the Sangguniang Panglunsod, however, is not directly traceable
to R.A. No. 9371 but to another law - R.A. No. 6636 41 - whose Section 3 provides:
SECTION 3. Other Cities. - The provision of any law to the contrary notwithstanding the City
of Cebu, City of Davao, and any other city with more than one representative district shall
have eight (8) councilors for each district who shall be residents thereof to be elected by the
qualified voters therein, provided that the cities of Cagayan de Oro, Zamboanga, Bacolod,
Iloilo and other cities comprising a representative district shall have twelve (12) councilors
each and all other cities shall have ten (10) councilors each to be elected at large by the
qualified voters of the said cities: Provided, That in no case shall the present number of
councilors according to their charters be reduced.
However, neither does this law have the effect of dividing the City of Cagayan de Oro into two
political and corporate units and territories. Rather than divide the city either territorially or as a
corporate entity, the effect is merely to enhance voter representation by giving each city voter more
and greater say, both in Congress and in the Sangguniang Panglunsod.
To illustrate this effect, before the reapportionment, Cagayan de Oro had only one congressman and
12 city council members citywide for its population of approximately 500,000. 42 By having two
legislative districts, each of them with one congressman, Cagayan de Oro now effectively has two
congressmen, each one representing 250,000 of the city's population. In terms of services for city
residents, this easily means better access to their congressman since each one now services only
250,000 constituents as against the 500,000 he used to represent. The same goes true for
the Sangguniang Panglungsod with its ranks increased from 12 to 16 since each legislative district
now has 8 councilors. In representation terms, the fewer constituents represented translate to a
greater voice for each individual city resident in Congress and in the Sanggunian; each
congressman and each councilor represents both a smaller area and fewer constituents whose
fewer numbers are now concentrated in each representative. The City, for its part, now has twice the
number of congressmen speaking for it and voting in the halls of Congress. Since the total number
of congressmen in the country has not increased to the point of doubling its numbers, the presence
of two congressman (instead of one) from the same city cannot but be a quantitative and
proportional improvement in the representation of Cagayan de Oro City in Congress.
Equality of representation.
The petitioner argues that the distribution of the legislative districts is unequal. District 1 has only
93,719 registered voters while District 2 has 127,071. District 1 is composed mostly of
rural barangays while District 2 is composed mostly of urban barangays.43 Thus, R.A. No. 9371
violates the principle of equality of representation.
A clarification must be made. The law clearly provides that the basis for districting shall be
the number of the inhabitants of a city or a province, not the number of registered voters therein. We
settled this very same question in Herrera v. COMELEC44 when we interpreted a provision in R.A.
No. 7166 and COMELEC Resolution No. 2313 that applied to the Province of Guimaras. We
categorically ruled that the basis for districting is the number of inhabitants of the Province of
Guimaras by municipality based on the official 1995 Census of Population as certified to by Tomas
P. Africa, Administrator of the National Statistics Office.
The petitioner, unfortunately, did not provide information about the actual population of Cagayan de
Oro City. However, we take judicial notice of the August 2007 census of the National Statistics Office
which shows that barangays comprising Cagayan de Oro's first district have a total population of
254,644, while the second district has 299,322 residents. Undeniably, these figures show a disparity
in the population sizes of the districts.45 The Constitution, however, does not require mathematical
exactitude or rigid equality as a standard in gauging equality of representation. 46 In fact, for cities, all
it asks is that "each city with a population of at least two hundred fifty thousand shall have one
representative," while ensuring representation for every province regardless of the size of its
population. To ensure quality representation through commonality of interests and ease of access by
the representative to the constituents, all that the Constitution requires is that every legislative district
should comprise, as far as practicable, contiguous, compact, and adjacent territory. Thus, the
Constitution leaves the local government units as they are found and does not require their division,
merger or transfer to satisfy the numerical standard it imposes. Its requirements are satisfied despite
some numerical disparity if the units are contiguous, compact and adjacent as far as practicable.
The petitioner's contention that there is a resulting inequality in the division of Cagayan de Oro City
into two districts because the barangays in the first district are mostly rural barangays while the
second district is mostly urban, is largely unsubstantiated. But even if backed up by proper proof, we
cannot question the division on the basis of the difference in the barangays' levels of development or
developmental focus as these are not part of the constitutional standards for legislative
apportionment or reapportionment. What the components of the two districts of Cagayan de Oro
would be is a matter for the lawmakers to determine as a matter of policy. In the absence of any
grave abuse of discretion or violation of the established legal parameters, this Court cannot intrude
into the wisdom of these policies.47
WHEREFORE, we hereby DISMISS the petition for lack of merit. Costs against the petitioner.
SO ORDERED.
Sema v. COMELEC, 16 July 2008
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 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)." 9 1avvphi1
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 Constitution10 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. Salas14 stated that "when a province is created by statute, the corresponding
representative district comes into existence neither by authority of that statute — which
cannot provide otherwise — nor by apportionment, but by operation of the Constitution,
without a reapportionment"; (b) Section 462 of Republic Act No. 7160 (RA 7160) "affirms" the
apportionment of a legislative district incident to the creation of a province; and (c) Section 5
(3), Article VI of the Constitution and Section 3 of the Ordinance appended to the
Constitution mandate the apportionment of a legislative district in newly created provinces.
(2) The COMELEC, again represented by the OSG, apparently abandoned its earlier stance
on the propriety of issuing Resolution Nos. 07-0407 and 7902 and joined causes with Sema,
contending that Section 5 (3), Article VI of the Constitution is "self-executing." Thus, every
new province created by the ARMM Regional Assembly is ipso facto entitled to one
representative in the House of Representatives even in the absence of a national law; and
(3) Respondent Dilangalen answered the issue in the negative on the following grounds: (a)
the "province" contemplated in Section 5 (3), Article VI of the Constitution is one that is
created by an act of Congress taking into account the provisions in RA 7160 on the creation
of provinces; (b) Section 3, Article IV of RA 9054 withheld from the ARMM Regional
Assembly the power to enact measures relating to national elections, which encompasses
the apportionment of legislative districts for members of the House of Representatives; (c)
recognizing a legislative district in every province the ARMM Regional Assembly creates will
lead to the disproportionate representation of the ARMM in the House of Representatives as
the Regional Assembly can create provinces without regard to the requirements in Section
461 of RA 7160; and (d) Cotabato City, which has a population of less than 250,000, is not
entitled to a representative in the House of Representatives.
On 27 November 2007, the Court heard the parties in G.R. No. 177597 in oral arguments on the
following issues: (1) whether Section 19, Article VI of RA 9054, delegating to the ARMM Regional
Assembly the power to create provinces, is constitutional; and (2) if in the affirmative, whether a
province created under Section 19, Article VI of RA 9054 is entitled to one representative in the
House of Representatives without need of a national law creating a legislative district for such new
province.15
In compliance with the Resolution dated 27 November 2007, the parties in G.R. No. 177597 filed
their respective Memoranda on the issues raised in the oral arguments. 16 On the question of the
constitutionality of Section 19, Article VI of RA 9054, the parties in G.R. No. 177597 adopted the
following positions:
(1) Sema contended that Section 19, Article VI of RA 9054 is constitutional (a) as a valid
delegation by Congress to the ARMM of the power to create provinces under Section 20 (9),
Article X of the Constitution granting to the autonomous regions, through their organic acts,
legislative powers over "other matters as may be authorized by law for the promotion of the
general welfare of the people of the region" and (b) as an amendment to Section 6 of RA
7160.17 However, Sema concedes that, if taken literally, the grant in Section 19, Article VI of
RA 9054 to the ARMM Regional Assembly of the power to "prescribe standards lower than
those mandated" in RA 7160 in the creation of provinces contravenes Section 10, Article X of
the Constitution.18 Thus, Sema proposed that Section 19 "should be construed as prohibiting
the Regional Assembly from prescribing standards x x x that do not comply with the
minimum criteria" under RA 7160. 19
(2) Respondent Dilangalen contended that Section 19, Article VI of RA 9054 is

unconstitutional on the following grounds: (a) the power to create provinces was not among
those granted to the autonomous regions under Section 20, Article X of the Constitution and
(b) the grant under Section 19, Article VI of RA 9054 to the ARMM Regional Assembly of the
power to prescribe standards lower than those mandated in Section 461 of RA 7160 on the
creation of provinces contravenes Section 10, Article X of the Constitution and the Equal
Protection Clause; and
(3) The COMELEC, through the OSG, joined causes with respondent Dilangalen (thus
effectively abandoning the position the COMELEC adopted in its Compliance with the
Resolution of 4 September 2007) and contended that Section 19, Article VI of RA 9054 is
unconstitutional because (a) it contravenes Section 10 and Section 6, 20 Article X of the
Constitution and (b) the power to create provinces was withheld from the autonomous
regions under Section 20, Article X of the Constitution.
On the question of whether a province created under Section 19, Article VI of RA 9054 is entitled to
one representative in the House of Representatives without need of a national law creating a
legislative district for such new province, Sema and respondent Dilangalen reiterated in their
Memoranda the positions they adopted in their Compliance with the Resolution of 4 September
2007. The COMELEC deemed it unnecessary to submit its position on this issue considering its
stance that Section 19, Article VI of RA 9054 is unconstitutional.
The pendency of the petition in G.R. No. 178628 was disclosed during the oral arguments on 27
November 2007. Thus, in the Resolution of 19 February 2008, the Court ordered G.R. No. 178628
consolidated with G.R. No. 177597. The petition in G.R. No. 178628 echoed Sema's contention that
the COMELEC acted ultra vires in issuing Resolution No. 7902 depriving the voters of Cotabato City
of a representative in the House of Representatives. In its Comment to the petition in G.R. No.
178628, the COMELEC, through the OSG, maintained the validity of COMELEC Resolution No.
7902 as a temporary measure pending the enactment by Congress of the "appropriate law."
The Issues
The petitions raise the following issues:
I. In G.R. No. 177597:
(A) Preliminarily –
(1) whether the writs of Certiorari, Prohibition, and Mandamus are proper to test the
constitutionality of COMELEC Resolution No. 7902; and
(2) whether the proclamation of respondent Dilangalen as representative of Shariff

Kabunsuan Province with Cotabato 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
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. 26 1avvphi1
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 past 28 Constitutions, the power to increase the
allowable membership in the House of Representatives, and to reapportion legislative districts, is
vested exclusively in Congress. Section 5, Article VI of the Constitution provides:
SECTION 5. (1) The House of Representatives shall be composed of not more than two hundred
and fifty members, unless otherwise fixed by law, who shall be elected from legislative districts
apportioned among the provinces, cities, and the Metropolitan Manila area in accordance with the
number of their respective inhabitants, and on the basis of a uniform and progressive ratio, and
those who, as provided by law, shall be elected through a party-list system of registered national,
regional, and sectoral parties or organizations.
xxxx
(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 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. 34 The following scenarios thus
become distinct possibilities:
(1) An inferior legislative body like the ARMM Regional Assembly can create 100 or more
provinces and thus increase the membership of a superior legislative body, the House of
Representatives, beyond the maximum limit of 250 fixed in the Constitution (unless a
national law provides otherwise);
(2) The proportional representation in the House of Representatives based on one

representative for at least every 250,000 residents will be negated because the ARMM
Regional Assembly need not comply with the requirement in Section 461(a)(ii) of RA 7160
that every province created must have a population of at least 250,000; and
(3) Representatives from the ARMM provinces can become the majority in the House of
Representatives through the ARMM Regional 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:
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.
Atong Paglaum v. Comelec, G.R. No. 203766, April 2, 2013
G.R. No. 203766 April 2, 2013
ATONG PAGLAUM, INC., represented by its President, Mr. Alan Igot, Petitioner,

vs.
x-----------------------x
G.R. Nos. 203818-19
AKO BICOL POLITICAL PARTY (AKB), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC, Respondent.
x-----------------------x
G.R. No. 203922
ASSOCIATION OF PHILIPPINE ELECTRIC COOPERATIVES (APEC),represented by its

President Congressman Ponciano D. Payuyo, Petitioner,
vs.
x-----------------------x
G.R. No. 203936
AKSYON MAGSASAKA-PARTIDO TINIG NG MASA, represented by its President Michael Abas

Kida, Petitioner,
vs.
x-----------------------x
G.R. No. 203958
KAPATIRAN NG MGA NAKULONG NA WALANG SALA, INC. (KAKUSA), Petitioner,

vs.
x-----------------------x
G.R. No. 203960
1st CONSUMERS ALLIANCE FOR RURAL ENERGY, INC. (1-CARE), Petitioner,

vs.
x-----------------------x
G.R. No. 203976
ALLIANCE FOR RURAL AND AGRARIAN RECONSTRUCTION, INC. (ARARO), Petitioner,

vs.
x-----------------------x
G.R. No. 203981
ASSOCIATION FOR RIGHTEOUSNESS ADVOCACY ON LEADERSHIP (ARAL) PARTY-LIST,

represented herein by Ms. Lourdes L. Agustin, the party’s Secretary General, Petitioner,
vs.
x-----------------------x
G.R. No. 204002
ALLIANCE FOR RURAL CONCERNS, Petitioner,

vs.
x-----------------------x
G.R. No. 204094
ALLIANCE FOR NATIONALISM AND DEMOCRACY (ANAD), Petitioner,

vs.
x-----------------------x
G.R. No. 204100
1-BRO PHILIPPINE GUARDIANS BROTHERHOOD, INC., (1BRO-PGBI) formerly

PGBI, Petitioner,
vs.
x-----------------------x
G.R. No. 204122
1 GUARDIANS NATIONALIST PHILIPPINES, INC., (1GANAP/GUARDIANS), Petitioner,

vs.
COMMISSION ON ELECTIONS EN BANC composed of SIXTO S. BRILLANTES, JR., Chairman,
RENE V. SARMIENTO, Commissioner,LUCENITO N. TAGLE, Commissioner,ARMANDO C.
VELASCO, Commissioner,ELIAS R. YUSOPH, Commissioner, andCHRISTIAN ROBERT S.
LIM, Commissioner, Respondents.
x-----------------------x
G.R. No. 204125
AGAPAY NG INDIGENOUS PEOPLES RIGHTS ALLIANCE, INC. (A-IPRA), represented by its

Secretary General,Ronald D. Macaraig, Petitioner,
vs.
x-----------------------x
G.R. No. 204126
KAAGAPAY NG NAGKAKAISANG AGILANG PILIPINONG MAGSASAKA (KAP), formerly

known as AKO AGILA NG NAGKAKAISANG MAGSASAKA (AKO AGILA), represented by its
Secretary General, Leo R. San Buenaventura, Petitioner,
vs.
x-----------------------x
G.R. No. 204139
ALAB NG MAMAMAHAYAG (ALAM), represented by Atty. Berteni Cataluña

Causing, Petitioner,
vs.
x-----------------------x
G.R. No. 204141
BANTAY PARTY LIST, represented by Maria Evangelina F. Palparan, President, Petitioner,

vs.
x-----------------------x
G.R. No. 204153
PASANG MASDA NATIONWIDE PARTY by its President Roberto "Ka Obet" Martin, Petitioner,
vs.
COMMISSION ON ELECTIONS, Respondents.
x-----------------------x
G.R. No. 204158

ABROAD PARTY LIST, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS
RENE V. SARMIENTO, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, MARIA GRACIA CIELO M. PADACA, LUCENITO TAGLE, AND ALL OTHER PERSONS
ACTING ON THEIR BEHALF, Respondents.
x-----------------------x
G.R. No. 204174
AANGAT TAYO PARTY LIST-PARTY, represented by its President Simeon T. Silva,

Jr., Petitioner,
vs.
x-----------------------x
G.R. No. 204216
COCOFED-PHILIPPINE COCONUT PRODUCERS FEDERATION, INC., Petitioner,

vs.
x-----------------------x
G.R. No. 204220
ABANG LINGKOD PARTY-LIST, Petitioner,

vs.
x-----------------------x
G.R. No. 204236
FIRM 24-K ASSOCIATION, INC., Petitioner,

vs.
x-----------------------x
G.R. No. 204238
ALLIANCE OF BICOLNON PARTY (ABP), Petitioner,

vs.
x-----------------------x
G.R. No. 204239
GREEN FORCE FOR THE ENVIRONMENT SONS AND DAUGHTERS OF MOTHER EARTH
(GREENFORCE), Petitioner,
vs.
x-----------------------x
G.R. No. 204240
AGRI-AGRA NA REPORMA PARA SA MAGSASAKA NG PILIPINAS MOVEMENT (AGRI),

represented by its Secretary General, Michael Ryan A. Enriquez, Petitioner,
vs.
x-----------------------x
G.R. No. 204263
A BLESSED PARTY LIST A.K.A. BLESSEDFEDERATION OF FARMERS AND FISHERMEN

INTERNATIONAL, INC., Petitioner,
vs.
x-----------------------x
G.R. No. 204318
UNITED MOVEMENT AGAINST DRUGS FOUNDATION (UNIMAD) PARTY-LIST, Petitioner,

vs.
x-----------------------x
G.R. No. 204321
ANG AGRIKULTURA NATIN ISULONG (AANI), represented by its Secretary General Jose C.
Policarpio, Jr., Petitioner,
vs.
x-----------------------x
G.R. No. 204323
BAYANI PARTYLIST as represented byHomer Bueno, Fitrylin Dalhani,Israel de Castro, Dante

Navarroand Guiling Mamondiong, Petitioner,
vs.
COMMISSION ON ELECTIONS, CHAIRMAN SIXTO S. BRILLANTES, JR., COMMISSIONERS
RENE V. SARMIENTO, LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH,
CHRISTIAN ROBERT S. LIM, and MARIA GRACIA CIELO M. PADACA, Respondents.
x-----------------------x
G.R. No. 204341
ACTION LEAGUE OF INDIGENOUS MASSES(ALIM) PARTY-LIST, represented herein by its

President Fatani S. Abdul Malik, Petitioner,
vs.
x-----------------------x
G.R. No. 204356
BUTIL FARMERS PARTY, Petitioner,

vs.
x-----------------------x
G.R. No. 204358
ALLIANCE OF ADVOCATES IN MININGADVANCEMENT FOR NATIONAL PROGRESS

(AAMA), Petitioner,
vs.
x-----------------------x
G.R. No. 204359
SOCIAL MOVEMENT FOR ACTIVEREFORM AND TRANSPARENCY (SMART), represented by

its Chairman, Carlito B. Cubelo, Petitioner,
vs.
x-----------------------x
G.R. No. 204364
ADHIKAIN AT KILUSAN NG ORDINARYONG-TAO, PARA SA LUPA, PABAHAY, HANAPBUHAY

AT KAUNLARAN (AKO BUHAY), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, and MA. GRACIA CIELO M. PADACA, in their capacities as Commissioners
thereof, Respondents.
x-----------------------x
G.R. No. 204367
AKBAY KALUSUGAN INCORPORATION(AKIN), Petitioner,

vs.
x-----------------------x
G.R. No. 204370
AKO AN BISAYA (AAB), represented by itsSecretary General, Rodolfo T. Tuazon, Petitioner,

vs.
x-----------------------x
G.R. No. 204374
BINHI-PARTIDO NG MGA MAGSASAKA PARA SA MGA MAGSASAKA, Petitioner,

vs.
x-----------------------x
G.R. No. 204379
ALAGAD NG SINING (ASIN) represented by its President, Faye Maybelle Lorenz, Petitioner,

vs.
x-----------------------x
G.R. No. 204394
ASSOCIATION OF GUARD UTILITY HELPER, AIDER, RIDER, DRIVER/DOMESTIC HELPER,

JANITOR, AGENT AND NANNY OF THE PHILIPPINES, INC. (GUARDJAN), Petitioner,
vs.
x-----------------------x
G.R. No. 204402
KALIKASAN PARTY-LIST, represented by its President, Clemente G. Bautista, Jr., and

Secretary General, Frances Q. Quimpo, Petitioner,
vs.
x-----------------------x
G.R. No. 204408
PILIPINO ASSOCIATION FOR COUNTRY-URBAN POOR YOUTH ADVANCEMENT AND

WELFARE (PACYAW), Petitioner,
vs.
x-----------------------x
G.R. No. 204410
1-UNITED TRANSPORT KOALISYON (1-UTAK), Petitioner,

vs.
x-----------------------x
G.R. No. 204421
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC. SENIOR

CITIZEN PARTY-LIST, represented herein by its 1st nominee and Chairman, Francisco G.
Datol, Jr., Petitioner,
vs.
x-----------------------x
G.R. No. 204425
COALITION OF ASSOCIATIONS OF SENIOR CITIZENS IN THE PHILIPPINES, INC., Petitioner,

vs.
COMMISSION ON ELECTIONS and ANY OF ITS OFFICERS AND AGENTS, ACTING FOR AND
IN ITS BEHALF, INCLUDING THE CHAIR AND MEMBERSOF THE COMMISSION, Respondents.
x-----------------------x
G.R. No. 204426
ASSOCIATION OF LOCAL ATHLETICS ENTREPRENEURS AND HOBBYISTS, INC. (ALA-

EH), Petitioner,
vs.
COMMISSION ON ELECTIONS EN BANC, SIXTO S. BRILLANTES, JR., RENE V. SARMIENTO,
LUCENITO N. TAGLE, ARMANDO C. VELASCO, ELIAS R. YUSOPH, CHRISTIAN ROBERT S.
LIM, and MA. GRACIA CIELO M. PADACA, in their respective capacities as COMELEC
Chairperson and Commissioners, Respondents.
x-----------------------x
G.R. No. 204428

ANG GALING PINOY (AG), represented by its Secretary General, Bernardo R. Corella,
Jr., Petitioner,
vs.
x-----------------------x
G.R. No. 204435
1 ALLIANCE ADVOCATING AUTONOMY PARTY (1AAAP), Petitioner,

vs.
x-----------------------x
G.R. No. 204436
ABYAN ILONGGO PARTY (AI), represented byits Party President, Rolex T. Suplico, Petitioner,
vs.
x-----------------------x
G.R. No. 204455
MANILA TEACHER SAVINGS AND LOAN ASSOCIATION, INC., Petitioner,

vs.
x-----------------------x
G.R. No. 204484
PARTIDO NG BAYAN ANG BIDA (PBB), represented by its Secretary General, Roger M.
Federazo, Petitioner,
vs.
x-----------------------x
G.R. No. 204485
ALLIANCE OF ORGANIZATIONS, NETWORKS AND ASSOCIATIONS OF THE PHILIPPINES,

INC. (ALONA), Petitioner,
vs.
x-----------------------x
G.R. No. 204486

1st KABALIKAT NG BAYAN GINHAWANG SANGKATAUHAN (1st KABAGIS), Petitioner,
vs.
x-----------------------x
G.R. No. 204490
PILIPINAS PARA SA PINOY (PPP), Petitioner,

vs.
PERLAS-BERNABE,*
DECISION
CARPIO, J.:
The Cases
These cases constitute 54 Petitions for Certiorari and Petitions for Certiorari and Prohibition1 filed by

52 party-list groups and organizations assailing the Resolutions issued by the Commission on
Elections (COMELEC) disqualifying them from participating in the 13 May 2013 party-list elections,
either by denial of their petitions for registration under the party-list system, or cancellation of their
registration and accreditation as party-list organizations.
This Court resolved to consolidate the 54 petitions in the Resolutions dated 13 November 2012, 2 20
November 2012,3 27 November 2012,4 4 December 2012,5 11 December 2012,6 and 19 February
2013.7
The Facts Pursuant to the provisions of Republic Act No. 7941 (R.A. No. 7941) and COMELEC
Resolution Nos. 9366 and 9531, approximately 280 groups and organizations registered and
manifested their desire to participate in the 13 May 2013 party-list elections.
G.R. SPP No. Group Grounds for Denial

No.
A. Via the COMELEC En Banc’s automatic review of the COMELEC

Division’s resolutions approving registration of groups/organizations
Resolution dated 23 November 20128
1 204379 12-099 Alagad ng - The "artists" sector is not

(PLM) Sining (ASIN) considered marginalized and
underrepresented;
- Failure to prove track
record; and
- Failure of the nominees to
qualify under RA 7941 and
Ang Bagong Bayani.
Omnibus Resolution dated 27 November 20129
2 204455 12-041 Manila Teachers - A non-stock savings and

(PLM) Savings and loan association cannot be
Loan considered marginalized and
Association, Inc. underrepresented; and
(Manila - The first and second
Teachers) nominees are not teachers by
profession.
3 204426 12-011 Association of - Failure to show that its

(PLM) Local Athletics members belong to the
Entrepreneurs marginalized; and
and Hobbyists, - Failure of the nominees to
Inc. (ALA-EH) qualify.
4 204435 12-057 1 Alliance - Failure of the nominees to

(PLM) Advocating qualify: although registering
Autonomy Party as a regional political party,
(1AAAP) two of the nominees are not
residents of the region; and
four of the five nominees do
not belong to the
marginalized and underrepresented.
5 204367 12-104 (PL) Akbay - Failure of the group to show

Kalusugan that its nominees belong to
(AKIN), Inc. the urban poor sector.
6 204370 12-011 (PP) Ako An Bisaya - Failure to represent a

(AAB) marginalized sector of
society, despite the formation
of a sectoral wing for the
benefit of farmers of Region
8;
- Constituency has district
representatives;
- Lack of track record in
representing peasants and
farmers; and
- Nominees are neither
farmers nor peasants.
Resolution dated 4 December 201213
7 204436 12-009 Abyan Ilonggo - Failure to show that the

(PP), Party (AI) party represents a
12-165 marginalized and
(PLM) underrepresented sector, as
the Province of Iloilo has
district representatives;
- Untruthful statements in the
memorandum; and
- Withdrawal of three of its
five nominees.
8 204485 12-175 (PL) Alliance of - Failure to establish that the

Organizations, group can represent 14
Networks and Associations sectors; - The sectors of
of homeowners’
the Philippines, associations, entrepreneurs
Inc. (ALONA) and cooperatives are not
marginalized and
underrepresented; and
- The nominees do not belong
to the marginalized and
underrepresented.
B. Via the COMELEC En Banc’s review on motion for reconsideration

of the COMELEC Division’s resolutions denying registration of groups
and organizations
9 204139 12-127 (PL) Alab ng - Failure to prove track

Mamamahayag record as an organization;
(ALAM) - Failure to show that the
group actually represents the
marginalized and
- Failure to establish that the
group can represent all
sectors it seeks to represent.

1 204402 12-061 (PP) Kalikasan Party-List - The group reflects an
0 (KALIKASAN) advocacy for the
environment, and is not
representative of the
marginalized and
underrepresented;
- There is no proof that
majority of its members
belong to the marginalized
and underrepresented;
- The group represents
sectors with conflicting
interests; and
to the sector which the group
claims to represent.
1 204394 12-145 (PL) Association of - Failure to prove

1 Guard, Utility membership base and track
Helper, Aider, record;
Rider, Driver/ - Failure to present activities
Domestic that sufficiently benefited its
Helper, intended constituency; and
Janitor, Agent - The nominees do not belong
and to any of the sectors which
Nanny of the the group seeks to represent.
Philippines, Inc.
(GUARDJAN)
1 204490 12-073 Pilipinas Para sa - Failure to show that the

2 (PLM) Pinoy (PPP) group represents a
marginalized and
underrepresented sector, as
Region 12 has district
representatives; and
- Failure to show a track
record of undertaking
programs for the welfare of
the sector the group seeks to
represent.
In a Resolution dated 5 December 2012,19 the COMELEC En Banc affirmed the COMELEC Second
Division’s resolution to grant Partido ng Bayan ng Bida’s (PBB) registration and accreditation as a
political party in the National Capital Region. However, PBB was denied participation in the 13 May
2013 party-list elections because PBB does not represent any "marginalized and underrepresented"
sector; PBB failed to apply for registration as a party-list group; and PBB failed to establish its track
record as an organization that seeks to uplift the lives of the "marginalized and underrepresented." 20
These 13 petitioners (ASIN, Manila Teachers, ALA-EH, 1AAAP, AKIN, AAB, AI, ALONA, ALAM,
KALIKASAN, GUARDJAN, PPP, and PBB) were not able to secure a mandatory injunction from this
Court. The COMELEC, on 7 January 2013 issued Resolution No. 9604, 21 and excluded the names of
these 13 petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.
Pursuant to paragraph 222 of Resolution No. 9513, the COMELEC En Banc scheduled summary
evidentiary hearings to determine whether the groups and organizations that filed manifestations of
intent to participate in the 13 May 2013 party-list elections have continually complied with the
requirements of R.A. No. 7941 and Ang Bagong Bayani-OFW Labor Party v. COMELEC 23 (Ang
Bagong Bayani). The COMELEC disqualified the following groups and organizations from
participating in the 13 May 2013 party-list elections:
G.R. No. SPP Group Grounds for Denial

No.
Resolution dated 10 October 201224
1 203818- 12-154 AKO Bicol Retained registration and

19 (PLM) Political Party accreditation as a political
12-177 (AKB) party, but denied participation
(PLM) in the May 2013 party-list
elections
- Failure to represent any
marginalized and
underrepresented sector;
- The Bicol region already
has representatives in
Congress; and
- The nominees are not
marginalized and
underrepresented.
Omnibus Resolution dated 11 October 201225
2 203766 12-161 Atong Paglaum, Cancelled registration and

(PLM) Inc. (Atong accreditation
Paglaum) - The nominees do not belong
to the sectors which the party
represents; and
- The party failed to file its
Statement of Contributions
and Expenditures for the
2010 Elections.
3 203981 12-187 Association for Cancelled registration and

(PLM) Righteousness accreditation
Advocacy on - Failure to comply, and for
Leadership violation of election laws;
(ARAL) - The nominees do not
represent the sectors which
the party represents; and
- There is doubt that the party
is organized for religious
purposes.
4 204002 12-188 Alliance for Cancelled registration and

(PLM) Rural Concerns accreditation
(ARC) - Failure of the nominees to
qualify; and
- Failure of the party to prove
that majority of its members
belong to the sectors it seeks
to represent.
5 204318 12-220 United Cancelled registration and

(PLM) Movement accreditation
Against Drugs - The sectors of drug
Foundation counsellors and lecturers,
(UNIMAD) veterans and the youth, are
not marginalized and
underrepresented;
- Failure to establish track
record; and
- Failure of the nominees to
qualify as representatives of
the youth and young urban
professionals.
6 204100 12-196 1-Bro Philippine Cancelled registration

(PLM) Guardians - Failure to define the sector
Brotherhood, it seeks to represent; and
Inc. (1BRO-PGBI) - The nominees do not belong
to a marginalized and
underrepresented sector.
7 204122 12-223 1 Guardians Cancelled registration

(PLM) Nationalist - The party is a military
Philippines, Inc. fraternity;
(1GANAP/ - The sector of community
GUARDIANS) volunteer workers is too
broad to allow for meaningful
representation; and
- The nominees do not appear
to belong to the sector of
community volunteer
workers.
8 20426 12-257 Blessed Cancelled registration

(PLM) Federation of - Three of the seven
Farmers and nominees do not belong to
Fishermen the sector of farmers and
International, fishermen, the sector sought
Inc. (A to be represented; and
BLESSED - None of the nominees are
Party-List) registered voters of Region
XI, the region sought to be
represented.
9 203960 12-260 1st Cancelled registration

(PLM) Consumers - The sector of rural energy
Alliance for consumers is not
Rural Energy, marginalized and
Inc. (1-CARE) underrepresented;
- The party’s track record is
related to electric
cooperatives and not rural
energy consumers; and
to the sector of rural energy
consumers.
10 203922 12-201 Association of Cancelled registration and

(PLM) Philippine accreditation
Electric - Failure to represent a
Cooperatives marginalized and
(APEC) underrepresented sector; and
to the sector that the party
claims to represent.
11 204174 12-232 Aangat Tayo Cancelled registration and

(PLM) Party-List Party accreditation
( AT ) - The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sectors that the party
represents (women, elderly,
youth, urban poor); and
to the marginalized sectors
that the party seeks to
represent.

(PLM) Rural and accreditation
Agrarian - The interests of the peasant
Reconstruction, and urban poor sectors that
Inc. (ARARO) the party represents differ;
to the sectors that the party
seeks to represent;
- Failure to show that three of
the nominees are bona fide
party members; and
- Lack of a Board resolution
to participate in the party-list
elections.
13 204240 12-279 Agri-Agra na Cancelled registration

(PLM) Reporma Para sa - The party ceased to exist for
Magsasaka ng more than a year immediately
Pilipinas after the May 2010 elections;
Movement - The nominees do not belong
(AGRI) to the sector of peasants and
farmers that the party seeks to
represent;
- Only four nominees were
submitted to the COMELEC;
and
- Failure to show meaningful
activities for its constituency.
14 203936 12-248 Aksyon Cancelled registration

(PLM) Magsasaka-Partido - Failure to show that
Tinig ng majority of its members are
Masa (AKMA-PTM) marginalized and
underrepresented;
- Failure to prove that four of
its nine nominees actually
belong to the farmers sector;
and
- Failure to show that five of
its nine nominees work on
uplifting the lives of the
members of the sector.
15 204126 12-263 Kaagapay ng Cancelled registration

(PLM) Nagkakaisang - The Manifestation of Intent
Agilang and Certificate of Nomination
Pilipinong were not signed by an
Magsasaka appropriate officer of the
(KAP) party;
- Failure to show track record
for the farmers and peasants
sector; and
- Failure to show that
nominees actually belong to
the sector, or that they have
undertaken meaningful
activities for the sector.
16 204364 12-180 Adhikain at Cancelled registration

(PLM) Kilusan ng - Failure to show that
Ordinaryong nominees actually belong to
Tao Para sa the sector, or that they have
Lupa, Pabahay, undertaken meaningful
Hanapbuhay at activities for the sector.
Kaunlaran
(AKO-BAHAY)
17 204141 12-229 The True Cancelled registration

(PLM) Marcos Loyalist - Failure to show that
(for God, majority of its members are
Country and marginalized and
People) underrepresented; and
Association of - Failure to prove that two of
the Philippines, its nominees actually belong
Inc. (BANTAY) to the marginalized and
underrepresented.
18 204408 12-217 Pilipino Cancelled registration

(PLM) Association for - Change of sector (from
Country – Urban urban poor youth to urban
Poor Youth poor) necessitates a new
Advancement application;
and Welfare - Failure to show track record
( PA C YAW ) for the marginalized and
underrepresented;
- Failure to prove that
majority of its members and
officers are from the urban
poor sector; and
members of the urban poor
sector.
19 204153 12-277 Pasang Masda Cancelled registration

(PLM) Nationwide - The party represents drivers
Party (PASANG and operators, who may have
MASDA) conflicting interests; and
- Nominees are either
operators or former operators.
20 203958 12-015 Kapatiran ng Cancelled registration

(PLM) mga Nakulong - Failure to prove that
na Walang Sala, na Walang Sala,
Inc. (KAKUSA) Inc. (KAKUSA)
majority of its officers and
members belong to the
marginalized and
underrepresented;
- The incumbent
representative in Congress
failed to author or sponsor
bills that are beneficial to the
sector that the party
represents (persons
imprisoned without proof of
guilt beyond reasonable
doubt);
for the marginalized and
- The nominees did not
appear to be marginalized and
underrepresented.
21 204428 12-256 Ang Galing Cancelled registration and

(PLM) Pinoy (AG) accreditation
- Failure to attend the
summary hearing;
for the marginalized and
- The nominees did not
appear to be marginalized and
underrepresented.

(PLM) Nationalism and accreditation
Democracy - Failure to represent an
(ANAD) identifiable marginalized and
underrepresented sector;
- Only three nominees were
submitted to the COMELEC;
- The nominees do not
belong to the marginalized
and underrepresented; and
- Failure to submit its
Statement of Contribution
and Expenditures for the
2007 Elections.
Omnibus Resolution dated 7 November 201234
23 204239 12-060 Green Force for Cancelled registration and

(PLM) the Environment accreditation
Sons and - The party is an advocacy
Daughters of group and does not represent
Mother Earth the marginalized and
(GREENFORCE) underrepresented;
- Failure to comply with the
track record requirement; and
marginalized citizens.
24 204236 12-254 Firm 24-K Cancelled registration and

(PLM) Association, Inc. accreditation
(FIRM 24-K) - The nominees do not
belong to the sector that the
party seeks to represent
(urban poor and peasants of
the National Capital Region);
- Only two of its nominees
reside in the National Capital
Region; and
- Failure to comply with the
track record requirement.
25 204341 12-269 Action League Cancelled registration and

(PLM) of Indigenous accreditation
Masses (ALIM) - Failure to establish that its
nominees are members of the
indigenous people in the
Mindanao and Cordilleras
sector that the party seeks to
represent;
- Only two of the party’s
nominees reside in the
Mindanao and Cordilleras;
and
- Three of the nominees do
not appear to belong to the
marginalized.
26 204358 12-204 Alliance of Cancelled registration

(PLM) Advocates in - The sector it represents is a
Mining specifically defined group
Advancement which may not be allowed
for National registration under the party-list system; and
Progress - Failure to establish that the
(AAMA) nominees actually belong to
the sector.
27 204359 12-272 Social Cancelled registration

(PLM) Movement for - The nominees are
Active Reform disqualified from
and representing the sectors that
Transparency the party represents;
(SMART) - Failure to comply with the
track record requirement; and
- There is doubt as to whether
majority of its members are
marginalized and
underrepresented.
28 204238 12-173 Alliance of Cancelled registration and

(PLM) Bicolnon Party accreditation
(ABP) - Defective registration and
accreditation dating back to
2010;
- Failure to represent any
sector; and
nominees are employed in the construction
industry, the
sector it claims to represent.
29 204323 12-210 Bayani Party Cancelled registration and

(PLM) List (BAYANI) accreditation
- Failure to prove a track
record of trying to uplift the
marginalized and
underrepresented sector of
professionals; and
- One nominee was declared
unqualified to represent the
sector of professionals.
30 204321 12-252 Ang Agrikultura Cancelled registration and

(PLM) Natin Isulong accreditation
(AANI) - Failure to establish a track
record of enhancing the lives
of the marginalized and
underrepresented farmers
which it claims to represent;
and
- More than a majority of the
party’s nominees do not
belong to the farmers sector.
31 204125 12-292 Agapay ng Cancelled registration and

(PLM) Indigenous accreditation
Peoples Rights - Failure to prove that its five
Alliance, Inc. nominees are members of the
(A-IPRA) indigenous people sector;
- Failure to prove that its five
nominees actively
participated in the
undertakings of the party; and
- Failure to prove that its five nominees are
bona fide
members.
32 204216 12-202 Philippine Cancelled registration and

(PLM) Coconut accreditation
Producers - The party is affiliated with
Federation, Inc. private and government
(COCOFED) agencies and is not
marginalized;
- The party is assisted by the
government in various
projects; and
members of the marginalized
sector of coconut farmers and
producers.
33 204220 12-238 Abang Lingkod Cancelled registration

(PLM) Party-List - Failure to establish a track
(ABANG record of continuously
LINGKOD) representing the peasant
farmers sector;
- Failure to show that its
members actually belong to
the peasant farmers sector;
and
- Failure to show that its
nominees are marginalized
and underrepresented, have
actively participated in
programs for the
advancement of farmers, and
adhere to its advocacies.
34 204158 12-158 Action Cancelled registration and

(PLM) Brotherhood for Active accreditation - Failure to show that the
Dreamers, Inc. party is actually able to
(ABROAD) represent all of the sectors it
claims to represent;
- Failure to show a complete
track record of its activities
since its registration; and
- The nominees are not part
of any of the sectors which
the party seeks to represent.
35 204374 12-228 Binhi-Partido ng Cancelled registration and

(PLM) mga Magsasaka accreditation
Para sa mga - The party receives
Magsasaka assistance from the
(BINHI) government through the
Department of Agriculture;
and
- Failure to prove that the
group is marginalized and
underrepresented.
36 204356 12-136 Butil Farmers Cancelled registration and

(PLM) Party (BUTIL) accreditation
agriculture and cooperative
sectors are marginalized and
- The party’s nominees
neither appear to belong to
the sectors they seek to
represent, nor to have
actively participated in the
undertakings of the party.
37 204486 12-194 1st Cancelled registration and

(PLM) Kabalikat ng accreditation
Bayan - Declaration of untruthful
Ginhawang statements;
Sangkatauhan - Failure to exist for at least
(1st one year; and
KABAGIS) - None of its nominees
belong to the labor,
fisherfolk, and urban poor
indigenous cultural
communities sectors which it
seeks to represent.

38 204410 12-198 1-United Cancelled accreditation
(PLM) Transport - The party represents drivers
Koalisyon (1-UTAK) and operators, who may have
conflicting interests; and
- The party’s nominees do not
belong to any marginalized
and underrepresented sector.
39 204421, 12-157 Coalition of Cancelled registration

204425 (PLM), Senior Citizens - The party violated election
12-191 in the laws because its nominees
(PLM) Philippines, Inc. had a term-sharing
(SENIOR agreement.
CITIZENS)
These 39 petitioners (AKB, Atong Paglaum, ARAL, ARC, UNIMAD, 1BRO-PGBI,

1GANAP/GUARDIANS, A BLESSED Party-List, 1-CARE, APEC, AT, ARARO, AGRI, AKMA-PTM,
KAP, AKO-BAHAY, BANTAY, PACYAW, PASANG MASDA, KAKUSA, AG, ANAD, GREENFORCE,
FIRM 24-K, ALIM, AAMA, SMART, ABP, BAYANI, AANI, A-IPRA, COCOFED, ABANG LINGKOD,
ABROAD, BINHI, BUTIL, 1st KABAGIS, 1-UTAK, SENIOR CITIZENS) were able to secure a
mandatory injunction from this Court, directing the COMELEC to include the names of these 39
petitioners in the printing of the official ballot for the 13 May 2013 party-list elections.
Petitioners prayed for the issuance of a temporary restraining order and/or writ of preliminary
injunction. This Court issued Status Quo Ante Orders in all petitions. This Decision governs only the
54 consolidated petitions that were granted Status Quo Ante Orders, namely:
G.R. No. SPP No. Group
203818-19 12-154 AKO Bicol Political Party (AKB)

(PLM)
12-177
(PLM)
203981 12-187 Association for Righteousness Advocacy on

(PLM) Leadership (ARAL)
204002 12-188 Alliance for Rural Concerns (ARC)

(PLM)
203922 12-201 Association of Philippine Electric Cooperatives

(PLM) (APEC)
203960 12-260 1st

(PLM) Consumers Alliance for Rural Energy, Inc.
(1-CARE)
203936 12-248 Aksyon Magsasaka-Partido Tinig ng Masa

(PLM) (AKMA-PTM)
203958 12-015 Kapatiran ng mga Nakulong na Walang Sala,

(PLM) Inc. (KAKUSA)
203976 12-288 Alliance for Rural and Agrarian Reconstruction,

(PLM) Inc. (ARARO)
204094 12-185 Alliance for Nationalism and Democracy

(PLM) (ANAD)
204125 12-292 Agapay ng Indigenous Peoples Rights Alliance,

(PLM) Inc. (A-IPRA)
204100 12-196 1-Bro Philippine Guardians Brotherhood, Inc.

(PLM) (1BRO-PGBI)
204141 12-229 The True Marcos Loyalist (for God, Country

(PLM) and People) Association of the Philippines, Inc.
(BANTAY)
204240 12-279 Agri-Agra na Reporma Para sa Magsasaka ng

(PLM) Pilipinas Movement (AGRI)
204216 12-202 Philippine Coconut Producers Federation, Inc.

(PLM) (COCOFED)
204158 12-158 Action Brotherhood for Active Dreamer, Inc.

(PLM) (ABROAD)
Resolutions dated 4 December 2012
204122 12-223 1 Guardians Nationalist Philippines, Inc.

(PLM) (1GANAP/GUARDIANS)
203766 12-161 Atong Paglaum, Inc. (Atong Paglaum)

(PLM)
204318 12-220 United Movement Against Drugs Foundation

(PLM) (UNIMAD)
204263 12-257 Blessed Federation of Farmers and Fishermen

(PLM) International, Inc. (A BLESSED Party-List)
204174 12-232 Aangat Tayo Party-List Party (AT)

(PLM)
204126 12-263 Kaagapay ng Nagkakaisang Agilang Pilipinong

(PLM) Magsasaka (KAP)
204364 12-180 Adhikain at Kilusan ng Ordinaryong Tao Para sa

(PLM) Lupa, Pabahay, Hanapbuhay at Kaunlaran
(AKO-BAHAY)
204139 12-127 (PL) Alab ng Mamamahayag (ALAM)
204220 12-238 Abang Lingkod Party-List (ABANG

(PLM) LINGKOD)
204236 12-254 Firm 24-K Association, Inc. (FIRM 24-K)

(PLM)
204238 12-173 Alliance of Bicolnon Party (ABP)

(PLM)
204239 12-060 Green Force for the Environment Sons and

(PLM) Daughters of Mother Earth (GREENFORCE)
204321 12-252 Ang Agrikultura Natin Isulong (AANI)

(PLM)
204323 12-210 Bayani Party List (BAYANI)

(PLM)
204341 12-269 Action League of Indigenous Masses (ALIM)

(PLM)
204358 12-204 Alliance of Advocates in Mining Advancement

(PLM) for National Progress (AAMA)
204359 12-272 Social Movement for Active Reform and

(PLM) Transparency (SMART)
204356 12-136 Butil Farmers Party (BUTIL)
(PLM)
204402 12-061 (PL) Kalikasan Party-List (KALIKASAN)
204394 12-145 (PL) Association of Guard, Utility Helper, Aider,

Rider, Driver/Domestic Helper, Janitor, Agent
and Nanny of the Philippines, Inc.
(GUARDJAN)
204408 12-217 Pilipino Association for Country – Urban Poor

(PLM) Youth Advancement and Welfare (PACYAW)
204428 12-256 Ang Galing Pinoy (AG)

(PLM)
204490 12-073 Pilipinas Para sa Pinoy (PPP)

(PLM)
204379 12-099 Alagad ng Sining (ASIN)

(PLM)
204367 12-104 (PL) Akbay Kalusugan (AKIN)
204426 12-011 Association of Local Athletics Entrepreneurs

(PLM) and Hobbyists, Inc. (ALA-EH)
204455 12-041 Manila Teachers Savings and Loan Association,

(PLM) Inc. (Manila Teachers)
204374 12-228 Binhi-Partido ng mga Magsasaka Para sa mga

(PLM) Magsasaka (BINHI)
204370 12-011 (PP) Ako An Bisaya (AAB)
204435 12-057 1 Alliance Advocating Autonomy Party

(PLM) (1AAAP)
204486 12-194 1st Kabalikat ng Bayan Ginhawang

(PLM) Sangkatauhan (1st KABAGIS)
204410 12-198 1-United Transport Koalisyon (1-UTAK)

(PLM)
204421, 12-157 Coalition of Senior Citizens in the Philippines,

204425 (PLM) Inc. (SENIOR CITIZENS)
12-191
(PLM)
204436 12-009 (PP), Abyan Ilonggo Party (AI)

12-165
(PLM)
204485 12-175 (PL) Alliance of Organizations, Networks and

Associations of the Philippines, Inc. (ALONA)
204484 11-002 Partido ng Bayan ng Bida (PBB)
204153 12-277 Pasang Masda Nationwide Party (PASANG

(PLM) MASDA)
The Issues
We rule upon two issues: first, whether the COMELEC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in disqualifying petitioners from participating in the 13 May
2013 party-list elections, either by denial of their new petitions for registration under the party-list
system, or by cancellation of their existing registration and accreditation as party-list organizations;
and second, whether the criteria for participating in the party-list system laid down in Ang Bagong
Bayani and Barangay Association for National Advancement and Transparency v. Commission on
Elections49 (BANAT) should be applied by the COMELEC in the coming 13 May 2013 party-list
elections.
The Court’s Ruling
We hold that the COMELEC did not commit grave abuse of discretion in following prevailing
decisions of this Court in disqualifying petitioners from participating in the coming 13 May 2013
party-list elections. However, since the Court adopts in this Decision new parameters in the
qualification of national, regional, and sectoral parties under the party-list system, thereby
abandoning the rulings in the decisions applied by the COMELEC in disqualifying petitioners, we
remand to the COMELEC all the present petitions for the COMELEC to determine who are qualified
to register under the party-list system, and to participate in the coming 13 May 2013 party-list
elections, under the new parameters prescribed in this Decision.
The Party-List System
The 1987 Constitution provides the basis for the party-list system of representation. Simply put, the
party-list system is intended to democratize political power by giving political parties that cannot win
in legislative district elections a chance to win seats in the House of Representatives. 50 The voter
elects two representatives in the House of Representatives: one for his or her legislative district, and
another for his or her party-list group or organization of choice. The 1987 Constitution provides:
Section 5, Article VI
(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.
Sections 7 and 8, Article IX-C
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.
Commissioner Christian S. Monsod, the main sponsor of the party-list system, stressed that "the
party-list system is not synonymous with that of the sectoral representation."51 The
constitutional provisions on the party-list system should be read in light of the following discussion
among its framers:
MR. MONSOD: x x x.
I would like to make a distinction from the beginning that the proposal for the party list system is not
synonymous with that of the sectoral representation. Precisely, the party list system seeks to avoid
the dilemma of choice of sectors and who constitute the members of the sectors. In making the
proposal on the party list system, we were made aware of the problems precisely cited by
Commissioner Bacani of which sectors will have reserved seats. In effect, a sectoral representation
in the Assembly would mean that certain sectors would have reserved seats; that they will choose
among themselves who would sit in those reserved seats. And then, we have the problem of which
sector because as we will notice in Proclamation No. 9, the sectors cited were the farmers,
fishermen, workers, students, professionals, business, military, academic, ethnic and other similar
groups. So these are the nine sectors that were identified here as "sectoral representatives" to be
represented in this Commission. The problem we had in trying to approach sectoral representation in
the Assembly was whether to stop at these nine sectors or include other sectors. And we went
through the exercise in a caucus of which sector should be included which went up to 14 sectors.
And as we all know, the longer we make our enumeration, the more limiting the law become
because when we make an enumeration we exclude those who are not in the enumeration. Second,
we had the problem of who comprise the farmers. Let us just say the farmers and the laborers.
These days, there are many citizens who are called "hyphenated citizens." A doctor may be a
farmer; a lawyer may also be a farmer. And so, it is up to the discretion of the person to say "I am a
farmer" so he would be included in that sector.
The third problem is that when we go into a reserved seat system of sectoral representation in the
Assembly, we are, in effect, giving some people two votes and other people one vote. We sought to
avoid these problems by presenting a party list system. Under the party list system, there are no
reserved seats for sectors. Let us say, laborers and farmers can form a sectoral party or a sectoral
organization that will then register and present candidates of their party. How do the mechanics go?
Essentially, under the party list system, every voter has two votes, so there is no discrimination.
First, he will vote for the representative of his legislative district. That is one vote. In that same ballot,
he will be asked: What party or organization or coalition do you wish to be represented in the
Assembly? And here will be attached a list of the parties, organizations or coalitions that have been
registered with the COMELEC and are entitled to be put in that list. This can be a regional party, a
sectoral party, a national party, UNIDO, Magsasaka or a regional party in Mindanao. One need not
be a farmer to say that he wants the farmers' party to be represented in the Assembly. Any citizen
can vote for any party. At the end of the day, the COMELEC will then tabulate the votes that had
been garnered by each party or each organization — one does not have to be a political party and
register in order to participate as a party — and count the votes and from there derive the
percentage of the votes that had been cast in favor of a party, organization or coalition.
When such parties register with the COMELEC, we are assuming that 50 of the 250 seats will be for
the party list system. So, we have a limit of 30 percent of 50. That means that the maximum that any
party can get out of these 50 seats is 15. When the parties register they then submit a list of 15
names. They have to submit these names because these nominees have to meet the minimum
qualifications of a Member of the National Assembly. At the end of the day, when the votes are
tabulated, one gets the percentages. Let us say, UNIDO gets 10 percent or 15 percent of the votes;
KMU gets 5 percent; a women’s party gets 2 1/2 percent and anybody who has at least 2 1/2
percent of the vote qualifies and the 50 seats are apportioned among all of these parties who get at
least 2 1/2 percent of the vote.
What does that mean? It means that any group or party who has a constituency of, say, 500,000
nationwide gets a seat in the National Assembly. What is the justification for that? When we allocate
legislative districts, we are saying that any district that has 200,000 votes gets a seat. There is no
reason why a group that has a national constituency, even if it is a sectoral or special interest group,
should not have a voice in the National Assembly. It also means that, let us say, there are three or
four labor groups, they all register as a party or as a group. If each of them gets only one percent or
five of them get one percent, they are not entitled to any representative. So, they will begin to think
that if they really have a common interest, they should band together, form a coalition and get five
percent of the vote and, therefore, have two seats in the Assembly. Those are the dynamics of a
party list system.
We feel that this approach gets around the mechanics of sectoral representation while at the same
time making sure that those who really have a national constituency or sectoral constituency will get
a chance to have a seat in the National Assembly. These sectors or these groups may not have the
constituency to win a seat on a legislative district basis. They may not be able to win a seat on a
district basis but surely, they will have votes on a nationwide basis.
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 place 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.
BISHOP BACANI: Madam President, am I right in interpreting that when we speak now of party list
system though we refer to sectors, we would be referring to sectoral party list rather than sectors
and party list?
MR. MONSOD: As a matter of fact, if this body accepts the party list system, we do not even have to
mention sectors because the sectors would be included in the party list system. They can be
sectoral parties within the party list system.
xxxx
MR. MONSOD. Madam President, I just want to say that we suggested or proposed the party list
system because we wanted to open up the political system to a pluralistic society through a
multiparty system. x x x We are for opening up the system, and we would like very much for the
sectors to be there. That is why one of the ways to do that is to put a ceiling on the number of
representatives from any single party that can sit within the 50 allocated under the party list
system. x x x.
xxx
MR. MONSOD. Madam President, the candidacy for the 198 seats is not limited to political
parties. My question is this: Are we going to classify for example Christian Democrats and
Social Democrats as political parties? Can they run under the party list concept or must they
be under the district legislation side of it only?
MR. VILLACORTA. In reply to that query, I think these parties that the Commissioner
mentioned can field candidates for the Senate as well as for the House of Representatives.
Likewise, they can also field sectoral candidates for the 20 percent or 30 percent, whichever
is adopted, of the seats that we are allocating under the party list system.
MR. MONSOD. In other words, the Christian Democrats can field district candidates and can
also participate in the party list system?
MR. VILLACORTA. Why not? When they come to the party list system, they will be fielding
only sectoral candidates.
MR. MONSOD. May I be clarified on that? Can UNIDO participate in the party list system?
MR. VILLACORTA. Yes, why not? For as long as they field candidates who come from the
different marginalized sectors that we shall designate in this Constitution.
MR. MONSOD. Suppose Senator Tañada wants to run under BAYAN group and says that he
represents the farmers, would he qualify?
MR. VILLACORTA. No, Senator Tañada would not qualify.
MR. MONSOD. But UNIDO can field candidates under the party list system and say Juan dela Cruz
is a farmer. Who would pass on whether he is a farmer or not?
MR. TADEO. Kay Commissioner Monsod, gusto ko lamang linawin ito. Political parties,
particularly minority political parties, are not prohibited to participate in the party list election
if they can prove that they are also organized along sectoral lines.
MR. MONSOD. What the Commissioner is saying is that all political parties can participate because
it is precisely the contention of political parties that they represent the broad base of citizens and that
all sectors are represented in them. Would the Commissioner agree?
MR. TADEO. Ang punto lamang namin, pag pinayagan mo ang UNIDO na isang political party, it will
dominate the party list at mawawalang saysay din yung sector. Lalamunin mismo ng political parties
ang party list system. Gusto ko lamang bigyan ng diin ang "reserve." Hindi ito reserve seat sa
marginalized sectors. Kung titingnan natin itong 198 seats, reserved din ito sa political parties.
MR. MONSOD. Hindi po reserved iyon kasi anybody can run there. But my question to
Commissioner Villacorta and probably also to Commissioner Tadeo is that under this system, would
UNIDO be banned from running under the party list system?
MR. VILLACORTA. No, as I said, UNIDO may field sectoral candidates. On that condition
alone, UNIDO may be allowed to register for the party list system.
MR. MONSOD. May I inquire from Commissioner Tadeo if he shares that answer?
MR. TADEO. The same.
MR. VILLACORTA. Puwede po ang UNIDO, pero sa sectoral lines.
MR. MONSOD: Sino po ang magsasabi kung iyong kandidato ng UNIDO ay hindi talagang labor
leader or isang laborer? Halimbawa, abogado ito.
MR. TADEO: Iyong mechanics.
MR. MONSOD: Hindi po mechanics iyon because we are trying to solve an inherent problem of
sectoral representation. My question is: Suppose UNIDO fields a labor leader, would he qualify?
MR. TADEO: The COMELEC may look into the truth of whether or not a political party is really
organized along a specific sectoral line. If such is verified or confirmed, the political party
may submit a list of individuals who are actually members of such sectors. The lists are to be
published to give individuals or organizations belonging to such sector the chance to
present evidence contradicting claims of membership in the said sector or to question the
claims of the existence of such sectoral organizations or parties. This proceeding shall be
conducted by the COMELEC and shall be summary in character. In other words, COMELEC
decisions on this matter are final and unappealable.52 (Emphasis supplied)
Indisputably, the framers of the 1987 Constitution intended the party-list system to include not only
sectoral parties but also non-sectoral parties. The framers intended the sectoral parties to constitute
a part, but not the entirety, of the party-list system. As explained by Commissioner Wilfredo
Villacorta, political parties can participate in the party-list system "For as long as they field
candidates who come from the different marginalized sectors that we shall designate in this
Constitution."53
In fact, the framers voted down, 19-22, a proposal to reserve permanent seats to sectoral parties in
the House of Representatives, or alternatively, to reserve the party-list system exclusively to sectoral
parties. As clearly explained by Justice Jose C. Vitug in his Dissenting Opinion in Ang Bagong
Bayani:
The draft provisions on what was to become Article VI, Section 5, subsection (2), of the 1987
Constitution took off from two staunch positions — the first headed by Commissioner Villacorta,
advocating that of the 20 per centum of the total seats in Congress to be allocated to party-list
representatives half were to be reserved to appointees from the marginalized and underrepresented
sectors. The proposal was opposed by some Commissioners. Mr. Monsod expressed the difficulty in
delimiting the sectors that needed representation. He was of the view that reserving seats for the
marginalized and underrepresented sectors would stunt their development into full-pledged parties
equipped with electoral machinery potent enough to further the sectoral interests to be represented.
The Villacorta group, on the other hand, was apprehensive that pitting the unorganized and less-
moneyed sectoral groups in an electoral contest would be like placing babes in the lion's den, so to
speak, with the bigger and more established political parties ultimately gobbling them up. R.A. 7941
recognized this concern when it banned the first five major political parties on the basis of party
representation in the House of Representatives from participating in the party-list system for the first
party-list elections held in 1998 (and to be automatically lifted starting with the 2001 elections). The
advocates for permanent seats for sectoral representatives made an effort towards a compromise —
that the party-list system be open only to underrepresented and marginalized sectors. This proposal
was further whittled down by allocating only half of the seats under the party-list system to
candidates from the sectors which would garner the required number of votes. The majority was
unyielding. Voting 19-22, the proposal for permanent seats, and in the alternative the reservation of
the party-list system to the sectoral groups, was voted down. The only concession the Villacorta
group was able to muster was an assurance of reserved seats for selected sectors for three
consecutive terms after the enactment of the 1987 Constitution, by which time they would be
expected to gather and solidify their electoral base and brace themselves in the multi-party electoral
contest with the more veteran political groups.54 (Emphasis supplied)
Thus, in the end, the proposal to give permanent reserved seats to certain sectors was outvoted.
Instead, the reservation of seats to sectoral representatives was only allowed for the first three
consecutive terms.55 There can be no doubt whatsoever that the framers of the 1987 Constitution
expressly rejected the proposal to make the party-list system exclusively for sectoral parties only,
and that they clearly intended the party-list system to include both sectoral and non-sectoral parties.
The common denominator between sectoral and non-sectoral parties is that they cannot expect to
win in legislative district elections but they can garner, in nationwide elections, at least the same
number of votes that winning candidates can garner in legislative district elections. The party-list
system will be the entry point to membership in the House of Representatives for both these non-
traditional parties that could not compete in legislative district elections.
The indisputable intent of the framers of the 1987 Constitution to include in the party-list system both
sectoral and non-sectoral parties is clearly written in Section 5(1), Article VI of the Constitution,
which states:
Section 5. (1) The House of Representative shall be composed of not more that 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. (Emphasis supplied)
Section 5(1), Article VI of the Constitution is crystal-clear that there shall be "a party-list system of
registered national, regional, and sectoral parties or organizations." The commas after the
words "national," and "regional," separate national and regional parties from sectoral parties. Had
the framers of the 1987 Constitution intended national and regional parties to be at the same time
sectoral, they would have stated "national and regional sectoral parties." They did not, precisely
because it was never their intention to make the party-list system exclusively sectoral.
What the framers intended, and what they expressly wrote in Section 5(1), could not be any clearer:
the party-list system is composed of three different groups, and the sectoral parties belong to only
one of the three groups. The text of Section 5(1) leaves no room for any doubt that national and
regional parties are separate from sectoral parties.
Thus, the party-list system is composed of three different groups: (1) national parties or
organizations; (2) regional parties or organizations; and (3) sectoral parties or organizations.
National and regional parties or organizations are different from sectoral parties or organizations.
National and regional parties or organizations need not be organized along sectoral lines and need
not represent any particular sector.
Moreover, Section 5(2), Article VI of the 1987 Constitution mandates that, during the first three
consecutive terms of Congress after the ratification of the 1987 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." This provision clearly shows again
that the party-list system is not exclusively for sectoral parties for two obvious reasons.
First, the other one-half of the seats allocated to party-list representatives would naturally be open to
non-sectoral party-list representatives, clearly negating the idea that the party-list system is
exclusively for sectoral parties representing the "marginalized and underrepresented." Second, the
reservation of one-half of the party-list seats to sectoral parties applies only for the first "three
consecutive terms after the ratification of this Constitution," clearly making the party-list system fully
open after the end of the first three congressional terms. This means that, after this period, there will
be no seats reserved for any class or type of party that qualifies under the three groups constituting
the party-list system.
Hence, the clear intent, express wording, and party-list structure ordained in Section 5(1) and
(2), Article VI of the 1987 Constitution cannot be disputed: the party-list system is not for
sectoral parties only, but also for non-sectoral parties.
Republic Act No. 7941 or the Party-List System Act, which is the law that implements the party-list
system prescribed in the Constitution, provides:
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
organizations for political and/or election purposes. (Emphasis supplied)
Section 3(a) of R.A. No. 7941 defines a "party" as "either a political party or a sectoral party or a
coalition of parties." Clearly, a political party is different from a sectoral party. Section 3(c) of R.A.
No. 7941 further provides that a "political party refers to an organized group of citizens
advocating an ideology or platform, principles and policies for the general conduct of
government." On the other hand, Section 3(d) of R.A. No. 7941 provides that 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." R.A. No. 7941 provides different definitions for a political and a sectoral party. Obviously,
they are separate and distinct from each other.
R.A. No. 7941 does not require national and regional parties or organizations to represent the
"marginalized and underrepresented" sectors. To require all national and regional parties under
the party-list system to represent the "marginalized and underrepresented" is to deprive and
exclude, by judicial fiat, ideology-based and cause-oriented parties from the party-list system. How
will these ideology-based and cause-oriented parties, who cannot win in legislative district elections,
participate in the electoral process if they are excluded from the party-list system? To exclude them
from the party-list system is to prevent them from joining the parliamentary struggle, leaving as their
only option the armed struggle. To exclude them from the party-list system is, apart from being
obviously senseless, patently contrary to the clear intent and express wording of the 1987
Constitution and R.A. No. 7941.
Under the party-list system, an ideology-based or cause-oriented political party is clearly different
from a sectoral party. A political party need not be organized as a sectoral party and need not
represent any particular sector. There is no requirement in R.A. No. 7941 that a national or regional
political party must represent a "marginalized and underrepresented" sector. It is sufficient that the
political party consists of citizens who advocate the same ideology or platform, or the same
governance principles and policies, regardless of their economic status as citizens.
Section 5 of R.A. No. 7941 states that "the sectors shall include labor, peasant, fisherfolk, urban
poor, indigenous cultural communities, elderly, handicapped, women, youth, veterans, overseas
workers, and professionals."56 The sectors mentioned in Section 5 are not all necessarily
"marginalized and underrepresented." For sure, "professionals" are not by definition "marginalized
and underrepresented," not even the elderly, women, and the youth. However, professionals, the
elderly, women, and the youth may "lack well-defined political constituencies," and can thus organize
themselves into sectoral parties in advocacy of the special interests and concerns of their respective
sectors.
Section 6 of R.A. No. 7941 provides another compelling reason for holding that the law does not
require national or regional parties, as well as certain sectoral parties in Section 5 of R.A. No. 7941,
to represent the "marginalized and underrepresented." Section 6 provides the grounds for the
COMELEC to refuse or cancel the registration of parties or organizations after due notice and
hearing.
Section 6. Refusal and/or Cancellation of Registration. — The COMELEC may, motu proprio 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.
None of the 8 grounds to refuse or cancel registration refers to non-representation of the

"marginalized and underrepresented."
The phrase "marginalized and underrepresented" appears only once in R.A. No. 7941, in Section
2 on Declaration of Policy.57 Section 2 seeks "to promote proportional representation in the election
of representatives to the House of Representatives through the party-list system," which will enable
Filipinos belonging to the "marginalized and underrepresented sectors, organizations and
parties, and who lack well-defined political constituencies," to become members of the House
of Representatives. While the policy declaration in Section 2 of R.A. No. 7941 broadly refers to
"marginalized and underrepresented sectors, organizations and parties," the specific implementing
provisions of R.A. No. 7941 do not define or require that the sectors, organizations or parties must
be "marginalized and underrepresented." On the contrary, to even interpret that all the sectors
mentioned in Section 5 are "marginalized and underrepresented" would lead to absurdities.
How then should we harmonize the broad policy declaration in Section 2 of R.A. No. 7941 with its
specific implementing provisions, bearing in mind the applicable provisions of the 1987 Constitution
on the matter?
The phrase "marginalized and underrepresented" should refer only to the sectors in Section 5
that are, by their nature, economically "marginalized and underrepresented." These sectors
are: labor, peasant, fisherfolk, urban poor, indigenous cultural communities, handicapped, veterans,
overseas workers, and other similar sectors. For these sectors, a majority of the members of the
sectoral party must belong to the "marginalized and underrepresented." The nominees of the
sectoral party either must belong to the sector, or must have a track record of advocacy for
the sector represented. Belonging to the "marginalized and underrepresented" sector does not
mean one must "wallow in poverty, destitution or infirmity." It is sufficient that one, or his or her
sector, is below the middle class. More specifically, the economically "marginalized and
underrepresented" are those who fall in the low income group as classified by the National Statistical
Coordination Board.58
The recognition that national and regional parties, as well as sectoral parties of professionals, the
elderly, women and the youth, need not be "marginalized and underrepresented" will allow small
ideology-based and cause-oriented parties who lack "well-defined political constituencies" a chance
to win seats in the House of Representatives. On the other hand, limiting to the "marginalized and
underrepresented" the sectoral parties for labor, peasant, fisherfolk, urban poor, indigenous cultural
communities, handicapped, veterans, overseas workers, and other sectors that by their nature are
economically at the margins of society, will give the "marginalized and underrepresented" an
opportunity to likewise win seats in the House of Representatives.
This interpretation will harmonize the 1987 Constitution and R.A. No. 7941 and will give rise to a
multi-party system where those "marginalized and underrepresented," both in economic and
ideological status, will have the opportunity to send their own members to the House of
Representatives. This interpretation will also make the party-list system honest and transparent,
eliminating the need for relatively well-off party-list representatives to masquerade as "wallowing in
poverty, destitution and infirmity," even as they attend sessions in Congress riding in SUVs.
The major political parties are those that field candidates in the legislative district elections. Major
political parties cannot participate in the party-list elections since they neither lack "well-defined
political constituencies" nor represent "marginalized and underrepresented" sectors. Thus, the
national or regional parties under the party-list system are necessarily those that do not
belong to major political parties. This automatically reserves the national and regional parties
under the party-list system to those who "lack well-defined political constituencies," giving them the
opportunity to have members in the House of Representatives.
To recall, Ang Bagong Bayani expressly declared, in its second guideline for the accreditation of
parties under the party-list system, that "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 xxx to be elected to the House of Representatives.’ "However, the
requirement in Ang Bagong Bayani, in its second guideline, that "the political party xxx must
represent the marginalized and underrepresented," automatically disqualified major political parties
from participating in the party-list system. This inherent inconsistency in Ang Bagong Bayani has
been compounded by the COMELEC’s refusal to register sectoral wings officially organized by major
political parties. BANAT merely formalized the prevailing practice when it expressly
prohibited major political parties from participating in the party-list system, even through their
sectoral wings.
Section 11 of R.A. No. 7941 expressly prohibited 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"
from participating in the May 1988 party-list elections. 59 Thus, major political parties can
participate in subsequent party-list elections since the prohibition is expressly limited only to
the 1988 party-list elections. However, major political parties should participate in party-list
elections only through their sectoral wings. The participation of major political parties through their
sectoral wings, a majority of whose members are "marginalized and underrepresented" or lacking in
"well-defined political constituencies," will facilitate the entry of the "marginalized and
underrepresented" and those who "lack well-defined political constituencies" as members of the
House of Representatives.
The 1987 Constitution and R.A. No. 7941 allow major political parties to participate in party-list
elections so as to encourage them to work assiduously in extending their constituencies to the
"marginalized and underrepresented" and to those who "lack well-defined political constituencies."
The participation of major political parties in party-list elections must be geared towards the entry, as
members of the House of Representatives, of the "marginalized and underrepresented" and those
who "lack well-defined political constituencies," giving them a voice in law-making. Thus,to
participate in party-list elections, a major political party that fields candidates in the legislative district
elections must organize a sectoral wing, like a labor, peasant, fisherfolk, urban poor, professional,
women or youth wing, that can register under the party-list system.
Such sectoral wing of a major political party must have its own constitution, by-laws, platform or
program of government, officers and members, a majority of whom must belong to the sector
represented. The sectoral wing is in itself an independent sectoral party, and is linked to a major
political party through a coalition. This linkage is allowed by Section 3 of R.A. No. 7941, which
provides that "component parties or organizations of a coalition may participate independently (in
party-list elections) provided the coalition of which they form part does not participate in the party-list
system."
Section 9 of R.A. No. 7941 prescribes the qualifications of party-list nominees. This provision
prescribes a special qualification only for the nominee from the youth sector.
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
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.1âwphi1
A party-list nominee must be a bona fide member of the party or organization which he or she seeks
to represent. In the case of sectoral parties, to be a bona fide party-list nominee one must
either belong to the sector represented, or have a track record of advocacy for such sector.
In disqualifying petitioners, the COMELEC used the criteria prescribed in Ang Bagong Bayani and
BANAT. Ang Bagong Bayani laid down the guidelines for qualifying those who desire to participate in
the party-list system:
First, the political party, sector, organization or coalition must represent the marginalized and
underrepresented groups identified in Section 5 of RA 7941. x x x
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." x x x.
xxxx
Third, x x x the religious sector may not be represented in the party-list system. x x x.
xxxx
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
(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."
Fifth, the party or organization must not be an adjunct of, or a project organized or an entity funded
or assisted by, the government. x x x.
xxxx
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
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. x x x.
Eighth, x x x the nominee must likewise be able to contribute to the formulation and enactment of
appropriate legislation that will benefit the nation as a whole. (Emphasis supplied)
In 2009, by a vote of 8-7 in BANAT, this Court stretched the Ang Bagong Bayani ruling further. In
BANAT, the majority officially excluded major political parties from participating in party-list
elections,60 abandoning even the lip-service that Ang Bagong Bayani accorded to the 1987
Constitution and R.A.No. 7941 that major political parties can participate in party-list elections.
The minority in BANAT, however, believed that major political parties can participate in the party-list
system through their sectoral wings. The minority expressed that "[e]xcluding the major political
parties in party-list elections is manifestly against the Constitution, the intent of the Constitutional
Commission, and R.A. No. 7941. This Court cannot engage in socio-political engineering and
judicially legislate the exclusion of major political parties from the party-list elections in patent
violation of the Constitution and the law."61 The experimentations in socio-political engineering have
only resulted in confusion and absurdity in the party-list system. Such experimentations, in clear
contravention of the 1987 Constitution and R.A. No. 7941, must now come to an end.
We cannot, however, fault the COMELEC for following prevailing jurisprudence in disqualifying
petitioners. In following prevailing jurisprudence, the COMELEC could not have committed grave
abuse of discretion. However, for the coming 13 May 2013 party-list elections, we must now impose
and mandate the party-list system actually envisioned and authorized under the 1987 Constitution
and R.A. No. 7941. In BANAT, this Court devised a new formula in the allocation of party-list seats,
reversing the COMELEC's allocation which followed the then prevailing formula in Ang Bagong
Bayani. In BANAT, however, the Court did not declare that the COMELEC committed grave abuse of
discretion. Similarly, even as we acknowledge here that the COMELEC did not commit grave abuse
of discretion, we declare that it would not be in accord with the 1987 Constitution and R.A. No. 7941
to apply the criteria in Ang Bagong Bayani and BANAT in determining who are qualified to
participate in the coming 13 May 2013 party-list elections. For this purpose, we suspend our
rule62 that a party may appeal to this Court from decisions or orders of the COMELEC only if the
COMELEC committed grave abuse of discretion.
Thus, we remand all the present petitions to the COMELEC. In determining who may participate in
the coming 13 May 2013 and subsequent party-list elections, the COMELEC shall adhere to the
following parameters:
1. Three different groups may participate in the party-list system: (1) national parties or
organizations, (2) regional parties or organizations, and (3) sectoral parties or organizations.
2. National parties or organizations and regional parties or organizations do not need to

organize along sectoral lines and do not need to represent any "marginalized and
underrepresented" sector.
3. Political parties can participate in party-list elections provided they register under the
party-list system and do not field candidates in legislative district elections. A political party,
whether major or not, that fields candidates in legislative district elections can participate in
party-list elections only through its sectoral wing that can separately register under the party-
list system. The sectoral wing is by itself an independent sectoral party, and is linked to a
political party through a coalition.
4. Sectoral parties or organizations may either be "marginalized and underrepresented" or

lacking in "well-defined political constituencies." It is enough that their principal advocacy
pertains to the special interest and concerns of their sector. The sectors that are
"marginalized and underrepresented" include labor, peasant, fisherfolk, urban poor,
indigenous cultural communities, handicapped, veterans, and overseas workers. The sectors
that lack "well-defined political constituencies" include professionals, the elderly, women, and
the youth.
5. A majority of the members of sectoral parties or organizations that represent the

"marginalized and underrepresented" must belong to the "marginalized and
underrepresented" sector they represent. Similarly, a majority of the members of sectoral
parties or organizations that lack "well-defined political constituencies" must belong to the
sector they represent. The nominees of sectoral parties or organizations that represent the
"marginalized and underrepresented," or that represent those who lack "well-defined political
constituencies," either must belong to their respective sectors, or must have a track record of
advocacy for their respective sectors. The nominees of national and regional parties or
organizations must be bona-fide members of such parties or organizations.
6. National, regional, and sectoral parties or organizations shall not be disqualified if some of
their nominees are disqualified, provided that they have at least one nominee who remains
qualified.
The COMELEC excluded from participating in the 13 May 2013 party-list elections those that did not
satisfy these two criteria: (1) all national, regional, and sectoral groups or organizations must
represent the "marginalized and underrepresented" sectors, and (2) all nominees must belong to the
"marginalized and underrepresented" sector they represent. Petitioners may have been disqualified
by the COMELEC because as political or regional parties they are not organized along sectoral lines
and do not represent the "marginalized and underrepresented." Also, petitioners' nominees who do
not belong to the sectors they represent may have been disqualified, although they may have a track
record of advocacy for their sectors. Likewise, nominees of non-sectoral parties may have been
disqualified because they do not belong to any sector. Moreover, a party may have been disqualified
because one or more of its nominees failed to qualify, even if the party has at least one remaining
qualified nominee. As discussed above, the disqualification of petitioners, and their nominees, under
such circumstances is contrary to the 1987 Constitution and R.A. No. 7941.
This Court is sworn to uphold the 1987 Constitution, apply its provisions faithfully, and desist from
engaging in socio-economic or political experimentations contrary to what the Constitution has
ordained. Judicial power does not include the power to re-write the Constitution. Thus, the present
petitions should be remanded to the COMELEC not because the COMELEC committed grave abuse
of discretion in disqualifying petitioners, but because petitioners may now possibly qualify to
participate in the coming 13 May 2013 party-list elections under the new parameters prescribed by
this Court.
WHEREFORE, all the present 54 petitions are GRANTED. The 13 petitions, which have been
granted Status Quo Ante Orders but without mandatory injunction to include the names of petitioners
in the printing of ballots, are remanded to the Commission on Elections only for determination
whether petitioners are qualified to register under the party-list system under the parameters
prescribed in this Decision but they shall not participate in the 13 May 2013 part-list elections. The
41 petitions, which have been granted mandatory injunctions to include the names of petitioners in
the printing of ballots, are remanded to the Commission on Elections for determination whether
petitioners are qualified to register under the party-list system and to participate in the 13 May 2013
party-list elections under the parameters prescribed in this Decision. The Commission on Elections
may conduct summary evidentiary hearings for this purpose. This Decision is immediately executory.
SO ORDERED.
People v. Jalosjos, 324 SCRA 689, Feb. 3, 2000
[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 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.4 cräläwvirtualibräry
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;
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?
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.9 cräläwvirtualibräry
We, therefore, find that election to the position of Congressman is
not a reasonable classification in criminal law enforcement. The
functions and duties of the office are not substantial distinctions
which lift him from the class of prisoners interrupted in their
freedom and restricted in liberty of movement. Lawful arrest and
confinement are germane to the purposes of the law and apply to
all those belonging to the same class.10 cräläwvirtualibräry
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."15 cräläwvirtualibräry
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.17 cräläwvirtualibräry
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.
Osmena v. Pendatun. 109 Phil. 863 (1960)
G.R. No. L-17144 October 28, 1960
SERGIO OSMEÑA, JR., petitioner,

vs.
SALIPADA K. PENDATUN, LEON Z. GUINTO, JR., VICENTE L. PERALTA, FAUSTINO TOBIA,
LORENZO G. TEVES, JOPSE J. ROY, FAUSTINO DUGENIO, ANTONIO Y. DE PIO, BENJAMIN
T. LIGOT, PEDRO G. TRONO, FELIPE ABRIGO, FELIPE S. ABELEDA, TECLA SAN ANDRES
ZIGA, ANGEL B. FERNADEZ, and EUGENIO S. BALTAO, in their capacity as members of the
Special Committee created by House Resolution No. 59, respondents.
Antonio Y. de Pio in his own behalf.

F. S. Abeleda, A. b. Fernandez. E. S. Baltao and Tecla San Andres Ziga in their own behalf.
C. T. Villareal and R. D. Bagatsing as amici curiae.
BENGZON, J.:
On July 14, 1960, Congressman Sergio Osmeña, Jr., submitted to this Court a verified petition for
"declaratory relief, certiorari and prohibition with preliminary injunction" against Congressman
Salapida K. Pendatun and fourteen other congressmen in their capacity as members of the Special
Committee created by House Resolution No. 59. He asked for annulment of such Resolution on the
ground of infringenment of his parliamentary immunity; he also asked, principally, that said members
of the special committee be enjoined from proceeding in accordance with it, particularly the portion
authorizing them to require him to substantiate his charges against the President with the admonition
that if he failed to do so, he must show cause why the House should not punish him.
The petition attached a copy of House Resolution No. 59, the pertinent portions of which reads as
follows:
WHEREAS, on the 23rd day of June, 1960 , the Honorable Sergio Osmeña, Jr., Member of
the House of Representatives from the Second District of the province of Cebu, took the floor
of this chamber on the one hour privilege to deliver a speech, entitled 'A Message to Garcia;
WHEREAS, in the course of said speech, the Congressman from the Second District of
Cebu stated the following:.
xxx xxx xxx
The people, Mr. President, have been hearing of ugly reports that under your unpopular
administration the free things they used to get from the government are now for sale at
premium prices. They say that even pardons are for sale, and that regardless of the gravity
or seriousness of a criminal case, the culprit can always be bailed out forever from jail as
long as he can come across with a handsome dole. I am afraid, such an anomalous situation
would reflect badly on the kind of justice that your administration is dispensing. . . . .
WHEREAS, the charges of the gentleman from the Second District of Cebu, if made
maliciously or recklessly and without basis in truth and in fact, would constitute a serious
assault upon the dignity and prestige of the Office of 37 3 the President, which is the one
visible symbol of the sovereignty of the Filipino people, and would expose said office to
contempt and disrepute; . . . .
Resolved by the House of Representative, that a special committee of fifteen Members to be

appointed by the Speaker be, and the same hereby is, created to investigate the truth of the
charges against the President of the Philippines made by Honorable Sergio Osmeña, Jr., in
his privilege speech of June 223, 1960, and for such purpose it is authorized to summon
Honorable Sergio Osmeña, jr., to appear before it to substantiate his charges, as well as to
issue subpoena and/or subpoena duces tecum to require the attendance of witnesses
and/or the production of pertinent papers before it, and if Honorable Sergio Osmeña, Jr., fails
to do so to require him to show cause why he should not be punished by the House. The
special committee shall submit to the House a report of its findings and recommendations
before the adjournment of the present special session of the Congress of the Philippines.
In support of his request, Congressman Osmeña alleged; first, the Resolution violated his
constitutional absolute parliamentary immunity for speeches delivered in the House; second, his
words constituted no actionable conduct; and third, after his allegedly objectionable speech and
words, the House took up other business, and Rule XVII, sec. 7 of the Rules of House provides that
if other business has intervened after the member had uttered obnoxious words in debate, he shall
not be held to answer therefor nor be subject to censure by the House.
Although some members of the court expressed doubts of petitioner's cause of action and the
Court's jurisdiction, the majority decided to hear the matter further, and required respondents to
answer, without issuing any preliminary injunction. Evidently aware of such circumstance with its
implications, and pressed for time in view of the imminent adjournment of the legislative session, the
special committee continued to perform its talk, and after giving Congressman Osmeña a chance to
defend himself, submitted its reports on July 18, 1960, finding said congressman guilty of serious
disorderly behaviour; and acting on such report, the House approved on the same day—before
closing its session—House Resolution No. 175, declaring him guilty as recommended, and
suspending him from office for fifteen months.
Thereafter, on July 19, 1960, the respondents (with the exception of Congressmen De Pio, Abeleda,
San Andres Ziga, Fernandez and Balatao) 1 filed their answer, challenged the jurisdiction of this
Court to entertain the petition, defended the power of Congress to discipline its members with
suspension, upheld a House Resolution No. 175 and then invited attention to the fact that Congress
having ended its session on July 18, 1960, the Committee—whose members are the sole
respondents—had thereby ceased to exist.
There is no question that Congressman Osmeña, in a privilege speech delivered before the House,
made the serious imputations of bribery against the President which are quoted in Resolution No. 59
and that he refused to produce before the House Committee created for the purpose, evidence to
substantiate such imputations. There is also no question that for having made the imputations and
for failing to produce evidence in support thereof, he was, by resolution of the House, suspended
from office for a period of fifteen months for serious disorderly behaviour.
Resolution No. 175 states in part:
WHEREAS, the Special Committee created under and by virtue of Resolution No. 59,
adopted on July 8, 1960, found Representative Sergio Osmeña, Jr., guilty of serious
disorderly behaviour for making without basis in truth and in fact, scurrilous, malicious,
reckless and irresponsible charges against the President of the Philippines in his privilege
speech of June 23, 1960; and
WHEREAS, the said charges are so vile in character that they affronted and degraded the
dignity of the House of Representative: Now, Therefore, be it
RESOLVED by the House of Representatives. That Representative Sergio Osmeña, Jr., be,
as he hereby is, declared guilty of serious disorderly behaviour; and . . .
As previously stated, Osmeña contended in his petition that: (1) the Constitution gave him complete
parliamentary immunity, and so, for words spoken in the House, he ought not to be questioned; (20
that his speech constituted no disorderly behaviour for which he could be punished; and (3)
supposing he could be questioned and discipline therefor, the House had lost the power to do so
because it had taken up other business before approving House Resolution No. 59. Now, he takes
the additional position (4) that the House has no power, under the Constitution, to suspend one of its
members.
Section 15, Article VI of our Constitution provides that "for any speech or debate" in Congress, the
Senators or Members of the House of Representative "shall not be questioned in any other place."
This section was taken or is a copy of sec. 6, clause 1 of Art. 1 of the Constitution of the United
States. In that country, the provision has always been understood to mean that although exempt
from prosecution or civil actions for their words uttered in Congress, the members of Congress may,
nevertheless, be questioned in Congress itself. Observe that "they shall not be questioned in any
other place" than Congress.
Furthermore, the Rules of the House which petitioner himself has invoked (Rule XVII, sec. 7),
recognize the House's power to hold a member responsible "for words spoken in debate."
Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in

every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is
to enable and encourage a representative of the public to discharge his public trust with firmness
and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech, and
that he should be protected from the resentment of every one, however powerful, to whom exercise
of that liberty may occasion offense." 2 Such immunity has come to this country from the practices of
Parliamentary as construed and applied by the Congress of the United States. Its extent and
application remain no longer in doubt in so far as related to the question before us. It guarantees the
legislator complete freedom of expression without fear of being made responsible in criminal or civil
actions before the courts or any other forum outside of the Congressional Hall. But is does not
protect him from responsibility before the legislative body itself whenever his words and conduct are
considered by the latter disorderly or unbecoming a member thereof. In the United States Congress,
Congressman Fernando Wood of New York was censured for using the following language on the
floor of the House: "A monstrosity, a measure the most infamous of the many infamous acts of the
infamous Congress." (Hinds' Precedents, Vol. 2,. pp. 798-799). Two other congressmen were
censured for employing insulting words during debate. (2 Hinds' Precedents, 799-801). In one case,
a member of Congress was summoned to testify on a statement made by him in debate, but invoked
his parliamentary privilege. The Committee rejected his plea. (3 Hinds' Precedents 123-124.)
For unparliamentary conduct, members of Parliament or of Congress have been, or could be

censured, committed to prison3, even expelled by the votes of their colleagues. The appendix to this
decision amply attest to the consensus of informed opinion regarding the practice and the traditional
power of legislative assemblies to take disciplinary action against its members, including
imprisonment, suspension or expulsion. It mentions one instance of suspension of a legislator in a
foreign country.
And to cite a local illustration, the Philippine Senate, in April 1949, suspended a senator for one
year.
Needless to add, the Rules of Philippine House of Representatives provide that the parliamentary
practices of the Congress of the United States shall apply in a supplementary manner to its
proceedings.
This brings up the third point of petitioner: the House may no longer take action against me, he
argues, because after my speech, and before approving Resolution No. 59, it had taken up other
business. Respondents answer that Resolution No. 59 was unanimously approved by the House,
that such approval amounted to a suspension of the House Rules, which according to standard
parliamentary practice may done by unanimous consent.
Granted, counters the petitioner, that the House may suspended the operation of its Rules, it may
not, however, affect past acts or renew its rights to take action which had already lapsed.
The situation might thus be compared to laws 4 extending the period of limitation of actions and
making them applicable to actions that had lapsed. The Supreme Court of the United States has
upheld such laws as against the contention that they impaired vested rights in violation of the
Fourteenth Amendment (Campbell vs. Holt, 115 U. S. 620). The states hold divergent views. At any
rate, court are subject to revocation modification or waiver at the pleasure of the body adopting
them."5 And it has been said that "Parliamentary rules are merely procedural, and with their
observancem, 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 requisited number of members have agreed to a particular
measure."6
The following is quoted from a reported decision of the Supreme court of Tennessee:
The rule here invoked is one of parliamentary procedure, and it is uniformly held that it is
within the power of all deliberative bodies to abolish, modify, or waive their own rules of
procedure, adopted for the orderly con duct of business, and as security against hasty
action. (Bennet vs. New Bedford, 110 Mass, 433; Holt vs. Somerville, 127 Mass. 408, 411;
City of Sadalia vs. Scott, 104 Mo. App. 595, 78 S. W. 276; Ex parte Mayor, etc., of Albany,
23 Wend. [N. Y.] 277, 280; Wheelock vs. City of Lowell, 196 Mass. 220, 230. 81 N. e. 977,
124 Am. St. Rep. 543, 12 Ann. Cas. 1109; City of Corinth vs. Sharp, 107 Miss. 696, 65 So.
888; McGraw vs. Whitson, 69 Iowa, 348, 28 N. W. 632; Tuell vs. Meacham Contracting Co.
145 Ky. 181, 186, 140 S. W. Ann. Cas. 1913B, 802.) [Takenfrom the case of
Rutherford vs. City of Nashville, 78 south Western Reporter, p. 584.]
It may be noted in this connection, that in the case of Congressman Stanbery of Ohio, who insulted
the Speaker, for which Act a resolution of censure was presented, the House approved the
resolution, despite the argument that other business had intervened after the objectionable remarks.
(2 Hinds' Precedents pp. 799-800.)
On the question whether delivery of speeches attacking the Chief Executive constitutes disorderly
conduct for which Osmeña may be discipline, many arguments pro and con have been advanced.
We believe, however, that the House is the judge of what constitutes disorderly behaviour, not only
because the Constitution has conferred jurisdiction upon it, but also because the matter depends
mainly on factual circumstances of which the House knows best but which can not be depicted in
black and white for presentation to, and adjudication by the Courts. For one thing, if this Court
assumed the power to determine whether Osmeña conduct constituted disorderly behaviour, it
would thereby have assumed appellate jurisdiction, which the Constitution never intended to confer
upon a coordinate branch of the Government. The theory of separation of powers fastidiously
observed by this Court, demands in such situation a prudent refusal to interfere. Each department, it
has been said, had exclusive cognizance of matters within its jurisdiction and is supreme within its
own sphere. (Angara vs. Electoral Commission, 63 Phil., 139.)
SEC. 200. Judicial Interference with Legislature. — The principle is well established that the
courts will not assume a jurisdiction in any case amount to an interference by the judicial
department with the legislature since each department is equally independent within the
power conferred upon it by the Constitution. . . . .
The general rule has been applied in other cases to cause the courts to refuse to intervene
in what are exclusively legislative functions. Thus, where the stated Senate is given the
power to example a member, the court will not review its action or revise even a most
arbitrary or unfair decision. (11 Am. Jur., Const. Law, sec. p. 902.) [Emphasis Ours.].
The above statement of American law merely abridged the landmark case of Clifford vs. French.7 In
1905, several senators who had been expelled by the State Senate of California for having taken a
bribe, filed mandamus proceeding to compel reinstatement, alleging the Senate had given them no
hearing, nor a chance to make defense, besides falsity of the charges of bribery. The Supreme
Court of California declined to interfere , explaining in orthodox juristic language:
Under our form of government, the judicial department has no power to revise even the most
arbitrary and unfair action of the legislative department, or of either house thereof, taking in
pursuance of the power committed exclusively to that department by the Constitution. It has
been held by high authority that, even in the absence of an express provision conferring the
power, every legislative body in which is vested the general legislative power of the state
has the implied power to expel a member for any cause which it may deem sufficient.
In Hiss. vs. Barlett, 3 Gray 473, 63 Am. Dec. 768, the supreme court of Mass. says, in
substance, that this power is inherent in every legislative body; that it is necessary to the to
enable the body 'to perform its high functions, and is necessary to the safety of the state;'
'That it is a power of self-protection, and that the legislative body must necessarily be the
sole judge of the exigency which may justify and require its exercise. '. . . There is no
provision authority courts to control, direct, supervise, or forbid the exercise by either house
of the power to expel a member. These powers are functions of the legislative department
and therefore, in the exercise of the power this committed to it, the senate is supreme. An
attempt by this court to direct or control the legislature, or either house thereof, in the
exercise of the power, would be an attempt to exercise legislative functions, which it is
expressly forbidden to do.
We have underscored in the above quotation those lines which in our opinion emphasize the
principles controlling this litigation. Although referring to expulsion, they may as well be applied to
other disciplinary action. Their gist as applied to the case at bar: the House has exclusive power; the
courts have no jurisdiction to interfere.
Our refusal to intervene might impress some readers as subconscious hesitation due to discovery of
impermissible course of action in the legislative chamber. Nothing of that sort: we merely refuse to
disregard the allocation of constitutional functions which it is our special duty to maintain. Indeed, in
the interest of comity, we feel bound to state that in a conscientious survey of governing principles
and/or episodic illustrations, we found the House of Representatives of the United States taking the
position upon at least two occasions, that personal attacks upon the Chief Executive constitute
unparliamentary conduct or breach of orders.8 And in several instances, it took action against
offenders, even after other business had been considered.9
Petitioner's principal argument against the House's power to suspend is the Alejandrino precedent.
In 1924, Senator Alejandrino was, by resolution of Senate, suspended from office for 12 months
because he had assaulted another member of the that Body or certain phrases the latter had uttered
in the course of a debate. The Senator applied to this Court for reinstatement, challenging the
validity of the resolution. Although this Court held that in view of the separation of powers, it had no
jurisdiction to compel the Senate to reinstate petitioner, it nevertheless went on to say the Senate
had no power to adopt the resolution because suspension for 12 months amounted to removal, and
the Jones Law (under which the Senate was then functioning) gave the Senate no power to remove
an appointive member, like Senator Alejandrino. The Jones Law specifically provided that "each
house may punish its members for disorderly behaviour, and, with the concurrence of two-thirds
votes, expel an elective member (sec. 18). Note particularly the word "elective."
The Jones Law, it mist be observed, empowered the Governor General to appoint "without consent
of the Senate and without restriction as to residence senators . . . who will, in his opinion, best
represent the Twelfth District." Alejandrino was one appointive Senator.
It is true, the opinion in that case contained an obiter dictum that "suspension deprives the electoral
district of representation without that district being afforded any means by which to fill that vacancy."
But that remark should be understood to refer particularly to the appointive senator who was then
the affected party and who was by the same Jones Law charged with the duty to represent the
Twelfth District and maybe the view of the Government of the United States or of the Governor-
General, who had appointed him.
It must be observed, however, that at that time the Legislature had only those power which were
granted to it by the Jones Law10; whereas now the Congress has the full legislative powers and
preprogatives of a sovereign nation, except as restricted by the Constitution. In other words, in the
Alejandrino case, the Court reached the conclusion that the Jones Law did not give the Senate the
power it then exercised—the power of suspension for one year. Whereas now, as we find, the
Congress has the inherent legislative prerogative of suspension11 which the Constitution did not
impair. In fact, as already pointed out, the Philippine Senate suspended a Senator for 12 months in
1949.
The Legislative power of the Philippine Congress is plenary, subject only to such limitations
are found in the Republic's Constitution. So that any power deemed to be legislative by
usage or tradition, is necessarily possessed by the Philippine Congress, unless the
Constitution provides otherwise. (Vera vs. Avelino, 77 Phil., 192, 212 .)
In any event, petitioner's argument as to the deprivation of the district's representation can not be
more weightly in the matter of suspension than in the case of imprisonment of a legislator; yet
deliberative bodies have the power in proper cases, to commit one of their members to jail. 12
Now come questions of procedure and jurisdiction. the petition intended to prevent the Special
Committee from acting tin pursuance of House Resolution No. 59. Because no preliminary injunction
had been issued, the Committee performed its task, reported to the House, and the latter approved
the suspension order. The House had closed it session, and the Committee has ceased to exist as
such. It would seem, therefore, the case should be dismissed for having become moot or
academic.13 Of course, there is nothing to prevent petitioner from filing new pleadings to include all
members of the House as respondents, ask for reinstatement and thereby to present a justiciable
cause. Most probable outcome of such reformed suit, however, will be a pronouncement of lack of
jurisdiction, as in Vera vs. Avelino14 and Alejandrino vs. Qeuaon.15
At any rate, having perceived suitable solutions to the important questions of political law, the Court
thought it proper to express at this time its conclusions on such issues as were deemed relevant and
decisive.
ACCORDINGLY, the petition has to be, and is hereby dismissed. So ordered.

Pobre v. Santiago, A.C. No. 7399, 25 August 2009
A.C. No. 7399 August 25, 2009
ANTERO J. POBRE, Complainant,
vs.
Sen. MIRIAM DEFENSOR-SANTIAGO, Respondent.
DECISION
VELASCO, JR., J.:
In his sworn letter/complaint dated December 22, 2006, with enclosures, Antero J. Pobre invites the
Court’s attention to the following excerpts of Senator Miriam Defensor-Santiago’s speech delivered
on the Senate floor:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am

humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle
years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief
Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the
Supreme Court of idiots x x x.
To Pobre, the foregoing statements reflected a total disrespect on the part of the speaker towards
then Chief Justice Artemio Panganiban and the other members of the Court and constituted direct
contempt of court. Accordingly, Pobre asks that disbarment proceedings or other disciplinary actions
be taken against the lady senator.
In her comment on the complaint dated April 25, 2007, Senator Santiago, through counsel, does not
deny making the aforequoted statements. She, however, explained that those statements were
covered by the constitutional provision on parliamentary immunity, being part of a speech she
delivered in the discharge of her duty as member of Congress or its committee. The purpose of her
speech, according to her, was to bring out in the open controversial anomalies in governance with a
view to future remedial legislation. She averred that she wanted to expose what she believed "to be
an unjust act of the Judicial Bar Council [JBC]," which, after sending out public invitations for
nomination to the soon to-be vacated position of Chief Justice, would eventually inform applicants
that only incumbent justices of the Supreme Court would qualify for nomination. She felt that the JBC
should have at least given an advanced advisory that non-sitting members of the Court, like her,
would not be considered for the position of Chief Justice.
The immunity Senator Santiago claims is rooted primarily on the provision of Article VI, Section 11 of
the Constitution, which provides: "A Senator or Member of the House of Representative shall, in all
offenses punishable by not more than six years imprisonment, be privileged from arrest while the
Congress is in session. No member shall be questioned nor be held liable in any other place
for any speech or debate in the Congress or in any committee thereof." Explaining the import of
the underscored portion of the provision, the Court, in Osmeña, Jr. v. Pendatun, said:
Our Constitution enshrines parliamentary immunity which is a fundamental privilege cherished in

every legislative assembly of the democratic world. As old as the English Parliament, its purpose "is
to enable and encourage a representative of the public to discharge his public trust with firmness
and success" for "it is indispensably necessary that he should enjoy the fullest liberty of speech and
that he should be protected from resentment of every one, however, powerful, to whom the exercise
of that liberty may occasion offense." 1
As American jurisprudence puts it, this legislative privilege is founded upon long experience and
arises as a means of perpetuating inviolate the functioning process of the legislative department.
Without parliamentary immunity, parliament, or its equivalent, would degenerate into a polite and
ineffective debating forum. Legislators are immune from deterrents to the uninhibited discharge of
their legislative duties, not for their private indulgence, but for the public good. The privilege would
be of little value if they could be subjected to the cost and inconvenience and distractions of a trial
upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a judge’s
speculation as to the motives.2
This Court is aware of the need and has in fact been in the forefront in upholding the institution of
parliamentary immunity and promotion of free speech. Neither has the Court lost sight of the
importance of the legislative and oversight functions of the Congress that enable this representative
body to look diligently into every affair of government, investigate and denounce anomalies, and talk
about how the country and its citizens are being served. Courts do not interfere with the legislature
or its members in the manner they perform their functions in the legislative floor or in committee
rooms. Any claim of an unworthy purpose or of the falsity and mala fides of the statement uttered by
the member of the Congress does not destroy the privilege. 3 The disciplinary authority of the
assembly4 and the voters, not the courts, can properly discourage or correct such abuses committed
in the name of parliamentary immunity.5
For the above reasons, the plea of Senator Santiago for the dismissal of the complaint for
disbarment or disciplinary action is well taken. Indeed, her privilege speech is not actionable
criminally or in a disciplinary proceeding under the Rules of Court. It is felt, however, that this could
not be the last word on the matter.
The Court wishes to express its deep concern about the language Senator Santiago, a member of
the Bar, used in her speech and its effect on the administration of justice. To the Court, the lady
senator has undoubtedly crossed the limits of decency and good professional conduct. It is at once
apparent that her statements in question were intemperate and highly improper in substance. To
reiterate, she was quoted as stating that she wanted "to spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court," and calling the Court a "Supreme Court of
idiots."
The lady senator alluded to In Re: Vicente Sotto.6 We draw her attention to the ensuing passage
in Sotto that she should have taken to heart in the first place:
x x x [I]f the people lose their confidence in the honesty and integrity of this Court and believe that
they cannot expect justice therefrom, they might be driven to take the law into their own hands, and
disorder and perhaps chaos would be the result. 1avvphi1
No lawyer who has taken an oath to maintain the respect due to the courts should be allowed to
erode the people’s faith in the judiciary. In this case, the lady senator clearly violated Canon 8, Rule
8.01 and Canon 11 of the Code of Professional Responsibility, which respectively provide:
Canon 8, Rule 8.01.––A lawyer shall not, in his professional dealings, use language which is
abusive, offensive or otherwise improper.
Canon 11.––A lawyer shall observe and maintain the respect due to the courts and to the judicial
officers and should insist on similar conduct by others.
Senator/Atty. Santiago is a cut higher than most lawyers. Her achievements speak for themselves.
She was a former Regional Trial Court judge, a law professor, an oft-cited authority on constitutional
and international law, an author of numerous law textbooks, and an elected senator of the land.
Needless to stress, Senator Santiago, as a member of the Bar and officer of the court, like any other,
is duty-bound to uphold the dignity and authority of this Court and to maintain the respect due its
members. Lawyers in public service are keepers of public faith and are burdened with the higher
degree of social responsibility, perhaps higher than their brethren in private practice. 7 Senator
Santiago should have known, as any perceptive individual, the impact her statements would make
on the people’s faith in the integrity of the courts.
As Senator Santiago alleged, she delivered her privilege speech as a prelude to crafting remedial
legislation on the JBC. This allegation strikes the Court as an afterthought in light of the insulting
tenor of what she said. We quote the passage once more:
x x x I am not angry. I am irate. I am foaming in the mouth. I am homicidal. I am suicidal. I am

humiliated, debased, degraded. And I am not only that, I feel like throwing up to be living my middle
years in a country of this nature. I am nauseated. I spit on the face of Chief Justice Artemio
Panganiban and his cohorts in the Supreme Court, I am no longer interested in the position [of Chief
Justice] if I was to be surrounded by idiots. I would rather be in another environment but not in the
Supreme Court of idiots x x x. (Emphasis ours.)
A careful re-reading of her utterances would readily show that her statements were expressions of
personal anger and frustration at not being considered for the post of Chief Justice. In a sense,
therefore, her remarks were outside the pale of her official parliamentary functions. Even
parliamentary immunity must not be allowed to be used as a vehicle to ridicule, demean, and destroy
the reputation of the Court and its magistrates, nor as armor for personal wrath and disgust.
Authorities are agreed that parliamentary immunity is not an individual privilege accorded the
individual members of the Parliament or Congress for their personal benefit, but rather a privilege for
the benefit of the people and the institution that represents them.
To be sure, Senator Santiago could have given vent to her anger without indulging in insulting
rhetoric and offensive personalities.
Lest it be overlooked, Senator Santiago’s outburst was directly traceable to what she considered as
an "unjust act" the JBC had taken in connection with her application for the position of Chief Justice.
But while the JBC functions under the Court’s supervision, its individual members, save perhaps for
the Chief Justice who sits as the JBC’s ex-officio chairperson,8 have no official duty to nominate
candidates for appointment to the position of Chief Justice. The Court is, thus, at a loss to
understand Senator Santiago’s wholesale and indiscriminate assault on the members of the Court
and her choice of critical and defamatory words against all of them.
At any event, equally important as the speech and debate clause of Art. VI, Sec. 11 of the
Constitution is Sec. 5(5) of Art. VIII of the Constitution that provides:
Section 5. The Supreme Court shall have the following powers:
xxxx
(5) Promulgate rules concerning the protection and enforcement of constitutional rights, pleading,
practice, and procedure in all courts, the admission to the practice of the law, the Integrated Bar,
and legal assistance to the underprivileged. (Emphasis ours.)
The Court, besides being authorized to promulgate rules concerning pleading, practice, and
procedure in all courts, exercises specific authority to promulgate rules governing the Integrated Bar
with the end in view that the integration of the Bar will, among other things:
(4) Shield the judiciary, which traditionally cannot defend itself except within its own forum, from the
assaults that politics and self interest may level at it, and assist it to maintain its integrity, impartiality
and independence;
xxxx
(11) Enforce rigid ethical standards x x x.9
In Re: Letter Dated 21 February 2005 of Atty. Noel S. Sorreda, 10 we reiterated our pronouncement in
Rheem of the Philippines v. Ferrer11 that the duty of attorneys to the courts can only be maintained
by rendering no service involving any disrespect to the judicial office which they are bound to uphold.
The Court wrote in Rheem of the Philippines:
x x x As explicit is the first canon of legal ethics which pronounces that "[i]t is the duty of a lawyer to
maintain towards the Courts a respectful attitude, not for the sake of the temporary incumbent of the
judicial office, but for the maintenance of its supreme importance." That same canon, as a corollary,
makes it peculiarly incumbent upon lawyers to support the courts against "unjust criticism and
clamor." And more. The attorney’s oath solemnly binds him to a conduct that should be "with all
good fidelity x x x to the courts."
Also, in Sorreda, the Court revisited its holding in Surigao Mineral Reservation Board v.
Cloribel12 that:
A lawyer is an officer of the courts; he is, "like the court itself, an instrument or agency to advance
the ends of justice." His duty is to uphold the dignity and authority of the courts to which he owes
fidelity, "not to promote distrust in the administration of justice." Faith in the courts, a lawyer should
seek to preserve. For, to undermine the judicial edifice "is disastrous to the continuity of government
and to the attainment of the liberties of the people." Thus has it been said of a lawyer that "[a]s an
officer of the court, it is his sworn and moral duty to help build and not destroy unnecessarily that
high esteem and regard towards the courts so essential to the proper administration of justice." 13
The lady senator belongs to the legal profession bound by the exacting injunction of a strict Code.
Society has entrusted that profession with the administration of the law and dispensation of justice.
Generally speaking, a lawyer holding a government office may not be disciplined as a member of the
Bar for misconduct committed while in the discharge of official duties, unless said misconduct also
constitutes a violation of his/her oath as a lawyer. 14
Lawyers may be disciplined even for any conduct committed in their private capacity, as long as their
misconduct reflects their want of probity or good demeanor, 15 a good character being an essential
qualification for the admission to the practice of law and for continuance of such privilege. When the
Code of Professional Responsibility or the Rules of Court speaks of "conduct" or "misconduct," the
reference is not confined to one’s behavior exhibited in connection with the performance of lawyers’
professional duties, but also covers any misconduct, which––albeit unrelated to the actual practice of
their profession––would show them to be unfit for the office and unworthy of the privileges which
their license and the law invest in them.16
This Court, in its unceasing quest to promote the people’s faith in courts and trust in the rule of law,
has consistently exercised its disciplinary authority on lawyers who, for malevolent purpose or
personal malice, attempt to obstruct the orderly administration of justice, trifle with the integrity of
courts, and embarrass or, worse, malign the men and women who compose them. We have done it
in the case of former Senator Vicente Sotto in Sotto, in the case of Atty. Noel Sorreda in Sorreda,
and in the case of Atty. Francisco B. Cruz in Tacordan v. Ang 17 who repeatedly insulted and
threatened the Court in a most insolent manner.
The Court is not hesitant to impose some form of disciplinary sanctions on Senator/Atty. Santiago for
what otherwise would have constituted an act of utter disrespect on her part towards the Court and
its members. The factual and legal circumstances of this case, however, deter the Court from doing
so, even without any sign of remorse from her. Basic constitutional consideration dictates this kind of
disposition.
We, however, would be remiss in our duty if we let the Senator’s offensive and disrespectful
language that definitely tended to denigrate the institution pass by. It is imperative on our part to re-
instill in Senator/Atty. Santiago her duty to respect courts of justice, especially this Tribunal, and
remind her anew that the parliamentary non-accountability thus granted to members of Congress is
not to protect them against prosecutions for their own benefit, but to enable them, as the people’s
representatives, to perform the functions of their office without fear of being made responsible before
the courts or other forums outside the congressional hall. 18 It is intended to protect members of
Congress against government pressure and intimidation aimed at influencing the decision-making
prerogatives of Congress and its members.
The Rules of the Senate itself contains a provision on Unparliamentary Acts and Language that
enjoins a Senator from using, under any circumstance, "offensive or improper language against
another Senator or against any public institution."19 But as to Senator Santiago’s unparliamentary
remarks, the Senate President had not apparently called her to order, let alone referred the matter to
the Senate Ethics Committee for appropriate disciplinary action, as the Rules dictates under such
circumstance.20 The lady senator clearly violated the rules of her own chamber. It is unfortunate that
her peers bent backwards and avoided imposing their own rules on her.
Finally, the lady senator questions Pobre’s motives in filing his complaint, stating that disciplinary
proceedings must be undertaken solely for the public welfare. We cannot agree with her more. We
cannot overstress that the senator’s use of intemperate language to demean and denigrate the
highest court of the land is a clear violation of the duty of respect lawyers owe to the courts. 21
Finally, the Senator asserts that complainant Pobre has failed to prove that she in fact made the
statements in question. Suffice it to say in this regard that, although she has not categorically denied
making such statements, she has unequivocally said making them as part of her privilege speech.
Her implied admission is good enough for the Court.
WHEREFORE, the letter-complaint of Antero J. Pobre against Senator/Atty. Miriam Defensor-

Santiago is, conformably to Art. VI, Sec. 11 of the Constitution, DISMISSED.
SO ORDERED.
. Liban v. Gordon, G.R. No. 175352, 15 July 2009
[G.R. NO. 175352 : July 15, 2009]
DANTE V. LIBAN, REYNALDO M. BERNARDO, and SALVADOR

M. VIARI, Petitioners, v. RICHARD J. GORDON, Respondent.
DECISION
CARPIO, J.:
The Case
This is a petition to declare Senator Richard J. Gordon (respondent)

as having forfeited his seat in the Senate.
The Facts
Petitioners Dante V. Liban, Reynaldo M. Bernardo, and Salvador M.

Viari (petitioners) filed with this Court a Petition to Declare Richard
J. Gordon as Having Forfeited His Seat in the Senate. Petitioners are
officers of the Board of Directors of the Quezon City Red Cross
Chapter while respondent is Chairman of the Philippine National Red
Cross (PNRC) Board of Governors.
During respondent's incumbency as a member of the Senate of the

Philippines,1 he was elected Chairman of the PNRC during the 23
February 2006 meeting of the PNRC Board of Governors. Petitioners
allege that by accepting the chairmanship of the PNRC Board of
Governors, respondent has ceased to be a member of the Senate as
provided in Section 13, Article VI of the Constitution, which reads:
SEC. 13. No Senator or Member of the House of Representatives

may hold any other office or employment in the Government, or any
subdivision, agency, or instrumentality thereof, including
government-owned or controlled corporations or their subsidiaries,
during his term without forfeiting his seat. Neither shall he be
appointed to any office which may have been created or the
emoluments thereof increased during the term for which he was
elected.
Petitioners cite Camporedondo v. NLRC,2 which held that the PNRC
is a government-owned or controlled corporation. Petitioners claim
that in accepting and holding the position of Chairman of the PNRC
Board of Governors, respondent has automatically forfeited his seat
in the Senate, pursuant to Flores v. Drilon,3 which held that
incumbent national legislators lose their elective posts upon their
appointment to another government office.
In his Comment, respondent asserts that petitioners have no

standing to file this petition which appears to be an action for quo
warranto, since the petition alleges that respondent committed an
act which, by provision of law, constitutes a ground for forfeiture of
his public office. Petitioners do not claim to be entitled to the Senate
office of respondent. Under Section 5, Rule 66 of the Rules of Civil
Procedure, only a person claiming to be entitled to a public office
usurped or unlawfully held by another may bring an action for quo
warranto in his own name. If the petition is one for quo warranto, it
is already barred by prescription since under Section 11, Rule 66 of
the Rules of Civil Procedure, the action should be commenced within
one year after the cause of the public officer's forfeiture of office. In
this case, respondent has been working as a Red Cross volunteer for
the past 40 years. Respondent was already Chairman of the PNRC
Board of Governors when he was elected Senator in May 2004,
having been elected Chairman in 2003 and re-elected in 2005.
Respondent contends that even if the present petition is treated as

a taxpayer's suit, petitioners cannot be allowed to raise a
constitutional question in the absence of any claim that they
suffered some actual damage or threatened injury as a result of the
allegedly illegal act of respondent. Furthermore, taxpayers are
allowed to sue only when there is a claim of illegal disbursement of
public funds, or that public money is being diverted to any improper
purpose, or where petitioners seek to restrain respondent from
enforcing an invalid law that results in wastage of public funds.
Respondent also maintains that if the petition is treated as one for

declaratory relief, this Court would have no jurisdiction since
original jurisdiction for declaratory relief lies with the Regional Trial
Court.
Respondent further insists that the PNRC is not a government-
owned or controlled corporation and that the prohibition under
Section 13, Article VI of the Constitution does not apply in the
present case since volunteer service to the PNRC is neither an office
nor an employment.
In their Reply, petitioners claim that their petition is neither an

action for quo warranto nor an action for declaratory relief.
Petitioners maintain that the present petition is a taxpayer's suit
questioning the unlawful disbursement of funds, considering that
respondent has been drawing his salaries and other compensation
as a Senator even if he is no longer entitled to his office. Petitioners
point out that this Court has jurisdiction over this petition since it
involves a legal or constitutional issue which is of transcendental
importance.
The Issues
Petitioners raise the following issues:
1. Whether the Philippine National Red Cross (PNRC) is a

government - owned or controlled corporation;
2. Whether Section 13, Article VI of the Philippine Constitution

applies to the case of respondent who is Chairman of the PNRC and
at the same time a Member of the Senate;
3. Whether respondent should be automatically removed as a

Senator pursuant to Section 13, Article VI of the Philippine
Constitution; and cralawlibrary
4. Whether petitioners may legally institute this petition against

respondent.4
The substantial issue boils down to whether the office of the PNRC
Chairman is a government office or an office in a government-
owned or controlled corporation for purposes of the prohibition in
Section 13, Article VI of the Constitution.
The Court's Ruling

We find the petition without merit.
Petitioners Have No Standing to File this Petition
A careful reading of the petition reveals that it is an action for quo

warranto. Section 1, Rule 66 of the Rules of Court provides:
Section 1. Action by Government against individuals. - An action for

the usurpation of a public office, position or franchise may be
commenced by a verified petition brought in the name of the
Republic of the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or

exercises a public office, position or franchise;
(b) A public officer who does or suffers an act which by provision of

law, constitutes a ground for the forfeiture of his office; or
(c) An association which acts as a corporation within the Philippines

without being legally incorporated or without lawful authority so to
act. (Emphasis supplied) cralawlibrary
Petitioners allege in their petition that:
4. Respondent became the Chairman of the PNRC when he was

elected as such during the First Regular Luncheon-Meeting of the
Board of Governors of the PNRC held on February 23, 2006, the
minutes of which is hereto attached and made integral part hereof
as Annex "A."
5. Respondent was elected as Chairman of the PNRC Board of

Governors, during his incumbency as a Member of the House of
Senate of the Congress of the Philippines, having been elected as
such during the national elections last May 2004.
6. Since his election as Chairman of the PNRC Board of Governors,

which position he duly accepted, respondent has been exercising
the powers and discharging the functions and duties of said office,
despite the fact that he is still a senator.
7. It is the respectful submission of the petitioner[s] that by
accepting the chairmanship of the Board of Governors of the PNRC,
respondent has ceased to be a Member of the House of Senate as
provided in Section 13, Article VI of the Philippine Constitution, x x
x
x x x
10. It is respectfully submitted that in accepting the position of

Chairman of the Board of Governors of the PNRC on February 23,
2006, respondent has automatically forfeited his seat in the House
of Senate and, therefore, has long ceased to be a Senator, pursuant
to the ruling of this Honorable Court in the case of FLORES, ET AL.
v. DRILON AND GORDON, G.R. No. 104732, x x x
11. Despite the fact that he is no longer a senator, respondent

continues to act as such and still performs the powers, functions
and duties of a senator, contrary to the constitution, law and
jurisprudence.
12. Unless restrained, therefore, respondent will continue to falsely

act and represent himself as a senator or member of the House of
Senate, collecting the salaries, emoluments and other
compensations, benefits and privileges appertaining and due only to
the legitimate senators, to the damage, great and irreparable injury
of the Government and the Filipino people.5 (Emphasis supplied) cralawlibrary
Thus, petitioners are alleging that by accepting the position of

Chairman of the PNRC Board of Governors, respondent has
automatically forfeited his seat in the Senate. In short, petitioners
filed an action for usurpation of public office against respondent, a
public officer who allegedly committed an act which constitutes a
ground for the forfeiture of his public office. Clearly, such an action
is for quo warranto, specifically under Section 1(b), Rule 66 of the
Rules of Court.
Quo warranto is generally commenced by the Government as the

proper party plaintiff. However, under Section 5, Rule 66 of the
Rules of Court, an individual may commence such an action if he
claims to be entitled to the public office allegedly usurped by
another, in which case he can bring the action in his own name. The
person instituting quo warranto proceedings in his own behalf must
claim and be able to show that he is entitled to the office in dispute,
otherwise the action may be dismissed at any stage.6 In the present
case, petitioners do not claim to be entitled to the Senate office of
respondent. Clearly, petitioners have no standing to file the present
petition.
Even if the Court disregards the infirmities of the petition and treats
it as a taxpayer's suit, the petition would still fail on the merits.
PNRC is a Private Organization Performing Public Functions
On 22 March 1947, President Manuel A. Roxas signed Republic Act

No. 95,7 otherwise known as the PNRC Charter. The PNRC is a non-
profit, donor-funded, voluntary, humanitarian organization, whose
mission is to bring timely, effective, and compassionate
humanitarian assistance for the most vulnerable without
consideration of nationality, race, religion, gender, social status, or
political affiliation.8 The PNRC provides six major services: Blood
Services, Disaster Management, Safety Services, Community Health
and Nursing, Social Services and Voluntary Service.9
The Republic of the Philippines, adhering to the Geneva

Conventions, established the PNRC as a voluntary organization for
the purpose contemplated in the Geneva Convention of 27 July
1929.10 The Whereas clauses of the PNRC Charter read:
WHEREAS, there was developed at Geneva, Switzerland, on August

22, 1864, a convention by which the nations of the world were
invited to join together in diminishing, so far lies within their power,
the evils inherent in war;
WHEREAS, more than sixty nations of the world have ratified or

adhered to the subsequent revision of said convention, namely the
"Convention of Geneva of July 29 [sic], 1929 for the Amelioration of
the Condition of the Wounded and Sick of Armies in the Field"
(referred to in this Charter as the Geneva Red Cross Convention);
WHEREAS, the Geneva Red Cross Convention envisages the
establishment in each country of a voluntary organization to assist
in caring for the wounded and sick of the armed forces and to
furnish supplies for that purpose;
WHEREAS, the Republic of the Philippines became an independent

nation on July 4, 1946 and proclaimed its adherence to the Geneva
Red Cross Convention on February 14, 1947, and by that action
indicated its desire to participate with the nations of the world in
mitigating the suffering caused by war and to establish in the
Philippines a voluntary organization for that purpose as
contemplated by the Geneva Red Cross Convention;
WHEREAS, there existed in the Philippines since 1917 a Charter of

the American National Red Cross which must be terminated in view
of the independence of the Philippines; and cralawlibrary
WHEREAS, the volunteer organizations established in the other

countries which have ratified or adhered to the Geneva Red Cross
Convention assist in promoting the health and welfare of their
people in peace and in war, and through their mutual assistance
and cooperation directly and through their international
organizations promote better understanding and sympathy among
the peoples of the world. (Emphasis supplied) cralawlibrary
The PNRC is a member National Society of the International Red

Cross and Red Crescent Movement (Movement), which is composed
of the International Committee of the Red Cross (ICRC), the
International Federation of Red Cross and Red Crescent Societies
(International Federation), and the National Red Cross and Red
Crescent Societies (National Societies). The Movement is united and
guided by its seven Fundamental Principles:
1. HUMANITY - The International Red Cross and Red Crescent

Movement, born of a desire to bring assistance without
discrimination to the wounded on the battlefield, endeavors, in its
international and national capacity, to prevent and alleviate human
suffering wherever it may be found. Its purpose is to protect life and
health and to ensure respect for the human being. It promotes
mutual understanding, friendship, cooperation and lasting peace
amongst all peoples.
2. IMPARTIALITY - It makes no discrimination as to nationality,

race, religious beliefs, class or political opinions. It endeavors to
relieve the suffering of individuals, being guided solely by their
needs, and to give priority to the most urgent cases of distress.
3. NEUTRALITY - In order to continue to enjoy the confidence of all,

the Movement may not take sides in hostilities or engage at any
time in controversies of a political, racial, religious or ideological
nature.
4. INDEPENDENCE - The Movement is independent. The National

Societies, while auxiliaries in the humanitarian services of their
governments and subject to the laws of their respective countries,
must always maintain their autonomy so that they may be able at
all times to act in accordance with the principles of the Movement.
5. VOLUNTARY SERVICE - It is a voluntary relief movement not

prompted in any manner by desire for gain.
6. UNITY - There can be only one Red Cross or one Red Crescent
Society in any one country. It must be open to all. It must carry on
its humanitarian work throughout its territory.
7. UNIVERSALITY - The International Red Cross and Red Crescent

Movement, in which all Societies have equal status and share equal
responsibilities and duties in helping each other, is worldwide.
(Emphasis supplied) cralawlibrary
The Fundamental Principles provide a universal standard of

reference for all members of the Movement. The PNRC, as a
member National Society of the Movement, has the duty to uphold
the Fundamental Principles and ideals of the Movement. In order to
be recognized as a National Society, the PNRC has to be
autonomous and must operate in conformity with the Fundamental
Principles of the Movement.11
The reason for this autonomy is fundamental. To be accepted by
warring belligerents as neutral workers during international or
internal armed conflicts, the PNRC volunteers must not be seen as
belonging to any side of the armed conflict. In the Philippines where
there is a communist insurgency and a Muslim separatist rebellion,
the PNRC cannot be seen as government-owned or controlled, and
neither can the PNRC volunteers be identified as government
personnel or as instruments of government policy. Otherwise, the
insurgents or separatists will treat PNRC volunteers as enemies
when the volunteers tend to the wounded in the battlefield or the
displaced civilians in conflict areas.
Thus, the PNRC must not only be, but must also be seen to be,
autonomous, neutral and independent in order to conduct its
activities in accordance with the Fundamental Principles. The PNRC
must not appear to be an instrument or agency that implements
government policy; otherwise, it cannot merit the trust of all and
cannot effectively carry out its mission as a National Red Cross
Society.12 It is imperative that the PNRC must be autonomous,
neutral, and independent in relation to the State.
To ensure and maintain its autonomy, neutrality, and independence,

the PNRC cannot be owned or controlled by the government.
Indeed, the Philippine government does not own the PNRC. The
PNRC does not have government assets and does not receive any
appropriation from the Philippine Congress.13 The PNRC is financed
primarily by contributions from private individuals and private
entities obtained through solicitation campaigns organized by its
Board of Governors, as provided under Section 11 of the PNRC
Charter:
SECTION 11. As a national voluntary organization, the Philippine

National Red Cross shall be financed primarily by contributions
obtained through solicitation campaigns throughout the year which
shall be organized by the Board of Governors and conducted by the
Chapters in their respective jurisdictions. These fund raising
campaigns shall be conducted independently of other fund drives by
other organizations. (Emphasis supplied) cralawlibrary
The government does not control the PNRC. Under the PNRC
Charter, as amended, only six of the thirty members of the PNRC
Board of Governors are appointed by the President of the
Philippines. Thus, twenty-four members, or four-fifths (4/5), of the
PNRC Board of Governors are not appointed by the President.
Section 6 of the PNRC Charter, as amended, provides:
SECTION 6. The governing powers and authority shall be vested in a

Board of Governors composed of thirty members, six of whom shall
be appointed by the President of the Philippines, eighteen shall be
elected by chapter delegates in biennial conventions and the
remaining six shall be selected by the twenty-four members of the
Board already chosen. x x x.
Thus, of the twenty-four members of the PNRC Board, eighteen are

elected by the chapter delegates of the PNRC, and six are elected by
the twenty-four members already chosen - a select group where the
private sector members have three-fourths majority. Clearly, an
overwhelming majority of four-fifths of the PNRC Board are elected
or chosen by the private sector members of the PNRC.
The PNRC Board of Governors, which exercises all corporate powers

of the PNRC, elects the PNRC Chairman and all other officers of the
PNRC. The incumbent Chairman of PNRC, respondent Senator
Gordon, was elected, as all PNRC Chairmen are elected, by a private
sector-controlled PNRC Board four-fifths of whom are private sector
members of the PNRC. The PNRC Chairman is not appointed by the
President or by any subordinate government official.
Under Section 16, Article VII of the Constitution,14 the President

appoints all officials and employees in the Executive branch whose
appointments are vested in the President by the Constitution or by
law. The President also appoints those whose appointments are not
otherwise provided by law. Under this Section 16, the law may also
authorize the "headsof departments, agencies, commissions, or
boards" to appoint officers lower in rank than such heads of
departments, agencies, commissions or boards.15 In Rufino v.
Endriga,16 the Court explained appointments under Section 16 in
this wise:
Under Section 16, Article VII of the 1987 Constitution, the President
appoints three groups of officers. The first group refers to the heads
of the Executive departments, ambassadors, other public ministers
and consuls, officers of the armed forces from the rank of colonel or
naval captain, and other officers whose appointments are vested in
the President by the Constitution. The second group refers to those
whom the President may be authorized by law to appoint. The third
group refers to all other officers of the Government whose
appointments are not otherwise provided by law.
Under the same Section 16, there is a fourth group of lower-ranked

officers whose appointments Congress may by law vest in the heads
of departments, agencies, commissions, or boards. x x x
xxx
In a department in the Executive branch, the head is the Secretary.

The law may not authorize the Undersecretary, acting as such
Undersecretary, to appoint lower-ranked officers in the Executive
department. In an agency, the power is vested in the head of the
agency for it would be preposterous to vest it in the agency itself. In
a commission, the head is the chairperson of the commission. In a
board, the head is also the chairperson of the board. In the last
three situations, the law may not also authorize officers other than
the heads of the agency, commission, or board to appoint lower-
ranked officers.
xxx
The Constitution authorizes Congress to vest the power to appoint

lower-ranked officers specifically in the "heads" of the specified
offices, and in no other person. The word "heads" refers to the
chairpersons of the commissions or boards and not to their
members, for several reasons.
The President does not appoint the Chairman of the PNRC. Neither
does the head of any department, agency, commission or board
appoint the PNRC Chairman. Thus, the PNRC Chairman is not an
official or employee of the Executive branch since his appointment
does not fall under Section 16, Article VII of the Constitution.
Certainly, the PNRC Chairman is not an official or employee of the
Judiciary or Legislature. This leads us to the obvious conclusion that
the PNRC Chairman is not an official or employee of the Philippine
Government. Not being a government official or employee, the
PNRC Chairman, as such, does not hold a government office or
employment.
Under Section 17, Article VII of the Constitution,17 the President

exercises control over all government offices in the Executive
branch. If an office is legally not under the control of the
President, then such office is not part of the Executive
branch. In Rufino v. Endriga,18 the Court explained the President's
power of control over all government offices as follows:
Every government office, entity, or agency must fall under the

Executive, Legislative, or Judicial branches, or must belong to one
of the independent constitutional bodies, or must be a quasi-judicial
body or local government unit. Otherwise, such government office,
entity, or agency has no legal and constitutional basis for its
existence.
The CCP does not fall under the Legislative or Judicial branches of
government. The CCP is also not one of the independent
constitutional bodies. Neither is the CCP a quasi-judicial body nor a
local government unit. Thus, the CCP must fall under the Executive
branch. Under the Revised Administrative Code of 1987, any agency
"not placed by law or order creating them under any specific
department" falls "under the Office of the President."
Since the President exercises control over "all the executive

departments, bureaus, and offices," the President necessarily
exercises control over the CCP which is an office in the Executive
branch. In mandating that the President "shall have control of all
executive . . . offices," Section 17, Article VII of the 1987
Constitution does not exempt any executive office - one performing
executive functions outside of the independent constitutional bodies
- from the President's power of control. There is no dispute that the
CCP performs executive, and not legislative, judicial, or quasi-
judicial functions.
The President's power of control applies to the acts or decisions of
all officers in the Executive branch. This is true whether such
officers are appointed by the President or by heads of departments,
agencies, commissions, or boards. The power of control means the
power to revise or reverse the acts or decisions of a subordinate
officer involving the exercise of discretion.
In short, the President sits at the apex of the Executive branch, and
exercises "control of all the executive departments, bureaus, and
offices." There can be no instance under the Constitution where an
officer of the Executive branch is outside the control of the
President. The Executive branch is unitary since there is only one
President vested with executive power exercising control over the
entire Executive branch. Any office in the Executive branch that is
not under the control of the President is a lost command whose
existence is without any legal or constitutional basis. (Emphasis
supplied)cralawlibrary
An overwhelming four-fifths majority of the PNRC Board are private

sector individuals elected to the PNRC Board by the private sector
members of the PNRC. The PNRC Board exercises all corporate
powers of the PNRC. The PNRC is controlled by private sector
individuals. Decisions or actions of the PNRC Board are not
reviewable by the President. The President cannot reverse or modify
the decisions or actions of the PNRC Board. Neither can the
President reverse or modify the decisions or actions of the PNRC
Chairman. It is the PNRC Board that can review, reverse or modify
the decisions or actions of the PNRC Chairman. This proves again
that the office of the PNRC Chairman is a private office, not a
government office. ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Although the State is often represented in the governing bodies of a

National Society, this can be justified by the need for proper
coordination with the public authorities, and the government
representatives may take part in decision-making within a National
Society. However, the freely-elected representatives of a National
Society's active members must remain in a large majority in a
National Society's governing bodies.19
The PNRC is not government-owned but privately owned. The vast
majority of the thousands of PNRC members are private individuals,
including students. Under the PNRC Charter, those who contribute
to the annual fund campaign of the PNRC are entitled to
membership in the PNRC for one year. Thus, any one between 6
and 65 years of age can be a PNRC member for one year upon
contributing P35, P100, P300, P500 or P1,000 for the year.20 Even
foreigners, whether residents or not, can be members of the PNRC.
Section 5 of the PNRC Charter, as amended by Presidential Decree
No. 1264,21 reads:
SEC. 5. Membership in the Philippine National Red Cross shall be

open to the entire population in the Philippines regardless of
citizenship. Any contribution to the Philippine National Red Cross
Annual Fund Campaign shall entitle the contributor to membership
for one year and said contribution shall be deductible in full for
taxation purposes.
Thus, the PNRC is a privately owned, privately funded, and privately

run charitable organization. The PNRC is not a government-owned
or controlled corporation.
Petitioners anchor their petition on the 1999 case of Camporedondo

v. NLRC,22 which ruled that the PNRC is a government-owned or
controlled corporation. In ruling that the PNRC is a government-
owned or controlled corporation, the simple test used was whether
the corporation was created by its own special charter for the
exercise of a public function or by incorporation under the general
corporation law. Since the PNRC was created under a special
charter, the Court then ruled that it is a government corporation.
However, the Camporedondo ruling failed to consider the definition
of a government-owned or controlled corporation as provided under
Section 2(13) of the Introductory Provisions of the Administrative
Code of 1987:
SEC. 2. General Terms Defined. - x x x
(13) Government-owned or controlled corporation refers to any

agency organized as a stock or non-stock corporation, vested with
functions relating to public needs whether governmental or
proprietary in nature, and owned by the Government directly or
through its instrumentalities either wholly, or where applicable as in
the case of stock corporations, to the extent of at least fifty-one
(51) percent of its capital stock: Provided, That government-owned
or controlled corporations may be further categorized by the
Department of the Budget, the Civil Service Commission, and the
Commission on Audit for purposes of the exercise and discharge of
their respective powers, functions and responsibilities with respect
to such corporations.(Boldfacing and underscoring supplied)
A government-owned or controlled corporation must be owned by

the government, and in the case of a stock corporation, at least a
majority of its capital stock must be owned by the government. In
the case of a non-stock corporation, by analogy at least a majority
of the members must be government officials holding such
membership by appointment or designation by the government.
Under this criterion, and as discussed earlier, the government does
not own or control PNRC.
The PNRC Charter is Violative of the Constitutional Proscription

against the Creation of Private Corporations by Special Law
The 1935 Constitution, as amended, was in force when the PNRC

was created by special charter on 22 March 1947. Section 7, Article
XIV of the 1935 Constitution, as amended, reads:
SEC. 7. The Congress shall not, except by general law, provide for
the formation, organization, or regulation of private corporations,
unless such corporations are owned or controlled by the
Government or any subdivision or instrumentality thereof.
The subsequent 1973 and 1987 Constitutions contain similar

provisions prohibiting Congress from creating private corporations
except by general law. Section 1 of the PNRC Charter, as amended,
creates the PNRC as a "body corporate and politic," thus:
SECTION 1. There is hereby created in the Republic of the

Philippines a body corporate and politic to be the voluntary
organization officially designated to assist the Republic of the
Philippines in discharging the obligations set forth in the Geneva
Conventions and to perform such other duties as are inherent upon
a National Red Cross Society. The national headquarters of this
Corporation shall be located in Metropolitan Manila. (Emphasis
In Feliciano v. Commission on Audit,23 the Court explained the

constitutional provision prohibiting Congress from creating private
corporations in this wise:
We begin by explaining the general framework under the

fundamental law. The Constitution recognizes two classes of
corporations. The first refers to private corporations created under a
general law. The second refers to government-owned or controlled
corporations created by special charters. Section 16, Article XII of
the Constitution provides:
Sec. 16. The Congress shall not, except by general law, provide for
the formation, organization, or regulation of private corporations.
Government-owned or controlled corporations may be created or
established by special charters in the interest of the common good
and subject to the test of economic viability.
The Constitution emphatically prohibits the creation of private

corporations except by general law applicable to all citizens. The
purpose of this constitutional provision is to ban private
corporations created by special charters, which historically gave
certain individuals, families or groups special privileges denied to
other citizens.
In short, Congress cannot enact a law creating a private corporation

with a special charter. Such legislation would be unconstitutional.
Private corporations may exist only under a general law. If the
corporation is private, it must necessarily exist under a general law.
Stated differently, only corporations created under a general law
can qualify as private corporations. Under existing laws, the general
law is the Corporation Code, except that the Cooperative Code
governs the incorporation of cooperatives.
The Constitution authorizes Congress to create government-owned

or controlled corporations through special charters. Since private
corporations cannot have special charters, it follows that Congress
can create corporations with special charters only if such
corporations are government-owned or controlled.24 (Emphasis
In Feliciano, the Court held that the Local Water Districts are
government-owned or controlled corporations since they exist by
virtue of Presidential Decree No. 198, which constitutes their special
charter. The seed capital assets of the Local Water Districts, such as
waterworks and sewerage facilities, were public property which
were managed, operated by or under the control of the city,
municipality or province before the assets were transferred to the
Local Water Districts. The Local Water Districts also receive
subsidies and loans from the Local Water Utilities Administration
(LWUA). In fact, under the 2009 General Appropriations Act,25 the
LWUA has a budget amounting to P400,000,000 for its subsidy
requirements.26 There is no private capital invested in the
Local Water Districts. The capital assets and operating funds of
the Local Water Districts all come from the government, either
through transfer of assets, loans, subsidies or the income from such
assets or funds.
The government also controls the Local Water Districts because the
municipal or city mayor, or the provincial governor, appoints all the
board directors of the Local Water Districts. Furthermore, the board
directors and other personnel of the Local Water Districts are
government employees subject to civil service laws and anti-graft
laws. Clearly, the Local Water Districts are considered government-
owned or controlled corporations not only because of their creation
by special charter but also because the government in fact owns
and controls the Local Water Districts.
Just like the Local Water Districts, the PNRC was created through a
special charter. However, unlike the Local Water Districts, the
elements of government ownership and control are clearly lacking in
the PNRC. Thus, although the PNRC is created by a special charter,
it cannot be considered a government-owned or controlled
corporation in the absence of the essential elements of ownership
and control by the government. In creating the PNRC as a corporate
entity, Congress was in fact creating a private corporation.
However, the constitutional prohibition against the creation of
private corporations by special charters provides no exception even
for non-profit or charitable corporations. Consequently, the PNRC
Charter, insofar as it creates the PNRC as a private corporation and
grants it corporate powers,27 is void for being unconstitutional.
Thus, Sections
1,28 2,29 3,30 4(a),31 5,32 6,33 7,34 8,35 9,36 10,37 11,38 12,39 and 1340 of
the PNRC Charter, as amended, are void.
The other provisions41 of the PNRC Charter remain valid as they can
be considered as a recognition by the State that the unincorporated
PNRC is the local National Society of the International Red Cross
and Red Crescent Movement, and thus entitled to the benefits,
exemptions and privileges set forth in the PNRC Charter. The other
provisions of the PNRC Charter implement the Philippine
Government's treaty obligations under Article 4(5) of the Statutes of
the International Red Cross and Red Crescent Movement, which
provides that to be recognized as a National Society, the Society
must be "duly recognized by the legal government of its country on
the basis of the Geneva Conventions and of the national legislation
as a voluntary aid society, auxiliary to the public authorities in the
humanitarian field."
In sum, we hold that the office of the PNRC Chairman is not a

government office or an office in a government-owned or controlled
corporation for purposes of the prohibition in Section 13, Article VI
of the 1987 Constitution. However, since the PNRC Charter is void
insofar as it creates the PNRC as a private corporation, the PNRC
should incorporate under the Corporation Code and register with the
Securities and Exchange Commission if it wants to be a private
corporation.
WHEREFORE, we declare that the office of the Chairman of the

Philippine National Red Cross is not a government office or an office
in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution. We
also declare that Sections 1, 2, 3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12,
and 13 of the Charter of the Philippine National Red Cross, or
Republic Act No. 95, as amended by Presidential Decree Nos. 1264
and 1643, are VOID because they create the PNRC as a private
corporation or grant it corporate powers.
SO ORDERED.
Resolution on the Motion for Clarification and/or for Reconsideration
dated 18 January 2011, GR No. 175352
G. R. No. 175352 January 18, 2011
DANTE V. LIBAN, REYNALDO M. BERNARDO and SALVADOR M. VIARI, Petitioners,

vs.
RICHARD J. GORDON, Respondent.
PHILIPPINE NATIONAL RED CROSS, Intervenor.
RESOLUTION
This resolves the Motion for Clarification and/or for Reconsideration 1 filed on August 10, 2009 by
respondent Richard J. Gordon (respondent) of the Decision promulgated by this Court on July 15,
2009 (the Decision), the Motion for Partial Reconsideration 2 filed on August 27, 2009 by movant-
intervenor Philippine National Red Cross (PNRC), and the latter’s Manifestation and Motion to Admit
Attached Position Paper3 filed on December 23, 2009.
In the Decision,4 the Court held that respondent did not forfeit his seat in the Senate when he
accepted the chairmanship of the PNRC Board of Governors, as "the office of the PNRC Chairman
is not a government office or an office in a government-owned or controlled corporation for purposes
of the prohibition in Section 13, Article VI of the 1987 Constitution." 5 The Decision, however, further
declared void the PNRC Charter "insofar as it creates the PNRC as a private corporation" and
consequently ruled that "the PNRC should incorporate under the Corporation Code and register with
the Securities and Exchange Commission if it wants to be a private corporation." 6 The dispositive
portion of the Decision reads as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution. We also declare that Sections 1, 2,
3, 4(a), 5, 6, 7, 8, 9, 10, 11, 12, and 13 of the Charter of the Philippine National Red Cross, or
Republic Act No. 95, as amended by Presidential Decree Nos. 1264 and 1643, are VOID because
they create the PNRC as a private corporation or grant it corporate powers. 7
In his Motion for Clarification and/or for Reconsideration, respondent raises the following grounds:
(1) as the issue of constitutionality of Republic Act (R.A.) No. 95 was not raised by the parties, the
Court went beyond the case in deciding such issue; and (2) as the Court decided that Petitioners did
not have standing to file the instant Petition, the pronouncement of the Court on the validity of R.A.
No. 95 should be considered obiter.8
Respondent argues that the validity of R.A. No. 95 was a non-issue; therefore, it was unnecessary
for the Court to decide on that question. Respondent cites Laurel v. Garcia, 9 wherein the Court said
that it "will not pass upon a constitutional question although properly presented by the record if the
case can be disposed of on some other ground" and goes on to claim that since this Court, in the
Decision, disposed of the petition on some other ground, i.e., lack of standing of petitioners, there
was no need for it to delve into the validity of R.A. No. 95, and the rest of the judgment should be
deemed obiter.
In its Motion for Partial Reconsideration, PNRC prays that the Court sustain the constitutionality of its
Charter on the following grounds:
A. THE ASSAILED DECISION DECLARING UNCONSTITUTIONAL REPUBLIC ACT NO. 95 AS

AMENDED DEPRIVED INTERVENOR PNRC OF ITS CONSTITUTIONAL RIGHT TO DUE
PROCESS.
1. INTERVENOR PNRC WAS NEVER A PARTY TO THE INSTANT CONTROVERSY.
2. THE CONSTITUTIONALITY OF REPUBLIC ACT NO. 95, AS AMENDED WAS NEVER

AN ISSUE IN THIS CASE.
B. THE CURRENT CHARTER OF PNRC IS PRESIDENTIAL DECREE NO. 1264 AND NOT
REPUBLIC ACT NO. 95. PRESIDENTIAL DECREE NO. 1264 WAS NOT A CREATION OF
CONGRESS.
C. PNRC’S STRUCTURE IS SUI GENERIS; IT IS A CLASS OF ITS OWN. WHILE IT IS

PERFORMING HUMANITARIAN FUNCTIONS AS AN AUXILIARY TO GOVERNMENT, IT IS A
NEUTRAL ENTITY SEPARATE AND INDEPENDENT OF GOVERNMENT CONTROL, YET IT
DOES NOT QUALIFY AS STRICTLY PRIVATE IN CHARACTER.
In his Comment and Manifestation10 filed on November 9, 2009, respondent manifests: (1) that he
agrees with the position taken by the PNRC in its Motion for Partial Reconsideration dated August
27, 2009; and (2) as of the writing of said Comment and Manifestation, there was pending before the
Congress of the Philippines a proposed bill entitled "An Act Recognizing the PNRC as an
Independent, Autonomous, Non-Governmental Organization Auxiliary to the Authorities of the
Republic of the Philippines in the Humanitarian Field, to be Known as The Philippine Red Cross." 11
After a thorough study of the arguments and points raised by the respondent as well as those of
movant-intervenor in their respective motions, we have reconsidered our pronouncements in our
Decision dated July 15, 2009 with regard to the nature of the PNRC and the constitutionality of some
provisions of the PNRC Charter, R.A. No. 95, as amended.
As correctly pointed out in respondent’s Motion, the issue of constitutionality of R.A. No. 95 was not
raised by the parties, and was not among the issues defined in the body of the Decision; thus, it was
not the very lis mota of the case. We have reiterated the rule as to when the Court will consider the
issue of constitutionality in Alvarez v. PICOP Resources, Inc.,12 thus:
This Court will not touch the issue of unconstitutionality unless it is the very lis mota. It is a well-
established rule that a court should not pass upon a constitutional question and decide a law to be
unconstitutional or invalid, unless such question is raised by the parties and that when it is raised, if
the record also presents some other ground upon which the court may [rest] its judgment, that
course will be adopted and the constitutional question will be left for consideration until such
question will be unavoidable.13
Under the rule quoted above, therefore, this Court should not have declared void certain sections of
R.A. No. 95, as amended by Presidential Decree (P.D.) Nos. 1264 and 1643, the PNRC Charter.
Instead, the Court should have exercised judicial restraint on this matter, especially since there was
some other ground upon which the Court could have based its judgment. Furthermore, the PNRC,
the entity most adversely affected by this declaration of unconstitutionality, which was not even
originally a party to this case, was being compelled, as a consequence of the Decision, to suddenly
reorganize and incorporate under the Corporation Code, after more than sixty (60) years of
existence in this country.
Its existence as a chartered corporation remained unchallenged on ground of unconstitutionality

notwithstanding that R.A. No. 95 was enacted on March 22, 1947 during the effectivity of the 1935
Constitution, which provided for a proscription against the creation of private corporations by special
law, to wit:
SEC. 7. The Congress shall not, except by general law, provide for the formation, organization, or
regulation of private corporations, unless such corporations are owned and controlled by the
Government or any subdivision or instrumentality thereof. (Art. XIV, 1935 Constitution.)
Similar provisions are found in Article XIV, Section 4 of the 1973 Constitution and Article XII, Section
16 of the 1987 Constitution. The latter reads:
SECTION 16. The Congress shall not, except by general law, provide for the formation,
organization, or regulation of private corporations. Government-owned or controlled corporations
may be created or established by special charters in the interest of the common good and subject to
the test of economic viability.
Since its enactment, the PNRC Charter was amended several times, particularly on June 11, 1953,
August 16, 1971, December 15, 1977, and October 1, 1979, by virtue of R.A. No. 855, R.A. No.
6373, P.D. No. 1264, and P.D. No. 1643, respectively. The passage of several laws relating to the
PNRC’s corporate existence notwithstanding the effectivity of the constitutional proscription on the
creation of private corporations by law, is a recognition that the PNRC is not strictly in the nature of a
private corporation contemplated by the aforesaid constitutional ban.
A closer look at the nature of the PNRC would show that there is none like it not just in terms of
structure, but also in terms of history, public service and official status accorded to it by the State
and the international community. There is merit in PNRC’s contention that its structure is sui generis.
The PNRC succeeded the chapter of the American Red Cross which was in existence in the
Philippines since 1917. It was created by an Act of Congress after the Republic of the Philippines
became an independent nation on July 6, 1946 and proclaimed on February 14, 1947 its adherence
to the Convention of Geneva of July 29, 1929 for the Amelioration of the Condition of the Wounded
and Sick of Armies in the Field (the "Geneva Red Cross Convention"). By that action the Philippines
indicated its desire to participate with the nations of the world in mitigating the suffering caused by
war and to establish in the Philippines a voluntary organization for that purpose and like other
volunteer organizations established in other countries which have ratified the Geneva Conventions,
to promote the health and welfare of the people in peace and in war. 14
The provisions of R.A. No. 95, as amended by R.A. Nos. 855 and 6373, and further amended by
P.D. Nos. 1264 and 1643, show the historical background and legal basis of the creation of the
PNRC by legislative fiat, as a voluntary organization impressed with public interest. Pertinently R.A.
No. 95, as amended by P.D. 1264, provides:
WHEREAS, during the meeting in Geneva, Switzerland, on 22 August 1894, the nations of the world
unanimously agreed to diminish within their power the evils inherent in war;
WHEREAS, more than one hundred forty nations of the world have ratified or adhered to the
Geneva Conventions of August 12, 1949 for the Amelioration of the Condition of the Wounded and
Sick of Armed Forces in the Field and at Sea, The Prisoners of War, and The Civilian Population in
Time of War referred to in this Charter as the Geneva Conventions;
WHEREAS, the Republic of the Philippines became an independent nation on July 4, 1946, and
proclaimed on February 14, 1947 its adherence to the Geneva Conventions of 1929, and by the
action, indicated its desire to participate with the nations of the world in mitigating the suffering
caused by war and to establish in the Philippines a voluntary organization for that purpose as
contemplated by the Geneva Conventions;
WHEREAS, there existed in the Philippines since 1917 a chapter of the American National Red
Cross which was terminated in view of the independence of the Philippines; and
WHEREAS, the volunteer organizations established in other countries which have ratified or
adhered to the Geneva Conventions assist in promoting the health and welfare of their people in
peace and in war, and through their mutual assistance and cooperation directly and through their
international organizations promote better understanding and sympathy among the people of the
world;
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines, by virtue of the

powers vested in me by the Constitution as Commander-in-Chief of all the Armed Forces of the
Philippines and pursuant to Proclamation No. 1081 dated September 21, 1972, and General Order
No. 1 dated September 22, 1972, do hereby decree and order that Republic Act No. 95, Charter of
the Philippine National Red Cross (PNRC) as amended by Republic Acts No. 855 and 6373, be
further amended as follows:
Section 1. There is hereby created in the Republic of the Philippines a body corporate and politic to
be the voluntary organization officially designated to assist the Republic of the Philippines in
discharging the obligations set forth in the Geneva Conventions and to perform such other duties as
are inherent upon a national Red Cross Society. The national headquarters of this Corporation shall
be located in Metropolitan Manila. (Emphasis supplied.)
The significant public service rendered by the PNRC can be gleaned from Section 3 of its Charter,
which provides:
Section 3. That the purposes of this Corporation shall be as follows:
(a) To provide volunteer aid to the sick and wounded of armed forces in time of war, in
accordance with the spirit of and under the conditions prescribed by the Geneva
Conventions to which the Republic of the Philippines proclaimed its adherence;
(b) For the purposes mentioned in the preceding sub-section, to perform all duties devolving
upon the Corporation as a result of the adherence of the Republic of the Philippines to the
said Convention;
(c) To act in matters of voluntary relief and in accordance with the authorities of the armed
forces as a medium of communication between people of the Republic of the Philippines and
their Armed Forces, in time of peace and in time of war, and to act in such matters between
similar national societies of other governments and the Governments and people and the
Armed Forces of the Republic of the Philippines;
(d) To establish and maintain a system of national and international relief in time of peace
and in time of war and apply the same in meeting and emergency needs caused by
typhoons, flood, fires, earthquakes, and other natural disasters and to devise and carry on
measures for minimizing the suffering caused by such disasters;
(e) To devise and promote such other services in time of peace and in time of war as may be
found desirable in improving the health, safety and welfare of the Filipino people;
(f) To devise such means as to make every citizen and/or resident of the Philippines a
member of the Red Cross.
The PNRC is one of the National Red Cross and Red Crescent Societies, which, together with the
International Committee of the Red Cross (ICRC) and the IFRC and RCS, make up the International
Red Cross and Red Crescent Movement (the Movement). They constitute a worldwide humanitarian
movement, whose mission is:
[T]o prevent and alleviate human suffering wherever it may be found, to protect life and health and
ensure respect for the human being, in particular in times of armed conflict and other emergencies,
to work for the prevention of disease and for the promotion of health and social welfare, to
encourage voluntary service and a constant readiness to give help by the members of the
Movement, and a universal sense of solidarity towards all those in need of its protection and
assistance.15
The PNRC works closely with the ICRC and has been involved in humanitarian activities in the
Philippines since 1982. Among others, these activities in the country include:
1. Giving protection and assistance to civilians displaced or otherwise affected by armed

clashes between the government and armed opposition groups, primarily in Mindanao;
2. Working to minimize the effects of armed hostilities and violence on the population;
3. Visiting detainees; and
4. Promoting awareness of international humanitarian law in the public and private sectors. 16
National Societies such as the PNRC act as auxiliaries to the public authorities of their own countries
in the humanitarian field and provide a range of services including disaster relief and health and
social programmes.
The International Federation of Red Cross (IFRC) and Red Crescent Societies (RCS) Position
Paper,17 submitted by the PNRC, is instructive with regard to the elements of the specific nature of
the National Societies such as the PNRC, to wit:
National Societies, such as the Philippine National Red Cross and its sister Red Cross and Red
Crescent Societies, have certain specificities deriving from the 1949 Geneva Convention and the
Statutes of the International Red Cross and Red Crescent Movement (the Movement). They are also
guided by the seven Fundamental Principles of the Red Cross and Red Crescent Movement:
Humanity, Impartiality, Neutrality, Independence, Voluntary Service, Unity and Universality.
A National Society partakes of a sui generis character. It is a protected component of the Red Cross
movement under Articles 24 and 26 of the First Geneva Convention, especially in times of armed
conflict. These provisions require that the staff of a National Society shall be respected and
protected in all circumstances. Such protection is not ordinarily afforded by an international treaty to
ordinary private entities or even non-governmental organisations (NGOs). This sui generis character
is also emphasized by the Fourth Geneva Convention which holds that an Occupying Power cannot
require any change in the personnel or structure of a National Society. National societies are
therefore organizations that are directly regulated by international humanitarian law, in
contrast to other ordinary private entities, including NGOs.
xxxx
In addition, National Societies are not only officially recognized by their public authorities as
voluntary aid societies, auxiliary to the public authorities in the humanitarian field, but also benefit
from recognition at the International level. This is considered to be an element distinguishing
National Societies from other organisations (mainly NGOs) and other forms of humanitarian
response.
x x x. No other organisation belongs to a world-wide Movement in which all Societies have equal
status and share equal responsibilities and duties in helping each other. This is considered to be the
essence of the Fundamental Principle of Universality.
Furthermore, the National Societies are considered to be auxiliaries to the public authorities in the
humanitarian field. x x x.
The auxiliary status of [a] Red Cross Society means that it is at one and the same time a private
institution and a public service organization because the very nature of its work implies
cooperation with the authorities, a link with the State. In carrying out their major functions, Red
Cross Societies give their humanitarian support to official bodies, in general having larger resources
than the Societies, working towards comparable ends in a given sector.
x x x No other organization has a duty to be its government’s humanitarian partner while remaining
independent.18 (Emphases ours.)
It is in recognition of this sui generis character of the PNRC that R.A. No. 95 has remained valid and
effective from the time of its enactment in March 22, 1947 under the 1935 Constitution and during
the effectivity of the 1973 Constitution and the 1987 Constitution.
The PNRC Charter and its amendatory laws have not been questioned or challenged on
constitutional grounds, not even in this case before the Court now.
In the Decision, the Court, citing Feliciano v. Commission on Audit, 19 explained that the purpose of
the constitutional provision prohibiting Congress from creating private corporations was to prevent
the granting of special privileges to certain individuals, families, or groups, which were denied to
other groups. Based on the above discussion, it can be seen that the PNRC Charter does not come
within the spirit of this constitutional provision, as it does not grant special privileges to a particular
individual, family, or group, but creates an entity that strives to serve the common good.
Furthermore, a strict and mechanical interpretation of Article XII, Section 16 of the 1987 Constitution
will hinder the State in adopting measures that will serve the public good or national interest. It
should be noted that a special law, R.A. No. 9520, the Philippine Cooperative Code of 2008, and not
the general corporation code, vests corporate power and capacities upon cooperatives which are
private corporations, in order to implement the State’s avowed policy.
In the Decision of July 15, 2009, the Court recognized the public service rendered by the PNRC as
the government’s partner in the observance of its international commitments, to wit:
The PNRC is a non-profit, donor-funded, voluntary, humanitarian organization, whose mission is to

bring timely, effective, and compassionate humanitarian assistance for the most vulnerable without
consideration of nationality, race, religion, gender, social status, or political affiliation. The PNRC
provides six major services: Blood Services, Disaster Management, Safety Services, Community
Health and Nursing, Social Services and Voluntary Service.
The Republic of the Philippines, adhering to the Geneva Conventions, established the PNRC as a
voluntary organization for the purpose contemplated in the Geneva Convention of 27 July 1929. x x
x.20 (Citations omitted.)
So must this Court recognize too the country’s adherence to the Geneva Convention and
respect the unique status of the PNRC in consonance with its treaty obligations. The Geneva
Convention has the force and effect of law.21 Under the Constitution, the Philippines adopts the
generally accepted principles of international law as part of the law of the land. 22 This constitutional
provision must be reconciled and harmonized with Article XII, Section 16 of the Constitution, instead
of using the latter to negate the former.
By requiring the PNRC to organize under the Corporation Code just like any other private
corporation, the Decision of July 15, 2009 lost sight of the PNRC’s special status under international
humanitarian law and as an auxiliary of the State, designated to assist it in discharging its obligations
under the Geneva Conventions. Although the PNRC is called to be independent under its
Fundamental Principles, it interprets such independence as inclusive of its duty to be the
government’s humanitarian partner. To be recognized in the International Committee, the PNRC
must have an autonomous status, and carry out its humanitarian mission in a neutral and impartial
manner.
However, in accordance with the Fundamental Principle of Voluntary Service of National Societies of
the Movement, the PNRC must be distinguished from private and profit-making entities. It is the
main characteristic of National Societies that they "are not inspired by the desire for financial gain
but by individual commitment and devotion to a humanitarian purpose freely chosen or accepted as
part of the service that National Societies through its volunteers and/or members render to the
Community."23
The PNRC, as a National Society of the International Red Cross and Red Crescent Movement, can
neither "be classified as an instrumentality of the State, so as not to lose its character of neutrality"
as well as its independence, nor strictly as a private corporation since it is regulated by international
humanitarian law and is treated as an auxiliary of the State. 24
Based on the above, the sui generis status of the PNRC is now sufficiently established. Although it
1âwphi1
is neither a subdivision, agency, or instrumentality of the government, nor a government-owned or

-controlled corporation or a subsidiary thereof, as succinctly explained in the Decision of July 15,
2009, so much so that respondent, under the Decision, was correctly allowed to hold his position as
Chairman thereof concurrently while he served as a Senator, such a conclusion does not ipso facto
imply that the PNRC is a "private corporation" within the contemplation of the provision of the
Constitution, that must be organized under the Corporation Code. As correctly mentioned by Justice
Roberto A. Abad, the sui generis character of PNRC requires us to approach controversies involving
the PNRC on a case-to-case basis.
In sum, the PNRC enjoys a special status as an important ally and auxiliary of the government in the
humanitarian field in accordance with its commitments under international law. This Court cannot all
of a sudden refuse to recognize its existence, especially since the issue of the constitutionality of the
PNRC Charter was never raised by the parties. It bears emphasizing that the PNRC has responded
to almost all national disasters since 1947, and is widely known to provide a substantial portion of
the country’s blood requirements. Its humanitarian work is unparalleled. The Court should not shake
its existence to the core in an untimely and drastic manner that would not only have negative
consequences to those who depend on it in times of disaster and armed hostilities but also have
adverse effects on the image of the Philippines in the international community. The sections of the
PNRC Charter that were declared void must therefore stay.
WHEREFORE, premises considered, respondent Richard J. Gordon’s Motion for Clarification and/or
for Reconsideration and movant-intervenor PNRC’s Motion for Partial Reconsideration of the
Decision in G.R. No. 175352 dated July 15, 2009 are GRANTED. The constitutionality of R.A. No.
95, as amended, the charter of the Philippine National Red Cross, was not raised by the parties as
an issue and should not have been passed upon by this Court. The structure of the PNRC is sui
generis¸ being neither strictly private nor public in nature. R.A. No. 95 remains valid and
constitutional in its entirety. The dispositive portion of the Decision should therefore be MODIFIED
by deleting the second sentence, to now read as follows:
WHEREFORE, we declare that the office of the Chairman of the Philippine National Red Cross is
not a government office or an office in a government-owned or controlled corporation for purposes of
the prohibition in Section 13, Article VI of the 1987 Constitution.
SO ORDERED.
Rep. Baguilat v. Speaker Alvarez, G.R. No. 227757, 25 July 2017
G.R. No. 227757
REPRESENTATIVE TEDDY BRAWNER BAGUILAT, JR., REPRESENTATIVE EDCEL C.

LAGMAN, REPRESENTATIVE RAUL A. DAZA, REPRESENTATIVE EDGAR R. ERICE,
REPRESENTATIVE EMMANUEL A. BILLONES, REPRESENTATIVE TOMASITO S. VILLARIN,
and REPRESENTATIVE GARY C. ALEJANO, Petitioners
vs.
SPEAKER PANTALEON D. ALVAREZ, MAJORITY LEADER RODOLFO C. FARINAS, and
REPRESENTATIVE DANILO E. SUAREZ, Respondents
DECISION
PERLAS-BERNABE, J.:
Before the Court is a petition for mandamus filed by petitioners Representatives Teddy Brawner
1
Baguilat, Jr., (Rep. Baguilat), Edcel C. Lagman (Rep. Lagman), Raul A. Daza, Edgar R. Erice,
Emmanuel A. Billones, Tomasito S. Villarin, and Gary C. Alejano (collectively, petitioners), all
members of the House of Representatives, essentially praying that respondents Speaker Pantaleon
D. Alvarez (Speaker Alvarez), Majority Leader Rodolfo C. Farifias (Rep. Fariñas), and
Representative Danilo E. Suarez (Rep. Suarez; collectively, respondents), also members of the
House of Representatives, be compelled to recognize: (a) Rep. Baguilat as the Minority Leader of
the 17th Congress of the House of Representatives; and (b) petitioners as the legitimate members
of the Minority.
The Facts
The petition alleges that prior to the opening of the 17th Congress on July 25, 2016, several news
articles surfaced about Rep. Suarez's announcement that he sought the adoption or anointment of
President Rodrigo Roa Duterte's Administration as the "Minority Leader" to lead a "cooperative
minority" in the House of Representatives (or the House), and even purportedly encamped himself in
Davao shortly after the May 2016 Elections to get the endorsement of President Duterte and the
majority partisans. The petition further claims that to ensure Rep. Suarez's election as the Minority
Leader, the supermajority coalition in the House allegedly "lent" Rep. Suarez some of its members to
feign membership in the Minority, and thereafter, vote for him as the Minority Leader. 2
On July 25, 2016, which was prior to the election of the Speaker of the House of Representatives,
then-Acting Floor Leader Rep. Farinas and Rep. Jose Atienza (Rep. Atienza) had an interchange
before the Plenary, wherein the latter elicited the following from the former: (a) all those who vote
for the winning Speaker shall belong to the Majority and those who vote for the other
candidates shall belong to the Minority; (b) those who abstain from voting shall likewise be
considered part of the Minority; and (c) the Minority Leader shall be elected by the members
of the Minority. Thereafter, the Elections for the Speakership were held, "[w]ith 252 Members
3
voting for [Speaker] Alvarez, eight [(8)] voting for Rep. Baguilat, seven [(7)] voting for Rep. Suarez,
21 abstaining and one [(l)] registering a no vote," thus, resulting in Speaker Alvarez being the duly
4
elected Speaker of the House of Representatives of the 17 th Congress.
Petitioners hoped that as a "long-standing tradition" of the House - where the candidate who
garnered the second (2nd)-highest number of votes for Speakership automatically becomes the
Minority Leader - Rep. Baguilat would be declared and recognized as the Minority Leader. However,
despite numerous follow-ups from respondents, Rep. Baguilat was never recognized as such. 5
On August 1, 2016, one of the "abstentionists," Representative Harlin Neil Abayon, III (Rep.
Abayon), manifested before the Plenary that on July 27, 2016, those who did not vote for Speaker
Alvarez (including the 21 "abstentionists") convened and elected Rep. Suarez as the Minority
Leader. Thereafter, on August 15, 2016, Rep. (now, Majority Leader) Farinas moved for the
6
recognition of Rep. Suarez as the Minority Leader. This was opposed by Rep. Lagman essentially
on the ground that various "irregularities" attended Rep. Suarez's election as Minority Leader,
particularly: (a) that Rep. Suarez was a member of the Majority as he voted for Speaker Alvarez,
and that his "transfer" to the Minority was irregular; and (b) that the "abstentionists" who constituted
the bulk of votes in favor of Rep. Suarez's election as Minority Leader are supposed to be
considered independent members of the House, and thus, irregularly deemed as part of the
Minority. However, Rep. Lagman's opposition was overruled, and consequently, Rep. Suarez was
7
officially recognized as the House Minority Leader.
Thus, petitioners filed the instant petition for mandamus, insisting that Rep. Baguilat should be
recognized as the Minority Leader in light of: (a) the "long-standing tradition" in the House where the
candidate who garnered the second (2nd)-highest number of votes for Speakership automatically
becomes the Minority Leader; and (b) the irregularities attending Rep. Suarez's election to said
Minority Leader position.
For his part, Rep. Suarez maintains that the election of Minority Leader is an internal matter to the
House of Representatives. Thus, absent any finding of violation of the Constitution or grave abuse of
discretion, the Court cannot interfere with such internal matters of a coequal branch of the
govemment. In the same vein, the Office of the Solicitor General (OSG), on behalf of Speaker
8
Alvarez and Majority Leader Farinas contends, inter alia, that the election of Minority Leader is within
the exclusive realm of the House of Representatives, which the Court cannot intrude in pursuant to
the principle of separation of powers, as well as the political question doctrine. Similarly, the OSG
argues that the recognition of Rep. Suarez as the House Minority Leader was not tainted with any
violation of the Constitution or grave abuse of discretion and, thus, must be sustained. 9
The Issue Before the Court
The essential issue for resolution is whether or not respondents may be compelled via a writ
of mandamus to recognize: (a) Rep. Baguilat as the Minority Leader of the House of
Representatives; and (b) petitioners as the only legitimate members of the House Minority.
The Court's Ruling
The petition is without merit.
"Mandamus is defined as a writ commanding a tribunal, corporation, board or person to do the act
required to be done when it or he 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 and enjoyment of a right or office or which such other is entitled, there being no other
plain, speedy, and adequate remedy in the ordinary course oflaw." In Special People, Inc.
10
Foundation v. Canda, the Court explained that the peremptory writ of mandamus is an
11
extraordinary remedy that is issued only in extreme necessity, and the ordinary course of procedure
is powerless to afford an adequate and speedy relief to one who has a clear legal right to the
performance of the act to be compelled. 12
After a judicious study of this case, the Court finds that petitioners have no clear legal right to the
reliefs sought. Records disclose that prior to the Speakership Election held on July 25, 2016, then-
Acting Floor Leader Rep. Farinas responded to a parliamentary inquiry from Rep. Atienza as to who
would elect the Minority Leader of the House of Representatives. Rep. Farinas then articulated
that: (a) all those who vote for the winning Speaker shall belong to the Majority and those who
vote for other candidates shall belong to the Minority; (b) those who abstain from voting shall
likewise be considered part of the Minority; and (c) the Minority Leader shall be elected by the
members of the Minority. Thereafter, the election of the Speaker of the House proceeded without
13
any objection from any member of Congress, including herein petitioners. Notably, the election of
the Speaker of the House is the essential and formative step conducted at the first regular session of
the 17th Congress to determine the constituency of the Majority and Minority (and later on, their
respective leaders), considering that the Majority would be comprised of those who voted for the
winning Speaker and the Minority of those who did not. The unobjected procession of the House at
this juncture is reflected in its Journal No. 1 dated July 25, 2016, which, based on case law, is
14
conclusive as to what transpired in Congress:

15
PARLIAMENTARY INQUIRY OF REP. ATIENZA
Recognized by the Chair, Rep. Atienza inquired as to who would elect the Minority Leader of the
House of Representatives.
REMARKS OF REP. FARINAS
In reply, Rep. Fariñas referred to Section 8 of the Rules of the house on membership to the Majority
and the Minority. He explained that the Members who voted for the winning candidate for the
Speaker shall constitute the Majority and shall elect from among themselves the Majority Leader.
while those who voted against the winning Speaker or did not vote at all shall belong to the Minority
and would thereafter elect their Minority Leader.
NOMINAL VOTING ON THE NOMINEES FOR SPEAKER OF
THE HOUSE
Thereafter, on motion of Rep. Farinas, there being no objection, the Members proceeded to the

election of the Speaker of the House of Representatives. The Presiding Officer then directed Deputy
Secretary General Adasa to call the Roll for nominal voting for the Speaker of the House and
requested each Member to state the name of the candidate he or she will vote for.
The result of the voting was as follows:
For Rep. Pantaleon D. Alvarez:
xxxx
For Rep. Teddy Brawner Baguilat Jr.
xxxx
For Rep. Danilo E. Suarez
xxxx
Abstained
xxxx
With 252 Members voting for Rep. Alvarez (P.), eight voting for Rep. Baguilat, seven voting for Rep.
Suarez, 21 abstaining and one registering a no vote, the Presiding Officer declared Rep. Alvarez (P.)
as the duly elected Speaker of the House of Representatives for the 17th Congress.
COMMITTEE ON NOTIFICATION
On motion of Rep. Farinas, there being no objection, the Body constituted a committee composed of
the following Members to notify Rep. Alvarez (P.) of his election as Speaker of the House of
Representatives and to escort the Speaker-elect to the rostrum for his oath-taking: Reps. Eric D.
Singson, Mercedes K. Alvarez, Fredenil "Fred" H. Castro, Raneo "Ranie" E. Abu, Lucy T. Gomez,
Nancy A. Catamco, Elenita Milagros "Eileen" Ermita-Buhain, Rose Marie "Baby" J. Arenas, Mylene
J. Garcia-Albano, Gwendolyn F. Garcia, Marlyn L. PrimiciasAgabas, Emmeline Aglipay-Villar, Sarah
Jane I. Elago and Victoria Isabel G. Noel.
SUSPENSION OF SESSION
The Presiding Officer motu proprio suspended the session at 12:43p.m. 16
After Speaker Alvarez took his oath of office, he administered the oath of office to all Members of the
House of the 17th Congress. On the same day, the Deputy Speakers, and other officers of the
17
House (among others, the Majority Leader) were elected and all took their respective oaths of
office.
18
During his privilege speech delivered on July 26, 2016, which was a full day after all the above-
mentioned proceedings had already been commenced and completed, Rep. Lagman questioned
Rep. Fariñas' interpretation of the Rules. Aside from the belated timing of Rep. Lagman's query,
19
Rep. Suarez aptly points out that the Journal for that session does not indicate any motion made,
seconded and carried to correct the entry in the Journal of the previous session (July 25, 2016)
pertinent to any recording error that may have been made, as to indicate that in fact, a protest or
objection was raised.20
Logically speaking, the foregoing circumstances would show that the House of Representatives had
effectively adopted Rep. Farinas' proposal anent the new rules regarding the membership of the
Minority, as well as the process of determining who the Minority Leader would be. More significantly,
this demonstrates the House's deviation from the "legal bases" of petitioners' claim for entitlement to
the reliefs sought before this Court, namely: (a) the "long-standing tradition" of automatically
awarding the Minority Leadership to the second placer in the Speakership Elections, i.e., Rep.
Baguilat; and (b) the rule that those who abstained in the Speakership Elections should be deemed
21
as independent Members of the House of Representatives, and thus, they could not have voted for a
Minority Leader in the person of Rep. Suarez. As will be explained hereunder, the deviation by the
22
Lower House from the aforesaid rules is not averse to the Constitution.
Section 16 (1), Article VI of the 1987 Constitution reads:
Section 16. (1) The Senate shall elect its President and the House of Representatives, its Speaker,
by a majority vote of all its respective Members.
Each house shall choose such other officers as it may deem necessary.
Under this provision, the Speaker of the House of Representatives shall be elected by a majority
vote of its entire membership. Said provision also states that the House of Representatives may
decide to have officers other than the Speaker, and that the method and manner as to how these
officers are chosen is something within its sole control. In the case of Defensor-Santiago v.
23
Guingona, which involved a dispute on the rightful Senate Minority Leader during the 11th
24
Congress (1998-2001), this Court observed that "[w]hile the Constitution is explicit on the manner of
electing x x x [a Speaker of the House of Representative,] it is, however, dead silent on the manner
of selecting the other officers [of the Lower House]. All that the Charter says is that ' [e]ach House
shall choose such other officers as it may deem necessary.' [As such], the method of choosing who
will be such other officers is merely a derivative of the exercise of the prerogative conferred by the
aforequoted constitutional provision. Therefore, such method must be prescribed by the [House of
Representatives] itself, not by [the] Court. " 25
Corollary thereto, Section 16 (3), Article VI of the Constitution vests in the House of
26
Representatives the sole authority to, inter alia, "determine the rules of its proceedings." These
"legislative rules, unlike statutory laws, do not have the imprints of permanence and obligatoriness
during their effectivity. In fact, they 'are subject to revocation, modification or waiver at the pleasure
of the body adopting them.' Being merely matters of procedure, their observance are of no concern
to the courts, for said rules may be waived or disregarded by the legislative body at will, upon the
concurrence of a majority [of the House of Representatives]. " Hence, as a general rule, "[t]his
27
Court has no authority to interfere and unilaterally intrude into that exclusive realm, without running
afoul of [C]onstitutional principles that it is bound to protect and uphold x x x. Constitutional respect
and a becoming regard for the sovereign acts of a coequal branch prevents the Court from prying
into the internal workings of the [House of Representatives]." 28
Of course, as in any general rule, there lies an exception. While the Court in taking jurisdiction over
petitions questioning an act of the political departments of government, will not review the wisdom,
merits or propriety of such action, it will, however, strike it down on the ground of grave abuse of
discretion. This stems from the expanded concept of judicial power, which, under Section 1, Article
29
VIII of the 1987 Constitution, expressly "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." Case law decrees that "[t]he
foregoing text emphasizes the judicial department's duty and power to strike down grave abuse of
discretion on the part of any branch or instrumentality of government including Congress. It is an
innovation in our political law. As explained by former Chief Justice Roberto Concepcion: 30
[T]he judiciary is the final arbiter on the question of whether or not a branch of 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. This is not only a judicial power but a duty
to pass judgment on matters of this nature. 31
Accordingly, this Court "will not shirk, digress from or abandon its sacred duty and authority to
uphold the Constitution in matters that involve grave abuse of discretion brought before it in
appropriate cases, committed by any officer, agency, instrumentality or department of the
government." 32
However, as may be gleaned from the circumstances as to how the House had conducted the
questioned proceedings and its apparent deviation from its traditional rules, the Court is hard-
pressed to find any attending grave abuse of discretion which would warrant its intrusion in this case.
By and large, this case concerns an internal matter of a coequal, political branch of government
which, absent any showing of grave abuse of discretion, cannot be judicially interfered with. To rule
otherwise would not only embroil this Court in the realm of politics, but also lead to its own breach of
the separation of powers doctrine. Verily, "[i]t would be an unwarranted invasion of the prerogative
33
of a coequal department for this Court either to set aside a legislative action as void [only] because
[it] thinks [that] 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."
34
SO ORDERED.
Avelino v. Cuenco, 83 Phil. 17 (1949)
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.
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. 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.
Separate Opinions
MORAN, C.J., concurring:
I believe that this Court has jurisdiction over the case. 1 The present crisis in the Senate is one that
imperatively calls for the intervention of the Court.
Respondent Cuenco cannot invoke the doctrine of non-interference by the courts with the Senate
because the legal capacity of his group of twelve senators to acts as a senate is being challenged by
petitioner on the groundof lack of quorum (Attorney General ex rel. Werts vs. Rogers et al., Atl. 726;
23 L. R. A., 352). If this group is found sufficient to constitute a quorum under the Constitution, then
its proceedings should be free from interference. But if it is not possessed of a valid quorum, then its
proceedings should be voided.
The issue as to the legal capacity of the Cuenco group to act as a senate cannot be considered a
political question the determination of which devolves exclusively upon the Senate. That issue
involves a constitutional question which cannot be validly decided either by the Cuenco group or by
the Avelino group separately, for, if the Cuenco group has no quorum, the Avelino has decidedly
less. And for obvious reasons, the two groups cannot act together inasmuch as the members of the
Avelino group, possibly to avoid trouble, do not attend the sessions presided by the respondent
believing as they do that the latter was illegally elected. Upon the other hand, the Cuenco group
believing itself as possessing the constitutional quorum and not desiring to make any semblance of
admission to the contrary, does not find it convenient to compel the attendance of any senator of the
Avelino group. Then the question arises--who will decide the conflict between the two groups? This
anomalous situation will continue while the conflict remains unsettled, and the conflict will remain
unsettled while this Court refuses to intervene. In the meantime the validity of all the laws,
resolutions and other measures which may be passed by the Cuenco group will be open to doubt
because of an alleged lack of quorum in the body which authored them. This doubt may extend, in
diverse forms, to the House of Representative and to the other agencies of the government such as
the Auditor General's Office. Thus, a general situation of uncertainty, pregnant with grave dangers, is
developing into confusion and chaos with severe harm to the nation. This situation may, to a large
extent, be stopped and constitutional processes may be restored in the Senate if only this Court, as
the guardian of the Constitutional, were to pronounce the final word on the constitutional mandate
governing the existing conflict between the two groups. And, in my opinion, under the present
circumstances, this Court has no other alternative but to meet challenge of the situation which
demands the utmost of judicial temper and judicial statesmanship. As hereinbefore stated, the
present crisis in the Senate is one that imperatively calls for the intervention of this Court.
As to the legality of respondent's election as acting President of the Senate, 2I firmly believe that
although petitioner's adjournment of the session of February 21, 1949, was illegality cannot be
countered with another illegality. The session wherein respondent was elected as acting President of
the Senate was illegal because when Senator Mabanag raised the question of a quorum and the roll
was called, only twelve senators were present. In the Philippines there are twenty-four senators, and
therefore, the quorum must be thirteen. The authorities on the matter are clear.
The constitution of our state ordains that a majority of each house shall constitute a quorum.
the house of representative consist of 125 members; 63 is a majority and quorum. When a
majority or quorum are present, the house can do business; not otherwise.
A quorum possessed all the powers of the whole body, a majority of which quorum must, of
course, govern. (In re Gunn, 50 Kan., 155; 32 P., 470, 476; 19 L.R.A., 519.)
Quorum as used in U. S. C. A. Const. Art. 4 sec. 8, providing that a majority of each house
shall constitute a quorum to do business, is, for the purpose of the Assembly, not less than
the majority of the whole number of which the house may be composed. Vacancies from
death, resignation or failure to elect cannot be deducted in ascertaining the quorum. (Opinion
of Justice, 12 Fla. 653.)
The general rule is that a quorum is a majority of all the members and a majority of this
majority may legislate and do the work of the whole. (State vs. Ellington 117 N. C., 158; 23
S. E. 250-252, 30 L.R.A., 532; 53 Am. SR., 580.)
. . . a majority of each House is necessary to transact business, and a minority cannot

transact business, this view being in keeping with the provision of the Constitution permitting
a smaller number than a quorum to adjourn from day to day merely. (Earp vs. Riley, 40
OKL., 340; p. 164; Ralls vs. Wyand, 40 OKL., 323; 138 P. 158.)
The Constitution provides that "a majority of each (house) shall constitute a quorum to do
business." In other words, when a majority are present the House is in a position to do
business. Its capacity to transact business is then established, created by the mere presence
of a majority, and depend upon the disposition or assent or action of any single member or
faction of the majority present. All that the Constitution required is the presence of a majority,
and when that majority are present, the power of the House arises. (U. S. vs. Ballin, Joseph
& Co., 36 Law ed. 321, 325.)
If all the members of the select body or committee, or if all the agents are assembled, or if all
have been duly notified, and the minority refuse, or neglect to meet with the other, a majority
of those present may act, provided those present constitute a majority of the whole number.
In other words, in such case, a major part of the whole is necessary to constitute a quorum,
and a majority of the quorum may act. If the major part withdraw so as to leave no quorum,
the power of the minority to act is, in general, considered to cease. (1 Dillon, Mun. Corp. 4th
ed., sec. 283.)3
Therefore, without prejudice to writing a more extensive opinion, if necessary, I believe that
respondent Mariano J. Cuenco has not been legally elected as acting President of the Senate. It is
true that respondent Cuenco, in fact, must be the Senate President because he represent the
majority of the members now present in Manila, and, at any new session with a quorum, upon the
present senatorial alignment, he will be elected to said office. But precisely he is now the master of
the situation, he must win his victory in accordance with the Constitution. It is absolutely essential in
the adolescent life of our Republic to insist, strictly and uncompromisingly, on thedemocratic
principles consecrated in our Constitution. By such efforts alone can we insure the future of our
political life as a republican form of government under the sovereignty of a Constitution from being a
mockery.
The situation now in this Court is this — there are four members who believe that there was
no quorum in respondent's election as against four other member who believe that there was
such quorum. Two members declined to render their opinion on the matter because of their refusal
to assume jurisdiction. And, one member is absent from the Philippines. Thus, the question of
whether or not respondent has been legally elected is, to say the least, doubtful in this Court under
the present conditions. This doubt, which taint the validity of all the laws, resolutions and other
measures that the Cuenco group has passed and may pass in the future, can easily be dispelled by
them by convening a session wherein thirteen senators are present and by reiterating therein all that
has been previously done by them. This is a suggestion coming from a humble citizen who is
watching with a happy heart the movement of this gallant group of prominent leaders campaigning
for a clean and honest government in this dear country of ours.
PERFECTO, J., dissenting:
In these quo warranto proceedings the question as to who among the parties is entitled to hold the
position of President of the Senate is in issue.
There is no question that up to Monday, February 21, 1949, at the time the controversial incidents
took place, petitioner Jose Avelino was rightful occupant of the position. the litigation has arisen
because of the opposing contentions as to petitioner's outer and as to respondent's election as
acting President of the Senate, on February 21, 1949.
Petitioner contends that the proceedings in which a resolution was passed declaring the position of
President of the Senate vacant and electing respondent Mariano J. Cuenco as acting President of
the Senate were illegal because, at the time, the session for said day has been properly adjourned,
and the twelve Senators who remained in the session hall had no right to convene in a rump
session, and said rump session lacked quorum, while respondent contents that the session which
was opened by petitioner had not been legally adjournment, the Senators who remained in the
session hall had only continued the same session, and there was quorum when the position of the
President of the Senate was declared vacant and when respondent was elected as acting President
of Senate, to fill the vacate position.
Petitioner's version of the facts, as alleged in his petition, is to the effect that on Monday, February
21, 1949, at the time petitioner opened the session in the Senate session hall, there were twenty two
Senators present who answered the roll call; Vicente J. Francisco. Fernando Lopez, Emiliano
TriaTirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos
Tan, Olegario Clarin, Melencio Arranz, Mariano Cuenco, Prospero Sanidad, Lorenzo Tañada,
Vicente Madrigal, Geronima Pecson, Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera,
Tomas Cabili, Alejo Mabanag, and the petitioner Jose Avelino. While the minutes of the preceding
session was being read the crowd of more than 1,000 people who entered the Senate hall to witness
the session, became unruly, the repeated efforts of petitioner as well as the sergeant-at-arms and
other peace officers to maintain peace and order notwithstanding. Fights and commotions ensued
and several shots were fired among the audience. The Senator who spoke could not be heard
because the spectators would either shout to drown their voices or would demeans that some other
Senator should take the floor and be recognized by petitioner. Pandemonium reigned and it was
impossible for the Senate to proceed with its deliberations free from undue pressure and without
grave danger to its integrity as a body and to the personal safety of the members thereof. Senator
Pablo Angeles David moved for adjournment until Thursday, February 24, 1949. There being no
objection, petitioner adjourned the session until February 24, 1949. Thereupon petitioner and nine
other Senator namely, Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles
David, Sulipada Pendatun, Ramon Torres, Enriquez Magalona, Carlos Tan, and Olegario Clarin left
the session hall. Senator Melencio Arranz, President Pro-Tempore of Senate, went up the rostrum
and, assuming the presidency of the chamber, convinced the remaining twelve Senators into a rump
session, in which a resolution was passed declaring vacant the position of the President of the
Senate and electing respondent as President of the Senate. Thereupon respondent pretended to
assume the office of president of the Senate and continues to pretend to assume said office.
Petitioner alleged five grounds to claim that respondent is usurping or illegally exercising the office of
the President of the Senate: 1. Petitioner had adjourned the session of the senate, the adjournment
having been properly moved and, without objection, favorably acted upon; 2. Petitioner had full
power to adjourn the session even without motion under chapter II, Section 8, paragraph (e) of the
Rules of the Senate; 3 The ordinary daily session having been adjourned, no other session could be
called in the Senate on the same day; 4 The President Pr-tempore had no authority to assume the
presidency except in the cases specified in Chapter I, section 4 of the Rule of the Senate, and none
of the conditions therein mentioned obtained at the time in question; and 5. The twelve Senators that
convened in the rump session did not constitute a quorum to do business under the Constitution and
the rule of the Senate, being less than one-half plus one of the twenty four members of the Senate.
Respondent's version of the events as follows:

(a) Since Friday, February 18, 1949, when Senator Lorenzo M. Tañada announced and reserved in
open session of the Senate that on Monday, February 21, 1949, he would make use of his one-hour
privilege, it was known that formal charges would be filed against the then Senate President,
petitioner in this case, on said date. Hours before the opening of the session on Monday, February
21, 1949, Senators Lorenzo M. Tañada and Prospero Sanidad registered in the Office of the
secretary of the Senates a resolution in which serious charges were preferred against the herein
petitioner. A certified copy of said resolution, marked as Exhibit "1" is hereto attacked and made an
integral part hereof:
(b) Although a sufficient number of senators to constitute a quorum were at the Senate session hall
at and before 10:00 A.M., schedule time for the session to begin, and in spite of the fact that the
petitioner was already in his office, said petitioner deliberately delayed his appearance at the session
hall until about 11:35 A.M.;
(c) When finally the petitioner ascended the rostrum, he did not immediately open the session, but
instead requested from the Secretary a copy of the resolution submitted by Senator Tañada and
Sanidad and in the presence of the public the petitioner read slowly and carefully said resolution,
after which he called and conferred with his followers, Senators Francisco and Tirona;
(d) Shortly before 12:00 noon, due to the insistent requested of Senators Sanidad and Cuenco that
the session be opened, the petitioner finally called the meeting to order;
(e) Senator Sanidad, following a practice long established in the Senate, moved that the roll call be
dispensed with as it was evident that with the presence of all the 22 senator who could discharges
their functions, there could be no question of a quorum, but Senator Tirona opposed said motion,
evidently in pursuance of a premeditated plan and conspiracy of petitioner and his followers to make
use of all sorts of dilatory tactics to prevent Senator Tañada from delivering his privilege speech on
the charges filed against petitioner. The roll call affirmatively showed the presence of the following
22 Senators; Vicente J. Francisco, Fernando Lopez, Emiliano Tria Tirona, Pablo Angeles David,
Salipada Pendatun, Ramon Torres, Enrique Magalona, Carlos tan, Olegario Clarin, Melencio Arranz,
M. Jesus Cuenco, Prospero Sanidad, Lorenzo M. Tañada, Vicente Madrigal, Geronima Pecson,
Camilo Osias, Carlos Garcia, Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Mabanag and Jose
Avelino;
(f) Senator Sanidad next moved, as in the usual practice, to dispense with the reading of the minute,
but this motion was likewise opposed by senator Tirona and David, evidently, again, in pursuance of
the above-mentioned conspiracy;
(g) Before and after the roll call before and after the reading of the minutes, Senator Tañada
repeatedly took the floor to claim his right to deliver his one-hour privilege speech in support of the
charges against petitioner, but the latter, then presiding, continually 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 being previously recognized by him, but all the while, tolerating the antics
of his follower, Senator Tirona, who was continuously and vociferously shouting at Senator Sanidad
"Out of order! Out of order! Out of order! . . .," everything the latter would ask the petitioner to
recognized the right of Senator Tañada to speak.
(h) At this juncture, some disorderly conduct broke out in the Senate gallery, as if by
prearrangement, but the police officers present were able to maintain order. No shots were fired
among the audience, as alleged in the petition. It was at about this same time that Senator Pablo
Angeles David, one of petitioner's followers, was recognized by petitioner, and he moved for
adjournment of the session, evidently again, in pursuance of the above-mentioned conspiracy to
prevent Senator Tañada from speaking;
(i) 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;
(j) 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;
(k) Suddenly, the petitioner abandoned the Chair and hurriedly walked out of the session hall.
(l) Without the session being adjournment, Senators David, Tirona, Francisco,Torres, Magalona, and
Clarin followed the petitioner out of the session hall, while the rest of the senators, as afore-named in
sub-paragraph (e) hereof, remained to continue the session abandoned by petitioner, whereupon
Senator Melencio Arranz, as Senate Pro-tempore, took the Chair and proceeded with the session.
(m) Senator Cabili took the floor and delivered a speech, whereby he asked that it be made of record
— as it was in so made — that the deliberate abandonment of the Chair by the petitioner, made it
incumbent upon SenatePresident Pro-tempore Arranz and the remaining members of the Senate to
continue the session in order not to impede and paralyze the functions of the Senate;
(n) 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.
(o) Upon motion of Senator Arranz, which was carried unanimously, Gregorio Abad was appointed
Acting Secretary, as the Assistance Secretary, who was then acting as Secretary, had followed the
petitioner when the latter abandoned the session;
(p) Senator Tañada, after being recognized by the Chair, was then finally able to deliver his privilege
speech, Which took more than hours, on the charges against the petitioner contained in the
Resolution, attacked hereto as Exhibit "1", and moved for the immediate consideration and approval
ofsaid Resolution. Senator Sanidad reiterated this motion, after having firstread aloud the complete
text of said Resolution, and thereafter the same was unanimously approved;
(q) With Senate President Pro-tempore Arranz again occupying the Chair, after the respondent had
yield edit 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," a copy of which is herewith attacked and made an integral
part hereof as Exhibit "2". Put a vote, the said Resolutionwas unanimously approved, respondent
having abstained from voting;
(r) The respondent having been duly elected as Acting President of the Senate, immediately took his
oath of Office in open session, before Senate President Pro-Tempore Melencio Arranz, and since
then, has been discharging the duties and exercising the rights and prerogatives appertaining to said
office;
(s) From the allegation of the petition, it clearly appears that the petitioner had only nine senators in
his favor and twelve, decidedly against him, which fact negates the petitioner's assertion that there
was no opposition to the motion for adjournment submitted by Senator David;
(t) From the beginning of the session of February 21, 1949, to the allegedadjournment, it was
evidently and manifestly the purpose of the petitioner to deprive Senator Tañada of his right to take
the floor and to speak on the charges filed against said petitioner; that said petitioner resorted to all
means to deprive the Senate of its right and prerogative to deliberate on Senate Resolution No. 68,
Exhibit "1", and that when the petitioner realized that a majority of the Senator who were present in
the said session was ready to approved said resolution, the petitioner abandoned the session;
(u) The minute of the session held on February 21, Exhibit 1949, a copy of which is hereto attacked
and made an integral part hereof as Exhibit "3", show that the petitioner illegally abandoned the
Chair while the Senate was in session and that the respondent has been duly elected Acting Senate
President in accordance with the provisions of the Constitution.
Respondent alleges further that Senator David's motion for adjournment was objected to and not
submitted to a vote and, therefore, could not have been carried; that it is not true that petitioner had
the power to adjourn the session even without motion; that the session presided over, first by
petitioner and then by respondent, was orderly, no Senator having been threatened or intimidated by
anybody, and after petitioner abandoned the session continued peacefully until its adjournment at
4:40 P.M.; that there was only one session held on said date; that petitioner's abandonment of the
Chair in the face of an impending ouster therefrom constituted a temporaryincapacity entitling the
Senate President Pro-tempore to assume the Chair; that there was quorum as, with the absence of
Senator Tomas Confessor, whowas in the U. S. and of Senator Vicente Sotto, who was seriously ill
and confined in the Lourdes Hospital, the presence of at least twelve senators constitutes a quorum;
that, despite petitioner's claim that he adjourned the session to February 24, 1949, convinced that he
did not count with the majority of the Senators and not wanting to be investigated by the
specialinvestigation committee regarding the grave charges preferred against him, the petitioner
deliberately did not appear at the session hall on said date.
Three special defenses are advanced by respondent: (a) Lack of jurisdiction of the Supreme Court;
(b) No cause of action as there are only nine Senators who had recognized petitioner's claim against
twelve Senators or who have madepatent their loss of confidence in him by voting in favor of his out
ouster; and (c) The object of the action is to make the supreme Court a mere tool of a minority group
of ten Senators to impose petitioner's will over and above that of the twelve other members of the
Senate, to entrench petitionerin power.
In impugning the jurisdiction of the Supreme Court, respondent contends that the present case is not
justiciable, because it involves a purely political question, the determination of which by the Senate
is binding and conclusiveupon the court (Alejandrino vs. Quezon, 43 Phil., 83; Vera vs. Avelino, 77
Phil., 192) respondent has been recognized as acting President of the Senate by the President of
the Philippines and said recognition is binding and conclusive on the courts (Barcelon vs. Baker, 5
Phil., 87; Severino vs. Governor-General, 16 Phil., 366); the Senate is the only body that can
determine from time to time who shall be its President and petitioner's only recourse lies in said
body; and this Court's action in entertaining the petition would constitute an invasion and an
encroachment upon the powers, rights and prerogatives solely and exclusively appertaining to
Congress, of which the Senate is a branch.
Upon the conflicting claims of the parties as to the real events, this Court authorized the reception of
evidence. Before passing to consider and to weigh said evidence so as to determine the true events,
it is only logical that we should first pass upon the question of jurisdiction raised by respondent.
In attacking the jurisdiction of the Supreme Court respondent alleges, as first ground, that the
present controversy is not justiciable in nature, involving, as it does, a purely political question, the
determination of which by the political agency concerned, the Senate, is binding and conclusive on
the courts.
The contention is untenable. In the first place, it begs question. It assumes as premises that the
question has been determined by the Senate, when the two opposing parties claim that each one of
them represents the will of the Senate, and if the controversy should be allowed to remainunsettled,
it would be impossible to determine who is right and who is wrong, and who really represent the
Senate.
The question raised in the petition, although political in nature, are justiciable because they involve
the enforcement of legal precepts, such as the provisions of the Constitution and of the rules of the
Senate. Thepower and authority to decided such questions of law form part of the jurisdiction, not
only expressly conferred on the Supreme Court, but of which, by express prohibition of the
Constitution, it cannot be divested.
SEC. 2. The Congress shall have the power to define, prescribe, and apportion the
jurisdiction of the various court, but may not deprive the Supreme Court of its original
jurisdiction over cases affecting ambassadors, other public ministers, and consuls, nor of its
jurisdiction to review, revise, reverse, modify, or affirm on appeal, certiorari, or writ of error,
as the law or the rules of the court may provide, final judgment and decrees of inferior courts
in —
(1) All cases in which the constitutionality or validity of any treaty, law, ordinance or
regulations is in question.
(2) All case involving the legality of any tax, impost, assessment, or toll, or any penalty
imposed in relation thereto.
(3) All cases in which the jurisdiction of any trial court is in issue.
(4) All criminal cases in which the penalty imposed is death or life imprisonment.
(5) All cases in which an error or question of law is involved.
Because the legal questions raised in this case cannot be decided without decided also what is the
truth on the controversial facts, by the very natureof things, the jurisdiction of the Supreme Court
reached the settlement of the conflict claims as to the real events.
Respondent alleges that he has been recognized by the President of the Philippines as acting
President of the Senate and that executive recognition is binding and conclusive on the courts. The
contention is erroneous. The actions of the President of the Philippines cannot deprive the Supreme
Court of the jurisdiction vested in it by the Constitution. If the Congress of the Philippines, in which
the Legislature power is vested, cannot deprive the Supreme Court of its jurisdiction to decide
questions of law, much less canthe president of the Philippines, on whom is vested the Executive
power, which in the philosophical and political hierarchy is of subordinate category to the of the
Legislative power, do so. The power to enact laws is higher than the power to execute them.
The third argument of argument of respondent, although based on truth, has nothing to do with the
legal questions raised in this case. It is true that the Senate is the only body that can determine from
time who is and shall be its President, but when the legal questions are raised in a litigation likein the
present case, the proper court has the function, the province and the responsibility to decide them.
To shirk that responsibility is to commit a dereliction of official duty.
Finally, it is alleged that for this Court to entertain the petition, is invade and encroach upon the
powers, rights and prerogatives solely and exclusively appertaining to the Legislative Department, of
which the Senate is a branch. The contention is erroneous. The controversy as to thelegality of the
adjournment declared by petitioner, of petitioner's ousters, as a result of the resolution declaring
vacant the position of President of the Senate, or respondent's election as acting President of the
Senate, and as to whether or not the twelve Senators who remained in the session hall could
continue holding session and if they constitute quorum, are all legal question upon which courts of
justice have jurisdiction and the SupremeCourt is the final arbiter.
From the evidence, it appears that in the session of Friday, February 18, 1949, at the time the
resolution of confidence in favor of petitioner, introduced by the Senator Lopez, was being put to
vote, Senator Tañada voted,Senator Tañada voted in the negative, alleging as ground damaging
facts, supported by several checks, highly detrimental to the personal and officialhonesty of
petitioner. At the same time, Senator Tañada announced his intention of filing in the next session, to
be held on Monday, February 21, 1949, formal charges against petitioner and of delivering during
the so-called privilege hour a speech in support of said charges.
On said Monday morning, hour before the opening of the ordinary daily session, Senator Tañada
and Sanidad registered with the Secretary of the Senate a resolution for the appointment of a
Committee of three, composed of Senator Cuenco, Angeles David, and Mabanag, with instructed to
proceed immediately to investigate the serious charges against petitioner embodiedin the document.
Said resolution, marked as Exhibit 1 of the respondent's answer, is as follow:
RESOLUTION ORDERING THE INVESTIGATION OF CHARGES FILED AGAINST THE

SENATE PRESIDENT, JOSE AVELINO.
WHEREAS, Senate President Jose Avelino, in a caucus of high government officials of the
Philippines Government and leaders of the Liberal Partyheld at Malacañang palace on
January 15, 1949, delivered a speech,wherein he advocated the protection, or, at least,
tolerance, of graft and corruption in the government, and placed the interest of grafters and
corrupt officials as supreme and above the welfare of the people, doctrine under which it is
impossible for an honest and clean governmentto exist;
WHEREAS, this speech of Senate President Jose Avelino was given wide publicity by the
press, especially the Chronicle Publication in their issues of January 16 and 18, 1949, as
follows:
The senate President defenses the abuses perpetrated by Liberal Party men. He called the
investigations of the surplus property commission irregularities and the immigration quota
scadal as acts of injustice he describe the probe as "criminal" and "odious." He flayed the
National Bureau of Investigation agents for persecuting Liberal party leaders.
"We are not angels", he said. "When we die we all go to hell. It is better to be in hell because
in that place are no investigations, no secretary of justice, no secretary of interior to go after
us."
Avelino, who is the present President of the Liberal party, ensured the President for his
actuations which, he claimed, were mainly responsible for the division of the party into two
hostile camps.
Avelino asked the President to "tolerate" if he could not "permit", the abuse of the party in
power, because why should we be saints when in reality we are not?
He stressed that the present investigation being conducted by President Quirino on the
surplus property scandal and the immigration quota rackety has lowered the prestige of the
Liberal Party in the eyes of the people, and is a desecration to the memory of the late
President Manuel Roxas. "It is a crime against the Liberal Party", Avelino said.
Defining his attitude regarding rights and privileges of those who are in power in the
government, Avelino maintained that the Liberal Party men are entitled to more
considerations and should be given allowance to use the power and privilege. If they abuse
their power as all humans are prone to do, they will be given a certain measure of tolerance,
Avelino said, adding, "What are we in power for?"
Avelino cited the surplus property investigations as an attempt to besmear the memory of
Presidential Roxas. As a result of these investigations, the members of Congress are
subjected to unjust and embarrassing questioning by NBI, Avelino said. And what is worse is
the fact that these senators and representatives are being pilloried in public without formal
charges filed against them. (Manila Chronicle issue of Jan. 16, 1949).
At last Saturday night's caucus Senate President Avelino for two hours lectured to
President Quirino on Liberal Party discipline. At the same time he demanded
"tolerance" on the part of the Chief Executive by the party in power.
The investigations were conducted on vague charges, Avelino claimed. Nothing

specific has teen filed against atop Liberal Party man. And yet National Bureau of
Investigation agents have persecuted top leader of the LiberalParty. That is not
justice. That is injustice. . . . It isodious. . . . It is criminal.
Why did you have to order an investigation Honorable Mr. President? If you cannot
permit abuses, you must at leasttolerate them. What are we in power for? We are not
hypocrites. Why should we pretend to be saints when in realitywe are not? We are
not angels. And besides when we die we all go to hell. Anyway, it is preferable to go
to hell wherethere are no investigations, no Secretary of Justice, no Secretary of
Interior to go after us.
When Jesus died on the Cross. He made a distinction between a good crook and the
bad crooks. We can prepare to be good crooks.
Avelino related the story of St. Francis of Assisi. Athief sought sanctuary in St.
Francis' convent. When thesoldiers came to the convent and ordered St. Francis to
produce the wanted thief, St. Francis told the soldiers that thehunted man had gone
the other way.
Avelino then pointed out that even a saint had condoned the sins of a thief.
xxx xxx xxx
The investigation ordered by President Quirino, Avelino said, was a desecration of
the memory of the late President Roxas. The probe has lowered, instead of
enhanced, the prestige of the Liberal Party and its leader in the eyes of the public.
If the present administration fails, it is Roxas and not Quirino that suffers by it,
because Quirino's administration is only a continuation of Roxas, Avelino said.
Avelino compared all political parties to business corporations, of which all members
are stockholders. Every year the Liberal Party makes an accounting of its loss profit.
The Liberal Party, he said, has practically no dividends at all. It has lost even its
original capital. Then he mentionedthe appointments to the government of
Nacionalistas like: Lino Castillejo,as governor of the Reconstruction Finance
Corporation, Nicanor Carag, consulto Madrid; and Vicente Formoso, General
Manager of the National Tabacco Corporation."(Manila Chronicle issue of January
18, 1949.).
WHEREAS, after the first publication of the said speech in the Manila Chronicle issue of
January 16, 1949, the Senate President, in a letter to the said news report was a "maliciously
distorted presentation of my remarks at that caucus, under a tendentious headlines", and
threatened that "unless the proper redness is given to me, therefore, I shall feel compelled to
take the necessary steps to protect my reputation and good name";
WHEREAS, the Chronicle Publication not only refuse to retract or make the rectification
demanded by the Senate President, but on the contrary, in their issue of January 18, 1949,
challenged him to take his threatened action, stating that "in order to est abolished the truth,
we are inviting the Senate President to file a libel suit against the Chronicle" and further
repeated the publication of their reports on the Senate President speech in the same issue of
January 18, 1949 as quoted above;
WHEREAS, notwithstanding in the considerable length of time that has elapsed, the Senate
President has not carried out his threat of filing action against the Chronicle Publication,
thereby confirming, in effect, his doctrine of tolerance of graft and corruption;
WHEREAS, in open and public session of the Senate on February 18, 1949, there were
exhibited photostatic copies of four checks totalling P566,405.60, which appears to have
come into the possession and control of the Senate President, after he had assumed his
office;
WHEREAS, the first of the aforesaid check, which is Manager's Check No. M5375 of the
National City Bank of the National City Bank of New York, drawn on September 24, 1946, in
favor of the Senate President in the amount of P312,500.00, was indorsed by him to his wife,
Mrs. Enriqueta C. Avelino, who deposited it in her current account with the Philippine
National Bank on October 26, 1946;
WHEREAS, the second of the aforesaid checks, which is Manager's Check No. 49706 of the
Nederlands Indische Handelsbank, drawn on October 21, 1946, in favor of the Senate
President in the amount of P196,905.60, was indorsedby him to his son, Mr. Jose Avelino,
Jr., who cashed it October 22, 1946;
WHEREAS, the third of the aforesaid checks, which is Check No. 37262 of the Nederlandsch
Indische Handelsbank, drawn on October 23,1946 by Chung Liu Ching Long & Co., Ltd., a
Chinese concern, in favor of "cash", in the amount of P10,000.00, was indorsed by the
Senate President to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her Saving
Account No. 63436 with the Philippines National Bank on October 26, 1946;
WHEREAS, the fourth of the aforesaid checks, which is Check No. 37268 of the
Nederlandsch Indische Handelsbank, drawn by the aforementioned Chinese concern,
Chiung Liu Ching Long and Co., Ltd., in the amount of P47,500.00 in favor of the Senate
President, was indorsed by him to his wife, Mrs. Enriqueta C. Avelino, who deposited it in her
current account with the Philippines National Bank on October 26, 1946;
WHEREAS, of the four checks aforementioned, the one for P196,905.60 was cashed by the
Senate President's son, Jose Avelino, Jr., on October 22, 1946; while of the three other
checks totalling P370,000.00 which was deposited by the Senate President's wife, Mrs.
Enriqueta C. Avelino, in her saving and current accounts with the Philippines National Bank
on October 26, 1946, P325,000.00 were withdraw by her on same day;
WHEREAS, in the course of the speech delivered by the Senate President on the floor of the
Senate on February 18, 1946, in an attempt to explain the foregoing checks, he refused to
be interpolated on the same, and his explanation lacked such details and definiteness that it
left many doubts unsettled;
WHEREAS, in the case of the check for P312,500.00 the Senate President explanation that
the same represented proceeds from the sale of surplus beer to cover party obligation is
directly contradicted by the source of the same, Ching Ban Yek, who declared under oath
before the Horilleno Investigating Committee that the said sum of P312,500.00 had been
loaned byhim to the Senate President, who repaid the same within ten days;
WHEREAS, it appears that during the period from December 29, 1945 to April 30, 1948,
deposits totalling P803,865.45 were made in the current account of the Senate President's
wife Mrs. Enriqueta C. Avelino, in the Philippine National Bank, of which amount P6,204.86
were deposited before his election to office and the sum of P797,660.59 was deposited after
his election;
WHEREAS, the tax returns of the Senate President do not bear explanation madein his
speech of February 18, 1949 to the effect that he and his wife had made substantial amounts
in commercial transaction in shoes and liquor;
WHEREAS, in his said speech of February 18, 1949, the Senate President said that "en
politica todo vale", and that inasmuch as the Nacionalistas were prone to commit frauds, it
was right for the Liberals to commit frauds in the electionsto even up with frauds committed
by the opposition;
WHEREAS, the said speech of February 18, 1949 delivered by the SEnate President
justified the commission of electoral frauds, which justification is a direct attack on the
sovereignty of the people and may be a cause of unrest or resolution;
WHEREAS, the senate President, as ex-officio Chairman of the Commission on

Appointments which passes upon all Presidential appointment, including thoseto the
judiciary, has abused the prerogatives of his office by seeking in several instances to
interfere with and influence some judge in decidingcase pending before, thereby imperilling
the independence of the judiciaryand jeopardizing the impartial administration of justice;
WHEREAS, the honor, dignity and prestige of the people and of the membersof the Senate
demand a through, impartial and immediate investigation of allforegoing; Now, therefore,
1 Be it resolved, To appoint, as they are hereby appointed

2 Committee of three (3) members of this Senate, to be com
3 posed of Senator Cuenco, Angeles David and Mabanag, who
4 shall immediately proceed to investigate the charges mentioned
5 above, with full powers to compel the attendance of witnesses
6 and the production of books of account, documents, and other
7 evidence, and to utilized the facilities and the services of such
8 personnel of this Senate as it may deem necessary, with in
9 structions to render its report and recommendations to the
10 Senate on or before Friday, February 25, 1949.
Adopted, February 21, 1949.
Although a sufficient number of Senators to constitute quorum were already present in said morning

at and before 10:00 o'clock, the schedule time for the daily session to begin, the session was not
then opened, because petitioner failed to appear in the hall until about 11:35, the time petitioner
ascended the rostrum where, instead of calling the meeting to order, he asked for a copy of the
resolution introduced by the Senators Tañada and Sanidad and, after reading it slowly, he called to
his side Senators Angeles David and Tirona and conferred with them.
Only after the insistent requests of Senators Sanidad and Cuenco that thesession be opened, that
petitioner called the meeting to order shortly before 12:00 o'clock noon.
Senator Sanidad moved that the roll call be dispensed with. Senator Tirona opposed the motion and
the roll call showed the presence of the following twenty two Senators: Vicente J. Francisco,
Fernando Lopez, Emiliano TriaTirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres,
Enrique Magalona, Carlos Tan, Olegario Clarin, Melencio Arranz, Mariano Jesus Cuenco, Prospero
Sanidad, Lorenzo Tañada, Vicente Madrigal, Geronima Pecson,Camilo Osias, Carlos Garcia,
Ramon Diokno, Jose Vera, Tomas Cabili, Alejo Manag and Jose Avelino.
Senator Sanidad again moved that the reading of the minutes be dispersed with, but the motion was
again opposed by Senator Tirona whose opposition was joined by Senator Angeles David, and the
reading of the minutes proceeded.
Senator Tañada repeated took the floor to floor to claim his right to deliver his one-hour privilege
speech in support of the charges against petitioner,pursuant to the announcement he made in the
session of February 18, 1949; he did it before and after the roll call and the reading of the minutes.
he wasignored by the Chair and petitioner announced that he would order the arrestof any Senator
who speak without having been previously recognized by him.Senator Sanidad requested the Chair
to recognized the right of Senator Tañada to speak, and every time he would make the request,
Senator Tirona would oppose him upon the ground that the requests were out of order.
Meanwhile, commotion and disorder took place in the Senate gallery. Shout were heard from
individuals of the audience, where two fist fight took place. The detonation of a gun shot was heard
from outside. Senator Angeles David, after being recognized by the Chair, moved for adjournment of
the session. The motion was objected by Senator Cuenco who, at the same time, moved thatthe
motion be submitted to vote. Petitioner, instead of submitting to vote the motion to adjourn, banged
the gavel and declared the session adjourned until next Thursday, February 24, 1949, and,
thereupon, left the session hall followed by the nine Senators (Vicente J. Francisco, Fernando
Lopez, Emiliano Tria Tirona, Pablo Angeles David, Salipada Pendatun, Ramon Torres, Enrique
Magalona, Carlos Tan, and Olegario Clarin), supporting him. Twelve SEnator, respondent and his
eleven supporters, remained in the session hall. Senator Arranz, President Pro-tempore of the
SEnate, ascended the rostrum,and called those Senators present to order. Senator Mabanag raised
the question of quorum and the question of quorum and the President Pro-tempore ordered a roll
call, to which all the twelve Senators remaining in the sessionhall answered.
The President Pro-tempore declared the presence of quorum and those presentproceeded to

continue transacting business. Senator Cabili took an made it of record that the deliberate
abandonment of the Chair by petitioner made it incumbent upon the Senate President Pro-tempore
and those remainingmembers of the Senate to continue the session in order not to impede and
paralyze the functions of the Senate. Senator Arranz suggested that respondent be designated to
preside over the session and the suggestion was carried unanimously and respondent took the
Chair.
Senator Tañada delivered his privilege speech, which took two hours on the charge against
petitioner contained in Resolution No. 68, Exhibit "1", and moved for the immediate consideration
and approval of said resolution, thecomplete text of which was read. The motion was seconded by
Senator Sanidad, and the resolution was unanimously approved. Respondent yielded the Chair to
the President Pro-tempore and Senator Sanidad introduced Resolution No.67, Exhibit "2", which
read as follows:
RESOLUTION DECLARING VACANT THE POSITION OF THE PRESIDENT OF THE SENATE

AND DESIGNATING THE HONORABLE MARIANO JESUS CUENCO ACTING PRESIDENT
OFTHE SENATE.
Resolved by the Senate in session assembled, That a quorum exists; that the Honorable
Jose Avelino, President of the Senate having abandoned the chair, his position is hereby
declared vacant; and that, the Honorable Mariano JesusCuenco of Cebu, designated Acting
President of the SEnate, until further orders from this Body.
Adopted, February 21, 1949.
The resolutions unanimously approved, with respondent abstaining from voting. Pursuant to said
resolution, respondent took his oath of office inopen session before President Pro-Tempore Arranz
and has started, since then,to discharge the duties, rights and privileges of acting President of
theSenate.
The above recital of facts is based on our findings on the evidence on record. From the said facts we
believe the following conclusions are unavoidable.
1. The adjournment declared by petitioner was arbitrary and illegal.
2. After petitioner and the 9 Senators supporting him had walked out from the session hall, the
Senate could not continue holding session and transact business for lack of quorum.
In the following discussion we will express the reasons in support of the above conclusions.
ILLEGAL ADJOURNMENT
A motion to adjourn has the highest precedence when a question is under debate and, with certain
restriction, it has the highest privilege under all other conditions. Under parliamentary practice, even
questions of privilege and the motion to reconsider yield to it. The motion to adjourn may be made
after the "yeas'' and "nays" are ordered and before the roll call has begun, before reading of the
journal. The motion is not debatable and, after the motion is made, neither another motion nor an
appeal may intervene before the taking of the vote.
The power to adjourn is one of the exclusive prerogatives of a legislative chamber. It cannot be
exercised by any single individual, without usurpation of the collective prerogatives. It is too
tremendous a power to be wieldedby a single individual. The functions of the Senate and its
opportunity to transact official business cannot be left to the discretion of a single individual without
jeopardizing the high purposes for which a legislative deliberative body is established in a
democratic social order. Single-handedindividual discretion on the matter may not mean anything
other than placing the legislative chamber under a unipersonal tyranny.
There is no provision in the present rules of the Senate which expressly or impliedly authorizes an
adjournment without the consent of the body or one which authorizes the presiding officer to
decree motu proprio said adjournment, and the sound parliamentary practice and experience in
thiscountry and in the United States of America, upon which ours is patterned, would not authorize
the existence of such a provision.
Petitioner alleges that he ordered the adjournment because the motion of Senator Angeles David to
said effect was properly made and met with no objection. If this version of the facts is true, then it
was right for petitioner to declare the adjournment, because the absence of anyobjection, provided
the motion was properly made and the other Senators after having been properly apprised of the
motion, did not object to it, was an evidence of an implied consent of all the members. The evidence,
however, fails to support petitioner's claim.
We are inclined to consider respondent's version to be more in consonance with truth. We are of
opinion that the motion to adjourn was actually objected to. Senator Tañada was bent on delivering a
speech he had ready onthe charges embodied in a resolution fathered by himself and by Senator
Sanidad, which both filed early in the morning, long before the session was opened. The formulation
of said charges had been announced days before,since the session of Friday, February 18, 1949,
when he showed photostatic copies of some checks as basis of a part of the charges to be filed. In
said Friday session respondent's group suffered defeat on the approval of the resolution of
confidence fathered by Senator Lopez. And it is understandable that respondent's group of
Senators, believing themselves to constitute the majority, did not want to waste any time to give a
showing of said majority and must have decided to depose petitioner as soon as possible to
wrestfrom him the Senate leadership that upon democratic principles rightly belongs to them.
As a showing of eagerness to hurry up the unfolding events that would give them the control of the
Senate, Senator Sanidad moved to dispense with the roll call and the reading of the minutes, and
had been requesting that Senator Tañada be recognized to take the floor. Senator Tañada himself
made attempts to deliver his speech.
Evidently, petitioner and his supported decided to adopt a blocking strategyto obstruct the process
that would give due course to the investigationof the serious charges made in resolution No. 68,
Exhibit 1, and wouldeffect petitioner's ouster as President of the Senate.
This strategy is evidence by the belated appearance of petitioner and his supporters at the session
hall and petitioner's procrastination in opening the session, by taking all his time in reading first the
Tañada and Sanidad resolution, formulating charges against him, and conferring with Senators
Angeles David and Tirona and in not calling to order the members of the Senate before Senator's
Cuenco and Sanidad began urging that the session beopened.
Petitioner's allegation that, even without motion from any member, he could adjourn the session
under the rules of the Senate, is not well taken. There is nothing in the rules of the Senate giving
petitioner such authority. Theprovisions quoted in the petition authorizes the Senate President to
take measures to stop disorder, but that power does not include the one to adjourn.
The circumstances lead us to the conclusion that illegal adjournment and the walk out of the
petitioner and his supporters from the session hall had the purpose of defeating or, at least,
delaying, action on the proposed investigation of the charges against petitioner and of his
impedingouster, by the decisive votes of respondent's group of Senators.
The adjournment decreed by petitioner was arbitrary and illegal.
QUORUM
There is no controversy that at the session in question there were present in the session hall only
twelve Senators, those composing respondent's group, and this fact had been ascertained by the roll
call ordered by President Pro-tempore Arranz, after Senator Mabanag had raised the question
of quorum.
The Constitution provides:
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. (Sec. 10, Sub-sec. 2 Article
VI.)
The majority mentioned in the above provision cannot be other than the majority of the actual
members of the Senate. The words "each House" in the above provision refer to the full membership
of each chamber of Congress.
The Senate was and actually is composed of 24 Senators, and a majority of them cannot be less
than thirteen. Twelve is only half of twenty-four. Nowhere and at no time has one-half even been the
majority. Majority necessarily has to be more than one-half.
We have heard with interest the arguments advanced by respondent's counsel, premised on the fact
that the above constitutional provision does not use the words "of the members" and the theory of
the amicus curiae that themajority mentioned in the Constitution refers only to the majority of the
members who can be reached by coercive processes. There is, however, nothing in said arguments
that can validly change the natural interpretation of theunmistakable wordings of the Constitution.
"Majority of each House" can mean only majority of the members of each House, and the number of
said members cannot be reduced upon any artificial or imaginary basis not authorized by the context
of the Constitution itself or by the sound processes of reason.
For all the foregoing, we conclude that:
1. The legal and constitutional issues raised by the petitioner in this case, notwithstanding their
political nature and implications, are justiciable and within the jurisdiction expressly conferred to the
Supreme Court, which cannot be divested from it by express prohibition of the Constitution. Should
there be analogous controversy between two claimants to the position of the President of the
Philippines, according to the Solicitor General, one of the attorneys for respondent, the Supreme
Court would have jurisdiction to decide the controversy, because it would raise a constitutional
question. Whether there was a quorum or not in the meeting of twelve Senators in whichrespondent
was elected acting President of the Senate, is a question that call for the interpretation, application
and enforcement of an express and specific provision of the Constitution. Should the two absent
Senators comeand attend the session and side with the petitioner's group, it is agreed that the
Senate will be kept at a stand still, because of the deadlock resulting from twelve Senators, each
group supporting petitioner's and respondent's opposing claims to the position of President of the
Senate. Admitting that pressure of public opinion may not break the impasse, it hasbeen suggested
from respondent's side that it may invite revolution. Between the two alternatives, jurisdiction of the
Supreme Court and revolution, there is only one choice possible, and that is the one in consonance
with the Constitution, which is complete enough to offer orderly remedies for any wrong committed
within the framework of democracy it established in this country. Should this Supreme Court refuse
to exercise jurisdiction in this case,such refusal can only be branded as judicial abdication, and such
shirking of official responsibility cannot expect acquittal in the judgment of history. The gravity of the
issues involved in this case, affecting not only the upper branch of Congress, but also the
presidential succession as provided by Republic Act No. 181, is a challenge to our sense of duty
which we should not fail to meet.
2. The adjournment decreed by petitioner of the Monday session, without the authority of the
Senate, was illegal and, therefore, null and void.
3. The rump session held by twelve Senators, the respondent and his supporters, after petitioner
and his nine supporters had walked out from the session hall, had no constitutional quorum to
transact business.
4. The resolution declaring vacant the position of the President of the Senate and choosing
respondent as acting President of the Senate, has been adopted in contravention of the Constitution
for lack of quorum. The fact that respondent has been designated only as acting President of the
Senate, a position not contemplated by the Constitution or by Republic Act No. 181 on presidential
succession, so much so that his position in acting capacity, according to his own counsel, would not
entitle respondent to Succeedto the position of the President of the Philippines, emphasizes the
invalidity of respondent's election.
Notwithstanding the importance of this case, the legal issues involved are very simple, and it would
not be hard to reach a prompt conclusion if we could view the controversies with the attitude of a
mathematician tacklingan algebraic equation. Many considerations which, from the point of view of
laymen, of the press, of public opinion in general and the people at large, may appear of great
importance, such as who will wield the power to control the Senate and whether or not petitioner is
guilty of the serious charges filed against him, are completely alien to the questions that this Court
must answer. The motives and motivations of petitioner and respondent of their respective
supporters in the Senate in taking the moves upon which this case has arisen are their exclusive
business and should not be minded for the purposes of our decision.
The members of the Senate were and are free to depose petitioner and to elect another Senator as
president of the Senate, and their freedom to make such change is subject only to the dictates of
their own conscience and to anyverdict that the people, through the electorate, may render at the
polls, and to the judgment of historians and posterity. But in making such changes of leadership, the
Senate and the Senators are bound to follow the orderlyprocesses set and outlined by the
Constitution and by the rules adopted by the Senate as authorized by the fundamental law. Any step
beyond said legal bounds may create a legal issue which, once submitted to the proper courts of
justice, the latter cannot simply wash their hands and ignore the issue upon the pretext of lack of
jurisdiction, adopting the indifferent attitude of a passerby who does not care whether the lashing of
the wind may causea live wire to ignite a neighboring house.
When a Senator or a number of Senators come to the Supreme Court, complaining that the
President of the Senate has adjourned or is adjourning the daily session of the Senate over and
above objections voiced from thefloor and without obtaining first the approval or consent of the
majority, we cannot close our eyes to the complaint or bury our heads in the sand in ostrich fashion:
Otherwise, we would be disregarding ours sworn duty and,with our abstention or inaction, we would
be printing the stamp of our approval to the existence and continuation of a unipersonal tyranny
imposed upon the upper chamber of Congress, a tyranny that may obstruct and defeat the
functioning and actuations of the Senate and, consequently, of the whole Congress, thus depriving
the country of the benefits of legislation.
When a member of the Senate comes to us complaining that he is being deprived of the powers and
prerogative of the position of President of the Senate, to which he has been duly elected because
twelve Senators, without constituting a quorum, have illegally convened and voted to depose him
and to elect another Senator in his place, he raises a constitutional question of momentous
importance which we should not fail to answer without betraying the official trust reposed on us.
Such complaint constitutes, in effect, an accusation of usurpation of authority by the twelve
Senators, in utter violation of the fundamental law. The situation would demand ready and noother
agency of government can offer that remedy than the Supreme Court itself with whom the complaint
has been filed.
The existence of a quorum in a collective body is an indispensable condition for effective collective
action. Because a society or collective body is composed of separate and independent individual
units, it cannot exist without the moral annectent of proper of organization and can onlyact in
organized form. Every time it has to act, it has to an organic whole, and quorum here is the
organizing element without which the personality of the body cannot exist or be recognized. The
importance of such organizing element has been recognize by the members of our Constitutional
Convention, and that is the reason why they inserted in the Constitution the provision requiring the
existence of quorum for the former National Assembly to transact official business and that
requirement was also imposed by the National Assembly when, amending the Constitution, it voted
itself out ofexistence, to be replaced by a bicameral Congress. The requirement, both in the original
text of the Constitution and in the amendment, had been ratified by the sovereign will of the people.
When we required a majority of a legislative chamber to constitute a quorum we did it for mighty
reasons, such as that democracy is based on the rule of the majority and, to allow a quorum of less
than the majority of the members, one-half of them for example, as in the present controversy, is to
allow the anomalous and anarchic existence of two independent bodies where the Constitution
provides for only one. If the twelve Senators of respondent's group constitute quorum to transact
official business, what willpreclude the twelve remaining Senators from constituting themselves into
a quorum to transact official business? This is not impossible, should Senator Sotto decide to attend
the session, even if carried in a stretcher, and Senator Confesor returns from abroad and sides with
petitioner's group. Then there will be, in effect, two Senate and, according to respondent's theory the
Supreme Court will have no jurisdiction to decide the conflict, and noone decide it except public
opinion or, in its failure, revolution. Such absurd situation and catastrophic result should be avoided:
Lack of jurisdiction is sometimes a refuge behind which weak courts may take shelter when afraid to
displease the powerful.
Instead of disputing the jurisdiction of the Supreme Court in this case, everybody must congratulate
himself because petitioner, instead of resorting to any high-handed mean to enforce his right to
continue holding the positionof the President of the Senate, has come to us for proper redress by the
orderly by the orderly processes of judicial settlement. Notwithstanding the fact that three year ago,
he impugned the jurisdiction of the Supreme Court and won his case on that ground — the injustice
then committedagainst the suspended Senators Vera, Diokno and Romero now being more
generally recognized — petitioner came to this Court to submit his case to our jurisdiction.
The action taken by petitioner in filing his complaint with this Supreme Court is premised on this
sharing the conviction that said Tribunal is the last bulwark of the rights and liberties of the people,
the final arbiter on all constitutional conflicts, and the ultimate redoubt of the majesty of the law. That
conviction and faith should not be betrayed, but rather strengthened, and more imperatively
nowadays when the majesty of the law, the basic tenets of the Constitution, the principles of
humanity springing fromthe golden rule, which is the law of laws, are being the subject of bold
onslaughts from many elements of society, bent on taking justice in their own hands or on imposing
their will through fraud or violence. The malady is widespread enough to imperatively and urgently
demand a more complete respect and faith in the effectiveness of our system of administration of
justice.
For the Supreme Court to renounce its jurisdiction in this case is to disappoint the believers in a
philosophy and social order based on constitutional processes and on legal juridical settlement of all
conflicts that may beset a democracy. It has been said in the hearing of this case that for this Court
to refuse cognizance of it may not have other alternative,if the pressure of public opinion may fail —
and by experience we know that it had suffered many failures — than revolution. This immeasurable
responsibilityof this Supreme Court if it should falter in the performance of its plain duty and should
dispose of this case with the indifference with which a beach vacationist would dismiss a gust of
wind.
The principle of separation of powers, so often invoked, to bind the hands of justice into futility,
should not be understood as absolute. It is an apt rule of the tri-partite division of government as
enunciated by Aristotle and further developed by Montequieu, as the best scheme to put in practice
the system of check and balance considered necessary for a workable democracy. To make
absolute that principle is to open the doors irretrievable absurdity and to create three separate
governments within a government and three independent states within a state. Indeed, it is to avoid
such a teratologiccreature that the Constitutional Convention had not inserted among the principles
embodied in the fundamental law.
Judicial determination of all constitutional or legal controversies is the inherent function of courts.
The Constitution of the United States of America, unlike our own Constitution, is silent a to the power
of courts of justice to nullify an unconstitutional act of Congress. Notwithstanding the silence, when
the proper case arose, the United States Supreme Court, under the wise leadership of Chief Justice
Marshall, had not hesitated in declaring null and void a law enacted in contravention of constitutional
provisions. The Supreme Court of the Republic of the Philippines should not fail to match such and
outstanding evidence of evidence of judicial statesmanship.
To bolster the stand against our assumption of jurisdiction in this case the theory has been
advanced that, the President of the Philippines having recognized respondent as a duly elected
acting President of the Senate, that recognition is final and should bind this Court. The theory
sprouts from the same ideology under which a former king of England tried to order Lord Coke how
the latter should dispose of a pending litigation. Our answer is to paraphrase the great English judge
by saying that nothing should guide us except what in conscience we believe is becoming of our
official functions, disregarding completely what the President of the Philippines may say or feel about
it.
As a matter of fact, two pretenders may dispute the office. As in the present case, Congress may
split into two groups after a presidential election and each group may proclaim a different candidate
as the duly elected Presidentof the Philippines. Because of a mistaken ideas to the scope of the
principle of separation of powers, if the case is brought to us for decision, shall we, as Pontious
Pilate, wash our hands and let the people bleed and be crucifiedin the Calvary of revolution?
There is absolutely no merit in invoking the unfortunate decision in the case of Vera vs. Avelino, (77
Phil., 1.92). No one now would regret more that such a decision had been rendered than petitioner
himself, the very one whowon it upon the pusillanimous judicial theory of lack of jurisdiction. The
more said decision is forgotten, the better, it being one of the blemishes without which the
escutcheon of the post-liberation Supreme Court would be spotless.
We vote to render judgment granting the petition and ordering respondent to relinquish the powers,
prerogative and privileges of the position of the President of the Senate in favor of petitioner who, on
the other side, should be restrained from putting any obstacle or obstruction by illegal adjournments
or otherwise, in the holding of the, regular daily session of the Senate. Said body should be allowed
to continue transacting official business unhampered by any procedure intended to impede the free
expressionof the will of the majority.
BRIONES, M., dissente:
Sin perjuicio de redactar una opinion mas extensa sobre mi voto en ese asunto, me permito
adelantar las siguientes observaciones:
(1) Esta Corte Suprema tiene jurisdiccion sobre el asunto. — Reafirmo la posicion tomada por mi en
los asuntos de Vera contra Avelino (77 Phil., 192) y Mabanag contra Lopez Vito (78 Phil., 1). La
cuestion constitutional y legal aqui debatida no es de caracter puramente politico en el sentido de
que esta Corte deba inhibirse de enjuiciarla, sino que es perfectamente justiciable. Se plantea la
cuestion de si el grupo de senadores que eligio al recurrido como presidente interino del Senado
tenia facultad para hacerlo. Se alega y se sostiene que no existia dicha facultad, puesto que cuando
dicho grupo se reunio no habia un quorum presente de conformidad con los terminos de la
Constitucion y de los reglamentos del Senado. Esta cuestion es justiciable y puede y debe ser
enjuiciada, determinada y resuelta por esta Corte, ya que la parte agraviada ha venido a nosotros
en demanda de remedio. Esta Corte no puede lavarse las manos en un ademan de inhibicion
pilatista; no puede continuar con la politica de esconde-cabeza-en la arena-del-desierto estilo
aveztruz. El issue constitucional y legal discutido es importante, muy importante. Tiene
repercusiones directas y vitalisimas en la vida, libertad y hacienda de los ciudadanos. Es el negocio
supremo de legislar lo que esta en debate. Es, por tanto, una de las esencias de la misma republica
el tema de la controversia. La escaramuza politica es lo de menos; el meollo juridico-constitucional
es lo esencial e importante.
Es tanto mas urgente que esta Corte asuma jurisdiccion sobre el caso cuanto que el conflicto
surgido en el Senado entre los dos grupos politicos en guerra ha cobrado las proporciones de una
tremenda crisis nacional, preñada de graves peligros para la estabilidad de nuestras instituciones
politicas, para el orden publico y para la integridad de la existencia de la nacion.
Tenemos un precedente tipico en la jurisprudencia del Estado de New Jersey, Estados Unidos de
America. Es el caso de Werts vs. Rogers, del año 1894, Atlantic Reporter, Vol. 28, p. 728, N. J. La
analogia es completa. Tambien se disputaban la presidencia del Senado dos Senadores, cada cual
pretendiendo ser al legitimo. Tambien hubo dos facciones, cada cual reclamando ostentar la
genuina representacion popular. Un grupo se llamo "Adrian Senate" y el otro grupo "Rogers
Senate", por los nombres de los presidentes en disputa. Se arguyo igualmente que la Corte
Suprema de New Jersey no podia asumir jurisdiccion sobre el caso por tratarse de una cuestion
eminentemente politica, por tanto no justiciable. La Corte, sin embargo, conocio del caso y, por boca
de su Presidente el eminente jurisconsulto Mr. Beasley, hizo el siguiente categorico
pronunciamiento:
. . . . That this court has the legal right to entertain jurisdiction in this case, displayed by this
record, we have no doubt; and we are further of opinion that it is scarcely possible to
conceive of any crisis in public affairs that would more imperatively than the present one call
for the intervention of such judicial authority. (supra, p. 758.)
Ademas de la justiciabilidad de la materia en controversia, una de las principales razones invocadas

por la Corte Suprema de New Jersey para asumir jurisdiccion sobre el caso fue la extrema
necesidad de resolver un dead lock que paralizaba la maquinaria legislativa, afectaba a la
estabilidad del gobierno y ponia en grave peligro los intereses publicos. Pregunto: no existe la
misma razon de extrema necesidad en el presunto caso? que duda cabe de que el conflicto entre
las dos facciones en nuestro Senado esta afectando seriamente a los intereses publicos? que duda
cabe de que la normalidad constitucional esta rota, con grave preocupacion de todo el mundo y con
grave daño de la tranquilidad publica?
(2) El levantamiento de la sesion ordenado por el presidente Avelino fue ilegal y arbitrario. — Estimo
que el presidente Avelino obro ilegal y arbitrariamente al ordenar el levantamiento de la sesion
frente a la oposicion firme, energica y tenaz de algunos senadores adversos a el. En vista de esta
oposicion, el deber de la Mesa era someter a votacion la mocion de levantamiento de la sesion
presentada por el Senador Angeles David. Avelino no tenia el derecho, por si y ante si, de declarar
levantada la sesion. Solamente cuando no se formula ninguna objection es cuando rutinariamente el
presiding officer puede dar por aprobada una mocion de levantamiento de la sesion. Si la facultad
de levantar la sesion no estuviera sujeta a la expresa voluntad de la mayoria, seria un arma
sumamente peligrosa en manos de un presidente despotico y arbitrario.
La pretension de que el Senador Avelino ordeno el levantamiento de la sesion en uso de sus

facultades inherentes, en vista de que el mismo creia que habia un peligro inminente de desorden y
tumulto en la sala de sesiones, es completamente insostenible. Las circunstancias del caso no
justifican semejante pretension, a tenor de las pruebas obrantes en autos. Lo que debia haber
hecho el Senador Avelino era tratar de apaciguar al publico y prevenir todo conato de desorden.
Tenia medios para hacerlo. No lo hizo. En cambio, dejo la silla presidencial juntamente con los
senadores de su grupo. Esto equivalia a una desercion y los senadores del otro grupo tenian
perfecto derecho a proceder como procedieron, quedandose en el salo para continuar celebrando la
sesion. Esta sesion venia a ser una tacita reconduccion — una simple prolongacion de la sesion
que habia sido declarada abierta por el presidente Avelino con un quorum presente de 22
miembros.
(3) Sin embargo, la sesion prolongada se convirtio en ilegal por falta de quorum. — Es cosa
establecida y admitida por ambas partes que al reanudarse la sesion estaban presentes los 12
miembros del grupo llamado "Senado de Cuenco" mas tres senadores del grupo llamado "Senado
de Avelino". En esta coyuntura el Senador Mabanag, del grupo de Cuenco, suscito la cuestion
del quorum, de cuyas resultas se ordeno por el Senador Arranz, que entonces presidia la sesion, la
lectura de la lista. Tambien es cosa establecida en autos y admitida por ambas partes que al
comenzar el roll call o lectura de la lista, lot tres senadores del grupo de Avelino salieron del salon y
solamente respondieron al roll call los 12 senadores del grupo de Cuenco.
Resulta evidente de estos hechos que no habia quorum, por cuanto que componiendose el Senado
de 24 miembros debidamente elegidos y cualificados, el quorum para celebrar sesion valida debe
ser de 13 miembros. Tanto la jurisprudencia federal como la de los estados de la Union americana
esta repleta de decisiones en las que se ha sentado firmemente la doctrina de que la base para
determinar el quorum legislativo es el numero total de miembros elegidos y debidamente
cualificados de cada camara.1 En el presente caso, como se ha dicho, ese numero total es 24. Por
tanto, el grupo Cuenco no podia seguir celebrando validamente sesion, en vista de la falta
de quorum. De acuerdo con la Constitucion y los reglamentos, el grupo Cuenco tenia ante si dos
caminos para actuar: (a) suspender la sesion de dia en dia hasta obtener el necesario quorum; (b) o
compeler la asistencia de suficientes senadores del otro grupo para constituir dicho quorum,
pudiendo a dicho efecto ordenar inclusive el arresto de los huelguistas. (Constitucion de Filipinas,
art. VI, sec. 10, ap. 2;2 Reglamento del Senado, Cap. VI, arts. 23 y 24.3) Asi que todos los
procedimientos efectuados por el grupo Cuenco en dicha sesion eran nulos e ilegales.
Se ha insinuado que el cambio de fraseologia en el precepto constitucional sobre quorum es

significativo. Efectivamente en el texto original de 1935 se decia lo siguiente: "A majority of all the
Members shall constitute a quorum to do business" . . . , mientras que en el texto enmendado de
1940 se dice: "A majority of each House shall constitute a qurrum to do business" . . . . De esto se
quiere deducir la consecuencia de que esta reforma habra sido por algo, y este algo acaso sea la
posibilidad de una base menor de la totalidad de miembros para determinar la existencia de
un quorum. El argumento, a mi juicio, es insostenible, por no llamarlo futil. Los autores de la
enmienda no han hecho mas que copiar literalmente la fraseologia de la Constitucion federal
americana; y ya hemos visto que esta se ha interpretado en el sentido de que señala, como base
para determinar el quorum, la totalidad de los miembros electos y cualificados de cada camara. Por
tanto, el cambio fraseologico, en vez de denotar cambio en el significado, refuerza el sentido
tradicional de que la base para la determinacion del quorum la totalidad de los miembros electos y
cualificados de cada camara. Aparte de que es elemental en hermeneutica legal que una misma
cosa puede expresarse en terminos diferentes.
Tambien se ha insinuado, con bastante ingenio, que en el caso que nos ocupa, la base mas
racional para el quorum es 23, excluyendo al Senador Confesor que se halla en America, pero
incluyendo al Senador Sotto, que si bien no pudo estar presente en la sesion de autos por estar
gravemente enfermo, hallabase, sin embargo, en Manila susceptible en cualquier momento de ser
llamado por el Senado. El fundamento de esta opinion es que para la determinacion del quorum no
debe ser contado un miembro que esta fuera de la accion coercitiva de la camara. La proposicion es
igualmente inaceptable. No solo no tiene ningun precedente en la jurisprudencia, sino que es
convencional, arbitraria, sometiendo el quorum, que debe ser algo permanente, a ciertas
eventualidades y contingencias. Hay que tener en cuenta que el precepto constitucional y la regla
pertinente no establecen ninguna salvedad. Donde la ley no distingue, no debemos distinguir.
(4) Cual es el remedio. — No cabe duda de que una mayoria de Senadores tiene derecho a
reorganizar el Senado en la forma que les plazca, siempre que ello se sujete a las normas
prescritas por la Constitucion, las leyes y los reglamentos. En el presente caso el grupo Cuenco que
al parecer forma la mayoria, por lo menos hasta la fecha, tiene en sus manos los instrumentos
constitucionales y legales para efectuar una reorganizacion. Puede convocar una sesion y compeler
la asistencia de un numero suficiente de Senadores para formar quorum, ordenando el arresto si
fuese necesario de dichos senadores. Esto en el supuesto de que el Senador Avelino y su grupo
sigan boicoteando las sesiones del Senado para impedir la existencia de un quorum. Pero si el
grupo Avelino acude voluntariamente al Senado, entonces los dos grupos pueden buenamente
restaurar la normalidad constitucional, procediendo a efectuar la reorganizacion que desee y dicte la
mayoria.
Hasta que esto se haga, el Senador Avelino es tecnicamente presidente del Senado. Es verdad que
Avelino cometio una grave arbitrariedad ordenando el levantamiento de la sesion sin derecho y
facultad para ello; pero una arbitrariedad no justifica otra arbitrariedad; la de destituirle por medios
anticonstitucionales, ilegales y antireglamentarios. Los motivos de la accion de Avelino y de la de
sus adversarios no nos interesan para nada ni caen dentro de nuestra provincia; lo unico que nos
concierne son sus repercusiones juridicas.
Es de suma importancia, sobre todo en estos momentos incipientes de la republica, el que

mantengamos rigida e implacablemente la integridad de la Constitucion y de los procedimientos que
prescribe. Solo de esta manera podremos evitar el ciego desbordamiento de las pasiones politicas y
personales, con todas sus funestas consecuencias. A toda costa hay que impedir la formacion de
un clima politico, social o moral que facilite las cuarteladas, los pronunciamientos, los golpes de
mano y de estado (coup d'main, coup d'etat) — eso que caracteriza la historia azarosa de las
llamadas "banana republicas". Un 19 Brumario solamente se puede prevenir imponiendo con todo
rigor, sin blandas transigencias, la observancia de la Constitucion y de las leyes y reglamentos que
la implementan.
Voto, por tanto, en favor de la concesion del recurso interpuesto.
TUASON, J., dissenting:
I agree with Mr. Justice Briones' dissenting opinion, that the twelve senators who elected Senator
Cuenco Acting President of the Senate did not constitute a quorum and, consequently, that his
election was illegal.
It appears tome that the basis for computing a quorum of the Senate is thenumber of senators who
have been elected and duly qualified and who have not ceased to be senators by death or legal
disqualification. If this were not so, what is the standard of computation? No satisfactory, reasonable
alternative has been or can be offered.
Absence abroad cannot be a disqualification unless by such absence, under the Constitution, a
member of the Senate loses his office, emoluments, and other prerogatives, temporarily or
permanently. There is no claim that this happens when a senators' presence at the session be the
criterion, then serious illness or being in a remote island with which Manila has no regular means of
communication should operate to eliminate the sick or absent members from the counting for the
purpose of determining the presence of a majority.
The distinction made between absentees form legislative sessions who are in the Philippines and
absentees who are in a foreign country is, to my arbitrary and unreasonable. From both the
theoretical and the practical by members of Congress are sometimes found necessary to fulfill their
missions. If we test the interpretation by its consequences, its unsoundness and dangers become
more apparent. The interpretation would allow any number of legislators, no matter how small, to
transact business so long as it is a majority of the legislators present in the country. Nothing in my
opinion could have been farther from the minds of the authors of the Constitution than to permit,
under circumstances, less than a majority of the chosen and qualified representatives of the people
to approve measures that might vitally affect their lives, their liberty, happiness and property. The
necessity of arresting absent members to complete a quorum is too insignificant, compared with the
necessity of the attendance of an absolute majority, to make unamenability to arrest a factor for
ruling out absentees who are beyond the legislature's process. The Congress is eminently a law-
making body and is little concerned with jurisdiction over its members. The power to order arrest is
an emergency measure and is rarely resorted to. Viewed in this light, it is doubtful if the authority to
arrest could always afford a satisfactory remedy even in the cases of members who were inside the
Philippines territory. This is especially true in the United States of America, after whose form of
government ours is patterned and whose territorial possession extend to the other side of the globe.
This case is easily distinguishable from Vera vs. Avelino, (77 Phil., 192), and Mabanag vs. Lopez
Vito, (78 Phil., 1).
In those cases the petitions were directed against an action of a recognized Senate exercising
authority within it own domain. Here the process sought is to be issued against an appointee of a
senate that, it is alleged was not validly constituted to do business because, among other reasons
alleged, there was not quorum. The Court is not asked to interfere with an action of a coordinate
branch of the government so much as to test the legality of the appointment of the respondent.
Section 1, Rule 68, of the Rules of Court provides:
An action for usurpation of office of franchise may be brought in the name of the Republic of
the Philippines against:
(a) A person who usurps, intrudes into, or unlawfully holds or exercise a public office, or a
franchise, or an office in a corporation created by authority of law;
xxx xxx xxx
This provision by its terms extends to every office. Its scope does not exclude officers appointed by
the legislative branch of the government. Although this Court has no control over either branch of the
Congress, it does have the power to ascertain whether or not one who pretends to be its officer is
holding his office according to law or the Constitution. Political questions as a bar to jurisdiction can
only be raised by the supreme power, by the legislature, and not by one of its creatures.
(Luther vs. Border, 48 U.S. 7 How. 1, 12 Law ed., 581.) If there were two lesser officers of the
Senate appointed by different faction thereof and contesting each other's right to the office, it would
not be the Senate by the Court which would be called upon to decide the controversy. There is more
reason for the Court to intervene when the office of the President of the Senate is at stake. The
interest of the public are being greatly imperiled by the conflicting claims, and a speedy
determination of the same is imperatively demanded, in the interest of good government and public
order.
Fundamentally this case is analogous to Attorney General, ex rel. Werts vs. Rogers, 23 Lawyers'

Reports, annotated, 354, to which I am indebted for much of the reasoning adduced in this dissent
on the question of this Court's jurisdiction.
March 14, 1949
RESOLUTION
Considering the motion for reconsideration filed by petitioner in case G.R. L-2821, Jose
Avelino vs. Mariano J. Cuenco, the court, without prejudice towriting later an extended opinion, has
resolved, by a majority of seven,to assume jurisdiction over the case in the light of subsequent
events whichjustify its intervention; and, partly for the reasons stated in the first resolution of this
Court and partly upon the grounds stated by Mr. JusticeFeria, Mr. Justice Perfecto, and Mr. Justice
Briones in their separate opinions, to declare that there was a quorum at the session where
respondent Mariano J. Cuenco was elected acting Senate President.
The Chief agrees with the result of the majority's pronouncement of the quorum upon the ground
that, under the peculiar circumstances of the case,the constitutional requirement in that regard has
become a mere formalism,it appearing from the evidence that any new session with
a quorum wouldresult in the respondent's election as Senate President, and that the Cuenco group,
taking cue from the dissenting opinions, has been trying to satisfy such formalism by issuing
compulsory processes against senators of the Avelino group, but to no avail, because of the latter's
persistent effortsto block all avenues to constitutional processes. For this reason, he believethat the
group has done enough to satisfy the requirements of the Constitutionand that the majority's ruling is
in conformity with substantial justice and with the requirements of public interest.
The judgment of the Court is, therefore, that respondent Mariano J. Cuencohas been legally elected
as Senate President and the petition is petition is dismissed, with costs against petitioner.
Mr. Justice Paras concurs in the result, Mr. Justice Bengzon dissents on the question of jurisdiction
but concurs on the question of quorum.
Mr. Justice Tuason concurs on the question of jurisdiction but dissents on that on that of quorum.
Mr. Justice Montemayor dissent s of the question of jurisdiction and reserves his vote on the
question of quorum.
Mr. Justice Reyes reserves the right to express the reasons for his vote.
FERIA, J., concurring:
In the case of Vera et al. vs. Avelino et al., (77 Phil., 192), the principal question raised was whether
this Supreme Court had jurisdiction to set aside the Pendatun resolution ordering that petitioners
Vera, Diokno and Romero shall not be sworn to nor seated as members of the Senate, and compel
the respondents had no power to pass said resolution, because it was contraryto the provisions of
Sec. 11, Article VI, of the Constitution, which createdthe Electoral Tribunal for the Senate as well as
for the House of Representative, and provided that said Tribunal shall be judge of all contestsrelating
to the election returns and qualifications of their respective members. Respondent Avelino et al.,
who were represented by Senator Vicente Francisco and the Solicitor General, impugned the
jurisdiction of this Court to take this Court to take cognizance of said case on the ground that the
question therein involved was a political question, and petitioners Veraet al., who were represented
by Attorney Jose W. Diokno, who is now oneof the attorneys for respondents, who now contends
that this Supreme Court has no jurisdiction over the present case, then maintained that this Court
had jurisdiction.
And in the case of Mabanag et al. vs. Jose Lopez Vito et al., 78 Phil., 1, the question involved was
whether it was within the jurisdiction of this Court to take cognizance of the case and prohibit the
respondents from enforcing the "Congressional Resolution of both Houses proposing an amendment
to the Philippines to be appended as an ordinance there", grantingcertain rights to the citizens of the
United states of American in the Philippines, on the ground that it was null and void because it was
not passedby the vote of three-fourths of the members of the Senate and House of Representatives,
voting separately, as required by Sec. 1, Art. XV, of the Constitution, since if the Members of
Congress who were not allowed to take part had been counted, the affirmative votes in favor of the
proposed amendment would have been short of the necessary three-fourths vote in either branch of
Congress. Petitioners Mabanag et al. contended that the Court had jurisdiction and the respondents
maintained the contrary on the ground that the question involved was apolitical one and within the
exclusive province of the Legislature.
The theory of Separation of Powers as evolved by the Courts of last resortfrom the State
Constitution of the United States of American, after which our owns is patterned, has given rise to
the distinction between justiceable question which fall within the province of the judiciary, and
politicalquestions which are not within the jurisdiction of the judiciary and are to be decided, under
the Constitution, 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, except to the
extent that the power to deal with such question has been conferred upon the court byexpress or
statutory provision. Although it is difficult to define a politicalquestion as contradistinguished from a
justiceable one, it has been generally held that the first involves political rights which consist in the
power to participate, directly or indirectly, in the establishment or managementof the government of
the government, while justiceable questions are those which affect civil, personal or property rights
accorded to every member of the community or nation.
Under such theory of Separation of Power, the judicial Supremacy is the power of judicial review in
actual and appropriate case and controversies that present justiceable issues, which fall within the
jurisdiction or power allocated to the judiciary; but when the issue is a political one which
comeswithin the exclusive sphere of the legislative or executive department of the Government to
decide, the judicial department or Supreme Court has no powerto determine whether or not the act
of the Legislative or Chief Executiveis against the Constitution. What determines the jurisdiction of
thecourts is the issue involved, and not the law or constitutional provisionwhich may be applied.
Divorced from the remedy sought, the declaration of this Court on the matter of constitutionality or
unconstitutionality of alegislative or executive act, would be a mere advisory opinion, without a
coercive force.
Relying on the ruling laid down in Severino vs. Governor General, 16 Phil.,336; Abueno vs. Wood,
45 Phil., 612; and Alejandrino vs. Quezon, 46 Phil., 83, the Supreme Court upheld the contention of
said respondent in both casesthat the question involved was a political question and therefore this
Court had no jurisdiction. I was one of the three Justice who held that this Courthad jurisdiction, and
dissented from the decision of the majority.
When the present case was first submitted to us, I concurred with the majority, in view of the ruling
of the Court in said two cases, which constitutes a precedent which is applicable a fortiori to the
present case and must, therefore, be followed by the virtue of the doctrine or maxim of stare decisis,
and in order to escape the criticism voiced by Lord Bryce inAmerican Commonwealth when he said
that "The Supreme Court has changed its color i.e., its temper and tendencies, from time to time
according to the political proclivities of the men who composed it. . . . Their action flowed naturally
from the habits of though they had formed before their accession to the bench and from the
sympathy they could not but feel for the doctrineon whose behalf they had contended." (The
ANNALS of the American Academyof Political and Social Science, May, 1936, p. 50).
Now that the petitioner, who obtained a ruling favorable to his contention in the Vera-Avelino
case, supra, insist in his motion for reconsideration that this Court assume jurisdiction and decide
whether or not there was quorum in session of the Senate of February 21, 1949, and is willing to
abide by the decision of this Court (notwithstanding the aforementioned precedent),and several of
the Justices, who have held before that this Supreme Courthad no jurisdiction, now uphold the
jurisdiction of this Court, I gladly change my vote and concur with the majority in that this Court has
jurisdiction over cases like the present in accordance with my stand inthe above mentioned cases,
so as to establish in this country the judicial supremacy, with the Supreme Court as the final arbiter,
to see that no one branch or agency of the government transcends the Constitution, not only in
justiceable but political questions as well.
But I maintain my opinion and vote in the resolution sought to be reconsidered,that there was
a quorum in the session of the Senate of Senate of February 21,1949, for the following reasons:
Art. 3 (4) Title VI of the Constitution of 1935 provided that "the majority of all the members of the
National Assembly constitute a quorum to do business" and the fact that said provision was
amended in the Constitution of 1939,so as to read "a majority of each House shall constitute
a quorum to do business," shows the intention of the framers of the Constitution to basethe majority,
not on the number fixed or provided for the Constitution,but on actual members or incumbents, and
this must be limited to actual members who are not incapacitated to discharge their duties by reason
of death, incapacity, or absence from the jurisdiction of the house or forother causes which make
attendance of the member concerned impossible, eventhrough coercive process which each house
is empowered to issue to compel itsmembers to attend the session in order to constitute a quorum.
That the amendment was intentional or made for some purpose, and not a mere oversight,or for
considering the use of the words "of all the members" as unnecessary, is evidenced by the fact that
Sec. 5 (5) Title VI of the original Constitution which required "concurrence of two-thirds of the
members of the National Assembly to expel a member" was amended by Sec. 10 (3) Article VI of the
present Constitutional, so as to require "the concurrence of two-thirds of all the members of each
House". Therefore, as Senator Confesor was in the United States and absent from the jurisdiction of
the Senate, the actual members of the SEnate at its session of February 21, 1949, were twenty-
three (23) and therefore 12 constituted a majority.
This conclusion is in consonance with the legislative and judicial precedent. In the Resolution of both
Houses proposing an amendment of the Constitution of the Philippines to be appended to the
Constitution, granting parity rightto American citizen in the Philippines out of which the case
of Mabanag vs. Lopez, supra arose, both Houses of Congress in computing the three-fourths of all
the members of the Senate and the House of Representative votingseparately, required by Sec. 1,
Article XV of the Constitution, the three-fourths of all the members was based, not on the number
fixed or provided for in the Constitution, but on the actual members who have qualifiedor were not
disqualified. And in the case of People vs. Fuentes, 46 Phil., 22the provision of Sec. 1, subsection 2,
of Act No. 3104, which requiredunanimity of vote of the Supreme Court in imposing death excepted
from the court those members of the Court who were legally disqualified from the case, this Court
held that the absence of the Chief Justice Avanceña, authorized by resolution of the Court, was a
legal disqualification, and his vote was not necessary in the determination of the unanimity of the
decision imposing death penalty.
PABLO, J., concurrente:
Aungue los Sres. Magistrados Paras, Feria, Bengzon y yo, sosteniamos que este Tribunal no tenia
jurisdiccion sobre el asunto porque era de naturaleza eminentemente politico, emitimos, sin
embargo, nuestra opinion de que los doce senadores constituian quorum legal para tomar
resoluciones. Desde luego, la opinion no surtio el efecto deseado. La huelga en el Senado continua.
Los recientes acontecimientos pueden trascender a peores, con sus inevitables repercusiones
dentro y fuera del pais. Cuando las pasiones politicas no van por el cauce de la prudencia pueden
desbordase y causar fatales consecuencias. Es un sano estadismo judicial evirtarlo y, si es
necesario, impedirlo.
El recurrente pide que se reconsideresa nuestra dividida opinion. alegando que las divisiones civiles
en varias naciones han producido sangrientes luchas fratricidas. Si no tuviera en cuenta mas que la
solitud original y los hechos probados, la mocion de reconsideracion debe ser denegada en cuanto
a mi voto sobre la falta de jurisdiccion. La jurisdiccion no se confiere por la simple solicitud de una
parte, ni por la anuencia de amas, sino por la ley o por la Constitucion.
La apelacion del recurrente de que este Tribunal asuma jurisdiccion para evitar derramamiento de
sangre llega al corazon. Como magistrado, no deben importante las consecuencias; pero como
ciudadano, me duele ver una lucha enconada entre dos grupos en el Senado sin fin practico. Al
pueblo interesa que la Legislatura reanude su funcionamiento normal. Fuerza es transigir, pues,
para que haya seis votos que sostengan que este Tribunal tiene jurisdiccion. Si insisto en mi opinion
anterior, fracasara todo esfuerzo de reajustre de nuestras opiniones para dar fin a la crisis en el
Senado.
El Sr. Presidente del Tribunal y los Sres. Magistrados Perfecto y briones opinian hoy que
hubo quorum en la continuacion de la sesion despues de la marcha del Senador Avelino y
compañeros. Con ellos, ya hay siete votos que sostienen que las resoluciones votadas por los doce
senadores son legales y validas. pero para dar fuerza legal a esta conclusion, es indispensable que
el tribunal la declare con jurisdiccion. Contribuyo mi grando de arena a la feliz conclusion de un
conflicto que esta minando el interes publico: voto hoy por que el Tribunal asuma jurisdiccion para
dar fuerza a mi opinion anterior de que los doce senadores formaban quorum.
De be denegarse la mocion de reconsideracion.
PERFECTO, J., concurring:
The problem of democracy must be faced not in the abstract but as practical question, as part of the
infinitely motley aspects of human life. They cannot be considered as scientific propositions or
hypothesis independently from the actual workings of the unpredictable flights of the spirit which
seen to elude the known laws of the external world. Experience appears to be the only reliable guide
in judging human conduct. Birth and death rates and incidence of illness are complied in statistics for
the study and determination of human behavior, and statistics are one of the means by which the
teaching may render their quota of contribution in finding the courses leading to the individual well-
being and collective happiness.
The way this case has been disposed of by the Supreme Court, upon the evidence coming from
many quarters and sectors, is provenly far from being conducive to democratic eudaemonia. We
intended to settle the controversy between petitioner and respondent, but actually we left hanging in
the air the important and, indeed, vital questions. They posed before us in quest of enlightenment
and reasonable and just in a quandary.
We can take judicial notice that legislative work has been at a standstill; the normal and ordinary
functioning of the Senate has been hampered by the non-attendance to sessions of about one-half
of the members; warrants of arrest have been issued, openly defied, and remained unexecuted like
mere scraps of paper, notwithstanding the fact that the persons to be arrested are prominent
persons with well-known addresses and residences and have been in daily contact with news
reporters and photographers. Farce and mockery have been interspersed with actions and
movements provoking conflicts which invite bloodshed.
It is highly complimentary to our Republic and to our people that, notwithstanding the overflow of
political passions and the irreconcilable attitude of warring factions, enough self-restraint has been
shown to avoid any clash of forces. Indeed there is no denying that the situation, as abstaining in the
upper chamber of congress, is highly explosive. It had echoed in the House of the Representatives.
It has already involved in the House of the Representatives. It has already involved the President of
the Philippines. The situation has created a veritable national crisis, and it is apparent that solution
cannot be expected from any quarter other then this Supreme Court, upon which the quarter other
than this Supreme Court, upon which the hopes of the people for an effective settlement are pinned.
The Avelino group, composed of eleven senators almost one-half of the entire body, are unanimous
in belief that this Court should take jurisdiction of the matter and decide the merits of the case one
way or another, and they are committed to abide by the decision regardless of whether they believe
it to be right or mistaken. Among the members of the so-called Cuenco group, there are several
Senators who in not remote past (see Vera vs. Avelino, 77 Phil., 192 and Mabanag vs. Lopez Vito,
78 Phil., 1) have shown their conviction that in cases analogous to the present the Supreme Court
has and should exercise jurisdiction. If we include the former attitude of the senator who is at present
abroad, we will find out that they are in all eighteen (18) senators who at one time or another
recognized the jurisdiction of the Supreme Court for the settlement of such momentous
controversies as the one now challenging our judicial statesmanship, our patriotism, our faith in
democracy, the role of this Court as the last bulwark of the Constitution.
In the House of Representatives unmistakable statements have been made supporting the stand of
the eighteen (18) senators, or of three-fourths (3/4) of the entire Upper Chamber, in support of the
jurisdiction of the Supreme Court and of the contention that we should decide this case on the
merits.
Judicial "hands-off" policy is, in effect, a showing of official inferiority complex. Consequently like its
parallel in the psychological field, it is premised on notions of reality fundamentally wrong. It is an
upshot of distorted past experience, warping the mind so as to become unable to have a healthy
appraisal of reality in its true form.
It is futile to invoke precedents in support of such an abnormal judicial abdication. The decision in
the Alejandrino vs. Quezon, 46 Phil., 83, is absolutely devoid of any authority. It was rendered by a
colonial Supreme Court to suit the imperialistic policies of the masters. That explains its glaring
inconsistencies.
Also frivolous is to invoke the decision in Vera vs. Avelino, (77 Phil., 192), and Mabanag vs. Lopez
Vito, (78 Phil., 1), both patterned after the colonial philosophy pervading the decision in
Alejandrino vs. Quezon, (46 Phil., 83.) Judicial emancipation must not lag behind the political
emancipation of our Republic. The judiciary ought to ripen into maturityif it has to be true to its role
as spokesman of the collective conscience, of the conscience of humanity.
For the Supreme Court to refuse to assume jurisdiction in the case is toviolate the Constitution.
Refusal to exercise the judicial power vested in it is to transgress the fundamental law. This case
raises vital constitutionalquestions which no one can settle or decide if this Court should refuse to
decide them. It would be the saddest commentary to the wisdom, foresight and statesmanship of our
Constitutional Convention to have drafted a document leaving such a glaring hiatus in the
organization of Philippine democracy ifit failed to entrusted to the Supreme Court the authority to
decide such constitutional questions.
Our refusal to exercise jurisdiction in this case is as unjustifiable as the refusal of senators on strike
to attend the sessions of the Senate and toperform their duties. A senatorial walkout defeats the
legislative powervested by the Constitution in Congress. Judicial walkouts are even more harmful
than a laborers' strike or a legislative impasse. Society may go on normally while laborers
temporarily stop to work. Society may not be disrupted by delay in the legislative machinery. But
society is menaced with dissolution in the absence of an effective administration of justice. Anarchy
and chaos are its alternatives.
There is nothing so subversive as official abdication or walkout by the highest organs and officers of
government. If they should fail to perform their functions and duties, what is the use for minor
officials and employeesto perform theirs? The constitutional question of quorum should not be
leftunanswered.
Respondent's theory that twelve (12) senators constitute the majority requiredfor the
Senate quorum is absolutely unacceptable. The verbal changes made in the constitutional
amendment, upon the creation of Congress to replace the National Assembly, have not affected the
substance of the constitutional concept of quorum in both the original and amended contexts. The
words "all the members" used in the original, for the determination of the quorum of the National
Assembly, have been eliminated in the amendment, as regards the house of Congress, because
they were a mere surplusage. The writer of this opinion, as Member of the Second National
Assembly and in his capacity as Chairman of the Committee on Third Reading, was the one who
proposed the elimination of said surplusage, because "majority of each House" can mean only the
majority of the members thereof, without excluding anyone, that is, of all the members.
The word majority is a mathematical word. It has, as such, a precise and exactmathematical
meaning. A majority means more than one-half (½). It can neverbe identified with one-half (½) or
less than one-half (½). It involved acomparative idea in which the antithesis between more and less
is etched in the background of reality as a metaphysical absolute as much as the antithesis of all
opposites, and in the same way that the affirmative cannot be confused with the negative, the
creation with nothingness, existence withnon-existence, truth with falsehood.
The Senate is composed of twelve four (24) senators. The majority of said senators cannot be less
than thirteen (13). Twelve (12) do not constitute the majority in a group composed of twelve four (24)
units. This is so evident that is not necessary to have the mathematical genius of Pythagoras, Euclid,
Newton and Pascal to see it. Any elementary school student may immediately perceive it.
No amount of mental gymnastic or juristic logodaedaly will convince anyone that one of the two
equal number constitute a majority part of the two numbers combined. The five (5) fingers of one
hand cannot be the majorityof the combined ten (10) fingers of the two hands. Majority is
incompatiblewith equality. It implies the idea of superiority.
Majority is a derivative of major which, in its turn, is a derivative of the Latin "magnus," meaning
great. Majority means the greater of two numbers that are regarded as part of a total: the number
greater than half. It implies a whole of which constitute the greater part or portion. It presupposes the
existence of a total and, in the present case, the total number of twelve four (24) senators
composing the Senate.
The above pronouncements notwithstanding, we are now inclined to conclude that for the purpose of
choosing respondent merely as Acting of the Senate, asan emergency measure to fill the vacuum
created by petitioner's desertion of the office of presiding officer by his walked in the session of
February 21, 1949, the presence of the twelve (12) senators was enough quorum.
The Constitution provides:
(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. (Sec. 10, Article VI.)
The "smaller number" referred to in the above provision has to act collectively and cannot act as
collective body to perform the function specially vested in it by the Constitution unless presided by
one among theirnumber. The collective body constituted by said "smaller number" has to take
measure to "compel the attendance of absent member in such manner and underpenalties as such
House may provide," so as to avoid disruption in the functions of the respective legislative chamber.
Said "smaller number" maybe twelve or even less than twelve senators to constitute a quorum for
the election of a temporary or acting president, who will have to act until normalcy is restored.
As events have developed after the decision in this case has been rendered on March 4, 1949, the
picture of the petitioner's attitude has acquired clearerand more definite form, and that picture brings
us to the conclusion that thiscase turned into a moot one.
At the hearing of this case for the reception of evidence before Mr. Justice Bengzon, Senator
Mariano J. Cuenco, the respondent, on cross-examination bySenator Vicente J. Francisco, counsel
for petitioner, manifested that he waslooking for an opportunity to renounce the position of Acting
President of the Senate, and that if Senator Jose Avelino, the petitioner, should attend the sessions.
He would only make of record his protest, and never resort to force or violence to stop petitioner
from presiding over said sessions.
The last statement as to allowing petitioner to preside over the sessions was made by respondent
under oath twice, and petitioner, although he refused to attend the hearing of this case, so much so
that, instead of testifying, he just signed an affidavit which, under the rules of procedure, is
inadmissible as incompetent and is as valueless as an empty gesture, could not fail to learn about
respondent's testimony, because it was given publicity, it is recorded in the transcript, and
petitioner's counsel, Senator Francisco, would certainly not have failed to inform him about it.
Notwithstanding respondent's testimony, petitioner failed to take advantage of it and continues to

refuse to attend the sessions of the Senate since he and his group of senators have walked out from
the historic Monday session of February 21, 1949.
If petitioner is sincere in his desire of presiding over the sessions of the Senate, for which reason he
has sought the help of the Supreme Court, why has he failed to take advantage of the commitment
made under oath by respondent since February 26, 1949? Why has he, since then, been not only
failing but refusing to attend the sessions and preside over them? Why is it that petitioner and his
group of Senators have given occasion, in fact, compelled the senators of the Cuenco group to issue
warrants of arrest to remedy the lack of quorum that has been hampering the sessions of the
Senate? Why is it that the Senate sergeant-at-arms, his subordinates and the peace officers helping
him, have to be hunting for the senators of the Avelino group in a, so far, fruitless if not farcical
endeavor to compel them to attend the sessions?
The events that have been unfolding before our eyes, played up everyday in screaming headlines in
all newspapers and of which, by their very nature, we cannot fail to take judicial notice, considered,
weighed and analyzed in relation with the happenings in the Friday and Monday sessions, February
18 and 21, 1949, have driven into our mind the conviction that, powers and prestige which command
the position of President of the Senate, he actually has no earnest desire to preside over the
sessions of the Senate, the most characteristic and important function of President of the Senate.
His refusal to attend the sessions, notwithstanding respondent's commitment to allow him to preside
over them, can and should logically be interpreted as an abandonment which entails forfeiture of
office. (Santiago vs. Agustin, 46 Phil., 14; Ortiz vs. De Guzman, 49 Phil., 371; 46 Corpus Juris p.
980-981; Wilkinson vs. City of Birmingham, 68 So. 999; 43 American Jurisprudence p. 27).
What are petitioner's reasons for refusing to attend the Senate sessions? What are his group's
reason? They say that they want a square decision on the merits of this case, for which reason the
motion for reconsideration has been filed. Although we believe that the Supreme majority vote, to
exercise jurisdiction in this case, and the inconsistency in the position taken by some Members of
the majority has only increased public bewilderment, stronger reasons for petitioner and his group to
sabotage the sessions of the Senate.
If this Court had decided this case as the four dissenters would have it, there cannot be any doubt
that the Senate impasse would have been settled many days ago and, with it, the present national
crisis hampering and armstringing the legislative machinery. .
The gravity of the situation cannot be gainsaid. The showings of open defiance to warrants of arrest
are highly demoralizing. People are asking and wondering if senators are placed above the law that
they can simply ignore warrants of arrest and despite the authority of the officers entrusted with the
execution. Threats of violence pervade the air. Congress is neglecting the public interests that
demand remedial legislation. The present state of confusion, of alarm, of bewilderment, of strife
would have ended if, for the reasons we have stated in our dissenting opinion, the Supreme Court
would have ordered petitioner's reposition.
Once petitioner had been recognized to continue to be the President of the Senate, he would
certainly have attended the Senate sessions to preside over them. Then the sessions with senators
of the Avelino group attending, would have been held with the constitutional quorum. The twelve
senators of the Cuenco group would have the opportunity of voting solidly to ratify or to reenact all
the disputed actuations of the rump session of February 21, 1949, and there is no doubt that they
would have succeeded in ousting petitioner and electing respondent to the position of President of
the Senate.
Everything then would have followed the normal course. With the presence of a clear and
unquestionable quorum, petitioner and his followers would have no ground for any complaint, and
respondent could have assumed the Senate's presidency without any hitch.
Of course, petitioner and the senators of his group might have resorted again to the same strategy,
by quorum the rump session of February 21, 1949, but it is not probable that they would have taken
the same course of action after this Court, almost unanimously declared that petitioner's action in
adjourning the session of February 21, 1949, was arbitrary and illegal. At any rate, the Senators of
the Cuenco group would have been by then well prepared to have orders of arrest ready for
immediate execution before the striking senators could leave the building housing the session hall.
The abnormal situation in the Senate must be stopped at once. Legislation must go on. The serious
charges filed or may be filed against petitioner, respondent and other senators demand imperatively
investigation and action to acquit the innocent and to punish the guilty ones. Public interest cannot
demand less.
Under such circumstances, petitioner has lost all title to claim the position in controversy. This result
will not legally or practically close any door for him to again seek the position by attending the
sessions of the Senate and by securing a majority that would support him in his bid.
The motion for reconsideration should be denied.

Pimentel v. HRET, 393 SCRA 227 (2002)
G.R. No. 141489 November 29, 2002
SENATOR AQUILINO Q. PIMENTEL, JR., REPRESENTATIVES MELVYN D. EBALLE,

LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and
PATRICIA M. SARENAS, petitioners,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, JUSTICES JOSE A.R. MELO,
VICENTE V. MENDOZA and JOSE C. VITUG, and REPRESENTATIVES ASANI S. TAMMANG,
RAUL M. GONZALES, DIDAGEN P. DILANGALEN, DANTON Q. BUESER,1 NAPOLEON R.
BERATIO, SIMEON E. GARCIA and SPEAKER MANUEL B. VILLAR, JR., respondents.
-----------------------------
G.R. No. 141490 November 29, 2002
SENATOR AQUILINO Q. PIMENTEL, JR. REPRESENTATIVES MELVYN D. EBALLE,

LEONARDO Q. MONTEMAYOR, CRESENTE C. PAEZ, LORETTA ANN P. ROSALES and
PATRICIA M. SARENAS, petitioners,
vs.
COMMISSION ON APPOINTMENTS, its Chair, SENATE PRESIDENT BLAS F. OPLE, and
Members, namely: SENATORS FRANKLIN M. DRILON, RENATO L. CAYETANO, LOREN
LEGARDA-LEVISTE, ROBERT Z. BARBERS, ANNA DOMINIQUE M.L. COSETENG, GREGORIO
HONASAN, RAMON B. MAGSAYSAY, JR., TERESA AQUINO-ORETA, RAUL S. ROCO,
FRANCISCO S. TATAD, VICENTE C. SOTTO III and REPRESENTATIVES LUIS A. ASISTIO,
EMILIO R. ESPINOSA, JR., WIGBERTO E. TAÑADA, MANUEL M. GARCIA, SIMEON A.
DATUMANONG, ANTONIO M. DIAZ, FAUSTINO S. DY, JR., PACIFICO M. FAJARDO, ERNESTO
F. HERRERA, NUR G. JAAFAR, CARLOS M. PADILLA, ROGELIO M. SARMIENTO and
SPEAKER MANUEL B. VILLAR, JR., respondents.
DECISION
CARPIO, J.:
The Case
Before this Court are two original petitions for prohibition and mandamus with prayer for writ of
preliminary injunction. Petitioners assail the composition of the House of Representatives Electoral
Tribunal ("HRET" for brevity)2 and the Commission on Appointments ("CA" for brevity).3 Petitioners
pray that respondents be ordered to "alter, reorganize, reconstitute and reconfigure" the composition
of the HRET and the CA to include party-list representatives in accordance with Sections 17 and 18,
Article VI of the 1987 Constitution and Republic Act No. 7941, otherwise known as the Party-List
System Act. Petitioners further pray that the HRET and the CA be enjoined from exercising their
functions until they have been reorganized.
Antecedent Facts
Section 5, Article VI of the 1987 Constitution provides for a party-list system in the House of
Representatives ("House" for brevity), as follows:
"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.
(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."
On March 3, 1995, the Party-List System Act took effect. The Act sought to "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." 4
On May 11, 1998, in accordance with the Party-List System Act, national elections were held which
included, for the first time, the election through popular vote of party-list groups and organizations
whose nominees would become members of the House. Proclaimed winners were 14 party-list
representatives from 13 organizations, including petitioners from party-list groups Association of
Philippine Electric Cooperatives5 (APEC), Alyansang Bayanihan ng mga Magsasaka,
Manggagawang Bukid at Mangingisda (ABA), NATCO Network Party (COOP-NATCCO), Akbayan!
Citizens Action Party (AKBAYAN), and Abanse! Pinay (ABANSE). Due to the votes it garnered,
APEC was able to send 2 representatives to the House, while the 12 other party-list groups had one
representative each. Also elected were district representatives belonging to various political parties.
Subsequently, the House constituted its HRET and CA contingent 6 by electing its representatives to
these two constitutional bodies. In practice, the procedure involves the nomination by the political
parties of House members who are to occupy seats in the HRET and the CA. 7 From available
records, it does not appear that after the May 11, 1998 elections the party-list groups in the House
nominated any of their representatives to the HRET or the CA. As of the date of filing of the instant
petitions, the House contingents to the HRET and the CA were composed solely of district
representatives belonging to the different political parties.
On January 18, 2000, Senator Aquilino Q. Pimentel, Jr. wrote two letters addressed to then Senate
President Blas F. Ople,8 as Chairman of the CA, and to Associate Justice of the Supreme Court Jose
A. R. Melo (now retired),9 as Chairman of the HRET. The letters requested Senate President Ople
and Justice Melo to cause the restructuring of the CA and the HRET, respectively, to include party-
list representatives to conform to Sections 17 and 18, Article VI of the 1987 Constitution.
In its meeting of January 20, 2000, the HRET resolved to direct the Secretary of the Tribunal to refer
Senator Pimentel’s letter to the Secretary-General of the House of Representatives. 10 On the same
day, HRET Secretary Daisy B. Panga-Vega, in an Indorsement 11 of even date, referred the letter to
House of Representatives Secretary General Roberto P. Nazareno.
On February 2, 2000, petitioners filed with this Court their Petitions for Prohibition, Mandamus and
Preliminary Injunction (with Prayer for Temporary Restraining Order) against the HRET, its
Chairman and Members,12 and against the CA, its Chairman and Members.13 Petitioners contend
that, under the Constitution and the Party-List System Act, party-list representatives should have 1.2
or at least 1 seat in the HRET,14 and 2.4 seats in the CA.15 Petitioners charge that respondents
committed grave abuse of discretion in refusing to act positively on the letter of Senator Pimentel. In
its Resolution of February 8, 2000, 16 the Court en banc directed the consolidation of G.R. No.
141490 with G.R. No. 141489.
On February 11, 2000, petitioners filed in both cases a motion 17 to amend their petitions to implead
then Speaker Manuel B. Villar, Jr. as an additional respondent, in his capacity as Speaker of the
House and as one of the members of the CA. The Court granted both motions and admitted the
amended petitions.
Senator Pimentel filed the instant petitions on the strength of his oath to protect, defend and uphold
the Constitution and in his capacity as taxpayer ‘and as a member of the CA. He was joined by 5
party-list representatives from APEC, ABA, ABANSE, AKBAYAN and COOP-NATCCO as co-
petitioners.
Petitioners cite as basis Sections 17 and 18, Article VI of the 1987 Constitution, to wit:
"Sec. 17. The Senate and the House of Representatives shall each have an Electoral Tribunal which
shall be the sole judge of all contests relating to the election, returns and qualifications of their
respective Members. Each Electoral Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the remaining six
shall be Members of the Senate or the House of Representatives, as the case may be, who shall be
chosen on the basis of proportional representation from the political parties and the parties or
organizations registered under the party-list system represented therein. The senior Justice in the
Electoral Tribunal shall be its Chairman."
"Sec. 18. There shall be a Commission on Appointments consisting of the President of the Senate,
as ex officio Chairman, twelve Senators and twelve Members of the House of Representatives,
elected by each House on the basis of proportional representation from the political parties and
parties or organizations registered under the party-list system represented therein. The Chairman of
the Commission shall not vote, except in case of a tie. The Commission shall act on all appointments
submitted to it within thirty session days of the Congress from their submission. The Commission
shall rule by a majority vote of all the Members,"18 (Emphasis supplied)
Petitioners also invoke the following provision of Section 11 of Republic Act No. 7941:
"Sec. 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. xxx"19
According to the Solicitor General’s Consolidated Comment, 20 at the time petitioners filed the instant
petitions the House had 220 members, 14 of whom were party-list representatives, constituting
6.3636% of the House. Of the remaining 206 district representatives affiliated with different political
parties, 151 belonged to LAMP (68.6354%), 36 belonged to LAKAS (16.3636%), 13 to the Liberal
Party (5.9090%), 1 member (0.4545%) each to KBL, PDRLM, Aksyon Demokratiko, Reporma and
PROMDI, and 1 representative was an independent.
In their Reply to Consolidated Comment, 21 petitioners alleged that, following the Solicitor General’s
computation, the LP and LAKAS were over-represented in the HRET and the CA. Petitioners
particularly assail the presence of one LP representative each in the HRET and the CA, and
maintain that the LP representatives should be ousted and replaced with nominees of the 14 party-
list representatives.
The Issues
Petitioners raise the following issues:
1. WHETHER THE PRESENT COMPOSITION OF THE HOUSE ELECTORAL TRIBUNAL

VIOLATES THE CONSTITUTIONAL REQUIREMENT OF PROPORTIONAL
REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST REPRESENTATIVES IN
THE HRET.
2. WHETHER THE PRESENT MEMBERSHIP OF THE HOUSE IN THE COMMISSION ON

APPOINTMENTS VIOLATES THE CONSTITUTIONAL REQUIREMENT OF
PROPORTIONAL REPRESENTATION BECAUSE THERE ARE NO PARTY-LIST
REPRESENTATIVES IN THE CA.
3. WHETHER THE REFUSAL OF THE HRET AND THE CA TO RECONSTITUTE

THEMSELVES TO INCLUDE PARTY-LIST REPRESENTATIVES CONSTITUTES GRAVE
ABUSE OF DISCRETION.
On the other hand, the Solicitor General argues that the instant petitions are procedurally defective
and substantially lacking in merit for having been filed’ prematurely, thus:
"It is a generally accepted principle that the averments in the pleading determine the existence of a
cause of action. In the instant petitions, petitioners failed to aver that they or any one of them was
elected by a party or organization registered under the party-list system as a Member of the HRET
or CA to represent said party or organization under the party-list system of the House of
Representatives."22
The Ruling of the Court
Petitioners urge the Court to rule on the issues raised in the petitions under review, citing the
following pronouncement in Guingona Jr. v. Gonzales :23
"Where constitutional issues are properly raised in the context of the alleged facts, procedural
questions acquire a relatively minor significance, and the transcendental importance to the public of
the case demands that they be settled promptly and definitely brushing aside xxx technicalities of
procedure."
Petitioners’ reliance on Guingona, Jr. v. Gonzales is misplaced. The "procedural questions" that
petitioners want the Court to brush aside are not mere technicalities but substantive matters that are
specifically provided for in the constitutional provisions cited by petitioners.
The Constitution expressly grants to the House of Representatives the prerogative, within
constitutionally defined limits, to choose from among its district and party-list representatives those
who may occupy the seats allotted to the House in the HRET and the CA. Section 18, Article VI of
the Constitution24 explicitly confers on the Senate and on the House the authority to elect among
their members those who would fill the 12 seats for Senators and 12 seats for House members in
the Commission on Appointments. Under Section 17, Article VI of the Constitution, 25 each chamber
of Congress exercises the power to choose, within constitutionally defined limits, who among their
members would occupy the allotted 6 seats of each chamber’s respective electoral tribunal.
These constitutional provisions are reiterated in Rules 3 and 4 (a) of the 1998 Rules of the House of
Representatives Electoral Tribunal, to wit:
"Rule 3. Composition. - The Tribunal shall be composed of nine Members, three of whom
shall be Justices of the Supreme Court to be designated by the Chief Justice, and the
remaining six shall be Members of the House of Representatives who shall be chosen on the
basis of proportional representation from the political parties and the parties or organizations
registered under the party-list system represented therein. The Senior Justice in the Tribunal
shall be its Chairman.
Rule 4. Organization. - (a) Upon the designation of the Justices of the Supreme Court and
the election of the Members of the House of Representatives who are to compose the House
of Representatives Electoral Tribunal pursuant to Sections 17 and 19 of Article VI of the
Constitution, the Tribunal shall meet for its organization and adoption of such resolutions as
it may deem proper." (Emphasis supplied)
Likewise, Section 1 of the Rules of the Commission on Appointments provides:
"Section 1. Composition of the Commission On Appointments. Within thirty (30) days after
both Houses of Congress shall have organized themselves with the election of the Senate
President and the Speaker of the House of Representatives, the Commission on
Appointments shall be constituted. It shall be composed of twelve (12) Senators and twelve
(12) members of the House of Representatives, elected by each House on the basis of
proportional representation from the political parties and parties or organizations registered
under the party-list system represented herein.
(Emphasis supplied)
Thus, even assuming that party-list representatives comprise a sufficient number and have agreed
to designate common nominees to the HRET and the CA, their primary recourse clearly rests with
the House of Representatives and not with this Court. Under Sections 17 and 18, Article VI of the
Constitution, party-list representatives must first show to the House that they possess the required
numerical strength to be entitled to seats in the HRET and the CA. Only if the House fails to comply
with the directive of the Constitution on proportional representation of political parties in the HRET
and the CA can the party-list representatives seek recourse to this Court under its power of judicial
review. Under the doctrine of primary jurisdiction, prior recourse to the House is necessary before
petitioners may bring the instant case to the court. Consequently, petitioners’ direct recourse to this
Court is premature.
The discretion of the House to choose its members to the HRET and the CA is not absolute, being
subject to the mandatory constitutional rule on proportional representation. 26 However, under the
doctrine of separation of powers, the Court may not interfere with the exercise by the House of this
constitutionally mandated duty, absent a clear violation of the Constitution or grave abuse of
discretion amounting to lack or excess of jurisdiction. 27 Otherwise, ‘the doctrine of separation of
powers calls for each branch of government to be left alone to discharge its duties as it sees
fit.28 Neither can the Court speculate on what action the House may take if party-list representatives
are duly nominated for membership in the HRET and the CA.
The instant petitions are bereft of any allegation that respondents prevented the party-list groups in
the House from participating in the election of members of the HRET and the CA. Neither does it
appear that after the May 11, 1998 elections, the House barred the party-list representatives from
seeking membership in the HRET or the CA. Rather, it appears from the available facts that the
party-list groups in the House at that time simply refrained from participating in the election process.
The party-list representatives did not designate their nominees even up to the time they filed the
instant petitions, with the predictable result that the House did not consider any party-list
representative for election to the HRET or the CA. As the primary recourse of the party-list
representatives lies with the House of Representatives, ‘the Court cannot resolve the issues
presented by petitioners at this time.
Moreover, it is a well-settled rule that a constitutional question will not be heard and resolved by the
courts unless the following requirements of judicial inquiry concur: (1) there must be an actual
controversy; (2) the person or party raising the constitutional issue must have a personal and
substantial interest in the resolution of the controversy; (3) the controversy must be raised at the
earliest reasonable opportunity; and (4) the resolution of the constitutional issue must be
indispensable to the final determination of the controversy.29
The five party-list representatives who are petitioners in the instant case have not alleged that they
are entitled to, and have been unlawfully deprived of, seats in the HRET or the CA. Neither have
they claimed that they have been nominated by the party-list groups in the House to the HRET or the
CA. As such, they do not possess the personal and substantial interest required to confer them with
locus standi. The party raising the constitutional issue must have "such personal stake in the
outcome of the controversy as to assure that concrete adverseness which sharpens the presentation
of issues upon which the court depends for illumination of difficult constitutional questions." 30
We likewise find no grave abuse in the action or lack of action by the HRET and the CA in response
to the letters of Senator Pimentel. Under Sections 17 and 18 of Article VI of the 1987 Constitution
and their internal rules, the HRET and the CA are bereft of any power to reconstitute themselves.
Finally, the issues raised in the petitions have been rendered academic by subsequent events. On
May 14, 2001, a new set of district and party-list representatives were elected to the House. The
Court cannot now resolve the issue of proportional representation in the HRET and the CA based on
the "present composition" of the House of Representatives as presented by petitioners and the
Solicitor General. With the May 14, 2001 elections, it is certain that the composition of the House
has changed. In the absence of a proper petition assailing the present composition of the HRET and
the CA, the instant petitions must fail. Otherwise, for the Court to rule on the instant petitions at this
time would be tantamount to rendering an advisory opinion, which is outside our jurisdiction. 31
WHEREFORE, the consolidated petitions for prohibition and mandamus are DISMISSED.
SO ORDERED.
Vilando v. HRET, 656 SCRA 17 (2011)
G.R. Nos. 192147 & 192149 August 23, 2011
RENALD F. VILANDO, Petitioner,
vs.
HOUSE OF REPRESENTATIVES ELECTORAL TRIBUNAL, JOCELYN SY LIMKAICHONG AND
HON. SPEAKER PROSPERO NOGRALES, Respondents.
DECISION
MENDOZA, J.:
This is a petition for certiorari under Rule 65 of the Revised Rules of Court assailing the March 24,
2010 Decision1 of the House of Representatives Electoral Tribunal (HRET) dismissing the petitions
for quo warranto and declaring private respondent Jocelyn Sy Limkaichong (Limkaichong) not
disqualified as Member of the House of Representatives representing the First District of Negros
Oriental and its Resolution2 dated May 17, 2010, denying the motion for reconsideration.
In the May 14, 2007 elections, Limkaichong filed her certificate of candidacy for the position of
Representative of the First District of Negros Oriental. She won over the other contender, Olivia
Paras.
On May 25, 2007, she was proclaimed as Representative by the Provincial Board of Canvassers on
the basis of Comelec Resolution No. 8062 3 issued on May 18, 2007.
On July 23, 2007, she assumed office as Member of the House of Representatives.
Meanwhile, petitions involving either the disqualification or the proclamation of Limkaichong were
filed before the Commission on Elections (COMELEC) which reached the Court.
The petitions, which questioned her citizenship, were filed against Limkaichong by her detractors:
Louis Biraogo (G.R. No. 179120); 4 Olivia Paras (G.R. Nos. 179132-33);5 and Renald F. Vilando
(G.R. Nos. 179240-41).6 These three (3) petitions were consolidated with the petition for certiorari
filed by Limkaichong (G.R. Nos. 178831-32) assailing the Joint Resolution issued by the COMELEC
which resolved the disqualification cases against her.
On April 1, 2009, the Court granted the aforesaid petition of Limkaichong, reversed the Joint
Resolution of the Comelec, dismissed the three (3) other petitions, and directed the petitioners to
seek relief before the HRET by way of a petition for Quo Warranto.
On April 21, 2009 and May 27, 2009, petitioner Renald F. Vilando (Vilando), as taxpayer; and
Jacinto Paras, as registered voter of the congressional district concerned, filed separate petitions for
Quo Warranto against Limkaichong before the HRET. These petitions were consolidated by the
HRET as they both challenged the eligibility of one and the same respondent. Petitioners asserted
that Limkaichong was a Chinese citizen and ineligible for the office she was elected and proclaimed.
They alleged that she was born to a father (Julio Sy), whose naturalization had not attained finality,
and to a mother who acquired the Chinese citizenship of Julio Sy from the time of her marriage to
the latter. Also, they invoked the jurisdiction of the HRET for a determination of Limkaichong’s
citizenship, which necessarily included an inquiry into the validity of the naturalization certificate of
Julio Sy.
For her defense, Limkaichong maintained that she is a natural-born Filipino citizen. She averred that
the acquisition of Philippine citizenship by her father was regular and in order and had already
attained the status of res judicata. Further, she claimed that the validity of such citizenship could not
be assailed through a collateral attack.
On March 24, 2010, the HRET dismissed both petitions and declared Limkaichong not disqualified
as Member of the House of Representatives. Pertinent portions of the HRET decision reads:
By and large, petitioners failed to satisfy the quantum of proof to sustain their theory that respondent
is not a natural-born Filipino citizen and therefore not qualified as Representative of the First District,
Negros Oriental. This being so, their petitions must fail.
WHEREFORE, the Tribunal DISMISSES the instant petition for lack of merit and declares that
respondent Jocelyn Sy Limkaichong is not disqualified as Member of the House of Representatives
representing the First District, Negros Oriental.
As soon as the Decision becomes final and executory, notice of copies thereof shall be sent to the
President of the Philippines, the House of Representatives through the Speaker, the Commission on
Audit through the Chairman, pursuant to Rule 96 of the 2004 Rules of the House of Representatives
Electoral Tribunal. Let a copy of this Decision be furnished the Chairman, Commission on Elections,
for his information and appropriate action.
SO ORDERED.7
The petitioners sought reconsideration of the aforesaid decision, but it was denied by the HRET in its
Resolution dated May 17, 2010.
Hence, this petition for certiorari filed by Vilando anchored on the following
GROUNDS:
THE ONE-SIDED RESOLUTION OF THE SUBJECT PETITION FOR QUO WARRANTO AND THE
UTTER FAILURE OF THE HRET TO DISQUALIFY LIMKAICHONG AS MEMBER OF THE HOUSE
OF REPRESENTATIVES DESPITE MANIFEST EVIDENCE THAT SHE IS NOT A NATURAL-BORN
FILIPINO CITIZEN IS WHIMSICAL, CAPRICIOUS AND ARBITRARY BECAUSE:
1. THE PETITION FOR QUO WARRANTO DOES NOT OPERATE AS A COLLATERAL

ATTACK ON THE CITIZENSHIP OF LIMKAICHONG’S FATHER FOR THE REASON THAT
HER FATHER’S CERTIFICATE OF NATURALIZATION IS OF NO FORCE AND EFFECT
FROM THE VERY BEGINNING, HENCE, THERE IS ACTUALLY NOTHING BEING
ATTACKED OR ASSAILED BY THE SAME.
2. LIMKAICHONG CANNOT DERIVE PHILIPPINE CITIZENSHIP FROM HER MOTHER

GIVEN THAT AT THE TIME OF HER BIRTH, HER MOTHER IS NOT ALREADY A FILIPINO
CITIZEN AS A RESULT OF HER MARRIAGE TO HER FATHER AS PROVIDED FOR
UNDER SECTION 1 (7) OF COMMONWEALTH ACT NO. 63 IN RELATION TO ARTICLE 2
(1) CHAPTER II OF THE CHINESE REVISED NATIONALITY LAW OF FEBRUARY 5, 1959.
3. HAVING THE PLENARY, ABSOLUTE AND EXCLUSIVE JURISDICTION TO
DETERMINE, AMONG OTHERS, THE QUALIFICATIONS OF MEMBERS OF THE HOUSE
OF REPRESENTATIVES, THE HRET CAN LOOK INTO THE ELIGIBILITY OF
LIMKAICHONG EVEN IF, AS AN INCIDENT THERETO, IT WOULD MEAN LOOKING INTO
THE VALIDITY OF THE CERTIFICATE OF NATURALIZATION.8
It should be noted that Limkaichong’s term of office as Representative of the First District of Negros
Oriental from June 30, 2007 to June 30, 2010 already expired. As such, the issue questioning her
eligibility to hold office has been rendered moot and academic by the expiration of her term.
Whatever judgment is reached, the same can no longer have any practical legal effect or, in the
nature of things, can no longer be enforced.9 Thus, the petition may be dismissed for being moot and
academic.
Moreover, there was the conduct of the 2010 elections, a supervening event, in a sense, has also
rendered this case moot and academic. 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 value. As a rule, courts decline jurisdiction over such case, or dismiss it on ground of
mootness. 10
Citizenship, being a continuing requirement for Members of the House of Representatives, however,
may be questioned at anytime.11 For this reason, the Court deems it appropriate to resolve the
petition on the merits. This position finds support in the rule that courts will decide a question,
otherwise moot and academic, if it is "capable of repetition, yet evading review." 12 The question on
Limkaichong’s citizenship is likely to recur if she would run again, as she did run, for public office,
hence, capable of repetition.
In any case, the Court is of the view that the HRET committed no grave abuse of discretion in finding
that Limkaichong is not disqualified to sit as Member of the House of Representatives.
Vilando’s argument, that the quo warranto petition does not operate as a collateral attack on the
citizenship of Limkaichong’s father as the certificate of naturalization is null and void from the
beginning, is devoid of merit.
In this petition, Vilando seeks to disqualify Limkaichong on the ground that she is a Chinese citizen.
To prove his point, he makes reference to the alleged nullity of the grant of naturalization of
Limkaichong’s father which, however, is not allowed as it would constitute a collateral attack on the
citizenship of the father. In our jurisdiction, an attack on a person's citizenship may only be done
through a direct action for its nullity.13
The proper proceeding to assail the citizenship of Limkaichong’s father should be in accordance with
Section 18 of Commonwealth Act No. 473. As held in Limkaichong v. Comelec,14 thus:
As early as the case of Queto v. Catolico,15 where the Court of First Instance judge motu propio and
not in the proper denaturalization proceedings called to court various grantees of certificates of
naturalization (who had already taken their oaths of allegiance) and cancelled their certificates of
naturalization due to procedural infirmities, the Court held that:
x x x It may be true that, as alleged by said respondents, that the proceedings for naturalization were
tainted with certain infirmities, fatal or otherwise, but that is beside the point in this case. The
jurisdiction of the court to inquire into and rule upon such infirmities must be properly invoked in
accordance with the procedure laid down by law. Such procedure is the cancellation of the
naturalization certificate. [Section 1(5), Commonwealth Act No. 63], in the manner fixed in Section
18 of Commonwealth Act No. 473, hereinbefore quoted, namely, "upon motion made in the proper
proceedings by the Solicitor General or his representatives, or by the proper provincial fiscal." In
other words, the initiative must come from these officers, presumably after previous investigation in
each particular case.
Clearly, under law and jurisprudence, it is the State, through its representatives designated by
statute, that may question the illegally or invalidly procured certificate of naturalization in the
appropriate denaturalization proceedings. It is plainly not a matter that may be raised by private
persons in an election case involving the naturalized citizen’s descendant.
Vilando asserts that as an incident in determining the eligibility of Limkaichong, the HRET, having
the plenary, absolute and exclusive jurisdiction to determine her qualifications, can pass upon the
efficacy of the certificate of naturalization.
True, the HRET has jurisdiction over quo warranto petitions, specifically over cases challenging
ineligibility on the ground of lack of citizenship. No less than the 1987 Constitution vests the HRET
the authority to be the sole judge of all contests relating to the election, returns and qualifications of
its Members. This constitutional power is likewise echoed in the 2004 Rules of the HRET. Rule 14
thereof restates this duty, thus:
Rule 14. Jurisdiction. – The Tribunal is the sole judge of all contests relating to the election, returns,
and qualifications of the Members of the House of Representatives.
Time and again, this Court has acknowledged this sole and exclusive jurisdiction of the HRET. 16 The
power granted to HRET by the Constitution is intended to be as complete and unimpaired as if it had
remained originally in the legislature.17 Such power is regarded as full, clear and complete and
excludes the exercise of any authority on the part of this Court that would in any wise restrict it or
curtail it or even affect the same.18
Such power of the HRET, no matter how complete and exclusive, does not carry with it the authority
to delve into the legality of the judgment of naturalization in the pursuit of disqualifying Limkaichong.
To rule otherwise would operate as a collateral attack on the citizenship of the father which, as
already stated, is not permissible. The HRET properly resolved the issue with the following
ratiocination:
xxx We note that Jocelyn C. Limkaichong, not the father – Julio Ong Sy, is the respondent in the
present case. The Tribunal may not dwell on deliberating on the validity of naturalization of the father
if only to pursue the end of declaring the daughter as disqualified to hold office.
Unfortunately, much as the Tribunal wants to resolve said issue, it cannot do so because its
jurisdiction is limited to the qualification of the proclaimed respondent Limkaichong, being a sitting
Member of the Congress.
Evidently, there is no basis to oblige the Tribunal to reopen the naturalization proceedings for a
determination of the citizenship of the ascendant of respondent. A petition for quo warranto is not a
means to achieve that purpose. To rule on this issue in this quo warranto proceeding will not only be
a clear grave abuse of discretion amounting to a lack or excess of jurisdiction, but also a blatant
violation of due process on the part of the persons who will be affected or who are not parties in this
case.19
Thus, the Office of the Solicitor General (OSG) wrote that "a collateral attack against a judgment is
generally not allowed, unless the judgment is void upon its face or its nullity is apparent by virtue of
its own recitals."20 Under the present situation, there is no evidence to show that the judgment is void
on its face:
As to the Order of the CFI, Negros Oriental dated July 9, 1957 and September 21, 1959 that were
offered in evidence, far from proving an invalid oath of allegiance and certificate of naturalization,
being public records, they do in fact constitute legitimate source of authority for the conferment of
status of the father of respondent as naturalized Filipino. Absent any contrary declaration by a
competent court, the Tribunal presumes the validity of the CFI Orders of July 9, 1957 and
September 21, 1959, and the resulting documentations of Julio Sy’s acquisition of Filipino citizenship
by naturalization as valid and of legal effect. The oath of allegiance and certificate of naturalization
are themselves proofs of the actual conferment of naturalization. 21
The HRET, therefore, correctly relied on the presumption of validity of the July 9, 1957 and
September 21, 1959 Orders of the Court of First Instance (CFI) Negros Oriental, which granted the
petition and declared Julio Sy a naturalized Filipino absent any evidence to the contrary.
Records disclose that Limkaichong was born in Dumaguete City on November 9, 1959. The
governing law is the citizenship provision of the 1935 Constitution, the pertinent portion thereof,
reads:
Article IV
Section 1. The following are citizens of the Philippines:
xxx
(3) Those whose fathers are citizens of the Philippines.
(4) Those whose mothers are citizens of the Philippines and, upon reaching the age of majority,
elect Philippine citizenship.
xxx
Indubitably, with Limkaichong’s father having been conferred the status as a naturalized Filipino, it
follows that she is a Filipino citizen born to a Filipino father.
Even on the assumption that the naturalization proceedings and the subsequent issuance of
certificate of naturalization were invalid, Limkaichong can still be considered a natural-born Filipino
citizen having been born to a Filipino mother and having impliedly elected Filipino citizenship when
she reached majority age. The HRET is, thus, correct in declaring that Limkaichong is a natural-born
Filipino citizen:
Respondent Limkaichong falls under the category of those persons whose fathers are citizens of the
Philippines. (Section 1(3), Article IV, 1935 Constitution) It matters not whether the father acquired
citizenship by birth or by naturalization. Therefore, following the line of transmission through the
father under the 1935 Constitution, the respondent has satisfactorily complied with the requirement
for candidacy and for holding office, as she is a natural-born Filipino citizen.
Likewise, the citizenship of respondent Limkaichong finds support in paragraph 4, Section 1, Article
IV of the 1935 Constitution.
Having failed to prove that Anesia Sy lost her Philippine citizenship, respondent can be considered a
natural born citizen of the Philippines, having been born to a mother who was a natural-born Filipina
at the time of marriage, and because respondent was able to elect citizenship informally when she
reached majority age. Respondent participated in the barangay elections as a young voter in 1976,
accomplished voter’s affidavit as of 1984, and ran as a candidate and was elected as Mayor of La
Libertad, Negros Oriental in 2004. These are positive acts of election of Philippine citizenship. The
case of In re: Florencio Mallare, elucidates how election of citizenship is manifested in actions
indubitably showing a definite choice. We note that respondent had informally elected citizenship
after January 17, 1973 during which time the 1973 Constitution considered as citizens of the
Philippines all those who elect citizenship in accordance with the 1935 Constitution. The 1987
Constitution provisions, i.e., Section 1(3), Article [IV] and Section 2, Article [IV] were enacted to
correct the anomalous situation where one born of a Filipino father and an alien mother was
automatically accorded the status of a natural-born citizen, while one born of a Filipino mother and
an alien father would still have to elect Philippine citizenship yet if so elected, was not conferred
natural-born status. It was the intention of the framers of the 1987 Constitution to treat equally those
born before the 1973 Constitution and who elected Philippine citizenship upon reaching the age of
majority either before or after the effectivity of the 1973 Constitution. Thus, those who would elect
Philippine citizenship under par. 3, Section 1, Article [IV] of the 1987 Constitution are now, under
Section 2, Article [IV] thereof also natural-born Filipinos. The following are the pertinent provisions of
the 1987 Constitution:
Article IV
Section 1. The following are citizens of the Philippines:
(1) Those who are citizens of the Philippines at the time of the adoption of this Constitution;
(2) Those whose fathers or mothers are citizens of the Philippines;
(3) Those born before January 17, 1973, of Filipino mothers, who elect Philippine citizenship
upon reaching the age of majority; and
(4) Those who are naturalized in accordance with law.
Section 2. Natural-born citizens are those who are citizens of the Philippines from birth without
having to perform any act to acquire or perfect their Philippine citizenship. Those who elect
Philippine citizenship in accordance with paragraph (3), Section 1 hereof shall be deemed natural-
born citizens.22
Vilando’s assertion that Limkaichong cannot derive Philippine citizenship from her mother because
the latter became a Chinese citizen when she married Julio Sy, as provided for under Section 1 (7)
of Commonwealth Act No. 63 in relation to Article 2 (1) Chapter II of the Chinese Revised Nationality
Law of February 5, 1959, must likewise fail.
As aptly pointed out by the HRET, Vilando was not able to offer in evidence a duly certified true copy
of the alleged Chinese Revised Law of Nationality to prove that Limkaichong’s mother indeed lost
her Philippine citizenship. Verily, Vilando failed to establish his case through competent and
admissible evidence to warrant a reversal of the HRET ruling.
Also, an application for an alien certificate of registration (ACR) is not an indubitable proof of
forfeiture of Philippine citizenship. It is well to quote the ruling of the HRET on this matter, to wit:
An alien certificate of registration is issued to an individual who declares that he is not a Filipino
citizen. It is obtained only when applied for. It is in a form prescribed by the agency and contains a
declaration by the applicant of his or her personal information, a photograph, and physical details
that identify the applicant. It bears no indication of basis for foreign citizenship, nor proof of change
to foreign citizenship. It certifies that a person named therein has applied for registration and
fingerprinting and that such person was issued a certificate of registration under the Alien
Registration Act of 1950 or other special law. It is only evidence of registration.
Unlike birth certificates registered pursuant to Act 3753 (The Civil Register Law), and much less like
other public records referred to under Section 23, Rule 132, an alien certificate of registration is not a
public document that would be prima facie evidence of the truth of facts contained therein. On its
face, it only certifies that the applicant had submitted himself or herself to registration. Therefore,
there is no presumption of alienage of the declarant. This is especially so where the declarant has in
fact been a natural-born Filipino all along and never lost his or her status as such. 23 1avvphi1
Thus, obtaining an ACR by Limkaichong’s mother was not tantamount to a repudiation of her original
citizenship. Neither did it result in an acquisition of alien citizenship. In a string of decisions, this
Court has consistently held that an application for, and the holding of, an alien certificate of
registration is not an act constituting renunciation of Philippine citizenship. 24 For renunciation to
effectively result in the loss of citizenship, the same must be express. 25 Such express renunciation is
lacking in this case.
Accordingly, Limkaichong’s mother, being a Filipino citizen, can transmit her citizenship to her
daughter.
Well-settled is the principle that the judgments of the HRET are beyond judicial interference. The
only instance where this Court may intervene in the exercise of its so-called extraordinary jurisdiction
is upon a determination that the decision or resolution of the HRET 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 of its power to constitute a denial of due process of law, or upon a
demonstration of a very clear unmitigated error, manifestly constituting such grave abuse of
discretion that there has to be a remedy for such abuse. 26 In this case, there is no showing of any
such arbitrariness or improvidence. The HRET acted well within the sphere of its power when it
dismissed the quo warranto petition.
In fine, this Court finds sufficient basis to sustain the ruling of the HRET which resolved the issue of
citizenship in favor of Limkaichong.
WHEREFORE, the petition is DENIED. Accordingly, the Court affirms the March 24, 2010 Decision
of the HRET declaring that Limkaichong is not disqualified as Member of the House of
Representatives representing the First District, Negros Oriental.
SO ORDERED.
ABAKADA Guro v. Purisima, GR No. 166715, 14 August 2008
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA,

ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R.
SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act
(RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation
Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in
the excess collection of the targeted amount of tax revenue. 5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF)
or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials nominated by
their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and employees
whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria
adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions,
including the issuance of rules and regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate
and issue the implementing rules and regulations of RA 9335, 8 to be approved by a Joint Congressional
Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335,
a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law
"transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters"
as they will do their best only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no
valid basis for classification or distinction as to why such a system should not apply to officials and
employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides
that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the
fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC
personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it
violates the doctrine of separation of powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation of the congressional oversight
committee permits legislative participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim
that will necessitate the exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge that
public policy requires the resolution of the constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies
the BIR and the BOC because the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the
executive in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of
the legislative policy and serves as a check to any over-accumulation of power on the part of the
executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners
have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter
be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must
be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself
that can be redressed by a favorable decision of the Court. 12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the
mere enactment of the law even without any further overt act, 13 petitioners fail either to assert any specific
and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable
to show a personal stake in the outcome of this case or an injury to themselves. On this account, their
petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
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.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the
benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis
thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging
the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their
revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by
mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case
where it is an underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into
"bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To
invalidate RA 9335 based on petitioners’ baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is
not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to
duty, industry, efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the
customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in
violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court
said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and
industry in detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets.
In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either
the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials,
examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any loss or injury suffered by
any business establishment or taxpayer as a result of such violation, negligence, abuse,
malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among
persons similarly situated; it is equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be accomplished. 19 When things or
persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v.
Elizalde Rope Workers’ Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory within
which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation
or practice because they agree with one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. Neither is it necessary that the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear. 21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the
subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal Revenue,
who shall be appointed by the President upon the recommendation of the Secretary [of the DOF],
shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
(5) Perform such other functions as may be provided by law. 24
xxx xxx xxx (emphasis supplied)
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to
the management and control of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of
entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of
being the instrumentalities through which the State exercises one of its great inherent functions –
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy
the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the
sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out
or implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation
from running riot.27 To be sufficient, the standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under which it is to be implemented. 28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and
the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the
law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power to the President to
fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to
as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Percent (%) of the Excess Collection to Accrue

Excess the Revenue Targets to the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year
when the revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection districts in the case of the
BOC.

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR
and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the
President to Congress.30 Thus, the determination of revenue targets does not rest solely on the President
as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least 7.5%
may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the following
powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis
for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities
or force majeure or economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately executory: Provided, further, That the
application of the criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;
Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the
BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the
service for causes other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue
collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting
the level of collection. This standard is analogous to inefficiency and incompetence in the performance of
official duties, a ground for disciplinary action under civil service laws. 32 The action for removal is also
subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and
equity," "public convenience and welfare" and "simplicity, economy and welfare." 33 In this case, the
declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC
is infused with public interest.
Separation Of Powers
Section 12 of RA 9335 provides:
SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from the Senate shall be appointed
by the Senate President, with at least two senators representing the minority. The Members from
the House of Representatives shall be appointed by the Speaker with at least two members
representing the minority. After the Oversight Committee will have approved the implementing
rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On
May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist.
Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the
law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar
laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to

enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive
conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and
integral to the checks and balances inherent in a democratic system of government. x x x x x x x
xx
Over the years, Congress has invoked its oversight power with increased frequency to check the
perceived "exponential accumulation of power" by the executive branch. By the beginning of the
20th century, Congress has delegated an enormous amount of legislative authority to the
executive branch and the administrative agencies. Congress, thus, uses its oversight power to
make sure that the administrative agencies perform their functions within the authority delegated
to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to

administrative operations. Its primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of legislative scrutiny, Congress
may request information and report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that
are readily available, congressional investigation involves a more intense digging of facts.
The power of Congress to conduct investigation is recognized by the 1987 Constitution
under section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a continuing and informed awareness on the part
of a congressional committee regarding executive operations in a given administrative area.
While both congressional scrutiny and investigation involve inquiry into past executive branch
actions in order to influence future executive branch performance, congressional supervision
allows Congress to scrutinize the exercise of delegated law-making authority, and permits
Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically
utilizes veto provisions when granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions require the President or an agency
to present the proposed regulations to Congress, which retains a "right" to approve or disapprove
any regulation before it takes effect. Such legislative veto provisions usually provide that a
proposed regulation will become a law after the expiration of a certain period of time, only if
Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently,
the statute provides that a proposed regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power between
the legislative and the executive branches of government as it offers lawmakers a way to
delegate vast power to the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to pass new legislation or to
repeal existing law. They contend that this arrangement promotes democratic accountability as it
provides legislative check on the activities of unelected administrative agencies. One proponent
thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One safeguard,
of course, is the legislative power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of the executive branch,
Congress would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the

executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the President’s veto authority
and intrusion into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They submit
that reporting requirements and congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. They do not allow Congress to
review executive proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast, legislative veto permits
Congress to participate prospectively in the approval or disapproval of "subordinate law" or those
enacted by the executive branch pursuant to a delegation of authority by Congress. They further
argue that legislative veto "is a necessary response by Congress to the accretion of policy control
by forces outside its chambers." In an era of delegated authority, they point out that legislative
veto "is the most efficient means Congress has yet devised to retain control over the evolution
and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and Nationality
Act. The United States House of Representatives passed a resolution vetoing the suspension
pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the
decision of the executive branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings to implement the House
order and the alien was ordered deported. The Board of Immigration Appeals dismissed the
alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The
United States Court of Appeals for Ninth Circuit held that the House was without constitutional
authority to order the alien’s deportation and that § 244(c)(2) violated the constitutional doctrine
on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was essentially legislative
in purpose and effect. As such, it is subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both Houses and presentment to the
President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978
and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto provisions although some of these
provisions required the approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections, the Court
struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint
Congressional Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the
Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact even enhance the separation of powers as
it prevents the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its
committees or its members with either executive or judicial power. 38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution,39 including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect.
As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-
turning delegation designed to attach a congressional leash (other than through scrutiny and
investigation) to an agency to which Congress has by law initially delegated broad powers. 43 It radically
changes the design or structure of the Constitution’s diagram of power as it entrusts to Congress a direct
role in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of
its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards. 46 In the
latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of
the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when
it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making). 48
Administrative regulations enacted by administrative agencies to implement and interpret the law which
they are entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and
regulations partake of the nature of a statute 50 and are just as binding as if they have been written in the
statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court. 51 Congress,
in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power
exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as
a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule
on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which
consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative
power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it
and return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be reconsidered, and if approved by
two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names of the members voting for or
against shall be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making
under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto
is a valid legislative act with the force of law, it cannot take effect without such presentment even if
approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President. 55 As summarized by Justice
Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by
the Senate President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the
same nature or purpose, they may all be consolidated into one bill under common authorship or
as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is
read in its entirety, scrutinized, debated upon and amended when desired. The second reading is
the most important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members merely
register their votes and explain them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the
three readings. If there are differences between the versions approved by the two chambers, a
conference committee58 representing both Houses will draft a compromise measure that if ratified
by the Senate and the House of Representatives will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated
with the signatures of the Senate President, the Speaker, and the Secretaries of their respective
chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law
after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the
legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause, 61 the determination as to when a law takes effect is
wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to approving or vetoing the law. 63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress
or its members to approve the implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling
made by the members of the executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there
may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court
refrains from invalidating them wholesale but will do so at the proper time when an appropriate case
assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335
on the other provisions of the law? Will it render the entire law unconstitutional? No.
SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity shall
remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be enforced.
The presence of a separability clause in a statute creates the presumption that the legislature
intended separability, rather than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it could not constitutionally enact
the other. Enough must remain to make a complete, intelligible and valid statute, which carries
out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent
and connected, as conditions, considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent, conditional, or connected with one another,
the legislature intended the statute to be carried out as a whole and would not have enacted it if
one part is void, in which case if some parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any
invalid provision from the other provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without Section 12, the remaining provisions still
constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the
revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards
and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce
or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the
Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint

Congressional Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain
in force and effect.
SO ORDERED.
Garcillano v. House of Representatives, December 23, 2008
G.R. No. 170338 December 23, 2008
VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL
REFORMS, respondents.
x----------------------x
G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,

PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci"
tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by committees of
both Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2
On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4 docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5
Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth – the what’s, when’s, where’s, who’s
and why’s" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties. 7
In the Senate’s plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-
Santiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,
Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275. 18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectives–the first is poised at preventing the playing of the tapes in the House and their
subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.
-I-
Before delving into the merits of the case, the Court shall first resolve the issue on the parties’
standing, argued at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "‘[l]egal standing’ or locus standi refers to a personal

and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21
The gist of the question of standing is whether a party has "alleged such a personal stake in the
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22
However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Court’s duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them." 26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings. 27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees’ actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of
the intended legislation which underpins the investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public funds involved in the conduct of the
questioned hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.
Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rights–as taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal profession–which were also supposedly violated by the
therein assailed unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.
- II -
The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. 35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise
the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court
determine a moot question in a case in which no practical relief can be granted. A case becomes
moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members. 39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41
- III -
As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he 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 requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it
will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one. 43 What constitutes
publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after
15 days following the completion of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006. 45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure." We quote the OSG’s
explanation:
The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three years
for a term of six years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate
under the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of the term of twelve
Senators.47
The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.
All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present for
the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senate’s main rules of procedure) states:
RULE LI
AMENDMENTS TO, OR REVISIONS OF, THE RULES
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented
at least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
RULE LII
DATE OF TAKING EFFECT
SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new composition of
the Senate after an election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication by arguing

that the rules have never been amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the Senate’s internet web page. 49
The Court does not agree. The absence of any amendment to the rules cannot justify the Senate’s
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.
Justice Carpio’s response to the same argument raised by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Tañada is mandatory to comply with the due process
requirement because the Rules of Procedure put a person’s liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275
is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on
the "Hello Garci" tapes.
SO ORDERED.
- Senate of the Phil. v. Ermita, GR No. 169777, 20 April 2006
G.R. No. 169777* April 20, 2006
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 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 letter 3 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 letter 4 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, wrote 5 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 letter 6 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
Also on September 28, 2005, Senate President Drilon received from Executive
Secretary Ermita a copy of E.O. 464, and another letter 8 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 letter 9 to Senator Biazon, Chairperson of
the Committee 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. 10NorthRail 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 SaturOcampo, 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; SaturOcampo, 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 GinintuangMasaganangAni 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 Management 18 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.
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. 169667 25 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 manifestation 28 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 memorandum38 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
lismota 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 question
the validity of any official action which they claim infringes their prerogatives as
legislators.47
In the same vein, party-list representatives SaturOcampo (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 rights 51 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 BatasangPambansa—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, 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
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.67 Tribe, 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 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. xx
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
xx ” (Emphasis and underscoring supplied)
Almonte involved a subpoena ducestecum 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
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. xxx 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
BatasangPambansa—as the Gentleman himself has experienced in the interim
BatasangPambansa—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
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 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 Constitution 86 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
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, 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
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 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 Energy 99 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 suasponte 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
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
xx (Emphasis and underscoring supplied)
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 ducestecum 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 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.
– Neri v. Senate, 5 September 2008
G.R. No. 180643 September 4, 2008
ROMULO L. NERI, petitioner,
vs.
SENATE COMMITTEE ON ACCOUNTABILITY OF PUBLIC OFFICERS AND INVESTIGATIONS,
SENATE COMMITTEE ON TRADE AND COMMERCE, AND SENATE COMMITTEE ON NATIONAL
DEFENSE AND SECURITY, respondents.
RESOLUTION
Executive privilege is not a personal privilege, but one that adheres to the Office of the President. It exists
to protect public interest, not to benefit a particular public official. Its purpose, among others, is to assure
that the nation will receive the benefit of candid, objective and untrammeled communication and
exchange of information between the President and his/her advisers in the process of shaping or forming
policies and arriving at decisions in the exercise of the functions of the Presidency under the Constitution.
The confidentiality of the President’s conversations and correspondence is not unique. It is akin to the
confidentiality of judicial deliberations. It possesses the same value as the right to privacy of all citizens
and more, because it is dictated by public interest and the constitutionally ordained separation of
governmental powers.
In these proceedings, this Court has been called upon to exercise its power of review and arbitrate a
hotly, even acrimoniously, debated dispute between the Court’s co-equal branches of government. In this
task, this Court should neither curb the legitimate powers of any of the co-equal and coordinate branches
of government nor allow any of them to overstep the boundaries set for it by our Constitution. The
competing interests in the case at bar are the claim of executive privilege by the President, on the one
hand, and the respondent Senate Committees’ assertion of their power to conduct legislative inquiries, on
the other. The particular facts and circumstances of the present case, stripped of the politically and
emotionally charged rhetoric from both sides and viewed in the light of settled constitutional and legal
doctrines, plainly lead to the conclusion that the claim of executive privilege must be upheld.
Assailed in this motion for reconsideration is our Decision dated March 25, 2008 (the "Decision"), granting
the petition for certiorari filed by petitioner Romulo L. Neri against the respondent Senate Committees on
Accountability of Public Officers and Investigations,1 Trade and Commerce,2 and National Defense and
Security (collectively the "respondent Committees"). 3
A brief review of the facts is imperative.
On September 26, 2007, petitioner appeared before respondent Committees and testified for about
eleven (11) hours on matters concerning the National Broadband Project (the "NBN Project"), a project
awarded by the Department of Transportation and Communications ("DOTC") to Zhong Xing
Telecommunications Equipment ("ZTE"). Petitioner disclosed that then Commission on Elections
("COMELEC") Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the
NBN Project. He further narrated that he informed President Gloria Macapagal Arroyo ("President
Arroyo") of the bribery attempt and that she instructed him not to accept the bribe. However, when probed
further on President Arroyo and petitioner’s discussions relating to the NBN Project, petitioner refused to
answer, invoking "executive privilege." To be specific, petitioner refused to answer questions on: (a)
whether or not President Arroyo followed up the NBN Project, 4 (b) whether or not she directed him to
prioritize it,5 and (c) whether or not she directed him to approve it. 6
Respondent Committees persisted in knowing petitioner’s answers to these three questions by requiring
him to appear and testify once more on November 20, 2007. On November 15, 2007, Executive Secretary
Eduardo R. Ermita wrote to respondent Committees and requested them to dispense with petitioner’s
testimony on the ground of executive privilege.7 The letter of Executive Secretary Ermita pertinently
stated:
Following the ruling in Senate v. Ermita, the foregoing questions fall under conversations and
correspondence between the President and public officials which are considered executive
privilege (Almonte v. Vasquez, G.R. 95637, 23 May 1995; Chavez v. PEA, G.R. 133250, July 9,
2002). Maintaining the confidentiality of conversations of the President is necessary in the
exercise of her executive and policy decision making process. The expectation of a President to
the confidentiality of her conversations and correspondences, like the value which we accord
deference for the privacy of all citizens, is the necessity for protection of the public interest in
candid, objective, and even blunt or harsh opinions in Presidential decision-making. Disclosure of
conversations of the President will have a chilling effect on the President, and will hamper her in
the effective discharge of her duties and responsibilities, if she is not protected by the
confidentiality of her conversations.
The context in which executive privilege is being invoked is that the information sought to be
disclosed might impair our diplomatic as well as economic relations with the People’s Republic of
China. Given the confidential nature in which these information were conveyed to the President,
he cannot provide the Committee any further details of these conversations, without disclosing
the very thing the privilege is designed to protect.
In light of the above considerations, this Office is constrained to invoke the settled doctrine of
executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.
Considering that Sec. Neri has been lengthily interrogated on the subject in an unprecedented
11-hour hearing, wherein he has answered all questions propounded to him except the foregoing
questions involving executive privilege, we therefore request that his testimony on 20 November
2007 on the ZTE / NBN project be dispensed with.
On November 20, 2007, petitioner did not appear before respondent Committees upon orders of the
President invoking executive privilege. On November 22, 2007, the respondent Committees issued the
show-cause letter requiring him to explain why he should not be cited in contempt. On November 29,
2007, in petitioner’s reply to respondent Committees, he manifested that it was not his intention to ignore
the Senate hearing and that he thought the only remaining questions were those he claimed to be
covered by executive privilege. He also manifested his willingness to appear and testify should there be
new matters to be taken up. He just requested that he be furnished "in advance as to what else" he
"needs to clarify."
Respondent Committees found petitioner’s explanations unsatisfactory. Without responding to his request
for advance notice of the matters that he should still clarify, they issued the Order dated January 30,
2008; In Re: P.S. Res. Nos. 127,129,136 & 144; and privilege speeches of Senator Lacson and Santiago
(all on the ZTE-NBN Project), citing petitioner in contempt of respondent Committees and ordering his
arrest and detention at the Office of the Senate Sergeant-at-Arms until such time that he would appear
and give his testimony.
On the same date, petitioner moved for the reconsideration of the above Order. 8 He insisted that he had
not shown "any contemptible conduct worthy of contempt and arrest." He emphasized his willingness to
testify on new matters, but respondent Committees did not respond to his request for advance notice of
questions. He also mentioned the petition for certiorari he previously filed with this Court on December 7,
2007. According to him, this should restrain respondent Committees from enforcing the order dated
January 30, 2008 which declared him in contempt and directed his arrest and detention.
Petitioner then filed his Supplemental Petition for Certiorari (with Urgent Application for TRO/Preliminary
Injunction) on February 1, 2008. In the Court’s Resolution dated February 4, 2008, the parties were
required to observe the status quo prevailing prior to the Order dated January 30, 2008.
On March 25, 2008, the Court granted his petition for certiorari on two grounds: first, the communications
elicited by the three (3) questions were covered by executive privilege; and second, respondent
Committees committed grave abuse of discretion in issuing the contempt order. Anent the first ground, we
considered the subject communications as falling under the presidential communications
privilege because (a) they related to a quintessential and non-delegable power of the President, (b) they
were received by a close advisor of the President, and (c) respondent Committees failed to adequately
show a compelling need that would justify the limitation of the privilege and the unavailability of the
information elsewhere by an appropriate investigating authority. As to the second ground, we found that
respondent Committees committed grave abuse of discretion in issuing the contempt order because (a)
there was a valid claim of executive privilege, (b) their invitations to petitioner did not contain the
questions relevant to the inquiry, (c) there was a cloud of doubt as to the regularity of the proceeding that
led to their issuance of the contempt order, (d) they violated Section 21, Article VI of the Constitution
because their inquiry was not in accordance with the "duly published rules of procedure," and (e) they
issued the contempt order arbitrarily and precipitately.
On April 8, 2008, respondent Committees filed the present motion for reconsideration, anchored on the
following grounds:
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO DOUBT THAT THE

ASSAILED ORDERS WERE ISSUED BY RESPONDENT COMMITTEES PURSUANT TO THE
EXERCISE OF THEIR LEGISLATIVE POWER, AND NOT MERELY THEIR OVERSIGHT
FUNCTIONS.
II
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE CAN BE NO

PRESUMPTION THAT THE INFORMATION WITHHELD IN THE INSTANT CASE IS
PRIVILEGED.
III
CONTRARY TO THIS HONORABLE COURT’S DECISION, THERE IS NO FACTUAL OR

LEGAL BASIS TO HOLD THAT THE COMMUNICATIONS ELICITED BY THE SUBJECT
THREE (3) QUESTIONS ARE COVERED BY EXECUTIVE PRIVILEGE, CONSIDERING THAT:
A. THERE IS NO SHOWING THAT THE MATTERS FOR WHICH EXECUTIVE PRIVILEGE IS

CLAIMED CONSTITUTE STATE SECRETS.
B. EVEN IF THE TESTS ADOPTED BY THIS HONORABLE COURT IN THE DECISION IS

APPLIED, THERE IS NO SHOWING THAT THE ELEMENTS OF PRESIDENTIAL
COMMUNICATIONS PRIVILEGE ARE PRESENT.
C. ON THE CONTRARY, THERE IS ADEQUATE SHOWING OF A COMPELLING NEED TO

JUSTIFY THE DISCLOSURE OF THE INFORMATION SOUGHT.
D. TO UPHOLD THE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE WOULD
SERIOUSLY IMPAIR THE RESPONDENTS’ PERFORMANCE OF THEIR PRIMARY
FUNCTION TO ENACT LAWS.
E. FINALLY, THE CONSTITUTIONAL RIGHT OF THE PEOPLE TO INFORMATION, AND THE

CONSTITUTIONAL POLICIES ON PUBLIC ACCOUNTABILITY AND TRANSPARENCY
OUTWEIGH THE CLAIM OF EXECUTIVE PRIVILEGE.
IV
CONTRARY TO THIS HONORABLE COURT’S DECISION, RESPONDENTS DID NOT

COMMIT GRAVE ABUSE OF DISCRETION IN ISSUING THE ASSAILED CONTEMPT ORDER,
CONSIDERING THAT:
A. THERE IS NO LEGITIMATE CLAIM OF EXECUTIVE PRIVILEGE IN THE INSTANT CASE.
B. RESPONDENTS DID NOT VIOLATE THE SUPPOSED REQUIREMENTS LAID DOWN

IN SENATE V. ERMITA.
C. RESPONDENTS DULY ISSUED THE CONTEMPT ORDER IN ACCORDANCE WITH THEIR

INTERNAL RULES.
D. RESPONDENTS DID NOT VIOLATE THE REQUIREMENTS UNDER ARTICLE VI, SECTION
21 OF THE CONSTITUTION REQUIRING THAT ITS RULES OF PROCEDURE BE DULY
PUBLISHED, AND WERE DENIED DUE PROCESS WHEN THE COURT CONSIDERED THE
OSG’S INTERVENTION ON THIS ISSUE WITHOUT GIVING RESPONDENTS THE
OPPORTUNITY TO COMMENT.
E. RESPONDENTS’ ISSUANCE OF THE CONTEMPT ORDER IS NOT ARBITRARY OR

PRECIPITATE.
In his Comment, petitioner charges respondent Committees with exaggerating and distorting the Decision
of this Court. He avers that there is nothing in it that prohibits respondent Committees from investigating
the NBN Project or asking him additional questions. According to petitioner, the Court merely applied the
rule on executive privilege to the facts of the case. He further submits the following contentions: first, the
assailed Decision did not reverse the presumption against executive secrecy laid down in Senate v.
Ermita; second, respondent Committees failed to overcome the presumption of executive privilege
because it appears that they could legislate even without the communications elicited by the three (3)
questions, and they admitted that they could dispense with petitioner’s testimony if certain NEDA
documents would be given to them; third, the requirement of specificity applies only to the privilege for
State, military and diplomatic secrets, not to the necessarily broad and all-encompassing presidential
communications privilege; fourth, there is no right to pry into the President’s thought processes or
exploratory exchanges; fifth, petitioner is not covering up or hiding anything illegal; sixth, the Court has
the power and duty to annul the Senate Rules; seventh, the Senate is not a continuing body, thus the
failure of the present Senate to publish its Rules of Procedure Governing Inquiries in Aid of
Legislation (Rules) has a vitiating effect on them; eighth, the requirement for a witness to be furnished
advance copy of questions comports with due process and the constitutional mandate that the rights of
witnesses be respected; and ninth, neither petitioner nor respondent has the final say on the matter of
executive privilege, only the Court.
For its part, the Office of the Solicitor General maintains that: (1) there is no categorical pronouncement
from the Court that the assailed Orders were issued by respondent Committees pursuant to their
oversight function; hence, there is no reason for them "to make much" of the distinction between Sections
21 and 22, Article VI of the Constitution; (2) presidential communications enjoy a presumptive privilege
against disclosure as earlier held in Almonte v. Vasquez9 and Chavez v. Public Estates Authority (PEA)10;
(3) the communications elicited by the three (3) questions are covered by executive privilege, because all
the elements of the presidential communications privilege are present; (4) the subpoena ad
testificandum issued by respondent Committees to petitioner is fatally defective under existing law and
jurisprudence; (5) the failure of the present Senate to publish its Rules renders the same void; and (6)
respondent Committees arbitrarily issued the contempt order.
Incidentally, respondent Committees’ objection to the Resolution dated March 18, 2008 (granting the
Office of the Solicitor General’s Motion for Leave to Intervene and to Admit Attached Memorandum) only
after the promulgation of the Decision in this case is foreclosed by its untimeliness.
The core issues that arise from the foregoing respective contentions of the opposing parties are as
follows:
(1) whether or not there is a recognized presumptive presidential communications privilege in our
legal system;
(2) whether or not there is factual or legal basis to hold that the communications elicited by the
three (3) questions are covered by executive privilege;
(3) whether or not respondent Committees have shown that the communications elicited by the
three (3) questions are critical to the exercise of their functions; and
(4) whether or not respondent Committees committed grave abuse of discretion in issuing the
contempt order.
We shall discuss these issues seriatim.
There Is a Recognized Presumptive

Presidential Communications Privilege
Respondent Committees ardently argue that the Court’s declaration that presidential communications are
presumptively privileged reverses the "presumption" laid down in Senate v. Ermita11 that "inclines heavily
against executive secrecy and in favor of disclosure." Respondent Committees then claim that the Court
erred in relying on the doctrine in Nixon.
Respondent Committees argue as if this were the first time the presumption in favor of the presidential
communications privilege is mentioned and adopted in our legal system. That is far from the truth. The
Court, in the earlier case of Almonte v. Vasquez,12 affirmed that the presidential communications
privilege is fundamental to the operation of government and inextricably rooted in the separation of
powers under the Constitution. Even Senate v. Ermita,13 the case relied upon by respondent Committees,
reiterated this concept. There, the Court enumerated the cases in which the claim of executive privilege
was recognized, among them Almonte v. Chavez, Chavez v. Presidential Commission on Good
Government (PCGG),14 and Chavez v. PEA.15 The Court articulated in these cases that "there are certain
types of information which the government may withhold from the public, 16" that there is a "governmental
privilege against public disclosure with respect to state secrets regarding military, diplomatic and other
national security matters";17 and that "the right to information does not extend to matters recognized
as ‘privileged information’ under the separation of powers, by which the Court meant Presidential
conversations, correspondences, and discussions in closed-door Cabinet meetings."18
Respondent Committees’ observation that this Court’s Decision reversed the "presumption that inclines
heavily against executive secrecy and in favor of disclosure" arises from a piecemeal interpretation of the
said Decision. The Court has repeatedly held that in order to arrive at the true intent and meaning of a
decision, no specific portion thereof should be isolated and resorted to, but the decision must be
considered in its entirety.19
Note that the aforesaid presumption is made in the context of the circumstances obtaining in Senate v.
Ermita, which declared void Sections 2(b) and 3 of Executive Order (E.O.) No. 464, Series of 2005. The
pertinent portion of the decision in the said case reads:
From the above discussion on the meaning and scope of executive privilege, both in the United
States and in this jurisprudence, 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. (Emphasis and underscoring
supplied)
Obviously, the last sentence of the above-quoted paragraph in Senate v. Ermita refers to the "exemption"
being claimed by the executive officials mentioned in Section 2(b) of E.O. No. 464, solely by virtue of their
positions in the Executive Branch. This means that when an executive official, who is one of those
mentioned in the said Sec. 2(b) of E.O. No. 464, claims to be exempt from disclosure, there can be no
presumption of authorization to invoke executive privilege given by the President to said executive
official, such that the presumption in this situation inclines heavily against executive secrecy and in favor
of disclosure.
Senate v. Ermita 20 expounds on the premise of the foregoing ruling in this wise:
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, or in those instances where exemption from disclosure is necessary to the
discharge of highly important executive responsibilities. The doctrine of executive privilege is thus
premised on the fact that certain information 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.
The constitutional infirmity found in the blanket authorization to invoke executive privilege granted by the
President to executive officials in Sec. 2(b) of E.O. No. 464 does not obtain in this case.
In this case, it was the President herself, through Executive Secretary Ermita, who invoked executive
privilege on a specific matter involving an executive agreement between the Philippines and China, which
was the subject of the three (3) questions propounded to petitioner Neri in the course of the Senate
Committees’ investigation. Thus, the factual setting of this case markedly differs from that passed upon in
Senate v. Ermita.
Moreover, contrary to the claim of respondents, the Decision in this present case hews closely to the
ruling in Senate v. Ermita,21 to wit:
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. 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.
Schwart defines executive privilege as "the power of the Government to withhold information
from the public, the courts, and the Congress. 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." x x x In this jurisdiction, the doctrine of executive privilege was
recognized by this Court in Almonte v. Vasquez. Almonte 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, he
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 italics supplied)
Clearly, therefore, even Senate v. Ermita adverts to "a presumptive privilege for Presidential

communication," which was recognized early on in Almonte v. Vasquez. To construe the passage
in Senate v. Ermita adverted to in the Motion for Reconsideration of respondent Committees, referring to
the non-existence of a "presumptive authorization" of an executive official, to mean that the "presumption"
in favor of executive privilege "inclines heavily against executive secrecy and in favor of disclosure" is to
distort the ruling in the Senate v. Ermita and make the same engage in self-contradiction.
Senate v. Ermita22 expounds on the constitutional underpinning of the relationship between the Executive
Department and the Legislative Department to explain why there should be no implied authorization or
presumptive authorization to invoke executive privilege by the President’s subordinate officials, as follows:
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 he being the highest official
of the executive branch, and the due respect accorded to a co-equal branch of governments
which is sanctioned by a long-standing custom. (Underscoring supplied)
Thus, if what is involved is the presumptive privilege of presidential communications when invoked by the
President on a matter clearly within the domain of the Executive, the said presumption dictates that the
same be recognized and be given preference or priority, in the absence of proof of a compelling or critical
need for disclosure by the one assailing such presumption. Any construction to the contrary will render
meaningless the presumption accorded by settled jurisprudence in favor of executive privilege. In
fact, Senate v. Ermita reiterates jurisprudence citing "the considerations justifying a presumptive privilege
for Presidential communications."23
II
There Are Factual and Legal Bases to

Hold that the Communications Elicited by the
Three (3) Questions Are Covered by Executive Privilege
Respondent Committees claim that the communications elicited by the three (3) questions are not
covered by executive privilege because the elements of the presidential communications privilege are
not present.
A. The power to enter into an executive agreement is a "quintessential and non-delegable

presidential power."
First, respondent Committees contend that the power to secure a foreign loan does not relate to a
"quintessential and non-delegable presidential power," because the Constitution does not vest it in the
President alone, but also in the Monetary Board which is required to give its prior concurrence and to
report to Congress.
This argument is unpersuasive.
The fact that a power is subject to the concurrence of another entity does not make such power less
executive. "Quintessential" is defined as the most perfect embodiment of something, the concentrated
essence of substance.24 On the other hand, "non-delegable" means that a power or duty cannot be
delegated to another or, even if delegated, the responsibility remains with the obligor. 25 The power to
enter into an executive agreement is in essence an executive power. This authority of the President to
enter into executive agreements without the concurrence of the Legislature has traditionally been
recognized in Philippine jurisprudence.26 Now, the fact that the President has to secure the prior
concurrence of the Monetary Board, which shall submit to Congress a complete report of its decision
before contracting or guaranteeing foreign loans, does not diminish the executive nature of the power.
The inviolate doctrine of separation of powers among the legislative, executive and judicial branches of
government by no means prescribes absolute autonomy in the discharge by each branch of that part of
the governmental power assigned to it by the sovereign people. There is the corollary doctrine of checks
and balances, which has been carefully calibrated by the Constitution to temper the official acts of each of
these three branches. Thus, by analogy, the fact that certain legislative acts require action from the
President for their validity does not render such acts less legislative in nature. A good example is the
power to pass a law. Article VI, Section 27 of the Constitution mandates that every bill passed by
Congress shall, before it becomes a law, be presented to the President who shall approve or veto the
same. The fact that the approval or vetoing of the bill is lodged with the President does not render the
power to pass law executive in nature. This is because the power to pass law is generally a quintessential
and non-delegable power of the Legislature. In the same vein, the executive power to enter or not to enter
into a contract to secure foreign loans does not become less executive in nature because of conditions
laid down in the Constitution. The final decision in the exercise of the said executive power is still lodged
in the Office of the President.
B. The "doctrine of operational proximity" was laid down precisely to limit the scope of the
presidential communications privilege but, in any case, it is not conclusive.
Second, respondent Committees also seek reconsideration of the application of the "doctrine of
operational proximity" for the reason that "it maybe misconstrued to expand the scope of the presidential
communications privilege to communications between those who are ‘operationally proximate’ to the
President but who may have "no direct communications with her."
It must be stressed that the doctrine of "operational proximity" was laid down in In re: Sealed
Case27precisely to limit the scope of the presidential communications privilege. The U.S. court was aware
of the dangers that a limitless extension of the privilege risks and, therefore, carefully cabined its reach by
explicitly confining it to White House staff, and not to staffs of the agencies, and then only to White House
staff that has "operational proximity" to direct presidential decision-making, thus:
We are aware that such an extension, unless carefully circumscribed to accomplish the purposes
of the privilege, could pose a significant risk of expanding to a large swath of the executive
branch a privilege that is bottomed on a recognition of the unique role of the President. In order to
limit this risk, the presidential communications privilege should be construed as narrowly as is
consistent with ensuring that the confidentiality of the President’s decision-making process is
adequately protected. Not every person who plays a role in the development of presidential
advice, no matter how remote and removed from the President, can qualify for the
privilege. In particular, the privilege should not extend to staff outside the White House in
executive branch agencies. Instead, the privilege should apply only to communications
authored or solicited and received by those members of an immediate White House advisor’s
staff who have broad and significant responsibility for investigation and formulating the advice to
be given the President on the particular matter to which the communications relate. Only
communications at that level are close enough to the President to be revelatory of his
deliberations or to pose a risk to the candor of his advisers. See AAPS, 997 F.2d at 910 (it
is "operational proximity" to the President that matters in determining whether "[t]he
President’s confidentiality interests" is implicated). (Emphasis supplied)
In the case at bar, the danger of expanding the privilege "to a large swath of the executive branch" (a fear
apparently entertained by respondents) is absent because the official involved here is a member of the
Cabinet, thus, properly within the term "advisor" of the President; in fact, her alter ego and a member of
her official family. Nevertheless, in circumstances in which the official involved is far too remote, this Court
also mentioned in the Decision the organizational test laid down in Judicial Watch, Inc. v. Department of
Justice.28 This goes to show that the operational proximity test used in the Decision is not considered
conclusive in every case. In determining which test to use, the main consideration is to limit the availability
of executive privilege only to officials who stand proximate to the President, not only by reason of their
function, but also by reason of their positions in the Executive’s organizational structure. Thus,
respondent Committees’ fear that the scope of the privilege would be unnecessarily expanded with the
use of the operational proximity test is unfounded.
C. The President’s claim of executive privilege is not merely based on a generalized interest; and
in balancing respondent Committees’ and the President’s clashing interests, the Court did not
disregard the 1987 Constitutional provisions on government transparency, accountability and
disclosure of information.
Third, respondent Committees claim that the Court erred in upholding the President’s invocation, through
the Executive Secretary, of executive privilege because (a) between respondent Committees’ specific and
demonstrated need and the President’s generalized interest in confidentiality, there is a need to strike the
balance in favor of the former; and (b) in the balancing of interest, the Court disregarded the provisions of
the 1987 Philippine Constitution on government transparency, accountability and disclosure of
information, specifically, Article III, Section 7;29 Article II, Sections 2430 and 28;31 Article XI, Section
1;32 Article XVI, Section 10;33 Article VII, Section 20;34 and Article XII, Sections 9,35 21,36 and 22.37
It must be stressed that the President’s claim of executive privilege is not merely founded on her
generalized interest in confidentiality. The Letter dated November 15, 2007 of Executive Secretary Ermita
specified presidential communications privilege in relation to diplomatic and economic relations
with another sovereign nation as the bases for the claim. Thus, the Letter stated:
The context in which executive privilege is being invoked is that the information sought to
be disclosed might impair our diplomatic as well as economic relations with the People’s
Republic of China. Given the confidential nature in which this information were conveyed to the
President, he cannot provide the Committee any further details of these conversations, without
disclosing the very thing the privilege is designed to protect. (emphasis supplied)
Even in Senate v. Ermita, it was held that 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. This is a matter of respect for a coordinate and co-equal department.
It is easy to discern the danger that goes with the disclosure of the President’s communication with her
advisor. The NBN Project involves a foreign country as a party to the agreement. It was actually a product
of the meeting of minds between officials of the Philippines and China. Whatever the President says
about the agreement - particularly while official negotiations are ongoing - are matters which China will
surely view with particular interest. There is danger in such kind of exposure. It could adversely affect our
diplomatic as well as economic relations with the People’s Republic of China. We reiterate the importance
of secrecy in matters involving foreign negotiations as stated in United States v. Curtiss-Wright Export
Corp., 38 thus:
The nature of foreign negotiations requires caution, and their success must often depend on
secrecy, and even when brought to a conclusion, a full disclosure of all the measures, demands,
or eventual concessions which may have been proposed or contemplated would be extremely
impolitic, for this might have a pernicious influence on future negotiations or produce immediate
inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such
caution and secrecy was one cogent reason for vesting the power of making treaties in the
President, with the advice and consent of the Senate, the principle on which the body was formed
confining it to a small number of members. To admit, then, a right in the House of
Representatives to demand and to have as a matter of course all the papers respecting a
negotiation with a foreign power would be to establish a dangerous precedent.
US jurisprudence clearly guards against the dangers of allowing Congress access to all papers relating to
a negotiation with a foreign power. In this jurisdiction, the recent case of Akbayan Citizens Action Party,
et al. v. Thomas G. Aquino, et al.39 upheld the privileged character of diplomatic negotiations. In Akbayan,
the Court stated:
Privileged character of diplomatic negotiations
The privileged character of diplomatic negotiations has been recognized in this jurisdiction. In
discussing valid limitations on the right to information, the Court in Chavez v. PCGG held that
"information on inter-government exchanges prior to the conclusion of treaties and executive
agreements may be subject to reasonable safeguards for the sake of national interest." Even
earlier, the same privilege was upheld in People’s Movement for Press Freedom (PMPF) v.
Manglapus wherein the Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the President’s
representatives on the state of the then on-going negotiations of the RP-US Military Bases
Agreement. The Court denied the petition, stressing that "secrecy of negotiations with foreign
countries is not violative of the constitutional provisions of freedom of speech or of the press
nor of the freedom of access to information." The Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential characteristic of
diplomacy is its confidential nature. Although much has been said about "open" and
"secret" diplomacy, with disparagement of the latter, Secretaries of State Hughes and
Stimson have clearly analyzed and justified the practice. In the words of Mr. Stimson:
"A complicated negotiation …cannot be carried through without many,

many private talks and discussion, man to man; many tentative
suggestions and proposals. Delegates from other countries come and tell
you in confidence of their troubles at home and of their differences with
other countries and with other delegates; they tell you of what they would
do under certain circumstances and would not do under other
circumstances… If these reports… should become public… who would
ever trust American Delegations in another conference? (United States
Department of State, Press Releases, June 7, 1930, pp. 282-284)
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign powers
on nearly all subjects is concerned. This, it is claimed, is incompatible with the
substance of democracy. As expressed by one writer, "It can be said that there is no
more rigid system of silence anywhere in the world." (E.J. Young, Looking Behind the
Censorship, J. B. Lipincott Co., 1938) President Wilson in starting his efforts for the
conclusion of the World War declared that we must have "open covenants, openly arrived
at." He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
"muscle in." An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to a
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright Export
Corp. that the President is the sole organ of the nation in its negotiations with foreign
countries,viz:
"x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of the
nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is
powerless to invade it. As Marshall said in his great arguments of March 7, 1800, in the
House of Representatives, "The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations." Annals, 6th
Cong., col. 613… (Emphasis supplied; underscoring in the original)
Considering that the information sought through the three (3) questions subject of this Petition involves
the President’s dealings with a foreign nation, with more reason, this Court is wary of approving the view
that Congress may peremptorily inquire into not only official, documented acts of the President but even
her confidential and informal discussions with her close advisors on the pretext that said questions serve
some vague legislative need. Regardless of who is in office, this Court can easily foresee unwanted
consequences of subjecting a Chief Executive to unrestricted congressional inquiries done with increased
frequency and great publicity. No Executive can effectively discharge constitutional functions in the face
of intense and unchecked legislative incursion into the core of the President’s decision-making process,
which inevitably would involve her conversations with a member of her Cabinet.
With respect to respondent Committees’ invocation of constitutional prescriptions regarding the right of
the people to information and public accountability and transparency, the Court finds nothing in these
arguments to support respondent Committees’ case.
There is no debate as to the importance of the constitutional right of the people to information and the
constitutional policies on public accountability and transparency. These are the twin postulates vital to the
effective functioning of a democratic government. The citizenry can become prey to the whims and
caprices of those to whom the power has been delegated if they are denied access to information. And
the policies on public accountability and democratic government would certainly be mere empty words if
access to such information of public concern is denied.
In the case at bar, this Court, in upholding executive privilege with respect to three (3) specific questions,
did not in any way curb the public’s right to information or diminish the importance of public accountability
and transparency.
This Court did not rule that the Senate has no power to investigate the NBN Project in aid of legislation.
There is nothing in the assailed Decision that prohibits respondent Committees from inquiring into the
NBN Project. They could continue the investigation and even call petitioner Neri to testify again. He
himself has repeatedly expressed his willingness to do so. Our Decision merely excludes from the scope
of respondents’ investigation the three (3) questions that elicit answers covered by executive privilege and
rules that petitioner cannot be compelled to appear before respondents to answer the said questions. We
have discussed the reasons why these answers are covered by executive privilege. That there is a
recognized public interest in the confidentiality of such information is a recognized principle in other
democratic States. To put it simply, the right to information is not an absolute right.
Indeed, the constitutional provisions cited by respondent Committees do not espouse an absolute right to
information. By their wording, the intention of the Framers to subject such right to the regulation of the law
is unmistakable. The highlighted portions of the following provisions show the obvious limitations on the
right to information, thus:
Article III, Sec. 7. The right of the people to information on matters of public concern shall be
recognized. Access to official records, and to documents, and papers pertaining to official
records, and to documents, and papers pertaining to official acts, transactions, or decisions, as
well as to government research data used as basis for policy development, shall be afforded the
citizen, subject to such limitations as may be provided by law.
Article II, Sec. 28. Subject to reasonable conditions prescribed by law, the State adopts and
implements a policy of full public disclosure of all its transactions involving public
interest. (Emphasis supplied)
In Chavez v. Presidential Commission on Good Government,40 it was stated that there are no specific
laws prescribing the exact limitations within which the right may be exercised or the correlative state duty
may be obliged. Nonetheless, it enumerated the recognized restrictions to such rights, among them: (1)
national security matters, (2) trade secrets and banking transactions, (3) criminal matters, and (4) other
confidential information. National security matters include state secrets regarding military and diplomatic
matters, as well as information on inter-government exchanges prior to the conclusion of treaties and
executive agreements. It was further held that even where there is no need to protect such state
secrets, they must be "examined in strict confidence and given scrupulous protection."
Incidentally, the right primarily involved here is the right of respondent Committees to obtain information
allegedly in aid of legislation, not the people’s right to public information. This is the reason why we
stressed in the assailed Decision the distinction between these two rights. As laid down in Senate v.
Ermita, "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" and "neither does
the right to information grant a citizen the power to exact testimony from government officials." As pointed
out, these rights belong to Congress, not to the individual citizen. It is worth mentioning at this juncture
that the parties here are respondent Committees and petitioner Neri and that there was no prior request
for information on the part of any individual citizen. This Court will not be swayed by attempts to blur the
distinctions between the Legislature's right to information in a legitimate legislative inquiry and the public's
right to information.
For clarity, it must be emphasized that the assailed Decision did not enjoin respondent
Committees from inquiring into the NBN Project. All that is expected from them is to respect
matters that are covered by executive privilege.
III.
Respondent Committees Failed to Show That

the Communications Elicited by the Three Questions
Are Critical to the Exercise of their Functions
In their Motion for Reconsideration, respondent Committees devote an unusually lengthy discussion on
the purported legislative nature of their entire inquiry, as opposed to an oversight inquiry.
At the outset, it must be clarified that the Decision did not pass upon the nature of respondent
Committees’ inquiry into the NBN Project. To reiterate, this Court recognizes respondent Committees’
power to investigate the NBN Project in aid of legislation. However, this Court cannot uphold the view that
when a constitutionally guaranteed privilege or right is validly invoked by a witness in the course of a
legislative investigation, the legislative purpose of respondent Committees’ questions can be sufficiently
supported by the expedient of mentioning statutes and/or pending bills to which their inquiry as a whole
may have relevance. The jurisprudential test laid down by this Court in past decisions on executive
privilege is that the presumption of privilege can only be overturned by a showing of compelling
need for disclosure of the information covered by executive privilege.
In the Decision, the majority held that "there is no adequate showing of a compelling need that would
justify the limitation of the privilege and of the unavailability of the information elsewhere by an
appropriate investigating authority." In the Motion for Reconsideration, respondent Committees argue that
the information elicited by the three (3) questions are necessary in the discharge of their legislative
functions, among them, (a) to consider the three (3) pending Senate Bills, and (b) to curb graft and
corruption.
We remain unpersuaded by respondents’ assertions.
In U.S. v. Nixon, the U.S. Court held that executive privilege is subject to balancing against other interests
and it is necessary to resolve the competing interests in a manner that would preserve the essential
functions of each branch. There, the Court weighed between presidential privilege and the legitimate
claims of the judicial process. In giving more weight to the latter, the Court ruled that the President's
generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending
criminal trial.
The Nixon Court ruled that an absolute and unqualified privilege would stand in the way of the primary
constitutional duty of the Judicial Branch to do justice in criminal prosecutions. The said Court further
ratiocinated, through its ruling extensively quoted in the Honorable Chief Justice Puno's dissenting
opinion, as follows:
"... this presumptive privilege must be considered in light of our historic commitment to the rule of
law. This is nowhere more profoundly manifest than in our view that 'the twofold aim (of criminal
justice) is that guild shall not escape or innocence suffer.' Berger v. United States, 295 U.S., at
88, 55 S.Ct., at 633. We have elected to employ an adversary system of criminal justice in which
the parties contest all issues before a court of law. The need to develop all relevant facts in the
adversary system is both fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or speculative
presentation of the facts. The very integrity of the judicial system and public confidence in
the system depend on full disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the function of courts that
compulsory process be available for the production of evidence needed either by the
prosecution or by the defense.
xxx xxx xxx
The right to the production of all evidence at a criminal trial similarly has constitutional
dimensions. The Sixth Amendment explicitly confers upon every defendant in a criminal trial
the right 'to be confronted with the witness against him' and 'to have compulsory
process for obtaining witnesses in his favor.' Moreover, the Fifth Amendment also guarantees
that no person shall be deprived of liberty without due process of law. It is the manifest
duty of the courts to vindicate those guarantees, and to accomplish that it is essential that all
relevant and admissible evidence be produced.
In this case we must weigh the importance of the general privilege of confidentiality of
Presidential communications in performance of the President's responsibilities against the
inroads of such a privilege on the fair administration of criminal justice. (emphasis
supplied)
xxx xxx xxx
...the allowance of the privilege to withhold evidence that is demonstrably relevant in a criminal
trial would cut deeply into the guarantee of due process of law and gravely impair the
basic function of the courts. A President's acknowledged need for confidentiality in the
communications of his office is general in nature, whereas the constitutional need for
production of relevant evidence in a criminal proceeding is specific and central to the fair
adjudication of a particular criminal case in the administration of justice. Without access to
specific facts a criminal prosecution may be totally frustrated. The President's broad interest
in confidentiality of communication will not be vitiated by disclosure of a limited number of
conversations preliminarily shown to have some bearing on the pending criminal cases.
We conclude 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. The generalized assertion of privilege must yield to the demonstrated, specific
need for evidence in a pending criminal trial. (emphasis supplied)
In the case at bar, we are not confronted with a court’s need for facts in order to adjudge liability in a
criminal case but rather with the Senate’s need for information in relation to its legislative functions. This
leads us to consider once again just how critical is the subject information in the discharge of respondent
Committees’ functions. The burden to show this is on the respondent Committees, since they seek to
intrude into the sphere of competence of the President in order to gather information which, according to
said respondents, would "aid" them in crafting legislation.
Senate Select Committee on Presidential Campaign Activities v. Nixon 41 expounded on the nature of a
legislative inquiry in aid of legislation in this wise:
The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on
whether the subpoenaed materials are critical to the performance of its legislative functions.
There is a clear difference between Congress' legislative tasks and the responsibility of a grand
jury, or any institution engaged in like functions. While fact-finding by a legislative committee
is undeniably a part of its task, legislative judgments normally depend more on the
predicted consequences of proposed legislative actions and their political acceptability,
than on precise reconstruction of past events; Congress frequently legislates on the basis of
conflicting information provided in its hearings. In contrast, the responsibility of the grand jury
turns entirely on its ability to determine whether there is probable cause to believe that certain
named individuals did or did not commit specific crimes. If, for example, as in Nixon v. Sirica, one
of those crimes is perjury concerning the content of certain conversations, the grand jury's need
for the most precise evidence, the exact text of oral statements recorded in their original form, is
undeniable. We see no comparable need in the legislative process, at least not in the
circumstances of this case. Indeed, whatever force there might once have been in the
Committee's argument that the subpoenaed materials are necessary to its legislative judgments
has been substantially undermined by subsequent events. (Emphasis supplied)
Clearly, the need for hard facts in crafting legislation cannot be equated with the compelling or
demonstratively critical and specific need for facts which is so essential to the judicial power to adjudicate
actual controversies. Also, the bare standard of "pertinency" set in Arnault cannot be lightly applied to the
instant case, which unlike Arnault involves a conflict between two (2) separate, co-equal and coordinate
Branches of the Government.
Whatever test we may apply, the starting point in resolving the conflicting claims between the Executive
and the Legislative Branches is the recognized existence of the presumptive presidential communications
privilege. This is conceded even in the Dissenting Opinion of the Honorable Chief Justice Puno, which
states:
A hard look at Senate v. Ermita ought to yield the conclusion that it bestowed a qualified
presumption in favor of the Presidential communications privilege. As shown in the previous
discussion, U.S. v. Nixon, as well as the other related Nixon cases Sirica and Senate Select
Committee on Presidential Campaign Activities, et al., v. Nixon in the D.C. Court of Appeals,
as well as subsequent cases all recognize that there is a presumptive privilege in favor of
Presidential communications. The Almonte case quoted U.S. v. Nixon and recognized a
presumption in favor of confidentiality of Presidential communications.
The presumption in favor of Presidential communications puts the burden on the respondent Senate
Committees to overturn the presumption by demonstrating their specific need for the information to be
elicited by the answers to the three (3) questions subject of this case, to enable them to craft legislation.
Here, there is simply a generalized assertion that the information is pertinent to the exercise of the power
to legislate and a broad and non-specific reference to pending Senate bills. It is not clear what matters
relating to these bills could not be determined without the said information sought by the three (3)
questions. As correctly pointed out by the Honorable Justice Dante O. Tinga in his Separate Concurring
Opinion:
…If respondents are operating under the premise that the president and/or her executive
officials have committed wrongdoings that need to be corrected or prevented from
recurring by remedial legislation, the answer to those three questions will not necessarily
bolster or inhibit respondents from proceeding with such legislation. They could easily
presume the worst of the president in enacting such legislation.
For sure, a factual basis for situations covered by bills is not critically needed before legislatives bodies
can come up with relevant legislation unlike in the adjudication of cases by courts of law. Interestingly,
during the Oral Argument before this Court, the counsel for respondent Committees impliedly admitted
that the Senate could still come up with legislations even without petitioner answering the three (3)
questions. In other words, the information being elicited is not so critical after all. Thus:
CHIEF JUSTICE PUNO
So can you tell the Court how critical are these questions to the lawmaking function of the
Senate. For instance, question Number 1 whether the President followed up the NBN
project. According to the other counsel this question has already been asked, is that
correct?
ATTY. AGABIN
Well, the question has been asked but it was not answered, Your Honor.
CHIEF JUSTICE PUNO
Yes. But my question is how critical is this to the lawmaking function of the Senate?
ATTY. AGABIN
I believe it is critical, Your Honor.
CHIEF JUSTICE PUNO
Why?
ATTY. AGABIN
For instance, with respect to the proposed Bill of Senator Miriam Santiago, she would like
to indorse a Bill to include Executive Agreements had been used as a device to the
circumventing the Procurement Law.
CHIEF JUSTICE PUNO
But the question is just following it up.
ATTY. AGABIN
I believe that may be the initial question, Your Honor, because if we look at this problem
in its factual setting as counsel for petitioner has observed, there are intimations of a
bribery scandal involving high government officials.
CHIEF JUSTICE PUNO

Again, about the second question, were you dictated to prioritize this ZTE, is that critical
to the lawmaking function of the Senate? Will it result to the failure of the Senate to
cobble a Bill without this question?
ATTY. AGABIN
I think it is critical to lay the factual foundations for a proposed amendment to the
Procurement Law, Your Honor, because the petitioner had already testified that he was
offered a P200 Million bribe, so if he was offered a P200 Million bribe it is possible that
other government officials who had something to do with the approval of the contract
would be offered the same amount of bribes.
CHIEF JUSTICE PUNO
Again, that is speculative.
ATTY. AGABIN
That is why they want to continue with the investigation, Your Honor.
CHIEF JUSTICE PUNO
How about the third question, whether the President said to go ahead and approve the
project after being told about the alleged bribe. How critical is that to the lawmaking
function of the Senate? And the question is may they craft a Bill a remedial law without
forcing petitioner Neri to answer this question?
ATTY. AGABIN
Well, they can craft it, Your Honor, based on mere speculation. And sound legislation
requires that a proposed Bill should have some basis in fact. 42
The failure of the counsel for respondent Committees to pinpoint the specific need for the information
sought or how the withholding of the information sought will hinder the accomplishment of their legislative
purpose is very evident in the above oral exchanges. Due to the failure of the respondent Committees to
successfully discharge this burden, the presumption in favor of confidentiality of presidential
communication stands. The implication of the said presumption, like any other, is to dispense with the
burden of proof as to whether the disclosure will significantly impair the President’s performance of her
function. Needless to state this is assumed, by virtue of the presumption.
Anent respondent Committees’ bewailing that they would have to "speculate" regarding the questions
covered by the privilege, this does not evince a compelling need for the information sought.
Indeed, Senate Select Committee on Presidential Campaign Activities v. Nixon 43 held that while fact-
finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend
more on the predicted consequences of proposed legislative actions and their political acceptability than
on a precise reconstruction of past events. It added that, normally, Congress legislates on the basis of
conflicting information provided in its hearings. We cannot subscribe to the respondent Committees’ self-
defeating proposition that without the answers to the three (3) questions objected to as privileged, the
distinguished members of the respondent Committees cannot intelligently craft legislation.
Anent the function to curb graft and corruption, it must be stressed that respondent Committees’ need for
information in the exercise of this function is not as compelling as in instances when the purpose of the
inquiry is legislative in nature. This is because curbing graft and corruption is merely an oversight function
of Congress.44 And if this is the primary objective of respondent Committees in asking the three (3)
questions covered by privilege, it may even contradict their claim that their purpose is legislative in nature
and not oversight. In any event, whether or not investigating graft and corruption is a legislative or
oversight function of Congress, respondent Committees’ investigation cannot transgress bounds set by
the Constitution.
In Bengzon, Jr. v. Senate Blue Ribbon Committee,45 this Court ruled:
The "allocation of constitutional boundaries" is a task that this Court must perform under
the Constitution. Moreover, as held in a recent case, "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.46 (Emphasis supplied)
There, the Court further ratiocinated that "the contemplated inquiry by respondent Committee is not
really ‘in aid of legislation’ because 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 relatives of the President or Mr.
Ricardo Lopa had violated Section 5 of R.A. 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."47 (Emphasis and underscoring supplied)
The general thrust and the tenor of the three (3) questions is to trace the alleged bribery to the Office of
the President.48 While it may be a worthy endeavor to investigate the potential culpability of high
government officials, including the President, in a given government transaction, it is simply not a task for
the Senate to perform. The role of the Legislature is to make laws, not to determine anyone’s guilt of a
crime or wrongdoing. Our Constitution has not bestowed upon the Legislature the latter role. Just as the
Judiciary cannot legislate, neither can the Legislature adjudicate or prosecute.
Respondent Committees claim that they are conducting an inquiry in aid of legislation and a "search for
truth," which in respondent Committees’ view appears to be equated with the search for persons
responsible for "anomalies" in government contracts.
No matter how noble the intentions of respondent Committees are, they cannot assume the power
reposed upon our prosecutorial bodies and courts. The determination of who is/are liable for a crime or
illegal activity, the investigation of the role played by each official, the determination of who should be
haled to court for prosecution and the task of coming up with conclusions and finding of facts regarding
anomalies, especially the determination of criminal guilt, are not functions of the Senate. Congress is
neither a law enforcement nor a trial agency. Moreover, it bears stressing that no inquiry is an end in
itself; it must be related to, and in furtherance of, a legitimate task of the Congress, i.e. legislation.
Investigations conducted solely to gather incriminatory evidence and "punish" those investigated are
indefensible. There is no Congressional power to expose for the sake of exposure. 49 In this regard, the
pronouncement in Barenblatt v. United States50 is instructive, thus:
Broad as it is, the power is not, however, without limitations. Since Congress may only
investigate into the 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 matters that are exclusively
the concern of the Judiciary. Neither can it supplant the Executive in what exclusively belongs to
the Executive. (Emphasis supplied.)
At this juncture, it is important to stress that complaints relating to the NBN Project have already been
filed against President Arroyo and other personalities before the Office of the Ombudsman. Under our
Constitution, it is the Ombudsman who has the duty "to investigate 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."51 The Office of the Ombudsman is the body properly equipped by the
Constitution and our laws to preliminarily determine whether or not the allegations of anomaly are true
and who are liable therefor. The same holds true for our courts upon which the Constitution reposes the
duty to determine criminal guilt with finality. Indeed, the rules of procedure in the Office of the
Ombudsman and the courts are well-defined and ensure that the constitutionally guaranteed rights
of all persons, parties and witnesses alike, are protected and safeguarded.
Should respondent Committees uncover information related to a possible crime in the course of their
investigation, they have the constitutional duty to refer the matter to the appropriate agency or branch of
government. Thus, the Legislature’s need for information in an investigation of graft and corruption cannot
be deemed compelling enough to pierce the confidentiality of information validly covered by executive
privilege. As discussed above, the Legislature can still legislate on graft and corruption even without the
information covered by the three (3) questions subject of the petition.
Corollarily, respondent Committees justify their rejection of petitioner’s claim of executive privilege on the
ground that there is no privilege when the information sought might involve a crime or illegal
activity, despite the absence of an administrative or judicial determination to that effect.
Significantly, however, in Nixon v. Sirica,52 the showing required to overcome the presumption favoring
confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material
might reveal, but, instead, on the nature and appropriateness of the function in the performance of
which the material was sought, and the degree to which the material was necessary to its
fulfillment.
Respondent Committees assert that Senate Select Committee on Presidential Campaign Activities v.

Nixon does not apply to the case at bar because, unlike in the said case, no impeachment proceeding
has been initiated at present. The Court is not persuaded. While it is true that no impeachment
proceeding has been initiated, however, complaints relating to the NBN Project have already been filed
against President Arroyo and other personalities before the Office of the Ombudsman. As the Court has
said earlier, the prosecutorial and judicial arms of government are the bodies equipped and mandated by
the Constitution and our laws to determine whether or not the allegations of anomaly in the NBN Project
are true and, if so, who should be prosecuted and penalized for criminal conduct.
Legislative inquiries, unlike court proceedings, are not subject to the exacting standards of evidence
essential to arrive at accurate factual findings to which to apply the law. Hence, Section 10 of the Senate
Rules of Procedure Governing Inquiries in Aid of Legislation provides that "technical rules of evidence
applicable to judicial proceedings which do not affect substantive rights need not be observed by the
Committee." Court rules which prohibit leading, hypothetical, or repetitive questions or questions calling
for a hearsay answer, to name a few, do not apply to a legislative inquiry. Every person, from the highest
public official to the most ordinary citizen, has the right to be presumed innocent until proven guilty in
proper proceedings by a competent court or body.
IV
Respondent Committees Committed Grave

Abuse of Discretion in Issuing the Contempt Order
Respondent Committees insist that they did not commit grave abuse of discretion in issuing the contempt
order because (1) there is no legitimate claim of executive privilege; (2) they did not violate the
requirements laid down in Senate v. Ermita; (3) they issued the contempt order in accordance with their
internal Rules; (4) they did not violate the requirement under Article VI, Section 21 of the Constitution
requiring the publication of their Rules; and (5) their issuance of the contempt order is not arbitrary or
precipitate.
We reaffirm our earlier ruling.
The legitimacy of the claim of executive privilege having been fully discussed in the preceding pages, we
see no reason to discuss it once again.
Respondent Committees’ second argument rests on the view that the ruling in Senate v. Ermita, requiring
invitations or subpoenas to contain the "possible needed statute which prompted the need for the inquiry"
along with the "usual indication of the subject of inquiry and the questions relative to and in furtherance
thereof" is not provided for by the Constitution and is merely an obiter dictum.
On the contrary, the Court sees the rationale and necessity of compliance with these requirements.
An unconstrained congressional investigative power, like an unchecked Executive, generates its own
abuses. Consequently, claims that the investigative power of Congress has been abused (or has the
potential for abuse) have been raised many times.53 Constant exposure to congressional subpoena takes
its toll on the ability of the Executive to function effectively. The requirements set forth in Senate v.
Ermita are modest mechanisms that would not unduly limit Congress’ power. The legislative inquiry must
be confined to permissible areas and thus, prevent the "roving commissions" referred to in the U.S.
case, Kilbourn v. Thompson.54 Likewise, witnesses have their constitutional right to due process. They
should be adequately informed what matters are to be covered by the inquiry. It will also allow them to
prepare the pertinent information and documents. To our mind, these requirements concede too little
political costs or burdens on the part of Congress when viewed vis-à-vis the immensity of its power of
inquiry. The logic of these requirements is well articulated in the study conducted by William P.
Marshall,55 to wit:
A second concern that might be addressed is that the current system allows committees to
continually investigate the Executive without constraint. One process solution addressing this
concern is to require each investigation be tied to a clearly stated purpose. At present, the
charters of some congressional committees are so broad that virtually any matter involving the
Executive can be construed to fall within their province. Accordingly, investigations can proceed
without articulation of specific need or purpose. A requirement for a more precise charge in order
to begin an inquiry should immediately work to limit the initial scope of the investigation and
should also serve to contain the investigation once it is instituted. Additionally, to the extent
clear statements of rules cause legislatures to pause and seriously consider the
constitutional implications of proposed courses of action in other areas, they would serve
that goal in the context of congressional investigations as well.
The key to this reform is in its details. A system that allows a standing committee to
simply articulate its reasons to investigate pro forma does no more than imposes minimal
drafting burdens. Rather, the system must be designed in a manner that imposes actual
burdens on the committee to articulate its need for investigation and allows for meaningful
debate about the merits of proceeding with the investigation. (Emphasis supplied)
Clearly, petitioner’s request to be furnished an advance copy of questions is a reasonable demand that
should have been granted by respondent Committees.
Unfortunately, the Subpoena Ad Testificandum dated November 13, 2007 made no specific reference to
any pending Senate bill. It did not also inform petitioner of the questions to be asked. As it were, the
subpoena merely commanded him to "testify on what he knows relative to the subject matter under
inquiry."
Anent the third argument, respondent Committees contend that their Rules of Procedure Governing
Inquiries in Aid of Legislation (the "Rules") are beyond the reach of this Court. While it is true that this
Court must refrain from reviewing the internal processes of Congress, as a co-equal branch of
government, however, when a constitutional requirement exists, the Court has the duty to look into
Congress’ compliance therewith. We cannot turn a blind eye to possible violations of the Constitution
simply out of courtesy. In this regard, the pronouncement in Arroyo v. De Venecia56 is enlightening, thus:
"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.
United States v. Ballin, Joseph & Co., the rule 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."
In the present case, the Court’s exercise of its power of judicial review is warranted because there
appears to be a clear abuse of the power of contempt on the part of respondent Committees. Section 18
of the Rules provides that:
"The Committee, by a vote of majority of all its members, may punish for contempt any witness
before it who disobey any order of the Committee or refuses to be sworn or to testify or to answer
proper questions by the Committee or any of its members." (Emphasis supplied)
In the assailed Decision, we said that there is a cloud of doubt as to the validity of the contempt order
because during the deliberation of the three (3) respondent Committees, only seven (7) Senators were
present. This number could hardly fulfill the majority requirement needed by respondent Committee on
Accountability of Public Officers and Investigations which has a membership of seventeen (17) Senators
and respondent Committee on National Defense and Security which has a membership of eighteen (18)
Senators. With respect to respondent Committee on Trade and Commerce which has a membership of
nine (9) Senators, only three (3) members were present. 57 These facts prompted us to quote in the
Decision the exchanges between Senators Alan Peter Cayetano and Aquilino Pimentel, Jr. whereby the
former raised the issue of lack of the required majority to deliberate and vote on the contempt order.
When asked about such voting during the March 4, 2008 hearing before this Court, Senator Francis
Pangilinan stated that any defect in the committee voting had been cured because two-thirds of the
Senators effectively signed for the Senate in plenary session. 58
Obviously the deliberation of the respondent Committees that led to the issuance of the contempt order is
flawed. Instead of being submitted to a full debate by all the members of the respondent Committees, the
contempt order was prepared and thereafter presented to the other members for signing. As a result, the
contempt order which was issued on January 30, 2008 was not a faithful representation of the
proceedings that took place on said date. Records clearly show that not all of those who signed the
contempt order were present during the January 30, 2008 deliberation when the matter was taken up.
Section 21, Article VI of the Constitution states that:
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 person appearing in or affected by such inquiries shall be respected. (Emphasis
supplied)
All the limitations embodied in the foregoing provision form part of the witness’ settled expectation. If the
limitations are not observed, the witness’ settled expectation is shattered. Here, how could there be a
majority vote when the members in attendance are not enough to arrive at such majority? Petitioner has
the right to expect that he can be cited in contempt only through a majority vote in a proceeding in which
the matter has been fully deliberated upon. There is a greater measure of protection for the witness when
the concerns and objections of the members are fully articulated in such proceeding. We do not believe
that respondent Committees have the discretion to set aside their rules anytime they wish. This is
especially true here where what is involved is the contempt power. It must be stressed that the Rules are
not promulgated for their benefit. More than anybody else, it is the witness who has the highest stake in
the proper observance of the Rules.
Having touched the subject of the Rules, we now proceed to respondent Committees’ fourth argument.
Respondent Committees argue that the Senate does not have to publish its Rules because the same was
published in 1995 and in 2006. Further, they claim that the Senate is a continuing body; thus, it is not
required to republish the Rules, unless the same is repealed or amended.
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification. Certainly,
there is no debate that the Senate as an institution is "continuing", as it is not dissolved as an entity with
each national election or change in the composition of its members. However, in the conduct of its day-to-
day business the Senate of each Congress acts separately and independently of the Senate of the
Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in
the same status.
All pending matters and proceedings shall terminate upon the expiration of one (1)
Congress, but may be taken by the succeeding Congress as if present for the first time.
(emphasis supplied)
Undeniably from the foregoing, all pending matters and proceedings, i.e. unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to take up
such unfinished matters, not in the same status, but as if presented for the first time. The logic and
practicality of such a rule is readily apparent considering that the Senate of the succeeding Congress
(which will typically have a different composition as that of the previous Congress) should not be bound
by the acts and deliberations of the Senate of which they had no part. If the Senate is a continuing body
even with respect to the conduct of its business, then pending matters will not be deemed terminated with
the expiration of one Congress but will, as a matter of course, continue into the next Congress with the
same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of the conduct
of its business is reflected in its Rules. The Rules of the Senate (i.e. the Senate’s main rules of
procedure) states:
RULE LI
SEC. 136. At the start of each session in which the Senators elected in the preceding elections
shall begin their term of office, the President may endorse the Rules to the appropriate committee
for amendment or revision.
The Rules may also be amended by means of a motion which should be presented at least one
day before its consideration, and the vote of the majority of the Senators present in the session
shall be required for its approval. (emphasis supplied)
RULE LII
SEC. 137. These Rules shall take effect on the date of their adoption and shall remain in force
until they are amended or repealed. (emphasis supplied)
Section 136 of the Senate Rules quoted above takes into account the new composition of the Senate
after an election and the possibility of the amendment or revision of the Rules at the start of each session
in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be valid from the
date of their adoption until they are amended or repealed. Such language is conspicuously absent from
the Rules. The Rules simply state "(t)hese Rules shall take effect seven (7) days after publication in two
(2) newspapers of general circulation."59 The latter does not explicitly provide for the continued effectivity
of such rules until they are amended or repealed. In view of the difference in the language of the two sets
of Senate rules, it cannot be presumed that the Rules (on legislative inquiries) would continue into the
next Congress. The Senate of the next Congress may easily adopt different rules for its legislative
inquiries which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be conducted in
accordance with the duly published rules of procedure is categorical. It is incumbent upon the Senate
to publish the rules for its legislative inquiries in each Congress or otherwise make the published rules
clearly state that the same shall be effective in subsequent Congresses or until they are amended or
repealed to sufficiently put public on notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective even in the
next Congress, it could have easily adopted the same language it had used in its main rules regarding
effectivity.
Lest the Court be misconstrued, it should likewise be stressed that not all orders issued or proceedings
conducted pursuant to the subject Rules are null and void. Only those that result in violation of the rights
of witnesses should be considered null and void, considering that the rationale for the publication is to
protect the rights of witnesses as expressed in Section 21, Article VI of the Constitution. Sans such
violation, orders and proceedings are considered valid and effective.
Respondent Committees’ last argument is that their issuance of the contempt order is not precipitate or
arbitrary. Taking into account the totality of circumstances, we find no merit in their argument.
As we have stressed before, petitioner is not an unwilling witness, and contrary to the assertion of
respondent Committees, petitioner did not assume that they no longer had any other questions for him.
He repeatedly manifested his willingness to attend subsequent hearings and respond to new matters. His
only request was that he be furnished a copy of the new questions in advance to enable him to
adequately prepare as a resource person. He did not attend the November 20, 2007 hearing because
Executive Secretary Ermita requested respondent Committees to dispense with his testimony on the
ground of executive privilege. Note that petitioner is an executive official under the direct control and
supervision of the Chief Executive. Why punish petitioner for contempt when he was merely directed by
his superior? Besides, save for the three (3) questions, he was very cooperative during the September
26, 2007 hearing.
On the part of respondent Committees, this Court observes their haste and impatience. Instead of ruling
on Executive Secretary Ermita’s claim of executive privilege, they curtly dismissed it as unsatisfactory and
ordered the arrest of petitioner. They could have informed petitioner of their ruling and given him time to
decide whether to accede or file a motion for reconsideration. After all, he is not just an ordinary witness;
he is a high- ranking official in a co-equal branch of government. He is an alter ego of the President. The
same haste and impatience marked the issuance of the contempt order, despite the absence of the
majority of the members of the respondent Committees, and their subsequent disregard of petitioner’s
motion for reconsideration alleging the pendency of his petition for certiorari before this Court.
On a concluding note, we are not unmindful of the fact that the Executive and the Legislature are political
branches of government. In a free and democratic society, the interests of these branches inevitably
clash, but each must treat the other with official courtesy and respect. This Court wholeheartedly concurs
with the proposition that it is imperative for the continued health of our democratic institutions that we
preserve the constitutionally mandated checks and balances among the different branches of
government.
In the present case, it is respondent Committees’ contention that their determination on the validity of
executive privilege should be binding on the Executive and the Courts. It is their assertion
that their internal procedures and deliberations cannot be inquired into by this Court supposedly in
accordance with the principle of respect between co-equal branches of government. Interestingly, it is a
courtesy that they appear to be unwilling to extend to the Executive (on the matter of executive privilege)
or this Court (on the matter of judicial review). It moves this Court to wonder: In respondent Committees’
paradigm of checks and balances, what are the checks to the Legislature’s all-encompassing, awesome
power of investigation? It is a power, like any other, that is susceptible to grave abuse.
While this Court finds laudable the respondent Committees’ well-intentioned efforts to ferret out
corruption, even in the highest echelons of government, such lofty intentions do not validate or accord to
Congress powers denied to it by the Constitution and granted instead to the other branches of
government.
There is no question that any story of government malfeasance deserves an inquiry into its veracity. As
respondent Committees contend, this is founded on the constitutional command of transparency and
public accountability. The recent clamor for a "search for truth" by the general public, the religious
community and the academe is an indication of a concerned citizenry, a nation that demands an
accounting of an entrusted power. However, the best venue for this noble undertaking is not in the
political branches of government. The customary partisanship and the absence of generally accepted
rules on evidence are too great an obstacle in arriving at the truth or achieving justice that meets the test
of the constitutional guarantee of due process of law. We believe the people deserve a more exacting
"search for truth" than the process here in question, if that is its objective.
WHEREFORE, respondent Committees’ Motion for Reconsideration dated April 8, 2008 is

hereby DENIED.
SO ORDERED.
AKBAYAN, et al. v. Thomas Aquino in His Capacity as Undersecretary
of the Department of Trade, et al., GR No. 170516, 16 July 2008
G.R. No. 170516 July 16, 2008
AKBAYAN CITIZENS ACTION PARTY (“AKBAYAN”), PAMBANSANG KATIPUNAN

NG MGA SAMAHAN SA KANAYUNAN (“PKSK”), ALLIANCE OF PROGRESSIVE
LABOR (“APL”), VICENTE A. FABE, ANGELITO R. MENDOZA, MANUEL P.
QUIAMBAO, ROSE BEATRIX CRUZ-ANGELES, CONG. LORENZO R. TANADA III,
CONG. MARIO JOYO AGUJA, CONG. LORETA ANN P. ROSALES, CONG. ANA
THERESIA HONTIVEROS-BARAQUEL, AND CONG. EMMANUEL JOEL J.
VILLANUEVA, Petitioners,
vs.
THOMAS G. AQUINO, in his capacity as Undersecretary of the Department of
Trade and Industry (DTI) and Chairman and Chief Delegate of the Philippine
Coordinating Committee (PCC) for the Japan-Philippines Economic Partnership
Agreement, EDSEL T. CUSTODIO, in his capacity as Undersecretary of the
Department of Foreign Affairs (DFA) and Co-Chair of the PCC for the JPEPA,
EDGARDO ABON, in his capacity as Chairman of the Tariff Commission and lead
negotiator for Competition Policy and Emergency Measures of the JPEPA,
MARGARITA SONGCO, in her capacity as Assistant Director-General of the
National Economic Development Authority (NEDA) and lead negotiator for Trade
in Services and Cooperation of the JPEPA, MALOU MONTERO, in her capacity as
Foreign Service Officer I, Office of the Undersecretary for International Economic
Relations of the DFA and lead negotiator for the General and Final Provisions of
the JPEPA, ERLINDA ARCELLANA, in her capacity as Director of the Board of
Investments and lead negotiator for Trade in Goods (General Rules) of the
JPEPA, RAQUEL ECHAGUE, in her capacity as lead negotiator for Rules of Origin
of the JPEPA, GALLANT SORIANO, in his official capacity as Deputy
Commissioner of the Bureau of Customs and lead negotiator for Customs
Procedures and Paperless Trading of the JPEPA, MA. LUISA GIGETTE IMPERIAL,
in her capacity as Director of the Bureau of Local Employment of the Department
of Labor and Employment (DOLE) and lead negotiator for Movement of Natural
Persons of the JPEPA, PASCUAL DE GUZMAN, in his capacity as Director of the
Board of Investments and lead negotiator for Investment of the JPEPA, JESUS
MOTOOMULL, in his capacity as Director for the Bureau of Product Standards of
the DTI and lead negotiator for Mutual Recognition of the JPEPA, LOUIE
CALVARIO, in his capacity as lead negotiator for Intellectual Property of the
JPEPA, ELMER H. DORADO, in his capacity as Officer-in-Charge of the
Government Procurement Policy Board Technical Support Office, the government
agency that is leading the negotiations on Government Procurement of the
JPEPA, RICARDO V. PARAS, in his capacity as Chief State Counsel of the
Department of Justice (DOJ) and lead negotiator for Dispute Avoidance and
Settlement of the JPEPA, ADONIS SULIT, in his capacity as lead negotiator for the
General and Final Provisions of the JPEPA, EDUARDO R. ERMITA, in his capacity
as Executive Secretary, and ALBERTO ROMULO, in his capacity as Secretary of
the DFA,* Respondents.
DECISION
CARPIO MORALES, J.:
Petitioners—non-government organizations, Congresspersons, citizens and taxpayers

—seek via the present petition for mandamus and prohibition to obtain from
respondents the full text of the Japan-Philippines Economic Partnership Agreement
(JPEPA) including the Philippine and Japanese offers submitted during the negotiation
process and all pertinent attachments and annexes thereto.
Petitioners Congressmen Lorenzo R. Tañada III and Mario Joyo Aguja filed on January
25, 2005 House Resolution No. 551 calling for an inquiry into the bilateral trade
agreements then being negotiated by the Philippine government, particularly the
JPEPA. The Resolution became the basis of an inquiry subsequently conducted by the
House Special Committee on Globalization (the House Committee) into the negotiations
of the JPEPA.
In the course of its inquiry, the House Committee requested herein respondent
Undersecretary Tomas Aquino (Usec. Aquino), Chairman of the Philippine Coordinating
Committee created under Executive Order No. 213 (“Creation of A Philippine
Coordinating Committee to Study the Feasibility of the Japan-Philippines Economic
Partnership Agreement”)1 to study and negotiate the proposed JPEPA, and to furnish
the Committee with a copy of the latest draft of the JPEPA. Usec. Aquino did not heed
the request, however.
Congressman Aguja later requested for the same document, but Usec. Aquino, by letter
of November 2, 2005, replied that the Congressman shall be provided with a copy
thereof “once the negotiations are completed and as soon as a thorough legal review of
the proposed agreement has been conducted.”
In a separate move, the House Committee, through Congressman Herminio G. Teves,

requested Executive Secretary Eduardo Ermita to furnish it with “all documents on the
subject including the latest draft of the proposed agreement, the requests and offers
etc.”2 Acting on the request, Secretary Ermita, by letter of June 23, 2005, wrote
Congressman Teves as follows:
In its letter dated 15 June 2005 (copy enclosed), [the] D[epartment of] F[oreign] A[ffairs]
explains that the Committee’s request to be furnished all documents on the JPEPA
may be difficult to accomplish at this time, since the proposed Agreement has
been a work in progress for about three years. A copy of the draft JPEPA will
however be forwarded to the Committee as soon as the text thereof is settled and
complete. (Emphasis supplied)
Congressman Aguja also requested NEDA Director-General Romulo Neri and Tariff
Commission Chairman Edgardo Abon, by letter of July 1, 2005, for copies of the latest
text of the JPEPA.
Chairman Abon replied, however, by letter of July 12, 2005 that the Tariff Commission
does not have a copy of the documents being requested, albeit he was certain that
Usec. Aquino would provide the Congressman with a copy “once the negotiation is
completed.” And by letter of July 18, 2005, NEDA Assistant Director-General Margarita
R. Songco informed the Congressman that his request addressed to Director-General
Neri had been forwarded to Usec. Aquino who would be “in the best position to
respond” to the request.
In its third hearing conducted on August 31, 2005, the House Committee resolved to
issue a subpoena for the most recent draft of the JPEPA, but the same was not pursued
because by Committee Chairman Congressman Teves’ information, then House
Speaker Jose de Venecia had requested him to hold in abeyance the issuance of the
subpoena until the President gives her consent to the disclosure of the documents. 3
Amid speculations that the JPEPA might be signed by the Philippine government within
December 2005, the present petition was filed on December 9, 2005. 4 The agreement
was to be later signed on September 9, 2006 by President Gloria Macapagal-Arroyo
and Japanese Prime Minister Junichiro Koizumi in Helsinki, Finland, following which the
President endorsed it to the Senate for its concurrence pursuant to Article VII, Section
21 of the Constitution. To date, the JPEPA is still being deliberated upon by the Senate.
The JPEPA, which will be the first bilateral free trade agreement to be entered into by
the Philippines with another country in the event the Senate grants its consent to it,
covers a broad range of topics which respondents enumerate as follows: trade in goods,
rules of origin, customs procedures, paperless trading, trade in services, investment,
intellectual property rights, government procurement, movement of natural persons,
cooperation, competition policy, mutual recognition, dispute avoidance and settlement,
improvement of the business environment, and general and final provisions. 5
While the final text of the JPEPA has now been made accessible to the public since
September 11, 2006,6 respondents do not dispute that, at the time the petition was filed
up to the filing of petitioners’ Reply—when the JPEPA was still being negotiated—the
initial drafts thereof were kept from public view.
Before delving on the substantive grounds relied upon by petitioners in support of the
petition, the Court finds it necessary to first resolve some material procedural issues.
Standing
For a petition for mandamus such as the one at bar to be given due course, it must be
instituted by a party aggrieved by the alleged inaction of any tribunal, corporation, board
or person which unlawfully excludes said party from the enjoyment of a legal
right.7 Respondents deny that petitioners have such standing to sue. “[I]n the interest of
a speedy and definitive resolution of the substantive issues raised,” however,
respondents consider it sufficient to cite a portion of the ruling in Pimentel v. Office of
Executive Secretary8 which emphasizes the need for a “personal stake in the outcome
of the controversy” on questions of standing.
In a petition anchored upon the right of the people to information on matters of public
concern, which is a public right by its very nature, petitioners need not show that they
have any legal or special interest in the result, it being sufficient to show that they are
citizens and, therefore, part of the general public which possesses the right. 9 As the
present petition is anchored on the right to information and petitioners are all suing in
their capacity as citizens and groups of citizens including petitioners-members of the
House of Representatives who additionally are suing in their capacity as such, the
standing of petitioners to file the present suit is grounded in jurisprudence.
Mootness
Considering, however, that “[t]he principal relief petitioners are praying for is the
disclosure of the contents of the JPEPA prior to its finalization between the two States
parties,”10 public disclosure of the text of the JPEPA after its signing by the President,
during the pendency of the present petition, has been largely rendered moot and
academic.
With the Senate deliberations on the JPEPA still pending, the agreement as it now
stands cannot yet be considered as final and binding between the two States. Article
164 of the JPEPA itself provides that the agreement does not take effect immediately
upon the signing thereof. For it must still go through the procedures required by the laws
of each country for its entry into force, viz:
Article 164
Entry into Force
This Agreement shall enter into force on the thirtieth day after the date on which the
Governments of the Parties exchange diplomatic notes informing each other that their
respective legal procedures necessary for entry into force of this Agreement have
been completed. It shall remain in force unless terminated as provided for in Article
165.11 (Emphasis supplied)
President Arroyo’s endorsement of the JPEPA to the Senate for concurrence is part of
the legal procedures which must be met prior to the agreement’s entry into force.
The text of the JPEPA having then been made accessible to the public, the petition has
become moot and academic to the extent that it seeks the disclosure of the “full text”
thereof.
The petition is not entirely moot, however, because petitioners seek to obtain, not
merely the text of the JPEPA, but also the Philippine and Japanese offers in the course
of the negotiations.12
A discussion of the substantive issues, insofar as they impinge on petitioners’ demand

for access to the Philippine and Japanese offers, is thus in order.
Grounds relied upon by petitioners
Petitioners assert, first, that the refusal of the government to disclose the documents
bearing on the JPEPA negotiations violates their right to information on matters of public
concern13 and contravenes other constitutional provisions on transparency, such as that
on the policy of full public disclosure of all transactions involving public
interest.14 Second, they contend that non-disclosure of the same documents
undermines their right to effective and reasonable participation in all levels of social,
political, and economic decision-making.15 Lastly, they proffer that divulging the contents
of the JPEPA only after the agreement has been concluded will effectively make the
Senate into a mere rubber stamp of the Executive, in violation of the principle of
separation of powers.
Significantly, the grounds relied upon by petitioners for the disclosure of the latest
text of the JPEPA are, except for the last, the same as those cited for the disclosure of
the Philippine and Japanese offers.
The first two grounds relied upon by petitioners which bear on the merits of
respondents’ claim of privilege shall be discussed. The last, being purely speculatory
given that the Senate is still deliberating on the JPEPA, shall not.
The JPEPA is a matter of public concern
To be covered by the right to information, the information sought must meet the
threshold requirement that it be a matter of public concern. Apropos is the teaching
of Legaspi v. Civil Service Commission:
In determining whether or not a particular information is of public concern there is no

rigid test which can be applied. ‘Public concern’ like ‘public interest’ is a term that eludes
exact definition. Both terms embrace a broad spectrum of subjects which the public may
want to know, either because these directly affect their lives, or simply because such
matters naturally arouse the interest of an ordinary citizen. In the final analysis, it is for
the courts to determine on a case by case basis whether the matter at issue is of
interest or importance, as it relates to or affects the public.16 (Underscoring supplied)
From the nature of the JPEPA as an international trade agreement, it is evident that the
Philippine and Japanese offers submitted during the negotiations towards its execution
are matters of public concern. This, respondents do not dispute. They only claim that
diplomatic negotiations are covered by the doctrine of executive privilege, thus
constituting an exception to the right to information and the policy of full public
disclosure.
Respondents’ claim of privilege
It is well-established in jurisprudence that neither the right to information nor the policy
of full public disclosure is absolute, there being matters which, albeit of public concern
or public interest, are recognized as privileged in nature. The types of information which
may be considered privileged have been elucidated in Almonte v. Vasquez,17Chavez v.
PCGG,18Chavez v. Public Estate’s Authority, 19 and most recently in Senate v.
Ermita20 where the Court reaffirmed the validity of the doctrine of executive privilege in
this jurisdiction and dwelt on its scope.
Whether a claim of executive privilege is valid depends on theground invoked to justify it

and thecontext in which it is made. 21 In the present case, the ground for respondents’
claim of privilege is set forth in their Comment, viz:
x x x The categories of information that may be considered privileged includes matters

of diplomatic character and under negotiation and review. In this case, the privileged
character of the diplomatic negotiations has been categorically invoked and clearly
explained by respondents particularly respondent DTI Senior Undersecretary.
The documents on the proposed JPEPA as well as the text which is subject to
negotiations and legal review by the parties fall under the exceptions to the right of
access to information on matters of public concern and policy of public disclosure. They
come within the coverage of executive privilege.At the timewhen the Committee was
requesting for copies of such documents, the negotiations were ongoing as they are still
now and the text of the proposed JPEPA is still uncertain and subject to
change. Considering the status and nature of such documents then and now, these are
evidently covered by executive privilege consistent with existing legal provisions and
settled jurisprudence.
Practical and strategic considerations likewise counsel against the disclosure of the
“rolling texts” which may undergo radical change or portions of which may be totally
abandoned. Furthermore, the negotiations of the representatives of the Philippines
as well as of Japan must be allowed to explore alternatives in the course of the
negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality.22 (Emphasis and underscoring supplied)
The ground relied upon by respondents is thus not simply that the information sought
involves a diplomatic matter, but that it pertains to diplomatic negotiations then in
progress.
Privileged character of diplomatic negotiations

The privileged character of diplomatic negotiations has been recognized in this
jurisdiction. In discussing valid limitations on the right to information, the Court
in Chavez v. PCGG held that “information on inter-government exchanges prior to the
conclusion of treaties and executive agreements may be subject to reasonable
safeguards for the sake of national interest.” 23 Even earlier, the same privilege was
upheld in People’s Movement for Press Freedom (PMPF) v. Manglapus 24 wherein the
Court discussed the reasons for the privilege in more precise terms.
In PMPF v. Manglapus, the therein petitioners were seeking information from the
President’s representatives on the state of the then on-going negotiations of the RP-US
Military Bases Agreement.25 The Court denied the petition, stressing that “secrecy of
negotiations with foreign countries is not violative of the constitutional provisions of
freedom of speech or of the press nor of the freedom of access to information.” The
Resolution went on to state, thus:
The nature of diplomacy requires centralization of authority and expedition of

decision which are inherent in executive action. Another essential characteristic
of diplomacy is its confidential nature. Although much has been said about “open”
and “secret” diplomacy, with disparagement of the latter, Secretaries of State Hughes
and Stimson have clearly analyzed and justified the practice. In the words of Mr.
Stimson:
“A complicated negotiation . . . cannot be carried through without many, many

private talks and discussion, man to man; many tentative suggestions and
proposals.Delegates from other countries come and tell you in confidence of their
troubles at home and of their differences with other countries and with other
delegates; they tell you of what they would do under certain circumstances and
would not do under other circumstances. . . If these reports . . . should become
public . . . who would ever trust American Delegations in another
conference? (United States Department of State, Press Releases, June 7, 1930, pp.
282-284.).”
xxxx
There is frequent criticism of the secrecy in which negotiation with foreign

powers on nearly all subjects is concerned. This, it is claimed, is incompatible
with the substance of democracy. As expressed by one writer, “It can be said that
there is no more rigid system of silence anywhere in the world.” (E.J. Young, Looking
Behind the Censorship, J. B. Lippincott Co., 1938) President Wilson in starting his
efforts for the conclusion of the World War declared that we must have “open
covenants, openly arrived at.” He quickly abandoned his thought.
No one who has studied the question believes that such a method of publicity is
possible. In the moment that negotiations are started, pressure groups attempt to
“muscle in.” An ill-timed speech by one of the parties or a frank declaration of the
concession which are exacted or offered on both sides would quickly lead to
widespread propaganda to block the negotiations. After a treaty has been drafted
and its terms are fully published, there is ample opportunity for discussion before
it is approved. (The New American Government and Its Works, James T. Young, 4th
Edition, p. 194) (Emphasis and underscoring supplied)
Still in PMPF v. Manglapus, the Court adopted the doctrine in U.S. v. Curtiss-Wright
Export Corp.26 that the President is the sole organ of the nation in its negotiations with
foreign countries, viz:
“x x x In this vast external realm, with its important, complicated, delicate and manifold
problems, the President alone has the power to speak or listen as a representative of
the nation. He makes treaties with the advice and consent of the Senate; but he alone
negotiates. Into the field of negotiation the Senate cannot intrude; and Congress itself is
powerless to invade it. As Marshall said in his great argument of March 7, 1800, in the
House of Representatives, “The President is the sole organ of the nation in its
external relations, and its sole representative with foreign nations.” Annals, 6th
Cong., col. 613. . . (Emphasis supplied; underscoring in the original)
Applying the principles adopted in PMPF v. Manglapus, it is clear that while the final text
of the JPEPA may not be kept perpetually confidential—since there should be “ample
opportunity for discussion before [a treaty] is approved”—the offers exchanged by the
parties during the negotiations continue to be privileged even after the JPEPA is
published. It is reasonable to conclude that the Japanese representatives submitted
their offers with the understanding that “historic confidentiality“27 would govern the
same. Disclosing these offers could impair the ability of the Philippines to deal not only
with Japan but with other foreign governments in future negotiations.
A ruling that Philippine offers in treaty negotiations should now be open to public
scrutiny would discourage future Philippine representatives from frankly expressing their
views during negotiations. While, on first impression, it appears wise to deter Philippine
representatives from entering into compromises, it bears noting that treaty negotiations,
or any negotiation for that matter, normally involve a process of quid pro quo,
and oftentimes negotiators have to be willing to grant concessions in an area of
lesser importance in order to obtain more favorable terms in an area of greater
national interest. Apropos are the following observations of Benjamin S. Duval, Jr.:
x x x [T]hose involved in the practice of negotiations appear to be in agreement that

publicity leads to “grandstanding,” tends to freeze negotiating positions, and inhibits the
give-and-take essential to successful negotiation. As Sissela Bok points out, if
“negotiators have more to gain from being approved by their own sides than by making
a reasoned agreement with competitors or adversaries, then they are inclined to ‘play to
the gallery . . .” In fact, the public reaction may leave them little option. It would be a
brave, or foolish, Arab leader who expressed publicly a willingness for peace with Israel
that did not involve the return of the entire West Bank, or Israeli leader who stated
publicly a willingness to remove Israel’s existing settlements from Judea and Samaria in
return for peace.28 (Emphasis supplied)
Indeed, by hampering the ability of our representatives to compromise, we may be
jeopardizing higher national goals for the sake of securing less critical ones.
Diplomatic negotiations, therefore, are recognized as privileged in this jurisdiction, the

JPEPA negotiations constituting no exception. It bears emphasis, however, that such
privilege is only presumptive. For as Senate v. Ermita holds, recognizing a type of
information as privileged does not mean that it will be considered privileged in all
instances. Only after a consideration of the context in which the claim is made may it be
determined if there is a public interest that calls for the disclosure of the desired
information, strong enough to overcome its traditionally privileged status.
Whether petitioners have established the presence of such a public interest shall be
discussed later. For now, the Court shall first pass upon the arguments raised by
petitioners against the application of PMPF v. Manglapus to the present case.
Arguments proffered by petitioners against the application of PMPF v. Manglapus
Petitioners argue that PMPF v. Manglapus cannot be applied in toto to the present

case, there being substantial factual distinctions between the two.
To petitioners, the first and most fundamental distinction lies in the nature of the treaty
involved. They stress that PMPF v. Manglapus involved the Military Bases Agreement
which necessarily pertained to matters affecting national security; whereas the present
case involves an economic treaty that seeks to regulate trade and commerce between
the Philippines and Japan, matters which, unlike those covered by the Military Bases
Agreement, are not so vital to national security to disallow their disclosure.
Petitioners’ argument betrays a faulty assumption that information, to be considered

privileged, must involve national security. The recognition in Senate v. Ermita29 that
executive privilege has encompassed claims of varying kinds, such that it may even be
more accurate to speak of “executive privileges,” cautions against such generalization.
While there certainly are privileges grounded on the necessity of safeguarding national
security such as those involving military secrets, not all are founded thereon. One
example is the “informer’s privilege,” or the privilege of the Government not to disclose
the identity of a person or persons who furnish information of violations of law to officers
charged with the enforcement of that law. 30 The suspect involved need not be so
notorious as to be a threat to national security for this privilege to apply in any given
instance. Otherwise, the privilege would be inapplicable in all but the most high-profile
cases, in which case not only would this be contrary to long-standing practice. It would
also be highly prejudicial to law enforcement efforts in general.
Also illustrative is the privilege accorded to presidential communications, which are

presumed privileged without distinguishing between those which involve matters of
national security and those which do not, the rationale for the privilege being that
x x x [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. x x x31 (Emphasis supplied)
In the same way that the privilege for judicial deliberations does not depend on the
nature of the case deliberated upon, so presidential communications are privileged
whether they involve matters of national security.
It bears emphasis, however, that the privilege accorded to presidential communications

is not absolute, one significant qualification being that “the Executive cannot, any more
than the other branches of government, invoke a general confidentiality privilege
to shield its officials and employees from investigations by the proper governmental
institutions into possible criminal wrongdoing.” 32 This qualification applies whether the
privilege is being invoked in the context of a judicial trial or a congressional investigation
conducted in aid of legislation.33
Closely related to the “presidential communications” privilege is the deliberative process

privilege recognized in the United States. As discussed by the U.S. Supreme Court
in NLRB v. Sears, Roebuck & Co,34 deliberative process covers documents reflecting
advisory opinions, recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated. Notably, the privileged
status of such documents rests, not on the need to protect national security but, on
the “obvious realization that officials will not communicate candidly among themselves if
each remark is a potential item of discovery and front page news,” the objective of the
privilege being to enhance the quality of agency
decisions http://web2.westlaw.com/find/default.wl?
rs=WLW7.07&serialnum=1975129772&fn=_top&sv=Split&tc=-1&findtype=Y&tf=-
1&db=708&utid=%7b532A6DBF-9B4C-4A5A-8F16-C20D9BAA36C4%7d&vr=2.0&rp=
%2ffind%2fdefault.wl&mt=WLIGeneralSubscription. 35
The diplomatic negotiations privilege bears a close resemblance to the deliberative

process and presidential communications privilege. It may be readily perceived that the
rationale for the confidential character of diplomatic negotiations, deliberative process,
and presidential communications is similar, if not identical.
The earlier discussion on PMPF v. Manglapus36 shows that the privilege for diplomatic
negotiations is meant to encourage a frank exchange of exploratory ideas between the
negotiating parties by shielding such negotiations from public view. Similar to the
privilege for presidential communications, the diplomatic negotiations privilege seeks,
through the same means, to protect the independence in decision-making of the
President, particularly in its capacity as “the sole organ of the nation in its external
relations, and its sole representative with foreign nations.” And, as with the deliberative
process privilege, the privilege accorded to diplomatic negotiations arises, not on
account of the content of the information per se, but because the information is part of a
process of deliberation which, in pursuit of the public interest, must be presumed
confidential.
The decision of the U.S. District Court, District of Columbia in Fulbright & Jaworski v.
Department of the Treasury37 enlightens on the close relation between diplomatic
negotiations and deliberative process privileges. The plaintiffs in that case sought
access to notes taken by a member of the U.S. negotiating team during the U.S.-
French tax treaty negotiations. Among the points noted therein were the issues to be
discussed, positions which the French and U.S. teams took on some points, the draft
language agreed on, and articles which needed to be amended. Upholding the
confidentiality of those notes, Judge Green ruled, thus:
Negotiations between two countries to draft a treaty represent a true example of a
deliberative process. Much give-and-take must occur for the countries to reach
an accord. A description of the negotiations at any one point would not provide an
onlooker a summary of the discussions which could later be relied on as law. It would
not be “working law” as the points discussed and positions agreed on would be subject
to change at any date until the treaty was signed by the President and ratified by the
Senate.
The policies behind the deliberative process privilegesupport non-

disclosure.Much harm could accrue to the negotiations process if these notes
were revealed. Exposure of the pre-agreement positions of the French
negotiators might well offend foreign governments and would lead to less candor
by the U. S. in recording the events of the negotiations process. As several months
pass in between negotiations, this lack of record could hinder readily the U. S.
negotiating team. Further disclosure would reveal prematurely adopted policies. If these
policies should be changed, public confusion would result easily.
Finally, releasing these snapshot views of the negotiations would be comparable

to releasing drafts of the treaty, particularly when the notes state the tentative
provisions and language agreed on. As drafts of regulations typically are
protected by the deliberative process privilege, Arthur Andersen & Co. v. Internal
Revenue Service, C.A. No. 80-705 (D.C.Cir., May 21, 1982), drafts of
treaties should be accorded the same protection. (Emphasis and underscoring
supplied)
Clearly, the privilege accorded to diplomatic negotiations follows as a logical

consequence from the privileged character of the deliberative process.
The Court is not unaware that in Center for International Environmental Law (CIEL), et
al. v. Office of U.S. Trade Representative 38—where the plaintiffs sought information
relating to the just-completed negotiation of a United States-Chile Free Trade
Agreement—the same district court, this time under Judge Friedman, consciously
refrained from applying the doctrine in Fulbright and ordered the disclosure of the
information being sought.
Since the factual milieu in CIEL seemed to call for the straight application of the doctrine
in Fulbright, a discussion of why the district court did not apply the same would help
illumine this Court’s own reasons for deciding the present case along the lines
of Fulbright.
In both Fulbright and CIEL, the U.S. government cited a statutory basis for withholding

information, namely, Exemption 5 of the Freedom of Information Act (FOIA). 39 In order
to qualify for protection under Exemption 5, a document must satisfy two conditions: (1)
it must be either inter-agency or intra-agency in nature, and (2) it must be both pre-
decisional and part of the agency’s deliberative or decision-making process.40
Judge Friedman, in CIEL, himself cognizant of a “superficial similarity of context”

between the two cases, based his decision on what he perceived to be a significant
distinction: he found the negotiator’s notes that were sought in Fulbright to be “clearly
internal,” whereas the documents being sought in CIEL were those produced by or
exchanged with an outside party, i.e. Chile. The documents subject of Fulbright being
clearly internal in character, the question of disclosure therein turned not on the
threshold requirement of Exemption 5 that the document be inter-agency, but on
whether the documents were part of the agency’s pre-decisional deliberative process.
On this basis, Judge Friedman found that “Judge Green’s discussion [in Fulbright] of the
harm that could result from disclosure therefore is irrelevant, sincethe documents at
issue [in CIEL] are not inter-agency, and the Court does not reach the question of
deliberative process.” (Emphasis supplied)
In fine, Fulbright was not overturned. The court in CIEL merely found the same to be

irrelevant in light of its distinct factual setting. Whether this conclusion was valid—a
question on which this Court would not pass—the ruling in Fulbright that “[n]egotiations
between two countries to draft a treaty represent a true example of a deliberative
process” was left standing, since the CIEL court explicitly stated that it did not reach the
question of deliberative process.
Going back to the present case, the Court recognizes that the information sought by
petitioners includes documents produced and communicated by a party external to the
Philippine government, namely, the Japanese representatives in the JPEPA
negotiations, and to that extent this case is closer to the factual circumstances
of CIEL than those of Fulbright.
Nonetheless, for reasons which shall be discussed shortly, this Court echoes the
principle articulated in Fulbright that the public policy underlying the deliberative process
privilege requires that diplomatic negotiations should also be accorded privileged status,
even if the documents subject of the present case cannot be described as purely
internal in character.
It need not be stressed that in CIEL, the court ordered the disclosure of information
based on its finding that the first requirement of FOIA Exemption 5—that the documents
be inter-agency—was not met. In determining whether the government may validly
refuse disclosure of the exchanges between the U.S. and Chile, it necessarily had to
deal with this requirement, it being laid down by a statute binding on them.
In this jurisdiction, however, there is no counterpart of the FOIA, nor is there any
statutory requirement similar to FOIA Exemption 5 in particular. Hence, Philippine
courts, when assessing a claim of privilege for diplomatic negotiations, are more free to
focus directly on the issue of whether the privilege being claimed is indeed supported by
public policy, without having to consider—as the CIEL court did—if these negotiations
fulfill a formal requirement of being “inter-agency.” Important though that requirement
may be in the context of domestic negotiations, it need not be accorded the same
significance when dealing with international negotiations.
There being a public policy supporting a privilege for diplomatic negotiations for the
reasons explained above, the Court sees no reason to modify, much less abandon, the
doctrine in PMPF v. Manglapus.
A second point petitioners proffer in their attempt to differentiate PMPF v.

Manglapus from the present case is the fact that the petitioners therein consisted
entirely of members of the mass media, while petitioners in the present case include
members of the House of Representatives who invoke their right to information not just
as citizens but as members of Congress.
Petitioners thus conclude that the present case involves the right of members of
Congress to demand information on negotiations of international trade agreements from
the Executive branch, a matter which was not raised in PMPF v. Manglapus.
While indeed the petitioners in PMPF v. Manglapus consisted only of members of the

mass media, it would be incorrect to claim that the doctrine laid down therein has no
bearing on a controversy such as the present, where the demand for information has
come from members of Congress, not only from private citizens.
The privileged character accorded to diplomatic negotiations does not ipso facto
lose all force and effect simply because the same privilege is now being claimed
under different circumstances. The probability of the claim succeeding in the new
context might differ, but to say that the privilege, as such, has no validity at all in that
context is another matter altogether.
The Court’s statement in Senate v. Ermita that “presidential refusals to furnish

information may be actuated by any of at least three distinct kinds of considerations
[state secrets privilege, informer’s privilege, and a generic privilege for internal
deliberations], and may be asserted, with differing degrees of success, in the context
of either judicial or legislative investigations,” 41 implies that a privilege, once recognized,
may be invoked under different procedural settings. That this principle holds true
particularly with respect to diplomatic negotiations may be inferred from PMPF v.
Manglapus itself, where the Court held that it is the President alone who negotiates
treaties, and not even the Senate or the House of Representatives, unless asked, may
intrude upon that process.
Clearly, the privilege for diplomatic negotiations may be invoked not only against
citizens’ demands for information, but also in the context of legislative investigations.
Hence, the recognition granted in PMPF v. Manglapus to the privileged character of

diplomatic negotiations cannot be considered irrelevant in resolving the present case,
the contextual differences between the two cases notwithstanding.
As third and last point raised against the application of PMPF v. Manglapus in this case,
petitioners proffer that “the socio-political and historical contexts of the two cases are
worlds apart.” They claim that the constitutional traditions and concepts prevailing at the
time PMPF v. Manglapus came about, particularly the school of thought that the
requirements of foreign policy and the ideals of transparency were incompatible with
each other or the “incompatibility hypothesis,” while valid when international relations
were still governed by power, politics and wars, are no longer so in this age of
international cooperation.42
Without delving into petitioners’ assertions respecting the “incompatibility hypothesis,”

the Court notes that the ruling in PMPF v. Manglapus is grounded more on the nature of
treaty negotiations as such than on a particular socio-political school of thought. If
petitioners are suggesting that the nature of treaty negotiations have so changed that
“[a]n ill-timed speech by one of the parties or a frank declaration of the concession
which are exacted or offered on both sides” no longer “lead[s] to widespread
propaganda to block the negotiations,” or that parties in treaty negotiations no
longer expect their communications to be governed by historic confidentiality, the
burden is on them to substantiate the same. This petitioners failed to discharge.
Whether the privilege applies only at certain stages of the negotiation process
Petitioners admit that “diplomatic negotiations on the JPEPA are entitled to a

reasonable amount of confidentiality so as not to jeopardize the diplomatic process.”
They argue, however, that the same is privileged “only at certain stages of the
negotiating process, after which such information must necessarily be revealed to the
public.”43 They add that the duty to disclose this information was vested in the
government when the negotiations moved from the formulation and exploratory stage to
the firming up of definite propositions or official recommendations, citing Chavez v.
PCGG44 and Chavez v. PEA.45
The following statement in Chavez v. PEA, however, suffices to show that the doctrine
in both that case and Chavez v. PCGG with regard to the duty to disclose “definite
propositions of the government” does not apply to diplomatic negotiations:
We rule, therefore, that the constitutional right to information includes official information
on on-going negotiations before a final contract. The information, however, must
constitute definite propositions by the government and should not cover
recognized exceptions like privileged information, military and diplomatic secrets
and similar matters affecting national security and public order. x x x46 (Emphasis
and underscoring supplied)
It follows from this ruling that even definite propositions of the government may not be
disclosed if they fall under “recognized exceptions.” The privilege for diplomatic
negotiations is clearly among the recognized exceptions, for the footnote to the
immediately quoted ruling cites PMPF v. Manglapus itself as an authority.
Whether there is sufficient public interest to overcome the claim of privilege
It being established that diplomatic negotiations enjoy a presumptive privilege against

disclosure, even against the demands of members of Congress for information, the
Court shall now determine whether petitioners have shown the existence of a public
interest sufficient to overcome the privilege in this instance.
To clarify, there are at least two kinds of public interest that must be taken into account.
One is the presumed public interest in favor of keeping the subject information
confidential, which is the reason for the privilege in the first place, and the other is the
public interest in favor of disclosure, the existence of which must be shown by the
party asking for information. 47
The criteria to be employed in determining whether there is a sufficient public interest in

favor of disclosure may be gathered from cases such as U.S. v. Nixon,48Senate Select
Committee on Presidential Campaign Activities v. Nixon,49 and In re Sealed Case.50
U.S. v. Nixon, which involved a claim of the presidential communications privilege

against the subpoena duces tecum of a district court in a criminal case, emphasized the
need to balance such claim of privilege against the constitutional duty of courts to
ensure a fair administration of criminal justice.
x x x the allowance of the privilege to withhold evidence that is demonstrably relevant

in a criminal trial would cut deeply into the guarantee of due process of law
and gravely impair the basic function of the courts. A President’s acknowledged
need for confidentiality in the communications of his office is general in nature,
whereas the constitutional need for production of relevant evidence in a criminal
proceeding is specific and central to the fair adjudication of a particular criminal
case in the administration of justice. Without access to specific facts a criminal
prosecution may be totally frustrated. The President’s broad interest in confidentiality of
communications will not be vitiated by disclosure of a limited number of conversations
preliminarily shown to have some bearing on the pending criminal cases. (Emphasis,
italics and underscoring supplied)
Similarly, Senate Select Committeev. Nixon,51which involved a claim of the presidential

communications privilege against the subpoena duces tecum of a Senate committee,
spoke of the need to balance such claim with the duty of Congress to perform its
legislative functions.
The staged decisional structure established in Nixon v. Sirica was designed to ensure

that the President and those upon whom he directly relies in the performance of his
duties could continue to work under a general assurance that their deliberations would
remain confidential. So long as the presumption that the public interest favors
confidentiality can be defeated only by a strong showing of need by another
institution of government—a showing that the responsibilities of that institution
cannot responsibly be fulfilled without access to records of the President’s
deliberations—we believed in Nixon v. Sirica, and continue to believe, that the effective
functioning of the presidential office will not be impaired. x x x
xxxx
The sufficiency of the Committee’s showing of need has come to depend,

therefore, entirely on whether the subpoenaed materials are critical to the
performance of its legislative functions.x x x (Emphasis and underscoring supplied)
In re Sealed Case52 involved a claim of the deliberative process and presidential

communications privileges against a subpoena duces tecum of a grand jury. On the
claim of deliberative process privilege, the court stated:
The deliberative process privilege is a qualified privilege and can be overcome by a

sufficient showing of need. This need determination is to be made flexibly on a
case-by-case, ad hoc basis. “[E]ach time [the deliberative process privilege] is
asserted the district court must undertake a fresh balancing of the competing
interests,” taking into account factors such as “the relevance of the evidence,”
“the availability of other evidence,” “the seriousness of the litigation,” “the role of
the government,” and the “possibility of future timidity by government
employees. x x x (Emphasis, italics and underscoring supplied)
Petitioners have failed to present the strong and “sufficient showing of need” referred to
in the immediately cited cases. The arguments they proffer to establish their entitlement
to the subject documents fall short of this standard.
Petitioners go on to assert that the non-involvement of the Filipino people in the JPEPA
negotiation process effectively results in the bargaining away of their economic and
property rights without their knowledge and participation, in violation of the due process
clause of the Constitution. They claim, moreover, that it is essential for the people to
have access to the initial offers exchanged during the negotiations since only through
such disclosure can their constitutional right to effectively participate in decision-making
be brought to life in the context of international trade agreements.
Whether it can accurately be said that the Filipino people were not involved in the
JPEPA negotiations is a question of fact which this Court need not resolve. Suffice it to
state that respondents had presented documents purporting to show that public
consultations were conducted on the JPEPA. Parenthetically, petitioners consider these
“alleged consultations” as “woefully selective and inadequate.” 53
AT ALL EVENTS, since it is not disputed that the offers exchanged by the Philippine
and Japanese representatives have not been disclosed to the public, the Court shall
pass upon the issue of whether access to the documents bearing on them is, as
petitioners claim, essential to their right to participate in decision-making.
The case for petitioners has, of course, been immensely weakened by the disclosure of
the full text of the JPEPA to the public since September 11, 2006, even as it is still being
deliberated upon by the Senate and, therefore, not yet binding on the Philippines. Were
the Senate to concur with the validity of the JPEPA at this moment, there has already
been, in the words of PMPF v. Manglapus, “ample opportunity for discussion before [the
treaty] is approved.”
The text of the JPEPA having been published, petitioners have failed to convince this
Court that they will not be able to meaningfully exercise their right to participate in
decision-making unless the initial offers are also published.
It is of public knowledge that various non-government sectors and private citizens have
already publicly expressed their views on the JPEPA, their comments not being limited
to general observations thereon but on its specific provisions. Numerous articles and
statements critical of the JPEPA have been posted on the Internet. 54 Given these
developments, there is no basis for petitioners’ claim that access to the Philippine and
Japanese offers is essential to the exercise of their right to participate in decision-
making.
Petitioner-members of the House of Representatives additionally anchor their claim to

have a right to the subject documents on the basis of Congress’ inherent power to
regulate commerce, be it domestic or international. They allege that Congress cannot
meaningfully exercise the power to regulate international trade agreements such as the
JPEPA without being given copies of the initial offers exchanged during the negotiations
thereof. In the same vein, they argue that the President cannot exclude Congress from
the JPEPA negotiations since whatever power and authority the President has to
negotiate international trade agreements is derived only by delegation of Congress,
pursuant to Article VI, Section 28(2) of the Constitution and Sections 401 and 402 of
Presidential Decree No. 1464.55
The subject of Article VI Section 28(2) of the Constitution is not the power to negotiate
treaties and international agreements, but the power to fix tariff rates, import and export
quotas, and other taxes. Thus it provides:
(2) The Congress may, by law, authorize the President to fix within specified limits, and
subject to such limitations and restrictions as it may impose, tariff rates, import and
export quotas, tonnage and wharfage dues, and other duties or imposts within the
framework of the national development program of the Government.
As to the power to negotiate treaties, the constitutional basis thereof is Section 21 of

Article VII—the article on the Executive Department—which states:
No treaty or international agreement shall be valid and effective unless concurred in by

at least two-thirds of all the Members of the Senate.
The doctrine in PMPF v. Manglapus that the treaty-making power is exclusive to the
President, being the sole organ of the nation in its external relations, was echoed
in BAYAN v. Executive Secretary56 where the Court held:
By constitutional fiat and by the intrinsic nature of his office, the President, as head of

State, is the sole organ and authority in the external affairs of the country. In many
ways, the President is the chief architect of the nation’s foreign policy; his “dominance in
the field of foreign relations is (then) conceded.” Wielding vast powers and influence, his
conduct in the external affairs of the nation, as Jefferson describes, is “executive
altogether.”
As regards the power to enter into treaties or international agreements, the

Constitution vests the same in the President, subject only to the concurrence of
at least two thirds vote of all the members of the Senate. In this light, the negotiation
of the VFA and the subsequent ratification of the agreement are exclusive acts which
pertain solely to the President, in the lawful exercise of his vast executive and
diplomatic powers granted him no less than by the fundamental law itself. Into
the field of negotiation the Senate cannot intrude, and Congress itself is
powerless to invade it. x x x(Italics in the original; emphasis and underscoring
supplied)
The same doctrine was reiterated even more recently in Pimentel v. Executive
Secretary57 where the Court ruled:
In our system of government, the President, being the head of state, is regarded
as the sole organ and authority in external relations and is the country’s sole
representative with foreign nations. As the chief architect of foreign policy, the
President acts as the country’s mouthpiece with respect to international affairs.
Hence, the President is vested with the authority to deal with foreign states and
governments, extend or withhold recognition, maintain diplomatic relations, enter into
treaties, and otherwise transact the business of foreign relations. In the realm of
treaty-making, the President has the sole authority to negotiate with other states.
Nonetheless, while the President has the sole authority to negotiate and enter

into treaties, the Constitution provides a limitation to his power by requiring the
concurrence of 2/3 of all the members of the Senate for the validity of the treaty
entered into by him. x x x (Emphasis and underscoring supplied)
While the power then to fix tariff rates and other taxes clearly belongs to Congress, and
is exercised by the President only by delegation of that body, it has long been
recognized that the power to enter into treaties is vested directly and exclusively in the
President, subject only to the concurrence of at least two-thirds of all the Members of
the Senate for the validity of the treaty. In this light, the authority of the President to
enter into trade agreements with foreign nations provided under P.D. 1464 58 may be
interpreted as an acknowledgment of a power already inherent in its office. It may not
be used as basis to hold the President or its representatives accountable to Congress
for the conduct of treaty negotiations.
This is not to say, of course, that the President’s power to enter into treaties is unlimited
but for the requirement of Senate concurrence, since the President must still ensure that
all treaties will substantively conform to all the relevant provisions of the Constitution.
It follows from the above discussion that Congress, while possessing vast legislative
powers, may not interfere in the field of treaty negotiations. While Article VII, Section 21
provides for Senate concurrence, such pertains only to the validity of the treaty under
consideration, not to the conduct of negotiations attendant to its conclusion. Moreover, it
is not even Congress as a whole that has been given the authority to concur as a
means of checking the treaty-making power of the President, but only the Senate.
Thus, as in the case of petitioners suing in their capacity as private citizens, petitioners-
members of the House of Representatives fail to present a “sufficient showing of need”
that the information sought is critical to the performance of the functions of Congress,
functions that do not include treaty-negotiation.
Respondents’ alleged failure to timely claim executive privilege
On respondents’ invocation of executive privilege, petitioners find the same defective,

not having been done seasonably as it was raised only in their Comment to the present
petition and not during the House Committee hearings.
That respondents invoked the privilege for the first time only in their Comment to the
present petition does not mean that the claim of privilege should not be credited.
Petitioners’ position presupposes that an assertion of the privilege should have been
made during the House Committee investigations, failing which respondents are
deemed to have waived it.
When the House Committee and petitioner-Congressman Aguja requested respondents

for copies of the documents subject of this case, respondents replied that the
negotiations were still on-going and that the draft of the JPEPA would be released once
the text thereof is settled and complete. There was no intimation that the requested
copies are confidential in nature by reason of public policy. The response may not thus
be deemed a claim of privilege by the standards of Senate v. Ermita, which recognizes
as claims of privilege only those which are accompanied by precise and certain
reasons for preserving the confidentiality of the information being sought.
Respondents’ failure to claim the privilege during the House Committee hearings may
not, however, be construed as a waiver thereof by the Executive branch. As the
immediately preceding paragraph indicates, what respondents received from the House
Committee and petitioner-Congressman Aguja were mere requests for information. And
as priorly stated, the House Committee itself refrained from pursuing its earlier
resolution to issue a subpoena duces tecum on account of then Speaker Jose de
Venecia’s alleged request to Committee Chairperson Congressman Teves to hold the
same in abeyance.
While it is a salutary and noble practice for Congress to refrain from issuing subpoenas
to executive officials—out of respect for their office—until resort to it becomes
necessary, the fact remains that such requests are not a compulsory process. Being
mere requests, they do not strictly call for an assertion of executive privilege.
The privilege is an exemption to Congress’ power of inquiry. 59 So long as Congress

itself finds no cause to enforce such power, there is no strict necessity to assert the
privilege. In this light, respondents’ failure to invoke the privilege during the House
Committee investigations did not amount to a waiver thereof.
The Court observes, however, that the claim of privilege appearing in respondents’
Comment to this petition fails to satisfy in full the requirement laid down in Senate v.
Ermita that the claim should be invoked by the President or through the Executive
Secretary “by order of the President.”60 Respondents’ claim of privilege is being
sustained, however, its flaw notwithstanding, because of circumstances peculiar to the
case.
The assertion of executive privilege by the Executive Secretary, who is one of the
respondents herein, without him adding the phrase “by order of the President,” shall be
considered as partially complying with the requirement laid down in Senate v. Ermita.
The requirement that the phrase “by order of the President” should accompany the
Executive Secretary’s claim of privilege is a new rule laid down for the first time
in Senate v. Ermita, which was not yet final and executory at the time respondents filed
their Comment to the petition. 61 A strict application of this requirement would thus be
unwarranted in this case.
Response to the Dissenting Opinion of the Chief Justice
We are aware that behind the dissent of the Chief Justice lies a genuine zeal to protect
our people’s right to information against any abuse of executive privilege. It is a zeal
that We fully share.
The Court, however, in its endeavor to guard against the abuse of executive privilege,
should be careful not to veer towards the opposite extreme, to the point that it would
strike down as invalid even a legitimate exercise thereof.
We respond only to the salient arguments of the Dissenting Opinion which have not yet
been sufficiently addressed above.
1. After its historical discussion on the allocation of power over international trade
agreements in the United States, the dissent concludes that “it will be turning
somersaults with history to contend that the President is the sole organ for external
relations” in that jurisdiction. With regard to this opinion, We make only the following
observations:
There is, at least, a core meaning of the phrase “sole organ of the nation in its external
relations” which is not being disputed, namely, that the power to directly negotiate
treaties and international agreements is vested by our Constitution only in the
Executive. Thus, the dissent states that “Congress has the power to regulate commerce
with foreign nations but does not have the power to negotiate international
agreements directly.”62
What is disputed is how this principle applies to the case at bar.
The dissent opines that petitioner-members of the House of Representatives, by asking

for the subject JPEPA documents, are not seeking to directly participate in the
negotiations of the JPEPA, hence, they cannot be prevented from gaining access to
these documents.
On the other hand, We hold that this is one occasion where the following ruling in Agan
v. PIATCO63—and in other cases both before and since—should be applied:
This Court has long and consistently adhered to the legal maxim that those that
cannot be done directly cannot be done indirectly. To declare the PIATCO
contracts valid despite the clear statutory prohibition against a direct government
guarantee would not only make a mockery of what the BOT Law seeks to prevent—
which is to expose the government to the risk of incurring a monetary obligation
resulting from a contract of loan between the project proponent and its lenders and to
which the Government is not a party to—but would also render the BOT Law useless
for what it seeks to achieve—to make use of the resources of the private sector in the
“financing, operation and maintenance of infrastructure and development projects”
which are necessary for national growth and development but which the government,
unfortunately, could ill-afford to finance at this point in time. 64
Similarly, while herein petitioners-members of the House of Representatives may not

have been aiming to participate in the negotiations directly, opening the JPEPA
negotiations to their scrutiny—even to the point of giving them access to the offers
exchanged between the Japanese and Philippine delegations—would have made a
mockery of what the Constitution sought to prevent and rendered it useless for what it
sought to achieve when it vested the power of direct negotiation solely with the
President.
What the U.S. Constitution sought to prevent and aimed to achieve in defining the
treaty-making power of the President, which our Constitution similarly defines, may be
gathered from Hamilton’s explanation of why the U.S. Constitution excludes the House
of Representatives from the treaty-making process:
x x x The fluctuating, and taking its future increase into account, the multitudinous
composition of that body, forbid us to expect in it those qualities which are essential to
the proper execution of such a trust. Accurate and comprehensive knowledge of foreign
politics; a steady and systematic adherence to the same views; a nice and uniform
sensibility to national character, decision, secrecy and dispatch; are incompatible with
a body so variable and so numerous. The very complication of the business by
introducing a necessity of the concurrence of so many different bodies, would of itself
afford a solid objection. The greater frequency of the calls upon the house of
representatives, and the greater length of time which it would often be necessary to
keep them together when convened, to obtain their sanction in the progressive stages
of a treaty, would be source of so great inconvenience and expense, as alone ought to
condemn the project.65
These considerations a fortiori apply in this jurisdiction, since the Philippine

Constitution, unlike that of the U.S., does not even grant the Senate the power to
advise the Executive in the making of treaties, but only vests in that body the power to
concur in the validity of the treaty after negotiations have been concluded. 66 Much less,
therefore, should it be inferred that the House of Representatives has this power.
Since allowing petitioner-members of the House of Representatives access to the

subject JPEPA documents would set a precedent for future negotiations, leading to the
contravention of the public interests articulated above which the Constitution sought to
protect, the subject documents should not be disclosed.
2. The dissent also asserts that respondents can no longer claim the diplomatic secrets
privilege over the subject JPEPA documents now that negotiations have been
concluded, since their reasons for nondisclosure cited in the June 23, 2005 letter of
Sec. Ermita, and later in their Comment, necessarily apply only for as long as the
negotiations were still pending;
In their Comment, respondents contend that “the negotiations of the representatives of

the Philippines as well as of Japan must be allowed to explore alternatives in the course
of the negotiations in the same manner as judicial deliberations and working drafts of
opinions are accorded strict confidentiality.” That respondents liken the documents
involved in the JPEPA negotiations to judicial deliberations and working drafts of
opinions evinces, by itself, that they were claiming confidentiality not only until,
but even after, the conclusion of the negotiations.
Judicial deliberations do not lose their confidential character once a decision has been
promulgated by the courts. The same holds true with respect to working drafts of
opinions, which are comparable to intra-agency recommendations. Such intra-agency
recommendations are privileged even after the position under consideration by the
agency has developed into a definite proposition, hence, the rule in this jurisdiction that
agencies have the duty to disclose only definite propositions, and not the inter-agency
and intra-agency communications during the stage when common assertions are still
being formulated. 67
3. The dissent claims that petitioner-members of the House of Representatives have

sufficiently shown their need for the same documents to overcome the privilege. Again,
We disagree.
The House Committee that initiated the investigations on the JPEPA did not pursue its
earlier intention to subpoena the documents. This strongly undermines the assertion
that access to the same documents by the House Committee is critical to the
performance of its legislative functions. If the documents were indeed critical, the House
Committee should have, at the very least, issued a subpoena duces tecum or, like what
the Senate did in Senate v. Ermita, filed the present petition as a legislative body, rather
than leaving it to the discretion of individual Congressmen whether to pursue an action
or not. Such acts would have served as strong indicia that Congress itself finds the
subject information to be critical to its legislative functions.
Further, given that respondents have claimed executive privilege, petitioner-members of

the House of Representatives should have, at least, shown how its lack of access to the
Philippine and Japanese offers would hinder the intelligent crafting of legislation. Mere
assertion that the JPEPA covers a subject matter over which Congress has the power
to legislate would not suffice. As Senate Select Committee v. Nixon68 held, the showing
required to overcome the presumption favoring confidentiality turns, not only on the
nature and appropriateness of the function in the performance of which the material was
sought, but also the degree to which the material was necessary to its fulfillment. This
petitioners failed to do.
Furthermore, from the time the final text of the JPEPA including its annexes and
attachments was published, petitioner-members of the House of Representatives have
been free to use it for any legislative purpose they may see fit. Since such publication,
petitioners’ need, if any, specifically for the Philippine and Japanese offers leading to
the final version of the JPEPA, has become even less apparent.
In asserting that the balance in this instance tilts in favor of disclosing the JPEPA
documents, the dissent contends that the Executive has failed to show how disclosing
them after the conclusion of negotiations would impair the performance of its functions.
The contention, with due respect, misplaces the onus probandi. While, in keeping with
the general presumption of transparency, the burden is initially on the Executive to
provide precise and certain reasons for upholding its claim of privilege, once the
Executive is able to show that the documents being sought are covered by a recognized
privilege, the burden shifts to the party seeking information to overcome the privilege by
a strong showing of need.
When it was thus established that the JPEPA documents are covered by the privilege
for diplomatic negotiations pursuant to PMPF v. Manglapus, the presumption arose that
their disclosure would impair the performance of executive functions. It was then
incumbent on petitioner- requesting parties to show that they have a strong need for the
information sufficient to overcome the privilege. They have not, however.
4. Respecting the failure of the Executive Secretary to explicitly state that he is claiming
the privilege “by order of the President,” the same may not be strictly applied to the
privilege claim subject of this case.
When the Court in Senate v. Ermita limited the power of invoking the privilege to the
President alone, it was laying down a new rule for which there is no counterpart even in
the United States from which the concept of executive privilege was adopted. As held in
the 2004 case of Judicial Watch, Inc. v. Department of Justice,69 citing In re Sealed
Case,70 “the issue of whether a President must personally invoke the [presidential
communications] privilege remains an open question.” U.S. v. Reynolds,71 on the other
hand, held that “[t]here 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 rule was thus laid down by this Court, not in adherence to any established
precedent, but with the aim of preventing the abuse of the privilege in light of its highly
exceptional nature. The Court’s recognition that the Executive Secretary also bears the
power to invoke the privilege, provided he does so “by order of the President,” is meant
to avoid laying down too rigid a rule, the Court being aware that it was laying down a
new restriction on executive privilege. It is with the same spirit that the Court should not
be overly strict with applying the same rule in this peculiar instance, where the claim of
executive privilege occurred before the judgment in Senate v. Ermita became final.
5. To show that PMPF v. Manglapus may not be applied in the present case, the dissent
implies that the Court therein erred in citing US v. Curtiss Wright72 and the book
entitled The New American Government and Its Work73 since these authorities, so the
dissent claims, may not be used to calibrate the importance of the right to information in
the Philippine setting.
The dissent argues that since Curtiss-Wright referred to a conflict between the

executive and legislative branches of government, the factual setting thereof was
different from that of PMPF v. Manglapus which involved a collision between
governmental power over the conduct of foreign affairs and the citizen’s right to
information.
That the Court could freely cite Curtiss-Wright—a case that upholds the secrecy of
diplomatic negotiations against congressional demands for information—in the course
of laying down a ruling on the public right to informationonly serves to underscore the
principle mentioned earlier that the privileged character accorded to diplomatic
negotiations does not ipso facto lose all force and effect simply because the same
privilege is now being claimed under different circumstances.
PMPF v. Manglapus indeed involved a demand for information from private citizens and
not an executive-legislative conflict, but so did Chavez v. PEA74 which held that “the
[public’s] right to information . . . does not extend to matters recognized as privileged
information under the separation of powers.” What counts as privileged information in
an executive-legislative conflict is thus also recognized as such in cases involving the
public’s right to information.
Chavez v. PCGG75 also involved the public’s right to information, yet the Court
recognized as a valid limitation to that right the same privileged information based on
separation of powers—closed-door Cabinet meetings, executive sessions of either
house of Congress, and the internal deliberations of the Supreme Court.
These cases show that the Court has always regarded claims of privilege, whether in
the context of an executive-legislative conflict or a citizen’s demand for information, as
closely intertwined, such that the principles applicable to one are also applicable to the
other.
The reason is obvious. If the validity of claims of privilege were to be assessed by

entirely different criteria in each context, this may give rise to the absurd result
where Congress would be denied access to a particular information because of a claim
of executive privilege, but the general public would have access to the same
information, the claim of privilege notwithstanding.
Absurdity would be the ultimate result if, for instance, the Court adopts the “clear and
present danger” test for the assessment of claims of privilege against citizens’ demands
for information. If executive information, when demanded by a citizen, is privileged only
when there is a clear and present danger of a substantive evil that the State has a right
to prevent, it would be very difficult for the Executive to establish the validity of its claim
in each instance. In contrast, if the demand comes from Congress, the Executive merely
has to show that the information is covered by a recognized privilege in order to shift the
burden on Congress to present a strong showing of need. This would lead to a situation
where it would be more difficult for Congress to access executive information than it
would be for private citizens.
We maintain then that when the Executive has already shown that an information is
covered by executive privilege, the party demanding the information must present a
“strong showing of need,” whether that party is Congress or a private citizen.
The rule that the same “showing of need” test applies in both these contexts, however,
should not be construed as a denial of the importance of analyzing the context in which
an executive privilege controversy may happen to be placed. Rather, it affirms it, for it
means that the specific need being shown by the party seeking information in
every particular instance is highly significant in determining whether to uphold a claim of
privilege. This “need” is, precisely, part of the context in light of which every claim
of privilege should be assessed.
Since, as demonstrated above, there are common principles that should be applied to
executive privilege controversies across different contexts, the Court in PMPF v.
Manglapus did not err when it cited the Curtiss-Wright case.
The claim that the book cited in PMPF v. Manglapus entitled The New American
Government and Its Work could not have taken into account the expanded statutory
right to information in the FOIA assumes that the observations in that book in support of
the confidentiality of treaty negotiations would be different had it been written after the
FOIA. Such assumption is, with due respect, at best, speculative.
As to the claim in the dissent that “[i]t is more doubtful if the same book be used to
calibrate the importance of the right of access to information in the Philippine setting
considering its elevation as a constitutional right,” we submit that the elevation of such
right as a constitutional right did not set it free from the legitimate restrictions of
executive privilege which is itself constitutionally-based. 76 Hence, the comments in that
book which were cited in PMPF v. Manglapus remain valid doctrine.
6.The dissent further asserts that the Court has never used “need” as a test to uphold or
allow inroads into rights guaranteed under the Constitution. With due respect, we assert
otherwise. The Court has done so before, albeit without using the term “need.”
In executive privilege controversies, the requirement that parties present a “sufficient

showing of need” only means, in substance, that they should show a public interest in
favor of disclosure sufficient in degree to overcome the claim of privilege.77 Verily, the
Court in such cases engages in a balancing of interests. Such a balancing of interests
is certainly not new in constitutional adjudication involving fundamental rights. Secretary
of Justice v. Lantion,78which was cited in the dissent, applied just such a test.
Given that the dissent has clarified that it does not seek to apply the “clear and present
danger” test to the present controversy, but the balancing test, there seems to be no
substantial dispute between the position laid down in this ponencia and that reflected in
the dissent as to what test to apply. It would appear that the only disagreement is on the
results of applying that test in this instance.
The dissent, nonetheless, maintains that “it suffices that information is of public concern
for it to be covered by the right, regardless of the public’s need for the information,” and
that the same would hold true even “if they simply want to know it because it interests
them.” As has been stated earlier, however, there is no dispute that the information
subject of this case is a matter of public concern. The Court has earlier concluded that it
is a matter of public concern, not on the basis of any specific need shown by petitioners,
but from the very nature of the JPEPA as an international trade agreement.
However, when the Executive has—as in this case—invoked the privilege, and it has
been established that the subject information is indeed covered by the privilege being
claimed, can a party overcome the same by merely asserting that the information being
demanded is a matter of public concern, without any further showing required? Certainly
not, for that would render the doctrine of executive privilege of no force and effect
whatsoever as a limitation on the right to information, because then the sole test in such
controversies would be whether an information is a matter of public concern.
Moreover, in view of the earlier discussions, we must bear in mind that, by disclosing
the documents of the JPEPA negotiations, the Philippine government runs the grave
risk of betraying the trust reposed in it by the Japanese representatives, indeed, by the
Japanese government itself. How would the Philippine government then explain itself
when that happens? Surely, it cannot bear to say that it just hadto release the
information because certain persons simply wanted to know it “because it interests
them.”
Thus, the Court holds that, in determining whether an information is covered by the right
to information, a specific “showing of need” for such information is not a relevant
consideration, but only whether the same is a matter of public concern. When, however,
the government has claimed executive privilege, and it has established that the
information is indeed covered by the same, then the party demanding it, if it is to
overcome the privilege, must show that that the information is vital, not simply for the
satisfaction of its curiosity, but for its ability to effectively and reasonably participate in
social, political, and economic decision-making. 79
7. The dissent maintains that “[t]he treaty has thus entered the ultimate stage where the
people can exercise their right to participate in the discussion whether the Senate
should concur in its ratification or not.” (Emphasis supplied) It adds that this right “will be
diluted unless the people can have access to the subject JPEPA documents”. What, to
the dissent, is a dilution of the right to participate in decision-making is, to Us, simply a
recognition of the qualified nature of the public’s right to information. It is beyond dispute
that the right to information is not absolute and that the doctrine of executive privilege is
a recognized limitation on that right.
Moreover, contrary to the submission that the right to participate in decision-making

would be diluted, We reiterate that our people have been exercising their right to
participate in the discussion on the issue of the JPEPA, and they have been able to
articulate their different opinions without need of access to the JPEPA negotiation
documents.
Thus, we hold that the balance in this case tilts in favor of executive privilege.
8. Against our ruling that the principles applied in U.S. v. Nixon, the Senate Select
Committee case, and In re Sealed Case, are similarly applicable to the present
controversy, the dissent cites the caveat in the Nixon case that the U.S. Court was there
addressing only the President’s assertion of privilege in the context of a criminal trial,
not a civil litigation nor a congressional demand for information. What this caveat
means, however, is only that courts must be careful not to hastily apply the ruling
therein to other contexts. It does not, however, absolutely mean that the principles
applied in that case may never be applied in such contexts.
Hence, U.S. courts have cited U.S. v. Nixon in support of their rulings on claims of
executive privilege in contexts other than a criminal trial, as in the case of Nixon v.
Administrator of General Services80—which involved former President Nixon’s
invocation of executive privilege to challenge the constitutionality of the “Presidential
Recordings and Materials Preservation Act” 81—and the above-mentioned In re Sealed
Case which involved a claim of privilege against a subpoena duces tecum issued in a
grand jury investigation.
Indeed, in applying to the present case the principles found in U.S. v. Nixon and in the
other cases already mentioned, We are merely affirming what the Chief Justice stated in
his Dissenting Opinion in Neri v. Senate Committee on Accountability 82—a case
involving an executive-legislative conflict over executive privilege. That dissenting
opinion stated that, while Nixon was not concerned with the balance between the
President’s generalized interest in confidentiality and congressional demands for
information, “[n]onetheless the [U.S.] Court laid down principles and procedures
that can serve as torch lights to illumine us on the scope and use of Presidential
communication privilege in the case at bar.“83 While the Court was divided in Neri,
this opinion of the Chief Justice was not among the points of disagreement, and We
similarly hold now that the Nixon case is a useful guide in the proper resolution of the
present controversy, notwithstanding the difference in context.
Verily, while the Court should guard against the abuse of executive privilege, it
should also give full recognition to the validity of the privilege whenever it is
claimed within the proper bounds of executive power, as in this case. Otherwise,
the Court would undermine its own credibility, for it would be perceived as no longer
aiming to strike a balance, but seeking merely to water down executive privilege to the
point of irrelevance.
Conclusion
To recapitulate, petitioners’ demand to be furnished with a copy of the full text of the
JPEPA has become moot and academic, it having been made accessible to the public
since September 11, 2006. As for their demand for copies of the Philippine and
Japanese offers submitted during the JPEPA negotiations, the same must be denied,
respondents’ claim of executive privilege being valid.
Diplomatic negotiations have, since the Court promulgated its Resolution in PMPF v.
Manglapus on September 13, 1988, been recognized as privileged in this jurisdiction
and the reasons proffered by petitioners against the application of the ruling therein to
the present case have not persuaded the Court. Moreover, petitioners—both private
citizens and members of the House of Representatives—have failed to present a
“sufficient showing of need” to overcome the claim of privilege in this case.
That the privilege was asserted for the first time in respondents’ Comment to the
present petition, and not during the hearings of the House Special Committee on
Globalization, is of no moment, since it cannot be interpreted as a waiver of the privilege
on the part of the Executive branch.
For reasons already explained, this Decision shall not be interpreted as departing from
the ruling in Senate v. Ermita that executive privilege should be invoked by the
President or through the Executive Secretary “by order of the President.”
SO ORDERED.
Gudani v. Senga, GR No. 170561, 15 August 2006
B/GEN. (RET.) FRANCISCO V. GUDANI AND LT. COL. ALEXANDER F.
BALUTANPetitioners,
Vs.
LT./GEN. GENEROSO S. SENGA AS CHIEF OF STAFF OF THE ARMED FORCES

OF THE PHILIPPINES, COL. GILBERTO JOSE C. ROA AS THE PRE-TRIAL JOSE
C. ROA AS THE PRE-TRIAL PROVOST MARSHALL GENERAL PROVOST
MARSHALL GENERAL PHILIPPINES AND THE GENERALCOURT-MARTIAL,
PHILIPPINES AND THE GENERAL COURT-MARTIALRespondents.
Promulgated:August 15, 2006
x————————————————————————— x
DECISION
Tinga, J.:
A most dangerous general proposition is foisted on the Court—that soldiers who
defy orders of their superior officers are exempt from the strictures of military law and
discipline if such defiance is predicated on an act otherwise valid under civilian law.
Obedience and deference to the military chain of command and the President as
commander-in-chief are the cornerstones of a professional military in the firm cusp of
civilian control. These values of obedience and deference expected of military officers
are content-neutral, beyond the sway of the officer’s own sense of what is prudent or
rash, or more elementally, of right or wrong. A self-righteous military invites itself as the
scoundrel’s activist solution to the “ills” of participatory democracy.
Petitioners seek the annulment of a directive from President Gloria Macapagal-Arroyo

[1] enjoining them and other military officers from testifying before Congress without the
President’s consent. Petitioners also pray for injunctive relief against a pending
preliminary investigation against them, in preparation for possible court-martial
proceedings, initiated within the military justice system in connection with petitioners’
violation of the aforementioned directive.
The Court is cognizant that petitioners, in their defense, invoke weighty constitutional
principles that center on fundamental freedoms enshrined in the Bill of Rights. Although
these concerns will not be addressed to the satisfaction of petitioners, the Court
recognizes these values as of paramount importance to our civil society, even if not
determinative of the resolution of this petition. Had the relevant issue before us been the
right of the Senate to compel the testimony of petitioners, the constitutional questions
raised by them would have come to fore. Such a scenario could have very well been
presented to the Court in such manner, without the petitioners having had to violate a
direct order from their commanding officer. Instead, the Court has to resolve whether
petitioners may be subjected to military discipline on account of their defiance of a direct
order of the AFP Chief of Staff.
The solicited writs of certiorari and prohibition do not avail; the petition must be denied.
I.
The petitioners are high-ranking officers of the Armed Forces of the Philippines
(AFP). Both petitioners, Brigadier General Francisco Gudani (Gen. Gudani) and
Lieutenant Colonel Alexander Balutan (Col. Balutan), belonged to the Philippine
Marines. At the time of the subject incidents, both Gen. Gudani and Col. Balutan were
assigned to the Philippine Military Academy (PMA) in Baguio City, the former as the
PMA Assistant Superintendent, and the latter as the Assistant Commandant of Cadets.
[2]
On 22 September 2005, Senator Rodolfo Biazon (Sen. Biazon) invited several
senior officers of the AFP to appear at a public hearing before the Senate Committee on
National Defense and Security (Senate Committee) scheduled on 28 September 2005.
The hearing was scheduled after topics concerning the conduct of the 2004 elections
emerged in the public eye, particularly allegations of massive cheating and the surfacing
of copies of an audio excerpt purportedly of a phone conversation between President
Gloria Macapagal Arroyo and an official of the Commission on Elections (COMELEC)
widely reputed as then COMELEC Commissioner Virgilio Garcillano. At the time of the
2004 elections, Gen. Gudani had been designated as commander, and Col. Balutan a
member, of “Joint Task Force Ranao” by the AFP Southern Command. “Joint Task
Force Ranao” was tasked with the maintenance of peace and order during the 2004
elections in the provinces of Lanao del Norte and Lanao del Sur. [3]
Gen. Gudani, Col. Balutan, and AFP Chief of Staff Lieutenant General
GenerosoSenga (Gen. Senga) were among the several AFP officers who received a
letter invitation from Sen. Biazon to attend the 28 September 2005 hearing. On 23
September 2005, Gen. Senga replied through a letter to Sen. Biazon that he would be
unable to attend the hearing due to a previous commitment in Brunei, but he
nonetheless “directed other officers from the AFP who were invited to attend the
hearing.” [4]
On 26 September 2005, the Office of the Chief of Staff of the AFP issued a
Memorandum addressed to the Superintendent of the PMA Gen. Cristolito P. Baloing
(Gen. Baloing). It was signed by Lt. Col. Hernando DCA Iriberri in behalf of Gen. Senga.
[5] Noting that Gen. Gudani and Col. Balutan had been invited to attend the Senate
Committee hearing on 28 September 2005, the Memorandum directed the two officers
to attend the hearing. [6] Conformably, Gen. Gudani and Col. Balutan filed their
respective requests for travel authority addressed to the PMA Superintendent.
On 27 September 2005, Gen. Senga wrote a letter to Sen. Biazon, requesting
the postponement of the hearing scheduled for the following day, since the AFP Chief of
Staff was himself unable to attend said hearing, and that some of the invited officers
also could not attend as they were “attending to other urgent operational matters.” By
this time, both Gen. Gudani and Col. Balutan had already departed Baguio for Manila to
attend the hearing.
Then on the evening of 27 September 2005, at around 10:10 p.m., a message
was transmitted to the PMA Superintendent from the office of Gen. Senga, stating as
follows:
PER INSTRUCTION OF HER EXCELLENCY PGMA, NO AFP PERSONNEL SHALL

APPEAR BEFORE ANY CONGRESSIONAL OR SENATE HEARING WITHOUT HER
APPROVAL. INFORM BGEN FRANCISCO F GUDANI AFP AND LTC ALEXANDER
BALUTAN PA (GSC) ACCORDINGLY. [7]
The following day, Gen. Senga sent another letter to Sen. Biazon, this time
informing the senator that “no approval has been granted by the President to any AFP
officer to appear” before the hearing scheduled on that day. Nonetheless, both Gen.
Gudani and Col. Balutan were present as the hearing started, and they both testified as
to the conduct of the 2004 elections.
The Office of the Solicitor General (OSG), representing the respondents before
this Court, has offered additional information surrounding the testimony of Gen. Gudani
and Col. Balutan. The OSG manifests that the couriers of the AFP Command Center
had attempted to deliver the radio message to Gen. Gudani’s residence in a subdivision
in Parañaque City late in the night of 27 September 2005, but they were not permitted
entry by the subdivision guards. The next day, 28 September 2005, shortly before the
start of the hearing, a copy of Gen. Senga’s letter to Sen. Biazon sent earlier that day
was handed at the Senate by Commodore Amable B. Tolentino of the AFP Office for
Legislative Affairs to Gen. Gudani, who replied that he already had a copy. Further,
Gen. Senga called Commodore Tolentino on the latter’s cell phone and asked to talk to
Gen. Gudani, but Gen. Gudani refused. In response, Gen. Senga instructed
Commodore Tolentino to inform Gen. Gudani that “it was an order,” yet Gen. Gudani
still refused to take Gen. Senga’s call. [8]
A few hours after Gen. Gudani and Col. Balutan had concluded their testimony,
the office of Gen. Senga issued a statement which noted that the two had appeared
before the Senate Committee “in spite of the fact that a guidance has been given that a
Presidential approval should be sought prior to such an appearance;” that such directive
was “in keeping with the time[-]honored principle of the Chain of Command;” and that
the two officers “disobeyed a legal order, in violation of A[rticles of] W[ar] 65 (Willfully
Disobeying Superior Officer), hence they will be subjected to General Court Martial
proceedings x xx” Both Gen. Gudani and Col. Balutan were likewise relieved of their
assignments then. [9]
On the very day of the hearing, 28 September 2005, President Gloria-
Macapagal-Arroyo issued Executive Order No. 464 (E.O. 464). The OSG notes that the
E.O. “enjoined officials of the executive department including the military establishment
from appearing in any legislative inquiry without her approval.” [10] This Court
subsequently ruled on the constitutionality of the said executive order in Senate v.
Ermita. [11]The relevance of E.O. 464 and Senate to the present petition shall be
discussed forthwith.
In the meantime, on 30 September 2005, petitioners were directed by General

Senga, through Col. Henry A. Galarpe of the AFP Provost Marshal General, to appear
before the Office of the Provost Marshal General (OPMG) on 3 October 2005 for
investigation. During their appearance before Col. Galarpe, both petitioners invoked
their right to remain silent. [12] The following day, Gen. Gudani was compulsorily retired
from military service, having reached the age of 56. [13]
In an Investigation Report dated 6 October 2005, the OPMG recommended that

petitioners be charged with violation of Article of War 65, on willfully disobeying a
superior officer, in relation to Article of War 97, on conduct prejudicial to the good order
and military discipline. [14] As recommended, the case was referred to a Pre-Trial
Investigation Officer (PTIO) preparatory to trial by the General Court Martial (GCM). [15]
Consequently, on 24 October 2005, petitioners were separately served with Orders
respectively addressed to them and signed by respondent Col. Gilbert Jose C. Roa, the
Pre-Trial Investigating Officer of the PTIO. The Orders directed petitioners to appear in
person before Col. Roa at the Pre-Trial Investigation of the Charges for violation of
Articles 65 [16] and 97 [17] of Commonwealth Act No. 408, [18] and to submit their
counter-affidavits and affidavits of witnesses at the Office of the Judge Advocate
General. [19] The Orders were accompanied by respective charge sheets against
petitioners, accusing them of violating Articles of War 65 and 97.
It was from these premises that the present petition for certiorari and prohibition was
filed, particularly seeking that (1) the order of President Arroyo coursed through Gen.
Senga preventing petitioners from testifying before Congress without her prior approval
be declared unconstitutional; (2) the charges stated in the charge sheets against
petitioners be quashed; and (3) Gen. Senga, Col. Galarpe, Col. Roa, and their
successors-in-interest or persons acting for and on their behalf or orders, be
permanently enjoined from proceeding against petitioners, as a consequence of their
having testified before the Senate on 28 September 2005. [20]
Petitioners characterize the directive from President Arroyo requiring her prior
approval before any AFP personnel appear before Congress as a “gag order,” which
violates the principle of separation of powers in government as it interferes with the
investigation of the Senate Committee conducted in aid of legislation. They also equate
the “gag order” with culpable violation of the Constitution, particularly in relation to the
public’s constitutional right to information and transparency in matters of public concern.
Plaintively, petitioners claim that “the Filipino people have every right to hear the
[petitioners’] testimonies,” and even if the “gag order” were unconstitutional, it still was
tantamount to “the crime of obstruction of justice.” Petitioners further argue that there
was no law prohibiting them from testifying before the Senate, and in fact, they were
appearing in obeisance to the authority of Congress to conduct inquiries in aid of
legislation.
Finally, it is stressed in the petition that Gen. Gudani was no longer subject to
military jurisdiction on account of his compulsory retirement on 4 October 2005. It is
pointed out that Article 2, Title I of the Articles of War defines persons subject to military
law as “all officers and soldiers in the active service” of the AFP.
II.
We first proceed to define the proper litigable issues. Notably, the guilt or
innocence of petitioners in violating Articles 65 and 97 of the Articles of War is not an
issue before this Court, especially considering that per records, petitioners have not yet
been subjected to court martial proceedings. Owing to the absence of such
proceedings, the correct inquiry should be limited to whether respondents could
properly initiate such proceedings preparatory to a formal court-martial, such as the
aforementioned preliminary investigation, on the basis of petitioners’ acts surrounding
their testimony before the Senate on 28 September 2005. Yet this Court, consistent with
the principle that it is not a trier of facts at first instance, [21] is averse to making any
authoritative findings of fact, for that function is first for the court-martial court to fulfill.
Thus, we limit ourselves to those facts that are not controverted before the
Court, having been commonly alleged by petitioners and the OSG (for respondents).
Petitioners were called by the Senate Committee to testify in its 28 September 2005
hearing. Petitioners attended such hearing and testified before the Committee, despite
the fact that the day before, there was an order from Gen. Senga (which in turn was
sourced “per instruction” from President Arroyo) prohibiting them from testifying without
the prior approval of the President. Petitioners do not precisely admit before this Court
that they had learned of such order prior to their testimony, although the OSG asserts
that at the very least, Gen. Gudani already knew of such order before he testified. [22]
Yet while this fact may be ultimately material in the court-martial proceedings, it is not
determinative of this petition, which as stated earlier, does not proffer as an issue
whether petitioners are guilty of violating the Articles of War.
What the Court has to consider though is whether the violation of the
aforementioned order of Gen. Senga, which emanated from the President, could lead to
any investigation for court-martial of petitioners. It has to be acknowledged as a general
principle [23] that AFP personnel of whatever rank are liable under military law for
violating a direct order of an officer superior in rank. Whether petitioners did violate such
an order is not for the Court to decide, but it will be necessary to assume, for the
purposes of this petition, that petitioners did so.
III.
Preliminarily, we must discuss the effect of E.O. 464 and the Court’s ruling
in Senate on the present petition. Notably, it is not alleged that petitioners were in any
way called to task for violating E.O. 464, but instead, they were charged for violating the
direct order of Gen. Senga not to appear before the Senate Committee, an order that
stands independent of the executive order. Distinctions are called for, since Section 2(b)
of E.O. 464 listed “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,” as among those public officials required in Section 3 of E.O. 464 “to
secure prior consent of the President prior to appearing before either House of
Congress.” The Court in Senate declared both Section 2(b) and Section 3 void, [24] and
the impression may have been left following Senate that it settled as doctrine, that the
President is prohibited from requiring military personnel from attending congressional
hearings without having first secured prior presidential consent. That impression is
wrong.
Senate turned on the nature of executive privilege, a presidential prerogative

which is encumbered by significant limitations. Insofar as E.O. 464 compelled officials of
the executive branch to seek prior presidential approval before appearing before
Congress, the notion of executive control also comes into consideration. [25] However,
the ability of the President to require a military official to secure prior consent before
appearing before Congress pertains to a wholly different and independent specie of
presidential authority—the commander-in-chief powers of the President. By tradition
and jurisprudence, the commander-in-chief powers of the President are not
encumbered by the same degree of restriction as that which may attach to executive
privilege or executive control.
During the deliberations in Senate, the Court was very well aware of the
pendency of this petition as well as the issues raised herein. The decision
in Senate was rendered with the comfort that the nullification of portions of E.O. 464
would bear no impact on the present petition since petitioners herein were not called to
task for violating the executive order. Moreover, the Court was then cognizant
that Senate and this case would ultimately hinge on disparate legal issues.
Relevantly, Senate purposely did not touch upon or rule on the faculty of the President,
under the aegis of the commander-in-chief powers [26] to require military officials from
securing prior consent before appearing before Congress. The pertinent factors in
considering that question are markedly outside of those which did become relevant in
adjudicating the issues raised in Senate. It is in this petition that those factors come into
play.
At this point, we wish to dispose of another peripheral issue before we strike at
the heart of the matter. General Gudani argues that he can no longer fall within the
jurisdiction of the court-martial, considering his retirement last 4 October 2005. He cites
Article 2, Title I of Commonwealth Act No. 408, which defines persons subject to military
law as, among others, “all officers and soldiers in the active service of the [AFP],” and
points out that he is no longer in the active service.
This point was settled against Gen. Gudani’s position in Abadilla v. Ramos, [27] where
the Court declared that an officer whose name was dropped from the roll of officers
cannot be considered to be outside the jurisdiction of military authorities when military
justice proceedings were initiated against him before the termination of his service.
Once jurisdiction has been acquired over the officer, it continues until his case is
terminated. Thus, the Court held:
The military authorities had jurisdiction over the person of Colonel Abadilla at the time of
the alleged offenses. This jurisdiction having been vested in the military authorities, it is
retained up to the end of the proceedings against Colonel Abadilla. Well-settled is the
rule that jurisdiction once acquired is not lost upon the instance of the parties but
continues until the case is terminated. [28]
Citing Colonel Winthrop’s treatise on Military Law, the Court further stated:
We have gone through the treatise of Colonel Winthrop and We find the following
passage which goes against the contention of the petitioners, viz—
3. Offenders in general — Attaching of jurisdiction. It has further been held, and is now
settled law, in regard to military offenders in general, that if the military jurisdiction has
once duly attached to them previous to the date of the termination of their legal period
of service, they may be brought to trial by court-martial after that date, their discharge
being meanwhile withheld. This principle has mostly been applied to cases where the
offense was committed just prior to the end of the term. In such cases the interests of
discipline clearly forbid that the offender should go unpunished. It is held therefore that if
before the day on which his service legally terminates and his right to a discharge is
complete, proceedings with a view to trial are commenced against him—as by arrest or
the service of charges,—the military jurisdiction will fully attach and once attached may
be continued by a trial by court-martial ordered and held after the end of the term of the
enlistment of the accused x xx [29]
Thus, military jurisdiction has fully attached to Gen. Gudani inasmuch as both
the acts complained of and the initiation of the proceedings against him occurred before
he compulsorily retired on 4 October 2005. We see no reason to unsettle
the Abadilla doctrine. The OSG also points out that under Section 28 of Presidential
Decree No. 1638, as amended, “[a]n officer or enlisted man carried in the retired list [of
the Armed Forces of the Philippines] shall be subject to the Articles of War x xx” [30] To
this citation, petitioners do not offer any response, and in fact have excluded the matter
of Gen. Gudani’s retirement as an issue in their subsequent memorandum.
IV.
We now turn to the central issues.
Petitioners wish to see annulled the “gag order” that required them to secure
presidential consent prior to their appearance before the Senate, claiming that it violates
the constitutional right to information and transparency in matters of public concern; or if
not, is tantamount at least to the criminal acts of obstruction of justice and grave
coercion. However, the proper perspective from which to consider this issue entails the
examination of the basis and authority of the President to issue such an order in the first
place to members of the AFP and the determination of whether such an order is subject
to any limitations.
The vitality of the tenet that the President is the commander-in-chief of the
Armed Forces is most crucial to the democratic way of life, to civilian supremacy over
the military, and to the general stability of our representative system of government. The
Constitution reposes final authority, control and supervision of the AFP to the President,
a civilian who is not a member of the armed forces, and whose duties as commander-in-
chief represent only a part of the organic duties imposed upon the office, the other
functions being clearly civil in nature. [31] Civilian supremacy over the military also
countermands the notion that the military may bypass civilian authorities, such as civil
courts, on matters such as conducting warrantless searches and seizures. [32]
Pursuant to the maintenance of civilian supremacy over the military, the
Constitution has allocated specific roles to the legislative and executive branches of
government in relation to military affairs. Military appropriations, as with all other
appropriations, are determined by Congress, as is the power to declare the existence of
a state of war. [33] Congress is also empowered to revoke a proclamation of martial law
or the suspension of the writ of habeas corpus. [34] The approval of the Commission on
Appointments is also required before the President can promote military officers from
the rank of colonel or naval captain. [35] Otherwise, on the particulars of civilian
dominance and administration over the military, the Constitution is silent, except for the
commander-in-chief clause which is fertile in meaning and implication as to whatever
inherent martial authority the President may possess. [36]
The commander-in-chief provision in the Constitution is denominated as Section 18,

Article VII, which begins with the simple declaration that “[t]he President shall be the
Commander-in-Chief of all armed forces of the Philippines x xx” [37] Outside explicit
constitutional limitations, such as those found in Section 5, Article XVI, the commander-
in-chief clause vests on the President, as commander-in-chief, absolute authority over
the persons and actions of the members of the armed forces. Such authority includes
the ability of the President to restrict the travel, movement and speech of military
officers, activities which may otherwise be sanctioned under civilian law.
Reference to Kapunan, Jr. v. De Villa [38]is useful in this regard. Lt. Col. Kapunan was
ordered confined under “house arrest” by then Chief of Staff (later President) Gen. Fidel
Ramos. Kapunan was also ordered, as a condition for his house arrest, that he may not
issue any press statements or give any press conference during his period of detention.
The Court unanimously upheld such restrictions, noting:
[T]he Court is of the view that such is justified by the requirements of military discipline.
It cannot be gainsaid that certain liberties of persons in the military service, including the
freedom of speech, may be circumscribed by rules of military discipline. Thus, to a
certain degree, individual rights may be curtailed, because the effectiveness of the
military in fulfilling its duties under the law depends to a large extent on the maintenance
of discipline within its ranks. Hence, lawful orders must be followed without question and
rules must be faithfully complied with, irrespective of a soldier’s personal views on the
matter. It is from this viewpoint that the restrictions imposed on petitioner Kapunan, an
officer in the AFP, have to be considered. [39]
Any good soldier, or indeed any ROTC cadet, can attest to the fact that the
military way of life circumscribes several of the cherished freedoms of civilian life. It is
part and parcel of the military package. Those who cannot abide by these limitations
normally do not pursue a military career and instead find satisfaction in other fields; and
in fact many of those discharged from the service are inspired in their later careers
precisely by their rebellion against the regimentation of military life. Inability or
unwillingness to cope with military discipline is not a stain on character, for the military
mode is a highly idiosyncratic path which persons are not generally conscripted into, but
volunteer themselves to be part of. But for those who do make the choice to be a
soldier, significant concessions to personal freedoms are expected. After all, if need be,
the men and women of the armed forces may be commanded upon to die for country,
even against their personal inclinations.
It may be so that military culture is a remnant of a less democratic era, yet it has
been fully integrated into the democratic system of governance. The constitutional role
of the armed forces is as protector of the people and of the State. [40] Towards this end,
the military must insist upon a respect for duty and a discipline without counterpart in
civilian life. [41] The laws and traditions governing that discipline have a long history; but
they are founded on unique military exigencies as powerful now as in the past. [42] In
the end, it must be borne in mind that the armed forces has a distinct subculture with
unique needs, a specialized society separate from civilian society. [43] In the elegant
prose of the eminent British military historian, John Keegan:
[Warriors who fight wars have] values and skills [which] are not those of politicians and
diplomats. They are those of a world apart, a very ancient world, which exists in parallel
with the everyday world but does not belong to it. Both worlds change over time, and
the warrior world adopts in step to the civilian. It follows it, however, at a distance. The
distance can never be closed, for the culture of the warrior can never be that of
civilization itself…. [44]
Critical to military discipline is obeisance to the military chain of command.

Willful disobedience of a superior officer is punishable by court-martial under Article 65
of the Articles of War. [45] “An individual soldier is not free to ignore the lawful orders or
duties assigned by his immediate superiors. For there would be an end of all discipline if
the seaman and marines on board a ship of war [or soldiers deployed in the field], on a
distant service, were permitted to act upon their own opinion of their rights [or their
opinion of the President’s intent], and to throw off the authority of the commander
whenever they supposed it to be unlawfully exercised.” [46]
Further traditional restrictions on members of the armed forces are those
imposed on free speech and mobility. Kapunan is ample precedent in justifying that a
soldier may be restrained by a superior officer from speaking out on certain matters. As
a general rule, the discretion of a military officer to restrain the speech of a soldier under
his/her command will be accorded deference, with minimal regard if at all to the reason
for such restraint. It is integral to military discipline that the soldier’s speech be with the
consent and approval of the military commander.
The necessity of upholding the ability to restrain speech becomes even more
imperative if the soldier desires to speak freely on political matters. The Constitution
requires that “[t]he armed forces shall be insulated from partisan politics,” and that ‘[n]o
member of the military shall engage directly or indirectly in any partisan political activity,
except to vote.” [47] Certainly, no constitutional provision or military indoctrination will
eliminate a soldier’s ability to form a personal political opinion, yet it is vital that such
opinions be kept out of the public eye. For one, political belief is a potential source of
discord among people, and a military torn by political strife is incapable of fulfilling its
constitutional function as protectors of the people and of the State. For another, it is
ruinous to military discipline to foment an atmosphere that promotes an active dislike of
or dissent against the President, the commander-in-chief of the armed forces. Soldiers
are constitutionally obliged to obey a President they may dislike or distrust. This
fundamental principle averts the country from going the way of banana republics.
Parenthetically, it must be said that the Court is well aware that our country’s
recent past is marked by regime changes wherein active military dissent from the chain
of command formed a key, though not exclusive, element. The Court is not blind to
history, yet it is a judge not of history but of the Constitution. The Constitution, and
indeed our modern democratic order, frown in no uncertain terms on a politicized
military, informed as they are on the trauma of absolute martial rule. Our history might
imply that a political military is part of the natural order, but this view cannot be affirmed
by the legal order. The evolutionary path of our young democracy necessitates a
reorientation from this view, reliant as our socio-political culture has become on it. At the
same time, evolution mandates a similar demand that our system of governance be
more responsive to the needs and aspirations of the citizenry, so as to avoid an
environment vulnerable to a military apparatus able at will to exert an undue influence in
our polity.
Of possibly less gravitas, but of equal importance, is the principle that mobility of
travel is another necessary restriction on members of the military. A soldier cannot
leave his/her post without the consent of the commanding officer. The reasons are self-
evident. The commanding officer has to be aware at all times of the location of the
troops under command, so as to be able to appropriately respond to any exigencies.
For the same reason, commanding officers have to be able to restrict the movement or
travel of their soldiers, if in their judgment, their presence at place of call of duty is
necessary. At times, this may lead to unsentimental, painful consequences, such as a
soldier being denied permission to witness the birth of his first-born, or to attend the
funeral of a parent. Yet again, military life calls for considerable personal sacrifices
during the period of conscription, wherein the higher duty is not to self but to country.
Indeed, the military practice is to require a soldier to obtain permission from the
commanding officer before he/she may leave his destination. A soldier who goes from
the properly appointed place of duty or absents from his/her command, guard, quarters,
station, or camp without proper leave is subject to punishment by court-martial. [48] It is
even clear from the record that petitioners had actually requested for travel authority
from the PMA in Baguio City to Manila, to attend the Senate Hearing. [49] Even
petitioners are well aware that it was necessary for them to obtain permission from their
superiors before they could travel to Manila to attend the Senate Hearing.
It is clear that the basic position of petitioners impinges on these fundamental
principles we have discussed. They seek to be exempted from military justice for having
traveled to the Senate to testify before the Senate Committee against the express
orders of Gen. Senga, the AFP Chief of Staff. If petitioners’ position is affirmed, a
considerable exception would be carved from the unimpeachable right of military
officers to restrict the speech and movement of their juniors. The ruinous consequences
to the chain of command and military discipline simply cannot warrant the
Court’s imprimatur on petitioner’s position.
V.
Still, it would be highly myopic on our part to resolve the issue solely on
generalities surrounding military discipline. After all, petitioners seek to impress on us
that their acts are justified as they were responding to an invitation from the Philippine
Senate, a component of the legislative branch of government. At the same time, the
order for them not to testify ultimately came from the President, the head of the
executive branch of government and the commander-in-chief of the armed forces.
Thus, we have to consider the question: may the President prevent a member of
the armed forces from testifying before a legislative inquiry? We hold that the President
has constitutional authority to do so, by virtue of her power as commander-in-chief, and
that as a consequence a military officer who defies such injunction is liable under
military justice. At the same time, we also hold that any chamber of Congress which
seeks the appearance before it of a military officer against the consent of the President
has adequate remedies under law to compel such attendance. Any military official
whom Congress summons to testify before it may be compelled to do so by the
President. If the President is not so inclined, the President may be commanded by
judicial order to compel the attendance of the military officer. Final judicial orders have
the force of the law of the land which the President has the duty to faithfully execute.
[50]
Explication of these principles is in order.

As earlier noted, we ruled in Senate that the President may not issue a blanket
requirement of prior consent on executive officials summoned by the legislature to
attend a congressional hearing. In doing so, the Court recognized the considerable
limitations on executive privilege, and affirmed that the privilege must be formally
invoked on specified grounds. However, the ability of the President to prevent military
officers from testifying before Congress does not turn on executive privilege, but on the
Chief Executive’s power as commander-in-chief to control the actions and speech of
members of the armed forces. The President’s prerogatives as commander-in-chief are
not hampered by the same limitations as in executive privilege.
Our ruling that the President could, as a general rule, require military officers to
seek presidential approval before appearing before Congress is based foremost on the
notion that a contrary rule unduly diminishes the prerogatives of the President as
commander-in-chief. Congress holds significant control over the armed forces in
matters such as budget appropriations and the approval of higher-rank promotions, [51]
yet it is on the President that the Constitution vests the title as commander-in-chief and
all the prerogatives and functions appertaining to the position. Again, the exigencies of
military discipline and the chain of command mandate that the President’s ability to
control the individual members of the armed forces be accorded the utmost respect.
Where a military officer is torn between obeying the President and obeying the Senate,
the Court will without hesitation affirm that the officer has to choose the President. After
all, the Constitution prescribes that it is the President, and not the Senate, who is the
commander-in-chief of the armed forces. [52]
At the same time, the refusal of the President to allow members of the military to
appear before Congress is still subject to judicial relief. The Constitution itself
recognizes as one of the legislature’s functions is the conduct of inquiries in aid of
legislation. [53] Inasmuch as it is ill-advised for Congress to interfere with the
President’s power as commander-in-chief, it is similarly detrimental for the President to
unduly interfere with Congress’s right to conduct legislative inquiries. The impasse did
not come to pass in this petition, since petitioners testified anyway despite the
presidential prohibition. Yet the Court is aware that with its pronouncement today that
the President has the right to require prior consent from members of the armed forces,
the clash may soon loom or actualize.
We believe and hold that our constitutional and legal order sanctions a modality
by which members of the military may be compelled to attend legislative inquiries even
if the President desires otherwise, a modality which does not offend the Chief
Executive’s prerogatives as commander-in-chief. The remedy lies with the courts.
The fact that the executive branch is an equal, coordinate branch of government to the
legislative creates a wrinkle to any basic rule that persons summoned to testify before
Congress must do so. There is considerable interplay between the legislative and
executive branches, informed by due deference and respect as to their various
constitutional functions. Reciprocal courtesy idealizes this relationship; hence, it is only
as a last resort that one branch seeks to compel the other to a particular mode of
behavior. The judiciary, the third coordinate branch of government, does not enjoy a
similar dynamic with either the legislative or executive branches. Whatever weakness
inheres on judicial power due to its inability to originate national policies and legislation,
such is balanced by the fact that it is the branch empowered by the Constitution to
compel obeisance to its rulings by the other branches of government.
As evidenced by Arnault v. Nazareno [54] and Bengzon v. Senate Blue Ribbon

Committee, [55] among others, the Court has not shirked from reviewing the exercise by
Congress of its power of legislative inquiry. [56] Arnault recognized that the legislative
power of inquiry and the process to enforce it, “is an essential and appropriate auxiliary
to the legislative function.” [57] On the other hand, Bengzon acknowledged that the
power of both houses of Congress to conduct inquiries in aid of legislation is not
“absolute or unlimited”, and its exercise is circumscribed by Section 21, Article VI of the
Constitution. [58] From these premises, the Court enjoined the Senate Blue Ribbon
Committee from requiring the petitioners in Bengzon from testifying and producing
evidence before the committee, holding that the inquiry in question did not involve any
intended legislation.
Senate affirmed both the Arnault and Bengzon rulings. It elucidated on the

constitutional scope and limitations on the constitutional power of congressional inquiry.
Thus:
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 inquirites 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, 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 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 critical 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… 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 [59].
In Senate, the Court ruled that the President could not impose a blanket
prohibition barring executive officials from testifying before Congress without the
President’s consent notwithstanding the invocation of executive privilege to justify such
prohibition. The Court did not rule that the power to conduct legislative inquiry ipso
facto superseded the claim of executive privilege, acknowledging instead that the
viability of executive privilege stood on a case to case basis. Should neither branch
yield to the other branch’s assertion, the constitutional recourse is to the courts, as the
final arbiter if the dispute. It is only the courts that can compel, with conclusiveness,
attendance or non-attendance in legislative inquiries.
Following these principles, it is clear that if the President or the Chief of Staff refuses to
allow a member of the AFP to appear before Congress, the legislative body seeking
such testimony may seek judicial relief to compel the attendance. Such judicial action
should be directed at the heads of the executive branch or the armed forces, the
persons who wield authority and control over the actions of the officers concerned. The
legislative purpose of such testimony, as well as any defenses against the same—
whether grounded on executive privilege, national security or similar concerns—would
be accorded due judicial evaluation. All the constitutional considerations pertinent to
either branch of government may be raised, assessed, and ultimately weighed against
each other. And once the courts speak with finality, both branches of government have
no option but to comply with the decision of the courts, whether the effect of the
decision is to their liking or disfavor.
Courts are empowered, under the constitutional principle of judicial review, to arbitrate
disputes between the legislative and executive branches of government on the proper
constitutional parameters of power. [60] This is the fair and workable solution implicit in
the constitutional allocation of powers among the three branches of government. The
judicial filter helps assure that the particularities of each case would ultimately govern,
rather than any overarching principle unduly inclined towards one branch of government
at the expense of the other. The procedure may not move as expeditiously as some
may desire, yet it ensures thorough deliberation of all relevant and cognizable issues
before one branch is compelled to yield to the other. Moreover, judicial review does not
preclude the legislative and executive branches from negotiating a mutually acceptable
solution to the impasse. After all, the two branches, exercising as they do functions and
responsibilities that are political in nature, are free to smooth over the thorns in their
relationship with a salve of their own choosing.
And if emphasis be needed, if the courts so rule, the duty falls on the shoulders of the
President, as commander-in-chief, to authorize the appearance of the military officers
before Congress. Even if the President has earlier disagreed with the notion of officers
appearing before the legislature to testify, the Chief Executive is nonetheless obliged to
comply with the final orders of the courts.
Petitioners have presented several issues relating to the tenability or wisdom of the
President’s order on them and other military officers not to testify before Congress
without the President’s consent. Yet these issues ultimately detract from the main point
—that they testified before the Senate despite an order from their commanding officer
and their commander-in-chief for them not to do so, [61] in contravention of the
traditions of military discipline which we affirm today. The issues raised by petitioners
could have very well been raised and properly adjudicated if the proper procedure was
observed. Petitioners could have been appropriately allowed to testify before the Senate
without having to countermand their Commander-in-chief and superior officer under the
setup we have prescribed.
We consider the other issues raised by petitioners unnecessary to the resolution of this
petition.
Petitioners may have been of the honest belief that they were defying a direct
order of their Commander-in-Chief and Commanding General in obeisance to a
paramount idea formed within their consciences, which could not be lightly ignored. Still,
the Court, in turn, is guided by the superlative principle that is the Constitution, the
embodiment of the national conscience. The Constitution simply does not permit the
infraction which petitioners have allegedly committed, and moreover, provides for an
orderly manner by which the same result could have been achieved without offending
constitutional principles.
WHEREFORE, the petition is DENIED. No pronouncement as to costs.
SO ORDERED.
Agcaoili v. Fariñas, G.R. No. 232395, July 03, 2018
G.R. No. 232395, July 03, 2018
PEDRO S. AGCAOILI, JR., ENCARNACION A. GAOR, JOSEPHINE P.

CALAJATE, GENEDINE D. JAMBARO, EDEN C. BATTULAYAN, EVANGELINE C.
TABULOG, Petitioners, MARIA IMELDA JOSEFA "IMEE" R. MARCOS, Co-
Petitioner, v. THE HONORABLE REPRESENTATIVE RODOLFO C. FARIÑAS, THE
HONORABLE REPRESENTATIVE JOHNNY T. PIMENTEL, CHAIRMAN OF THE
COMMITTEE ON GOOD GOVERNMENT AND PUBLIC ACCOUNTABILITY, AND
LT. GEN. ROLAND DETABALI (RET.), IN HIS CAPACITY AS SERGEANT-AT-
ARMS OF THE HOUSE OF REPRESENTATIVES, Respondents, THE COMMITTEE
ON GOOD GOVERNMENT AND PUBLIC ACCOUNTABILITY, Co-Respondent.
DECISION
TIJAM, J.:
Styled as an Omnibus Petition,1 petitioners Pedro S. Agcaoili, Jr. (Agcaoili, Jr.),

Encarnacion A. Gaor (Gaor), Josephine P. Calajate (Calajate), Genedine D. Jambaro
(Jambaro), Eden C. Battulayan (Battulayan), Evangeline C. Tabulog (Tabulog) – all
employees2 of the Provincial Government of Ilocos Norte and storied as "Ilocos 6" –
seek that the Court assume jurisdiction over the Habeas Corpus Petition3 earlier
filed by petitioners before the Court of Appeals (CA),4 and upon assumption, to
direct the CA to forward the records of the case to the Court for proper disposition
and resolution.
Co-petitioner Maria Imelda Josefa "Imee" Marcos – the incumbent Governor of the
Province of Ilocos Norte – joins the present petition by seeking the issuance of a
writ of prohibition under Rule 65 of the Rules of Court for purposes of declaring the
legislative investigation into House Resolution No. 8825 illegal and in excess of
jurisdiction, and to enjoin respondents Representatives Rodolfo C. Fariñas (Fariñas)
and Johnny T. Pimentel and co-respondent Committee on Good Government and
Public Accountability (House Committee) from further proceeding with the same.
Co-petitioner prays for the issuance of a temporary restraining order and/or
issuance of a writ of preliminary injunction, to restrain and enjoin respondents and
co-respondent from conducting any further hearings or proceedings relative to the
investigation pending resolution of the instant petition.
In common, petitioners and co-petitioner seek the issuance of a writ of Amparo to

protect them from alleged actual and threatened violations of their rights to liberty
and security of person.
The Antecedents
On March 14, 2017, House Resolution No. 882 was introduced by respondent
Fariñas, along with Representatives Pablo P. Bondoc and Aurelio D. Gonzales, Jr.,
directing House Committee to conduct an inquiry, in aid of legislation, pertaining to
the use by the Provincial Government of Ilocos Norte of its shares from the excise
taxes on locally manufactured virginia-type cigarettes for a purpose other than that
provided for by Republic Act (R.A.) No. 7171.6 The "whereas clause" of House
Resolution No. 882 states that the following purchases by the Provincial
Government of Ilocos Norte of vehicles in three separate transactions from the
years 2011 to 2012 in the aggregate amount of P66,450,000.00 were in violation of
R.A. No. 7171 as well as of R.A. No. 9184 7 and Presidential Decree (P.O.) No.
1445:8
a. Check dated December 1, 2011, "to cash advance the amount needed for the
purchase of 40 units Mini cab for distribution to the different barangays of Ilocos
Norte as per supporting papers hereto attached to the amount of ...." EIGHTEEN
MILLION SIX HUNDRED THOUSAND PESOS (PhP18,000,000.00);
b. Check dated May 25,2012, "to cash advance the amount needed for the
purchase of 5 units Buses as per supporting papers hereto attached to the amount
of ..." FIFTEEN MILLION THREE HUNDRED THOUSAND PESOS (PhP15,300,000.00),
which were all second hand units; and
c. Check dated September 12, 2012, "to cash advance payment of 70 units Foton
Mini Truck for distribution to different municipalities of Ilocos Norte as per
supporting papers hereto attached in the amount of ...." THIRTY TWO MILLION
FIVE HUNDRED FIFTY THOUSAND PESOS (PhP32,550,000.00). 9
Invitation Letters10 dated April 6, 2017 were individually sent to petitioners for them
to attend as resource persons the initial hearing on House Resolution No. 882
scheduled on May 2, 2017. In response, petitioners sent similarly-worded
Letters11 dated April 21, 2017 asking to be excused from the inquiry pending official
instructions from co-petitioner Marcos as head of the agency.
Because of petitioners' absence at the May 2, 2017 hearing, a subpoena ad

testificandum was issued by co-respondent House Committee on May 3, 2017
directing petitioners to appear and testify under oath at a hearing set on May 16,
2017.12 Likewise, an invitation was sent to co-petitioner Marcos to appear on said
hearing.13
Since the subpoena was received by petitioners only one day prior to the scheduled
hearing, petitioners requested that their appearance be deferred to a later date to
give them time to prepare. In their letters also, petitioners requested clarification
as to what information co-respondent House Committee seeks to elicit and its
relevance to R.A. No. 7171.14 Co-petitioner Marcos, on the other hand, submitted a
Letter 15 dated May 15, 2017 seeking clarification on the legislative objective of
House Resolution No. 882 and its discriminatory application to the Province of
Ilocos Norte to the exclusion of other virginia-type tobacco producing provinces.
Petitioners failed to attend the hearing scheduled on May 16, 2017. As such, the
House Committee issued a Show Cause Order16 why they should not be cited in
contempt for their refusal without legal excuse to obey summons. Additionally,
petitioners and co-petitioner Marcos were notified of the next scheduled hearing on
May 29, 2017.17
In response to the Show Cause Order, petitioners reiterated that they received the
notice only one day prior to the scheduled hearing date in alleged violation of the
three-day notice rule under Section 818 of the House Rules Governing
Inquiries.19 Co-petitioner Marcos, on the other hand, reiterated the queries she
raised in her earlier letter.
Nevertheless, at the scheduled committee hearing on May 29, 2017, all the
petitioners appeared.20 It is at this point of the factual narrative where the parties'
respective interpretations of what transpired during the May 29, 2017 begin to
differ.
Legislative hearing on May 29, 2017 and the contempt citation
On one hand, petitioners allege that at the hearing of May 29, 2017, they were
subjected to threats and intimidation.21 According to petitioners, they were asked
"leading and misleading questions" and that regardless of their answers, the same
were similarly treated as evasive.22
Specifically, Jambaro claims that because she could not recall the transactions
Fariñas alluded to and requested to see the original copy of a document presented
to her for identification, she was cited in contempt and ordered
detained.23 Allegedly, the same inquisitorial line of questioning was used in the
interrogation of Gaor. When Gaor answered that she could no longer remember if
she received a cash advance of P18,600,000.00 for the purchase of 40 units of
minicab, Gaor was likewise cited in contempt and ordered detained. 24
The same threats, intimidation and coercion were likewise supposedly employed on
Calajate when she was asked by Fariñas if she signed a cash advance voucher in
the amount of P18,600,000.00 for the purchase of the 40 units of minicabs. When
Calajate refused to answer, she was also cited in contempt and ordered detained. 25
Similarly, when Battulayan could no longer recall having signed a cash advance
voucher for the purchase of minicabs, she was also cited in contempt and ordered
detained.26
Agcaoili, Jr. was likewise cited in contempt and ordered detained when he failed to
answer Fariñas's query regarding the records of the purchase of the
vehicles.27 Allegedly, the same threats and intimidation were employed by Fariñas
in the questioning of Tabulog who was similarly asked if she remembered the
purchase of 70 mini trucks. When Tabulog replied that she could no longer
remember such transaction, she was also cited in contempt and ordered detained. 28
On the other hand, respondents aver that petitioners were evasive in answering
questions and simply claimed not to remember the specifics of the subject
transactions. According to respondents, petitioners requested to be confronted with
the original documents to refresh their memories when they knew beforehand that
the Commission on Audit (COA) to which the original vouchers were submitted
could no longer find the same.29
Proceedings before the CA
The next day, or on May 30, 2017, petitioners filed a Petition for Habeas
Corpus against respondent House Sergeant-at-Arms Lieutenant General Detabali
(Detabali) before the CA. The CA scheduled the petition for hearing on June 5, 2017
where the Office of the Solicitor General (OSG) entered its special appearance for
Detabali, arguing that the latter was not personally served with a copy of the
petition.30 On June 2, 2017, the CA in its Resolution31 issued a writ of Habeas
Corpus ordering Detabali to produce the bodies of the petitioners before the court
on June 5, 2017.
On June 5, 2017, Detabali again failed to attend. Instead, the Deputy Secretary
General of the House of Representatives appeared to explain that Detabali
accompanied several members of the House of Representatives on a Northern
Luzon trip, thus his inability to attend the scheduled hearing. 32 A motion to dissolve
the writ of Habeas Corpus was also filed on the ground that the CA had no
jurisdiction over the petition.33
On June 6, 2017, petitioners filed a Motion for Provisional Release based on

petitioners' constitutional right to bail. Detabali, through the OSG, opposed the
motion.34
At the hearing set on June 8, 2017, Detabali again failed to attend. On June 9,
2017, the CA issued a Resolution35 denying Detabali's motion to dissolve the writ
of Habeas Corpus and granting petitioners' Motion for Provisional Release upon
posting of a bond. Accordingly, the CA issued an Order of Release Upon
Bond.36 Attempts to serve said Resolution and Order of Release Upon Bond to
Detabali were made but to no avail.37
On June 20, 2017, the House of Representatives called a special session for the
continuation of the legislative inquiry.38 Thereat, a subpoena ad testificandum was
issued to compel co-petitioner Marcos to appear at the scheduled July 25, 2017
hearing.39
The tension between the House of Representatives and the CA
During the June 20, 2017 hearing, House Committee unanimously voted to issue a
Show Cause Order against the three Justices of the CA's Special Fourth
Division,40 directing them to explain why they should not be cited in contempt by
the House of Representatives.41 The House of Representatives was apparently
dismayed over the CA's actions in the Habeas Corpus Petition, with House Speaker
Pantaleon Alvarez quoted as calling the involved CA Justices "mga gago" and
threatening to dissolve the CA.42 Disturbed by this turn of events, the involved CA
Justices wrote a letter dated July 3, 2017 addressed to the Court En Banc deferring
action on certain pending motions43 and administratively referring the same to the
Court for advice and/or appropriate action.
Meanwhile, in the Habeas Corpus Petition, Detabali moved for the inhibition of CA

Justices Stephen Cruz and Nina Antonio-Valenzuela while CA Justice Edwin
Sorongon voluntarily inhibited himself.44
Subsequent Release of Petitioners and Dismissal of the Habeas Corpus Petition by the CA
On July 13, 2017 and while the Habeas Corpus Petition was still pending before the
CA, petitioners and co-petitioner Marcos filed the instant Omnibus Petition.
During the congressional hearing on July 25, 2017 which petitioners and co-
petitioner Marcos attended, and while the present Omnibus Petition is pending final
resolution by the Court, respondent House Committee lifted the contempt order and
ordered the release of petitioners. Consequently, petitioners were released on the
same date.45 Respondent House Committee held the continuance of the legislative
hearings on August 9, 2017 and August 23, 2017. 46
On August 31, 2017, the CA issued a Resolution in the Habeas Corpus Petition

considering the case as closed and terminated on the ground of mootness. 47
The Arguments
For the assumption of jurisdiction over the Habeas Corpus Petition
Petitioners insist that the Habeas Corpus Petition then pending before the CA can
be transferred to the Court on the strength of the latter's power to promulgate rules
concerning the pleading, practice and procedure in all courts and its authority to
exercise jurisdiction over all courts as provided under Sections 1 48 and
5(5),49 Article VIII of the Constitution.
Additionally, petitioners stress that the Court exercises administrative supervision

over all courts as provided under Section 6,50 Article VIII of the Constitution, and
pursuant to its authority as such, the Court has the power to transfer cases from
one court to another which power it implements through Rule 4, Section 3(c) 51 of
AM No. 10-4-20-SC.52
Citing People of the Philippines v. Gutierrez, et al.,53 petitioners likewise argue that

the administrative power of the Court to transfer cases from one court to another is
based on its inherent power to protect the judiciary and prevent a miscarriage of
justice.54
Respondents counter that the Omnibus Petition should be dismissed on the ground
of mootness as petitioners were released from detention.
In any case, respondents argue that petitioners cannot compel the Court to assume
jurisdiction over the Habeas Corpus Petition pending before the CA as assumption
of jurisdiction is conferred by law. Respondents also argue that the Omnibus
Petition is dismissible on the grounds of misjoinder of action and for failure to
implead indispensable parties, i.e., the CA in the petition to assume jurisdiction
over the Habeas Corpus Petition and the Congress in the prohibition
and Amparo petitions. Respondents also argue that petitioners committed forum
shopping when they filed the present Omnibus Petition at a time when a motion for
reconsideration before the CA was still pending resolution.
For the issuance of a Writ of Prohibition
Co-petitioner Marcos assails the nature of the legislative inquiry as a fishing

expedition in violation of petitioners' right to due process and is allegedly
discriminatory to the Province of Ilocos Norte.
Respondents counter that a petition for prohibition is not the proper remedy to
enjoin legislative actions. House Committee is not a tribunal, corporation, board or
person exercising judicial or ministerial function but a separate and independent
branch of government. Citing Holy Spirit Homeowners Association, Inc. v.
Defensor,55 and The Senate Blue Ribbon Committee v. Hon.
Majaducon,56 respondents argue that prohibition does not lie against legislative or
quasi-legislative functions.
For the issuance of a Writ of Amparo
Petitioners contend that their rights to liberty and personal security were violated
as they have been detained, while co-petitioner Marcos is continuously being
threatened of arrest.57
In opposition, respondents maintain that the writ of Amparo and writ of Habeas

Corpus are two separate remedies which are incompatible and therefore cannot co-
exist in a single petition. Further, respondents argue that the issuance of a writ
of Amparo is limited only to cases of extrajudicial killings and enforced
disappearances which are not extant in the instant case.
The Issues
Encapsulated, the issues for resolution are:
1. Whether or not the instant Omnibus Petition which seeks the release of
petitioners from detention was rendered moot by their subsequent release from
detention?
2. Whether or not the Court can assume jurisdiction over the Habeas
Corpus Petition then pending before the CA?
3. Whether or not the subject legislative inquiry on House Resolution No. 882 may
be enjoined by a writ of prohibition?
4. Whether or not the instant Omnibus Petition sufficiently states a cause of action
for the issuance of a writ of Amparo?58
Ruling of the Court
We dismiss the Omnibus Petition.
I.
The Petition to Assume Jurisdiction
over Habeas Corpus Petition
The release of persons in whose behalf the application for a Writ of Habeas Corpus was filed
renders the petition for the issuance thereof moot and academic
The writ of Habeas Corpus or the "great writ of liberty"59 was devised as a "speedy
and effectual remedy to relieve persons from unlawful restraint, and as the best
and only sufficient defense of personal freedom." 60 The primary purpose of the writ
"is to inquire into all manner of involuntary restraint as distinguished from
voluntary, and to relieve a person therefrom if such restraint is illegal." 61 Under the
Constitution, the privilege of the writ of Habeas Corpus cannot be suspended except
in cases of invasion or rebellion when the public safety requires it. 62
As to what kind of restraint against which the writ is effective, case law 63 deems
any restraint which will preclude freedom of action as sufficient. Thus, as provided
in the Rules of Court under Section 1, Rule 102 thereof, a writ of Habeas
Corpus "shall extend to all cases of illegal confinement or detention by which any
person is deprived of his liberty, or by which the rightful custody of any person is
withheld from the person entitled thereto."
On the other hand, Section 4, Rule 102 spells the instances when the writ
of Habeas Corpus is not allowed or when the discharge thereof is authorized:
Sec. 4. When writ not allowed or discharge authorized. – If it appears that the
person alleged to be restrained of his liberty is in the custody of an officer under
process issued by a court or judge or by virtue of a judgment or order of a court of
record, and that the court or judge had jurisdiction to issue the process, render the
judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of
any informality or defect in the process, judgment, or order. Nor shall anything in
this rule be held to authorize the discharge of a person charged with or convicted of
an offense in the Philippines, or of a person suffering imprisonment under lawful
judgment.
Accordingly, a Writ of Habeas Corpus may no longer be issued if the person

allegedly deprived of liberty is restrained under a lawful process or order of the
court64 because since then, the restraint has become legal.65 In the illustrative case
of Ilagan v. Hon. Ponce Enrile,66 the Court dismissed the petition for habeas
corpus on the ground of mootness considering the filing of an information before
the court. The court pronounced that since the incarceration was now by virtue of a
judicial order, the remedy of habeas corpus no longer lies.
Like so, in Duque v. Capt. Vinarao,67 the Court held that a petition for habeas
corpus can be dismissed upon voluntary withdrawal of the petitioner. Further,
in Pestaño v. Corvista,68 it was pronounced that where the subject person had
already been released from the custody complained of, the petition for habeas
corpus then still pending was considered already moot and academic and should be
dismissed. This pronouncement was carried on in Olaguer v. Military Commission
No. 34,69 where the Court reiterated that the release of the persons in whose behalf
the application for a writ of habeas corpus was filed is effected, the petition for the
issuance of the writ becomes moot and academic.70 Thus, with the subsequent
release of all the petitioners from detention, their petition for habeas corpus has
been rendered moot. The rule is that courts of justice constituted to pass upon
substantial rights will not consider questions where no actual interests are involved
and thus, will not determine a moot question as the resolution thereof will be of no
practical value.71
Far compelling than the question of mootness is that the element of illegal
deprivation of freedom of movement or illegal restraint is jurisdictional in petitions
for habeas corpus. Consequently, in the absence of confinement and custody, the
courts lack the power to act on the petition for habeas corpus and the issuance of a
writ thereof must be refused.
Any lingering doubt as to the justiciability of the petition to assume jurisdiction over
the Habeas Corpus Petition before the CA is ultimately precluded by the CA
Resolution considering the petition closed and terminated. With the termination of
the Habeas Corpus Petition before the CA, petitioners' plea that the same be
transferred to this Court, or that the Court assume jurisdiction thereof must
necessarily be denied.
Nevertheless, the Court, in exceptional cases, decides moot questions
Although as above-enunciated, the general rule is that mootness of the issue

warrants a dismissal, the same admits of certain exceptions.
In Prof. David v. Pres. Macapagal-Arroyo,72 the Court summed up the four

exceptions to the rule when Courts will decide cases, otherwise moot,
thus: 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.73 At the least, the presence of the second and fourth exceptions to
the general rule in the instant case persuades us to proceed.
The Court's administrative supervision over lower courts does not equate to the power to
usurp jurisdiction already acquired by lower courts
Jurisdiction over petitions for habeas corpus and the adjunct authority to issue the
writ are shared by this Court and the lower courts.
The Constitution vests upon this Court original jurisdiction over petitions for habeas
corpus.74 On the other hand, Batas Pambansa (B.P.) Big. 129,75 as amended, gives
the CA original jurisdiction to issue a writ of habeas corpus whether or not in aid of
its appellate jurisdiction.76 The CA's original jurisdiction over Habeas
Corpus petitions was re-stated in R.A. No. 7902.77 Similarly, B.P. Blg. 129 gives the
RTCs original jurisdiction in the issuance of a writ of Habeas Corpus.78 Family courts
have concurrent jurisdiction with this Court and the CA in petitions for habeas
corpus where the custody of minors is at issue,79 with the Family courts having
exclusive jurisdiction to issue the ancillary writ of Habeas Corpus in a petition for
custody of minors filed before it.80 In the absence of all RTC judges in a province or
city, special jurisdiction is likewise conferred to any Metropolitan Trial Judge,
Municipal Trial Judge or Municipal Circuit Trial Judge to hear and decide petitions for
a writ of Habeas Corpus.81
These conferment of jurisdiction finds procedural translation in Rule 102, Section 2

which provides that an application for a writ of Habeas Corpus may be made before
this Court, or any member thereof, or the Court of Appeals or any member thereof,
and if so granted, the same shall be enforceable anywhere in the Philippines. 82 An
application for a writ of Habeas Corpus may also be made before the RTCs, or any
of its judges, but if so granted, is enforceable only within the RTC's judicial
district.83 The writ of Habeas Corpus granted by the Court or by the CA may be
made returnable before the court or any member thereof, or before the RTC or any
judge thereof for hearing and decision on the merits. 84
It is clear from the foregoing that this Court, the CA and the RTC enjoy concurrent
jurisdiction over petitions for habeas corpus. As the Habeas Corpus Petition was
filed by petitioners with the CA, the latter has acquired jurisdiction over said
petition to the exclusion of all others, including this Court. This must be so
considering the basic postulate that jurisdiction once acquired by a court is not lost
upon the instance of the parties but continues until the case is terminated. 85 A
departure from this established rule is to run the risk of having conflicting decisions
from courts of concurrent jurisdiction and would unwittingly promote judicial
interference and instability.
Rule 102 in fact supports this interpretation. Observe that under Section 6, Rule
102, the return of the writ of Habeas Corpus may be heard by a court apart from
that which issued the writ.86 In such case, the lower court to which the writ is made
returnable by the issuing court shall proceed to decide the petition for habeas
corpus. In Medina v. Gen. Yan87 and Saulo v. Brig. Gen. Cruz, etc.,88 the Court held
that by virtue of such designation, the lower court "acquire[s] the power and
authority to determine the merits of the [petition for habeas corpus.]" Indeed,
when a court acquires jurisdiction over the petition for habeas corpus, even if
merely designated to hear the return of the writ, such court has the power and the
authority to carry the petition to its conclusion.
Petitioners are without unbridled freedom to choose which between this Court and
the CA should decide the habeas corpus petition. Mere concurrency of jurisdiction
does not afford the parties absolute freedom to choose the court to which the
petition shall be filed. After all, the hierarchy of courts "also serves as a general
determinant of the appropriate forum for petitions for the extraordinary writs." 89
Further, there appears to be no basis either in fact or in law for the Court to
assume or wrest jurisdiction over the Habeas Corpus Petition filed with the CA.
Petitioners' fear that the CA will be unable to decide the Habeas Corpus petition

because of the assault90 it suffered from the House of Representatives is
unsubstantiated and therefore insufficient to justify their plea for the Court to over-
step into the jurisdiction acquired by the CA. There is no showing that the CA will
be or has been rendered impotent by the threats it received from the House of
Representatives.91 Neither was there any compelling reason advanced by petitioners
that the non-assumption by this Court of the habeas corpus petition will result to an
iniquitous situation for any of the parties.
Neither can the Court assume jurisdiction over the then pending Habeas
Corpus Petition by invoking Section 6, Article VIII of the Constitution and Section
3(c), Rule 4 of A.M. No. 10-4-20-SC which both refer to the Court's exercise of
administrative supervision over all courts.
Section 6, Article VIII of the Constitution provides:
Sec. 6. The Supreme Court shall have administrative supervision over all courts and
the personnel thereof.
This Constitutional provision refers to the administrative supervision that the

Department of Justice previously exercised over the courts and their personnel. The
deliberations of the Constitutional Commission enlighten:
MR. GUINGONA: x x x.
The second question has reference to Section 9, about the administrative

supervision over all courts to be retained in the Supreme Court. I was wondering if
the Committee had taken into consideration the proposed resolution for the transfer
of the administrative supervision from the Supreme Court to the Ministry of Justice.
But as far as I know, none of the proponents had been invited to explain or defend
the proposed resolution.
Also, I wonder if the Committee also took into consideration the fact that the UP
Law Constitution Project in its Volume I, entitled: Annotated Provision had, in fact,
made this an alternative proposal, the transfer of administrative supervision from
the Supreme Court to the Ministry of Justice.
Thank you.
MR. CONCEPCION: May I refer the question to Commissioner Regalado?
THE PRESIDING OFFICER (Mr. Sarmiento): Commissioner Regalado is recognized.
MR. REGALADO: Thank you, Mr. Presiding Officer.
We did invite Minister Neptali Gonzales, who was the proponent for the transfer of
supervision of the lower courts to the Ministry of Justice. I even personally called up
and sent a letter or a short note inviting him, but the good Minister unfortunately
was enmeshed in a lot of official commitments. We wanted to hear him because the
Solicitor General of his office, Sedfrey Ordofiez, appeared before us, and asked for
the maintenance of the present arrangement wherein the supervision over lower
courts is with the Supreme Court. But aside from that, although there were no
resource persons, we did further studies on the feasibility of transferring the
supervision over the lower courts to the Ministry of Justice. All those things were
taken into consideration motu proprio.92
Administrative Supervision in Section 38, paragraph 2, Chapter 7, Book IV of the

Administrative Code is defined as follows:
(2) Administrative Supervision.—(a) Administrative supervision which shall govern

the administrative relationship between a department or its equivalent and
regulatory agencies or other agencies as may be provided by law, shall be limited
to the authority of the department or its equivalent to generally oversee the
operations of such agencies and to insure that they are managed effectively,
efficiently and economically but without interference with day-to-day activities; or
require the submission of reports and cause the conduct of management audit,
performance evaluation and inspection to determine compliance with policies,
standards and guidelines of the department; to take such action as may be
necessary for the proper performance of official functions, including rectification of
violations, abuses and other forms of maladministration; and to review and pass
upon budget proposals of such agencies but may not increase or add to them[.]
Thus, administrative supervision merely involves overseeing the operations of

agencies to ensure that they are managed effectively, efficiently and economically,
but without interference with day-to-day activities. 93
Thus, to effectively exercise its power of administrative supervision over all courts
as prescribed by the Constitution, Presidential Decree No. 828, as amended by
Presidential Decree No. 842, created the Office of the Court Administrator. Nowhere
in the functions of the several offices in the Office of the Court Administrator is it
provided that the Court can assume jurisdiction over a case already pending with
another court.94
Rule 4, Section 3(c) of A.M. No. 10-4-20-SC, on the other hand provides:
Sec. 3. Administrative Functions of the Court. - The administrative functions of the

Court en banc consist of, but are not limited to, the following:
xxxx
(c) the transfer of cases, from one court, administrative area or judicial

region, to another, or the transfer of venue of the trial of cases to avoid
miscarriage of justice[.] (Emphasis ours)
Clearly, the administrative function of the Court to transfer cases is a matter of

venue, rather than jurisdiction. As correctly pointed out by respondents, the import
of the Court's pronouncement in Gutierrez95 is the recognition of the incidental and
inherent power of the Court to transfer the trial of cases from one court to another
of equal rank in a neighboring site, whenever the imperative of securing a fair and
impartial trial, or of preventing a miscarriage of justice, so demands. 96 Such
incidental and inherent power cannot be interpreted to mean an authority on the
part of the Court to determine which court should hear specific cases without
running afoul with the doctrine of separation of powers between the Judiciary and
the Legislative.
II.
The Petition for Prohibition
Under the Court's expanded jurisdiction, the remedy of prohibition may be issued to correct
errors of jurisdiction by any branch or instrumentality of the Government
Respondents principally oppose co-petitioner Marcos' petition for prohibition on the

ground that a writ of prohibition does not lie to enjoin legislative or quasi-legislative
actions. In support thereof, respondents cite the cases of Holy Spirit Homeowners
Association97 and The Senate Blue Ribbon Committee.98
Contrary to respondents' contention, nowhere in The Senate Blue Ribbon

Committee did the Court finally settle that prohibition does not lie against
legislative functions.99 The import of the Court's decision in said case is the
recognition of the Constitutional authority of the Congress to conduct inquiries in
aid of legislation in accordance with its duly published rules of procedure and
provided that the rights of persons appearing in or affected by such inquiries shall
be respected. Thus, if these Constitutionally-prescribed requirements are met,
courts have no authority to prohibit Congressional committees from requiring the
attendance of persons to whom it issues a subpoena.
On the other hand, the Court's pronouncement in Holy Spirit Homeowners

Association should be taken in its proper context. The principal relief sought by
petitioners therein was the invalidation of the implementing rules issued by the
National Government Center Administration Committee pursuant to its quasi-
legislative power. Hence, the Court therein stated that prohibition is not the proper
remedy but an ordinary action for nullification, over which the Court generally
exercises not primary, but appellate jurisdiction. 100
In any case, the availability of the remedy of prohibition for determining and
correcting grave abuse of discretion amounting to lack or excess of jurisdiction on
the part of the Legislative and Executive branches has been categorically affirmed
by the Court in Judge Villanueva v. Judicial and Bar Council,101 thus:
With respect to the Court, however, the remedies of certiorari and prohibition are
necessarily broader in scope and reach, and the writ of certiorari or prohibition may
be issued to correct errors of jurisdiction committed not only by a 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. This application is expressly authorized by the
text of the second paragraph of Section 1, supra.
Thus, petitions for certiorari and prohibition are appropriate remedies to

raise constitutional issues and to review and/or prohibit or nullify the acts
of legislative and executive officials.102 (Citation omitted and emphasis ours)
The above pronouncement is but an application of the Court's judicial power which
Section 1,103 Article VIII of the Constitution defines as the duty of the courts of
justice (1) to settle actual controversies involving rights which are legally
demandable and enforceable, and (2) 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. Such innovation under the 1987
Constitution later on became known as the Court's "traditional jurisdiction" and
"expanded jurisdiction," respectively.104
While the requisites for the court's exercise of either concept of jurisdiction remain
constant, note that the exercise by the Court of its "expanded jurisdiction" is not
limited to the determination of grave abuse of discretion to quasi-judicial or judicial
acts, but extends to any act involving the exercise of discretion on the part of the
government. Indeed, the power of the Court to enjoin a legislative act is beyond
cavil as what the Court did in Garcillano v. The House of Representatives
Committees on Public Information, et al.105 when it enjoined therein respondent
committees from conducting an inquiry in aid of legislation on the notorious "Hello
Garci" tapes for failure to comply with the requisite publication of the rules of
procedure.
Co-petitioner Marcos failed to show that the subject legislative inquiry violates the
Constitution or that the conduct thereof was attended by grave abuse of discretion
amounting to lack or in excess of jurisdiction
While there is no question that a writ of prohibition lies against legislative functions,
the Court finds no justification for the issuance thereof in the instant case.
The power of both houses of Congress to conduct inquiries in aid of legislation is

expressly provided by the Constitution under Section 21, Article VI thereof, which
provides:
Sec. 21. The Senate or the House of Representatives or any of its respective
committee 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. (Emphasis ours)
Even before the advent of the 1987 Constitution, the Court in Arnault v.
Nazareno106 recognized that the power of inquiry is an "essential and appropriate
auxiliary to the legislative function."107 In Senate of the Philippines v. Exec. Sec.
Ermita,108 the Court categorically pronounced that the power of inquiry is broad
enough to cover officials of the executive branch, as in the instant case. 109
Although expansive, the power of both houses of Congress to conduct inquiries in

aid of legislation is not without limitations. Foremost, the inquiry must be in
furtherance of a legitimate task of the Congress, i.e., legislation, and as such,
"investigations conducted solely to gather incriminatory evidence and punish those
investigated" should necessarily be struck down.110 Further, the exercise of the
power of inquiry is circumscribed by the above-quoted Constitutional provision,
such that 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."111 It is jurisprudentially settled 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.
In this case, co-petitioner Marcos primordially assails the nature of the legislative
inquiry as a fishing expedition in alleged violation of her right to due process and to
be discriminatory to the Province of Ilocos Norte. However, a perusal of the minutes
of legislative hearings so far conducted reveals that the same revolved around the
use of the Province of Ilocos Norte's shares from the excise tax on locally
manufactured virginia-type cigarettes through cash advances which co-petitioner
Marcos herself admits112 to be the "usual practice" and was actually allowed by the
Commission on Audit (COA).113 In fact, the cause of petitioners' detention was not
the perceived or gathered illegal use of such shares but the rather unusual inability
of petitioners to recall the transactions despite the same having involved
considerable sums of money.
Like so, co-petitioner Marcos' plea for the prevention of the legislative inquiry was
anchored on her apprehension that she, too, will be arrested and detained by House
Committee. However, such remains to be an apprehension which does not give
cause for the issuance of the extraordinary remedy of prohibition. Consequently,
co-petitioner Marcos' prayer for the ancillary remedy of a preliminary injunction
cannot be granted, because her right thereto has not been proven to be clear and
unmistakable. In any event, such injunction would be of no useful purpose given
that the instant Omnibus Petition has been decided on the merits. 114
III.
The Petition for the Issuance of a
Writ of Amparo
The filing of the petition for the issuance of a writ of Amparo before this Court while the
Habeas Corpus Petition before the CA was still pending is improper
Even in civil cases pending before the trial courts, the Court has no authority to
separately and directly intervene through the writ of Amparo, as elucidated
in Tapuz, et al. v. Hon. Judge Del Rosario, et al.,115 thus:
Where, as in this case, there is an ongoing civil process dealing directly with the
possessory dispute and the reported acts of violence and harassment, we see no
point in separately and directly intervening through a writ of Amparo in the absence
of any clear prima facie showing that the right to life, liberty or security —
the personal concern that the writ is intended to protect — is immediately in danger
or threatened, or that the danger or threat is continuing. We see no legal bar,
however, to an application for the issuance of the writ, in a proper case, by motion
in a pending case on appeal or on certiorari, applying by analogy the provisions on
the co-existence of the writ with a separately filed criminal case. 116 (Italics in the
original)
Thus, while there is no procedural and legal obstacle to the joining of a petition
for habeas corpus and a petition for Amparo,117 the peculiarity of the then pendency
of the Habeas Corpus Petition before the CA renders the direct resort to this Court
for the issuance of a writ of Amparo inappropriate.
The privilege of the writ of Amparo is confined to instances of extralegal killings and
enforced disappearances, or threats thereof
Even if the Court sets aside this procedural faux pas, petitioners and co-petitioner
Marcos failed to show, by prima facie evidence, entitlement to the issuance of the
writ. Much less have they exhibited, by substantial evidence, meritorious grounds
to the grant of the petition.
Section 1 of the Rule on the writ of Amparo provides:
SECTION 1. Petition. The petition for a writ of Amparo is a remedy available to any
person whose right to life, liberty and security is violated or threatened with
violation by an unlawful act or omission of a public official or employee, or of a
private individual or entity.
The writ shall cover extralegal killings and enforced disappearances.
In the landmark case of Secretary of National Defense, et al. v. Manalo, et

al.,118 the Court categorically pronounced that the Amparo Rule, as it presently
stands, is confined to extralegal killings and enforced disappearances, or to threats
thereof, and jurisprudentially defined these two instances, as follows:
[T]he Amparo Rule was intended to address the intractable problem of "extralegal

killings" and "enforced disappearances," its coverage, in its present form, is
confined to these two instances or to threats thereof. "Extralegal killings" are
killings committed without due process of law, i.e., without legal safeguards or
judicial proceedings. On the other hand, enforced disappearances are attended by
the following characteristics: an arrest, detention or abduction of a person by a
government official or organized groups or private individuals acting with the direct
or indirect acquiescence of the government; the refusal of the State to disclose the
fate or whereabouts of the person concerned or a refusal to acknowledge the
deprivation of liberty which places such persons outside the protection of
law.119 (Citations omitted)
The above definition of "enforced disappearance" appears in the Declaration on the

Protection of All Persons from Enforced Disappearances 120 and is as statutorily
defined in Section 3(g)121 of R. A. No. 9851.122 Thus, in Navia, et al. v.
Pardico,123 the elements constituting "enforced disappearance," are enumerated as
follows:
(a) that there be an arrest, detention, abduction or any form of deprivation of

liberty;
(b) that it be carried out by, or with the authorization, support or acquiescence of,
the State or a political organization;
(c) that it be followed by the State or political organization's refusal to acknowledge

or give information on the fate or whereabouts of the person subject of
the Amparo petition; and,
(d) that the intention for such refusal is to remove subject person from the
protection of the law for a prolonged period of time. 124
In Lozada, Jr., et al. v. President Macapagal-Arroyo, et al.,125 the Court reiterates

that the privilege of the writ of Amparo is a remedy available to victims of extra-
judicial killings and enforced disappearances or threats of a similar nature,
regardless of whether the perpetrator of the unlawful act or omission is a public
official or employee or a private individual.126
Here, petitioners and co-petitioner Marcos readily admit that the instant Omnibus
Petition does not cover extralegal killings or enforced disappearances, or threats
thereof. Thus, on this ground alone, their petition for the issuance of a writ
of Amparo is dismissible.
Despite this, petitioners insist that their rights to liberty and security were violated
because of their unlawful detention. On the other hand, co-petitioner Marcos seeks
the protective writ of Amparo on the ground that her right to liberty and security
are being threatened by the conduct of the legislative inquiry on House Resolution
No. 882. But even these claims of actual and threatened violations of the right to
liberty and security fail to impress.
To reiterate, the writ of Amparo is designed to protect and guarantee the (1) right
to life; (2) right to liberty; and (3) right to security of persons, free from fears and
threats that vitiate the quality of life. In Rev. Fr. Reyes v. Court of Appeals, et
al.,127 the Court had occasion to expound on the rights falling within the protective
mantle of the writ of Amparo, thus:
The rights that fall within the protective mantle of the Writ of Amparo under Section
1 of the Rules thereon are the following: (1) right to life; (2) right to liberty; and
(3) right to security.
In Secretary of National Defense et al. v. Manalo et al., the Court explained the
concept of right to life in this wise:
While the right to life under Article III, Section 1 guarantees essentially the right to
be alive- upon which the enjoyment of all other rights is preconditioned - the right
to security of person is a guarantee of the secure quality of this life, viz: "The life to
which each person has a right is not a life lived in fear that his person and property
may be unreasonably violated by a powerful ruler. Rather, it is a life lived with the
assurance that the government he established and consented to, will protect the
security of his person and property. The ideal of security in life and property ...
pervades the whole history of man. It touches every aspect of man's existence." In
a broad sense, the right to security of person "emanates in a person's legal and
uninterrupted enjoyment of his life, his limbs, his body, his health, and his
reputation. It includes the right to exist, and the right to enjoyment of life while
existing, and it is invaded not only by a deprivation of life but also of those things
which are necessary to the enjoyment of life according to the nature, temperament,
and lawful desires of the individual."
The right to liberty, on the other hand, was defined in the City of Manila, et al. v.
Hon. Laguio, Jr., in this manner:
Liberty as guaranteed by the Constitution was defined by Justice Malcolm to include

"the right to exist and the right to be free from arbitrary restraint or servitude. The
term cannot be dwarfed into mere freedom from physical restraint of the person of
the citizen, but is deemed to embrace the right of man to enjoy the facilities with
which he has been endowed by his Creator, subject only to such restraint as are
necessary for the common welfare." x x x
Secretary of National Defense et al. v. Manalo et al., thoroughly expounded on the

import of the right to security, thus:
A closer look at the right to security of person would yield various permutations of
the exercise of this right.
First, the right to security of person is "freedom from fear." In its "whereas"
clauses, the Universal Declaration of Human Rights (UDHR) enunciates that "a
world in which human beings shall enjoy freedom of speech and belief
and freedom from fear and want has been proclaimed as the highest aspiration of
the common people." x x x Some scholars postulate that "freedom from fear" is not
only an aspirational principle, but essentially an individual international human
right. It is the "right to security of person" as the word "security" itself means
"freedom from fear." Article 3 of the UDHR provides, viz:
Everyone has the right to life, liberty and security of person.
xxxx
The Philippines is a signatory to both the UDHR and the ICCPR.
In the context of Section 1 of the Amparo Rule, "freedom from fear" is the right and
any threat to the rights to life, liberty or security is the actionable wrong.
Fear is a state of mind, a reaction; threat is a stimulus, a cause of action. Fear
caused by the same stimulus can range from being baseless to well-founded as
people react differently. The degree of fear can vary from one person to another
with the variation of the prolificacy of their imagination, strength of character or
past experience with the stimulus. Thus, in the Amparo context, it is more correct
to say that the "right to security" is actually the "freedom from threat." Viewed in
this light, the "threatened with violation" Clause in the latter part of Section 1 of
the Amparo Rule is a form of violation of the right to security mentioned in the
earlier part of the provision.
Second, the right to security of person is a guarantee of bodily and

psychological integrity or security. Article III, Section II of the 1987
Constitution guarantees that, as a general rule, ones body cannot be searched or
invaded without a search warrant. Physical injuries inflicted in the context of
extralegal killings and enforced disappearances constitute more than a search or
invasion of the body. It may constitute dismemberment, physical disabilities, and
painful physical intrusion. As the degree of physical injury increases, the danger to
life itself escalates. Notably, in criminal law, physical injuries constitute a crime
against persons because they are an affront to the bodily integrity or security of a
person.
xxxx
Third, the right to security of person is a guarantee of protection of ones

rights by the government. In the context of the writ of Amparo, this right is built
into the guarantees of the right to life and liberty under Article III, Section 1
of the 1987 Constitution and the right to security of person (as freedom from
threat and guarantee of bodily and psychological integrity) under Article III, Section
2. The right to security of person in this third sense is a corollary of the policy that
the State guarantees full respect for human rights under Article II, Section 11 of
the 1987 Constitution. As the government is the chief guarantor of order and
security, the Constitutional guarantee of the rights to life, liberty and security of
person is rendered ineffective if government does not afford protection to these
rights especially when they are under threat. Protection includes conducting
effective investigations, organization of the government apparatus to extend
protection to victims of extralegal killings or enforced disappearances (or threats
thereof) and/or their families, and bringing offenders to the bar of justice. x x
x.128 (Citations omitted and emphasis and italics in the original)
Nevertheless, and by way of caution, the rule is that a writ of Amparo shall not
issue on amorphous and uncertain grounds. Consequently, every petition for the
issuance of a writ of Amparo should be supported by justifying allegations of fact,
which the Court in Tapuz129 laid down as follows:
"(a) The personal circumstances of the petitioner;
(b) The name and personal circumstances of the respondent responsible for the
threat, act or omission, or, if the name is unknown or uncertain, the respondent
may be described by an assumed appellation;
(c) The right to life, liberty and security of the aggrieved party violated or
threatened with violation by an unlawful act or omission of the respondent, and
how such threat or violation is committed with the attendant circumstances detailed
in supporting affidavits;
(d) The investigation conducted, if any, specifying the names, personal

circumstances, and addresses of the investigating authority or individuals, as well
as the manner and conduct of the investigation, together with any report;
(e) The actions and recourses taken by the petitioner to determine the fate or
whereabouts of the aggrieved party and the identity of the person responsible for
the threat, act or omission; and
(f) The relief prayed for.
The petition may include a general prayer for other just and equitable reliefs."
The writ shall issue if the Court is preliminarily satisfied with the prima
facie existence of the ultimate facts determinable from the supporting affidavits
that detail the circumstances of how and to what extent a threat to or violation of
the rights to life, liberty and security of the aggrieved party was or is being
committed.130 (Citations omitted and italics in the original)
Even more telling is the rule that the writ of Amparo cannot be issued in cases
where the alleged threat has ceased and is no longer imminent or continuing. 131
In this case, the alleged unlawful restraint on petitioners' liberty has effectively
ceased upon their subsequent release from detention. On the other hand, the
apprehension of co-petitioner Marcos that she will be detained is, at best, merely
speculative. In other words, co-petitioner Marcos has failed to show any clear threat
to her right to liberty actionable through a petition for a writ of Amparo.
In Mayor William N. Mamba, et al. v. Leomar Bueno,132 the Court held that:
Neither did petitioners and co-petitioner successfully establish the existence of a

threat to or violation of their right to security. In an Amparo action, the parties
must establish their respective claims by substantial evidence. Substantial evidence
is that amount of evidence which a reasonable mind might accept as adequate to
support a conclusion. It is more than a mere imputation of wrongdoing or violation
that would warrant a finding of liability against the person charged. 133
Here, it appears that petitioners and co-petitioner Marcos even attended and
participated in the subsequent hearings on House Resolution No. 882 without any
untoward incident. Petitioners and co-petitioner Marcos thus failed to establish that
their attendance at and participation in the legislative inquiry as resource persons
have seriously violated their right to liberty and security, for which no other legal
recourse or remedy is available. Perforce, the petition for the issuance of a writ
of Amparo must be dismissed.
IV.
Congress' Power to Cite in Contempt
and to Compel Attendance of Court Justices
It has not escaped the attention of the Court that the events surrounding the filing
of the present Omnibus Petition bear the unsavory impression that a display of
force between the CA and the Congress is impending. Truth be told, the letter of
the CA Justices to the Court En Banc betrays the struggle these CA Justices
encountered in view of the Congressional power to cite in contempt and
consequently, to arrest and detain. These Congressional powers are indeed
awesome. Yet, such could not be used to deprive the Court of its Constitutional
duty to supervise judges of lower courts in the performance of their official duties.
The fact remains that the CA Justices are non-impeachable officers. As such,
authority over them primarily belongs to this Court and to no other.
To echo the Court's ruling in Maceda v. Ombudsman Vasquez:134

[T]he Supreme Court [has] administrative supervision over all courts and court
personnel, from the Presiding Justice of the Court of Appeals down to the lowest
municipal trial court clerk. By virtue of this power, it is only the Supreme Court that
can oversee the judges' and court personnel's compliance with all laws, and take
the proper administrative action against them if they commit any violation thereof.
No other branch of government may intrude into this power, without running afoul
of the doctrine of separation of powers.135
It is this very principle of the doctrine of separation of powers as enshrined under

the Constitution that urges the Court to carefully tread on areas falling under the
sole discretion of the legislative branch of the government. In point is the power of
legislative investigation which the Congress exercises as a Constitutional
prerogative.
Concomitantly, the principle of separation of powers also serves as one of the basic
postulates for exempting the Justices, officials and employees of the Judiciary and
for excluding the Judiciary's privileged and confidential documents and information
from any compulsory processes which very well includes the Congress' power of
inquiry in aid of legislation.136 Such exemption has been jurisprudentially referred to
as judicial privilege as implied from the exercise of judicial power expressly vested
in one Supreme Court and lower courts created by law.137
However, as in all privileges, the exercise thereof is not without limitations. The
invocation of the Court's judicial privilege is understood to be limited to matters
that are part of the internal deliberations and actions of the Court in the exercise of
the Members' adjudicatory functions and duties. For the guidance of the bench, the
Court herein reiterates its Per Curiam Resolution138 dated February 14, 2012 on the
production of court records and attendance of court officials and employees as
witnesses in the then impeachment complaint against former Chief Justice Renato
C. Corona, insofar as it summarized the documents or communications considered
as privileged as follows:
(1) Court actions such as the result of the raffle of cases and the actions taken by
the Court on each case included in the agenda of the Court's session on acts done
material to pending cases, except where a party litigant requests information on the
result of the raffle of the case, pursuant to Rule 7, Section 3 of the Internal Rules of
the Supreme Court (IRSC);
(2) Court deliberations or the deliberations of the Members in court sessions on
cases and matters pending before the Court;
(3) Court records which are "predecisional" and "deliberative" in nature, in
particular, documents and other communications which are part of or related to the
deliberative process, i.e, notes, drafts, research papers, internal discussions,
internal memoranda, records of internal deliberations, and similar papers;
(4) Confidential information secured by justices, judges, court officials and
employees in the course of their official functions, mentioned in (2) and (3) above,
are privileged even after their term of office.
(5) Records of cases that are still pending for decision are privileged materials that
cannot be disclosed, except only for pleadings, orders and resolutions that have
been made available by the court to the general public.
xxxx
By way of qualification, judicial privilege is unavailing on matters external to the

Judiciary's deliberative adjudicatory functions and duties. Justice Antonio T. Carpio
discussed in his Separate Opinion to the Per Curiam Resolution, by way of example,
the non-confidential matters as including those "information relating to the
commission of crimes or misconduct, or violations of the Code of Judicial Conduct,
or any violation of a law or regulation," and those outside the Justices' adjudicatory
functions such as "financial, budgetary, personnel and administrative matters
relating to the operations of the Judiciary."
As a guiding principle, the purpose of judicial privilege, as a child of judicial power,

is principally for the effective discharge of such judicial power. If the matter upon
which Members of the Court, court officials and employees privy to the Court's
deliberations, are called to appear and testify do not relate to and will not impair
the Court's deliberative adjudicatory judicial power, then judicial privilege may not
be successfully invoked.
The Court had occasion to illustrate the application of the rule on judicial privilege
and its qualifications to impeachment proceedings as follows:
[W]here the ground cited in an impeachment complaint is bribery, a Justice may be

called as a witness in the impeachment of another Justice, as bribery is a matter
external to or is not connected with the adjudicatory functions and duties of a
magistrate. A Justice, however, may not be called to testify on the arguments the
accused Justice presented in the internal debates as these constitute details of the
deliberative process.139
Nevertheless, the traditional application of judicial privilege cannot be invoked to

defeat a positive Constitutional duty. Impeachment proceedings, being sui
generis,140 is a Constitutional process designed to ensure accountability of
impeachable officers, the seriousness and exceptional importance of which
outweighs the claim of judicial privilege.
To be certain, the Court, in giving utmost importance to impeachment proceedings

even as against its own Members, recognizes not the superiority of the power of the
House of Representatives to initiate impeachment cases and the power of the
Senate to try and decide the same, but the superiority of the impeachment
proceedings as a Constitutional process intended to safeguard public office from
culpable abuses. In the words of Chief Justice Maria Lourdes P. A. Sereneo in her
Concurring and Dissenting Opinion to the Per Curiam Resolution, the matter of
impeachment is of such paramount societal importance that overrides the
generalized claim of judicial privilege and as such, the Court should extend respect
to the Senate acting as an Impeachment Court and give it wide latitude in favor of
its function of exacting accountability as required by the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other
issues raised in the Omnibus Petition.
WHEREFORE, the Omnibus Petition is DISMISSED.
SO ORDERED.
Arnault v. Nazareno, GR No. L-3820, 18 July 1950
G.R. No. L-3820 July 18, 1950
JEAN L. ARNAULT, petitioner,
vs.
LEON NAZARENO, Sergeant-at-arms, Philippine Senate, and EUSTAQUIO BALAGTAS,
Director of Prisons, respondents.
J.C. Orendain, Augusto Revilla, and Eduardo Arboleda for petitioner.

Office of the Solicitor General Felix Bautista Angelo, Lorenzo Sumulong, Lorenzo Tañada, and
Vicente J. Francisco for respondents.
OZAETA, J.:
This is an original petition for habeas corpus to relieve the petitioner from his confinement in the
New Bilibid Prison to which he has been committed by virtue of a resolution adopted by the Senate
on May 15, 1950, which reads as follows:
Whereas, Jean L. Arnault refused to reveal the name of the person to whom he gave the
P440,000, as well as answer other pertinent questions related to the said amount; Now,
therefore, be it.
Resolved, that for his refusal to reveal the name of the person to whom he gave the
P440,000 Jean L. Arnault be committed to the custody of the Sergeant-at-Arms and
imprisoned in the New Bilibid Prison, Muntinlupa, Rizal, until discharged by further order of
the Senate or by the special committee created by Senate Resolution No. 8, such discharge
to be ordered when he shall have purged the contempt by revealing to the Senate or to the
said special committee the name of the person to whom he gave the P440,000, as well as
answer other pertinent questions in connection therewith.
The facts that gave rise to the adoption of said resolution, insofar as pertinent here, may be briefly
stated as follows:
In the latter part of October, 1949, the Philippine Government, through the Rural Progress
Administration, bought two estates known as Buenavista and Tambobong for the sums of
P4,500,000 and P500,000, respectively. Of the first sum, P1,000,000 was paid to Ernest H. Burt, a
nonresident American, thru his attorney-in-fact in the Philippines, the Associated Estates, Inc.,
represented by Jean L. Arnault, for alleged interest of the said Burt in the Buenavista Estate. The
second sum of P500,000 was all paid to the same Ernest H. Burt through his other attorney-in-fact,
the North Manila Development Co., Inc., also represented by Jean L. Arnault, for the alleged interest
of the said Burt in the Tambobong Estate.
The original owner of the Buenavista Estate was the San Juan de Dios Hospital. The Philippine
Government held a 25-year lease contract on said estate, with an option to purchase it for
P3,000,000 within the same period of 25 years counted from January 1, 1939. The occupation
Republic of the Philippines purported to exercise that option by tendering to the owner the sum of
P3,000,000 and, upon its rejection, by depositing it in court on June 21, 1944, together with the
accrued rentals amounting to P3224,000. Since 1939 the Government has remained in possession
of the estate.
On June 29, 1946, the San Juan de Dios Hospital sold the Buenavista Estate for P5,000,000 to
Ernest H. Burt, who made a down payment of P10,000 only and agreed to pay P5000,000 within one
year and the remainder in annual installments of P500,000 each, with the stipulation that failure on
his part to make any of said payments would cause the forfeiture of his down payment of P10,000
and would entitle the Hospital to rescind to sale to him. Aside from the down payment of P10,000,
Burt has made no other payment on account of the purchase price of said estate.
The original owner of the Tambobong Estate was the Philippine Trust Company. On May 14, 1946,
the Philippine Trust Company sold estate for the sum of P1,200,000 to Ernest H. Burt, who paid
P10,000 down and promise to pay P90,000 within nine months and the balance of P1,100,000 in ten
successive installments of P110,000 each. The nine-month period within which to pay the first
installment of P90,000 expired on February 14, 1947, without Burt's having paid the said or any
other amount then or afterwards. On September 4, 1947, the Philippine Trust Company sold,
conveyed, and delivered the Tambobong Estate to the Rural Progress Administration by an absolute
deed of sale in consideration of the sum of P750,000. On February 5, 1948, the Rural Progress
Administration made, under article 1504 of the Civil Code, a notarial demand upon Burt for the
resolution and cancellation of his contract of purchase with the Philippine Trust Company due to his
failure to pay the installment of P90,000 within the period of nine months. Subsequently the Court of
First Instance of Rizal ordered the cancellation of Burt's certificate of title and the issuance of a new
one in the name of the Rural Progress Administration, from which order he appealed to the Supreme
Court.1
It was in the face of the antecedents sketched in the last three preceding paragraphs that the
Philippine Government, through the Secretary of Justice as Chairman of the Board of Directors of
the Rural Progress Administration and as Chairman of the Board of Directors of the Philippine
National Bank, from which the money was borrowed, accomplished the purchase of the two estates
in the latter part of October, 1949, as stated at the outset.
On February 27, 1950, the Senate adopted its Resolution No. 8, which reads as follows:
RESOLUTION CREATING A SPECIAL COMMITTEE TO INVESTIGATE THE BUENAVISTA

AND THE TAMBOBONG ESTATES DEAL.
WHEREAS, it is reported that the Philippine government, through the Rural Progress
Administration, has bought the Buenavista and the Tambobong Estates for the aggregate
sum of five million pesos;
WHEREAS, it is reported that under the decision of the Supreme Court dated October 31,
1949, the Buenavista Estate could have been bought for three million pesos by virtue of a
contract entered into between the San Juan de Dios Hospital and Philippine Government in
1939;
WHEREAS, it is even alleged that the Philippine Government did not have to purchase the
Buenavista Estate because the occupation government had made tender of payment in the
amount of three million pesos, Japanese currency, which fact is believed sufficient to vest
title of Ownership in the Republic of the Philippines pursuant to decisions of the Supreme
Court sustaining the validity of payments made in Japanese military notes during the
occupation;
WHEREAS, it is reported that the Philippine Government did not have to pay a single
centavo for the Tambobong Estate as it was already practically owned by virtue of a deed of
sale from the Philippine Trust Company dated September 3, 194, for seven hundred and fifty
thousand pesos, and by virtue of the recission of the contract through which Ernest H. Burt
had an interest in the estate; Now, therefore, be it.
RESOLVED, That a Special Committee, be, as it hereby is, created, composed of five
members to be appointed by the President of the Senate to investigate the Buenavista and
Tambobong Estate deals. It shall be the duty of the said 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, and any other facts the Committee may deem
proper in the premises. Said Committee shall have the power to conduct public hearings;
issue subpoena or subpoena duces tecum to compel the attendance of witnesses or the
production of documents before it; and may require any official or employee of any bureau,
office, branch, subdivision, agency, or instrumentality of the Government to assist or
otherwise cooperate with the Special Committee in the performance of its functions and
duties. Said Committee shall submit its report of findings and recommendations within two
weeks from the adoption of this Resolution.
The special committee created by the above resolution called and examined various witnesses,
among the most important of whom was the herein petitioner, Jean L. Arnault. An intriguing question
which the committee sought to resolve was that involved in the apparent unnecessariness and
irregularity of the Government's paying to Burt the total sum of P1,500,000 for his alleged interest of
only P20,000 in the two estates, which he seemed to have forfeited anyway long before October,
1949. The committee sought to determine who were responsible for and who benefited from the
transaction at the expense of the Government.
Arnault testified that two checks payable to Burt aggregating P1,500,000 were delivered to him on
the afternoon of October 29, 1949; that on the same date he opened a new account in the name of
Ernest H. Burt with the Philippine National Bank in which he deposited the two checks aggregating
P1,500,000; and that on the same occasion he draw on said account two checks; one for P500,000,
which he transferred to the account of the Associated Agencies, Inc., with the Philippine National
Bank, and another for P440,000 payable to cash, which he himself cashed. It was the desire of the
committee to determine the ultimate recipient of this sum of P440,000 that gave rise to the present
case.
At first the petitioner claimed before the Committee:
Mr. ARNAULT (reading from a note). Mr. Chairman, for questions involving the disposition of
funds, I take the position that the transactions were legal, that no laws were being violated,
and that all requisites had been complied with. Here also I acted in a purely functional
capacity of representative. I beg to be excused from making answer which might later be
used against me. I have been assured that it is my constitutional right to refuse to incriminate
myself, and I am certain that the Honorable Members of this Committee, who, I understand,
are lawyers, will see the justness of my position.
At as subsequent session of the committee (March 16) Senator De Vera, a member of the
committee, interrogated him as follows:
Senator DE VERA. Now these transactions, according to your own typewritten statement,
were legal?
Mr. ARNAULT. I believe so.

Senator DE VERA. And the disposition of that fund involved, according to your own
statement, did not violate any law?
Mr. ARNAULT. I believe so.
xxx xxx xxx
Senator DE VERA. So that if the funds were disposed of in such a manner that no laws were
violated, how is it that when you were asked by the Committee to tell what steps you took to
have this money delivered to Burt, you refused to answer the questions, saying that it would
incriminate you?
Mr. ARNAULT. Because it violates the rights of a citizen to privacy in his dealings with other
people.
xxx xxx xxx
Senator DE VERA. Are you afraid to state how the money was disposed of because you
would be incriminated, or you would be incriminating somebody?
Mr. ARNAULT. I am not afraid; I simply stand on the privilege to dispose of the money that
has been paid to me as a result of a legal transaction without having to account for any use
of it.
But when in the same session the chairman of the committee, Senator Sumulong, interrogated the
petitioner, the latter testified as follows:
The CHAIRMAN. The other check of P440,000 which you also made on October 29, 1949, is
payable to cash; and upon cashing this P440,000 on October 29, 1949, what did you do with
that amount?
Mr. ARNAULT. I turned it over to a certain person.
The CHAIRMAN. The whole amount of P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Who was that certain person to whom you delivered these P440,000 which
you cashed on October 29, 1949?
Mr. ARNAULT. I don't remember the name; he was a representative of Burt.
The CHAIRMAN. That representative of Burt to whom you delivered the P440,000 was a
Filipino?
Mr. ARNAULT. I don't know.
The CHAIRMAN. You do not remember the name of that representative of Burt to whom you
delivered this big amount of P440,000?
Mr. ARNAULT. I am not sure; I do not remember the name.
The CHAIRMAN. That certain person who represented Burt to whom you delivered the big
amount on October 29, 1949, gave you a receipt for the amount?
Mr. ARNAULT. No.
The CHAIRMAN. Neither did you ask a receipt?
Mr. ARNAULT. I didn't ask.
The CHAIRMAN. And why did you give that certain person, representative of Burt, this big
amount of P440,000 which forms part of the P1-½ million paid to Burt?
Mr. ARNAULT. Because I have instructions to that effect.
The CHAIRMAN. Who gave you the instruction?
Mr. ARNAULT. Burt.
The CHAIRMAN. Where is the instruction; was that in writing?
Mr. ARNAULT. No.
The CHAIRMAN. By cable?
Mr. ARNAULT. No.
The CHAIRMAN. In what form did you receive that instruction?
Mr. ARNAULT. Verbal instruction.
The CHAIRMAN. When did you receive this verbal instruction from Burt to deliver these
P440,000 to a certain person whose name you do not like to reveal?
Mr. ARNAULT. I have instruction to comply with the request of the person.
The CHAIRMAN. Now, you said that instruction given to you by Burt was verbal?
Mr. ARNAULT. Yes.
The CHAIRMAN. When was that instruction given to you by Burt?
Mr. ARNAULT. Long time ago.
The CHAIRMAN. In what year did Burt give you that verbal instruction; when Burt was still
here in the Philippines?
Mr. ARNAULT. Yes.

The CHAIRMAN. But at that time Burt already knew that he would receive the money?
Mr. ARNAULT. No.
The CHAIRMAN. In what year was that when Burt while he was here in the Philippines gave
you the verbal instruction?
Mr. ARNAULT. In 1946.
The CHAIRMAN. And what has that certain person done for Burt to merit receiving these
P440,000?
Mr. ARNAULT. I absolutely do not know.
The CHAIRMAN. You do not know?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Burt did not tell you when he gave you the verbal instruction why that
certain person should receive these P440,000?
Mr. ARNAULT. He did not tell me.
The CHAIRMAN. And Burt also authorized you to give this big amount to that certain person
without receipt?
Mr. ARNAULT. He told me that a certain person would represent him and where could I meet
him.
The CHAIRMAN. Did Burt know already that certain person as early as 1946?
Mr. ARNAULT. I presume much before that.
The CHAIRMAN. Did that certain person have any intervention in the prosecution of the two
cases involving the Buenavista and Tambobong estates?
Mr. ARNAULT. Not that I know of.
The CHAIRMAN. Is that certain person related to any high government official?
Mr. ARNAULT. No, I do not know.
The CHAIRMAN. Why can you not tell us the name of that certain person?
Mr. ARNAULT. Because I am not sure of his name; I cannot remember the name.
The CHAIRMAN. When gave that certain person that P440,000 on October 29, 1949, you
knew already that person?
Mr. ARNAULT. Yes, I have seen him several times.

The CHAIRMAN. And the name of that certain person is a Filipino name?
Mr. ARNAULT. I would say Spanish name.
The CHAIRMAN. And how about his Christian name; is it also a Spanish name?
Mr. ARNAULT. I am not sure; I think the initial is J.
The CHAIRMAN. Did he have a middle name?
Mr. ARNAULT. I never knew it.
The CHAIRMAN. And how about his family name which according to your recollection is
Spanish; can you remember the first letter with which that family name begins?
Mr. ARNAULT. S, D or F.
The CHAIRMAN. And what was the last letter of the family name?
Mr. ARNAULT. I do not know.
The CHAIRMAN. Have you seen that person again after you have delivered this P440,000?
Mr. ARNAULT. Yes.
The CHAIRMAN. Several times?
Mr. ARNAULT. Two or three times.
The CHAIRMAN. Here in Manila?
Mr. ARNAULT. Yes.
The CHAIRMAN. And in spite of the fact that you met that person two or three times, you
never were able to find out what was his name?
Mr. ARNAULT. If I knew, I would [have] taken it down. Mr. Peralta knows my name; of
course, we have not done business. Lots of people in Manila know me, but they don't know
my name, and I don't know them. They sa{ I am "chiflado" because I don't know their names.
The CHAIRMAN. That certain person is a male or female?
Mr. ARNAULT. He is a male.
The CHAIRMAN. You are sure that he is a male at least?
Mr. ARNAULT. Let us say 38 or 40 years, more or less.
The CHAIRMAN. Can you give us, more or less, a description of that certain person? What
is his complexion: light, dark or light brown?
Mr. ARNAULT. He is like the gentleman there (pointing to Senator Cabili), but smaller. He
walks very straight, with military bearing.
The CHAIRMAN. Do you know the residence of that certain person to whom you gave the
P440,000?
Mr. ARNAULT. No.
The CHAIRMAN. During these frequent times that you met that certain person, you never
came to know his residence?
Mr. ARNAULT. No, because he was coming to the office.
The CHAIRMAN. How tall is that certain person?
Mr. ARNAULT. Between 5-2 and 5-6.
On May 15, 1950, the petitioner was haled before the bar of the Senate, which approved and read to
him the following resolution:
Be it resolved by the Senate of the Philippines in Session assembled:
That Jean L. Arnault, now at the bar of the Senate, be arraigned for contempt consisting of
contumacious acts committed by him during the investigation conducted by the Special
Committee created by Senate Resolution No. 8 to probe the Tambobong and Buenavista
estates deal of October 21, 1949, and that the President of the Senate propounded to him
the following interrogatories:
1. What excuse have you for persistently refusing to reveal the name of the person to whom
you gave the P440,000 on October 29, 1949, a person whose name it is impossible for you
not to remember not only because of the big amount of money you gave to him without
receipt, but also by your own statements you knew him as early as 1946 when General
Ernest H. Burt was still in the Philippines, you made two other deliveries of money to him
without receipt, and the last time you saw him was in December 1949?
Thereupon petitioner's attorney, Mr. Orendain, submitted for him a written answer alleging that the
questions were incriminatory in nature and begging leave to be allowed to stand on his constitutional
right not to be compelled to be a witness against himself. Not satisfied with that written answer
Senator Sumulong, over the objection of counsel for the petitioner, propounded to the latter the
following question:
Sen. SUMULONG. During the investigation, when the Committee asked you for the name of
that person to whom you gave the P440,000, you said that you can [could] not remember his
name. That was the reason then for refusing to reveal the name of the person. Now, in the
answer that you have just cited, you are refusing to reveal the name of that person to whom
you gave the P440,000 on the ground that your answer will be self-incriminating. Now, do I
understand from you that you are abandoning your former claim that you cannot remember
the name of that person, and that your reason now for your refusal to reveal the name of that
person is that your answer might be self-incriminating? In other words, the question is this:
What is your real reason for refusing to reveal the name of that person to whom you gave the
P440,000: that you do not remember his name or that your answer would be self-
incriminating?
xxx xxx xxx
Mr. ORENDAIN. Mr. President, we are begging for the rules of procedure that the accused
should not be required to testify unless he so desires.
The PRESIDENT. It is the duty of the respondent to answer the question. The question is
very clear. It does not incriminate him.
xxx xxx xxx
Mr. ARNAULT. I stand by every statement that I have made before the Senate Committee on
the first, second, and third hearings to which I was made in my letter to this Senate of May 2,
1950, in which I gave all the reasons that were in my powers to give, as requested. I cannot
change anything in those statements that I made because they represent the best that I can
do , to the best of my ability.
The PRESIDENT. You are not answering the question. The answer has nothing to do with
the question.
Sen. SUMULONG. I would like to remind you , Mr. Arnault, that the reason that you gave
during the investigation for not revealing the name of the person to whom you gave the
P440,000 is not the same reason that you are now alleging because during the investigation
you told us: "I do not remember his name." But, now, you are now saying: "My answer might
incriminate me." What is your real position?
Mr. ARNAULT. I have just stated that I stand by my statements that I made at the first,
second, and third hearings. I said that I wanted to be excused from answering the question. I
beg to be excused from making any answer that might be incriminating in nature. However,
in this answer, if the detail of not remembering the name of the person has not been
included, it is an oversight.
Sen. SUMULONG. Mr. Arnault, will you kindly answer a simple question: Do you remember
or not the name of the person to whom you gave the P440,000?
Mr. ARNAULT. I do not remember .
Sen. SUMULONG. Now, if you do not remember the name of that person, how can you say
that your answer might be incriminating? If you do not remember his name, you cannot
answer the question; so how could your answer be self-incriminating? What do you say to
that?
Mr. ARNAULT. This is too complicated for me to explain. Please, I do not see how to answer
those questions. That is why I asked for a lawyer, so he can help me. I have no means of
knowing what the situation is about. I have been in jail 13 days without communication with
the outside. How could I answer the question? I have no knowledge of legal procedure or
rule, of which I am completely ignorant.
xxx xxx xxx
Sen. SUMULONG. Mr. President, I ask that the question be answered.
The PRESIDENT. The witness is ordered to answer the question. It is very clear. It does not
incriminate the witness.
xxx xxx xxx
Mr. ARNAULT. I do not remember. I stand on my constitutional rights. I beg to be excused

from making further answer, please.
Sen. SUMULONG. In that mimeographed letter that you sent addressed to the President of
the Senate, dated May 2, 1950, you stated there that you cannot reveal the name of the
person to whom you gave the P440,000 because if he is a public official you might render
yourself liable for prosecution for bribery, and that if he is a private individual you might
render yourself liable for prosecution for slander. Why did you make those statements when
you cannot even tell us whether that person to whom you gave the P440,000 is a public
official or a private individual ? We are giving you this chance to convince the Senate that all
these allegations of yours that your answers might incriminate you are given by you honestly
or you are just trying to make a pretext for not revealing the information desired by the
Senate.
The PRESIDENT. You are ordered to answer the question.
Mr. ARNAULT. I do not even understand the question. (The question is restated and
explained.)
Mr. ARNAULT. That letter of May 2, was prepared by a lawyer for me and signed it. That is
all I can say how I stand about this letter. I have no knowledge myself enough to write such a
letter, so I had to secure the help of a lawyer to help me in my period of distress.
In that same session of the Senate before which the petitioner was called to show cause why he
should not be adjudged guilty of contempt of the Senate, Senator Sumulong propounded to the
petitioner questions tending to elicit information from him as to the identity of the person to whom he
delivered the P440,000; but the petitioner refused to reveal it by saying that he did not remember.
The President of the Senate then propounded to him various questions concerning his past activities
dating as far back as when witness was seven years of age and ending as recently as the post
liberation period, all of which questions the witness answered satisfactorily. In view thereof, the
President of the Senate also made an attempt to illicit the desired information from the witness, as
follows:
The PRESIDENT. Now I am convinced that you have a good memory. Answer: Did you
deliver the P440,000 as a gift, or of any consideration?
Mr. ARNAULT. I have said that I had instructions to deliver it to that person, that is all.
The PRESIDENT. Was it the first time you saw that person?
Mr. ARNAULT. I saw him various times, I have already said.
The PRESIDENT. In spite of that, you do not have the least remembrance of the name of
that person?
Mr. ARNAULT. I cannot remember.
The PRESIDENT. How is it that you do not remember events that happened a short time ago
and, on the other hand, you remember events that occurred during your childhood?
Mr. ARNAULT. I cannot explain.
The Senate then deliberated and adopted the resolution of May 15 hereinabove quoted whereby the
petitioner was committed to the custody of the Sergeant-at-Arms and imprisoned until "he shall have
purged the contempt by revealing to the Senate or to the aforesaid Special Committee the name of
the person to whom he gave the P440,000, as well as answer other pertinent questions in
connection therewith."
The Senate also adopted on the same date another resolution (No. 16) , to wit:
That the Special Committee created by Senate Resolution No. 8 be empowered and directed
to continue its investigation of the Tambobong and Buenavista Estates deal of October 21,
1949, more particularly to continue the examination of Jean L. Arnault regarding the name of
the person to whom he gave the P440,000 and other matters related therewith.
The first session of the Second Congress was adjourned at midnight on May 18, 1950.
The case was argued twice before us. We have given its earnest and prolonged consideration
because it is the first of its kind to arise since the Constitution of the Republic of the Philippines was
adopted. For the first time this Court is called upon to define the power of either House of Congress
to punish a person not a member for contempt; and we are fully conscious that our pronouncements
here will set an important precedent for the future guidance of all concerned.
Before discussing the specific issues raised by the parties, we deem it necessary to lay down the
general principles of law which form the background of those issues.
Patterned after the American system, our Constitution vests the powers of the Government in three
independent but coordinate Departments — Legislative, Executive, and Judicial. The legislative
power is vested in the Congress, which consists of the Senate and the House of Representatives.
(Section 1, Article VI.) Each house may determine the rules of its proceedings, punish its Members
for disorderly behavior, and, with the concurrence of two-thirds of all its Members, expel a Member.
(Section 10, Article VI.) The judicial power is vested in the Supreme Court and in such inferior courts
as may be established by law. (Section 1, Article VIII.) Like the Constitution of the United States,
ours does not contain an express provision empowering either of the two Houses of Congress to
punish nonmembers for contempt. It may also be noted that whereas in the United States the
legislative power is shared by and between the Congress of the United States, on the one hand, and
the respective legislatures of the different States, on the other — the powers not delegated to the
United States by the Constitution nor prohibited by it to States being reserved to the States,
respectively, or to the people — in the Philippines, the legislative power is vested in the Congress of
the Philippines alone. It may therefore be said that the Congress of the Philippines has a wider
range of legislative field than the Congress of the United States or any State Legislature. Our form of
Government being patterned after the American system — the framers of our Constitution having
drawn largely from American institutions and practices — we can, in this case, properly draw also
from American precedents in interpreting analogous provisions of our Constitution, as we have done
in other cases in the past. 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 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 effect 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. (McGrain vs. Daugherty, 273
U.S., 135; 71 L. ed., 580; 50 A.L R., 1.) The fact that the Constitution expressly gives to Congress
the power to punish its Members for disorderly behavior, does not by necessary implication exclude
the power to punish for contempt any other person. (Anderson vs. Dunn, 6, Wheaton, 204; 5 L. ed.,
242.) But no person can be punished for contumacy as a witness before either House, unless his
testimony is required in a matter into which that House has jurisdiction to inquire.
(Kilbourn vs. Thompson, 26 L. ed., 377.).
Since, as we have noted, the Congress of the Philippines has a wider range of legislative field than
either the Congress of the United States or a State Legislature, we think it is correct to say that the
field of inquiry into which it may enter is also wider. It would be difficult to define any limits by which
the subject matter of its inquiry can be bounded. It is not necessary to do so in this case. Suffice it to
say that it must be coextensive with the range of the legislative power.
In the present case the jurisdiction of the Senate, thru the Special Committee created by it, to
investigate the Buenavista and Tambobong Estates deal is not challenged by the petitioner; and we
entertain no doubt as to the Senate's authority to do so and as to the validity of Resolution No. 8
hereinabove quoted. The transaction involved a questionable and allegedly unnecessary and
irregular expenditure of no less than P5,000,000 of public funds, of which Congress is the
constitutional guardian. It also involved government agencies created by Congress to regulate or
even abolish. As a result of the yet uncompleted investigation, the investigating committee has
recommended and the Senate approved three bills (1) prohibiting the Secretary of Justice or any
other department head from discharging functions and exercising powers other than those attached
to his own office, without ]previous congressional authorization; (2) prohibiting brothers and near
relatives of any President of the Philippines from intervening directly or indirectly and in whatever
capacity in transactions in which the Government is a party, more particularly where the decision lies
in the hands of executive or administrative officers who are appointees of the President; and (3)
providing that purchases of the Rural Progress Administration of big landed estates at a price of
P100,000 or more, shall not become effective without previous congressional confirmation. 2
We shall now consider and pass upon each of the questions raised by the petitioner in support of his
contention that his commitment is unlawful.
First He contends that the Senate has no power to punish him for contempt for refusing to reveal the
name of the person to whom he gave the P440,000, because such information is immaterial to, and
will not serve, any intended or purported legislation and his refusal to answer the question has not
embarrassed, obstructed, or impeded the legislative process. It is argued that since the investigating
committee has already rendered its report and has made all its recommendations as to what
legislative measures should be taken pursuant to its findings, there is no necessity to force the
petitioner to give the information desired other than that mentioned in its report, to wit: "In justice to
Judge Quirino and to Secretary Nepomuceno, this atmosphere of suspicion that now pervades the
public mind must be dissipated, and it can only be done if appropriate steps are taken by the Senate
to compel Arnault to stop pretending that he cannot remember the name of the person to whom he
gave the P440,000 and answer the questions which will definitely establish the identity of that person
. . ." Senator Sumulong, Chairman of the Committee, who appeared and argued the case for the
respondents, denied that that was the only purpose of the Senate in seeking the information from the
witness. He said that the investigation had not been completed, because, due to the contumacy of
the witness, his committee had not yet determined the parties responsible for the anomalous
transaction as required by Resolution No. 8; that, by Resolution No. 16, his committee was
empowered and directed to continue its investigation, more particularly to continue its examination of
the witness regarding the name of the person to whom he gave the P440,000 and other matters
related therewith; that the bills recommended by his committee had not been approved by the House
and might not be approved pending the completion of the investigation; and that those bills were not
necessarily all the measures that Congress might deem it necessary to pass after the investigation is
finished.
Once an inquiry is admitted or established to be within the jurisdiction of a legislative body to make,
we think the investigating committee has the power to require a witness to answer any question
pertinent to that inquiry, subject of course to his constitutional right against self-incrimination. The
inquiry, to be within the jurisdiction of the legislative body to make, must be material or necessary to
the exercise of a power in it vested by the Constitution, such as to legislate, or to expel a Member;
and every question which the investigator is empowered to coerce a witness to answer must be
material or pertinent to the subject of the inquiry or investigation. So a witness may not be coerced to
answer a question that obviously has no relation to the subject of the inquiry. But from this it does
not follow that every question that may be propounded to a witness must be material to any
proposed or possible legislation. In other words, the materiality of the question must be determined
by its direct relation to any proposed or possible legislation. The reason is, that the necessity or lack
of necessity for legislative action and the form and character of the action itself are determined by
the sum total of the information to be gathered as a result of the investigation, and not by a fraction
of such information elicited from a single question.
In this connection, it is suggested by counsel for the respondents that the power of the Court is
limited to determining whether the legislative body has jurisdiction to institute the inquiry or
investigation; that once that jurisdiction is conceded, this Court cannot control the exercise of that
jurisdiction; and it is insinuated, that the ruling of the Senate on the materiality of the question
propounded to the witness is not subject to review by this Court under the principle of the separation
of powers. We have to qualify this proposition. As was said by the Court of Appeals of New York:
"We are bound to presume that the action of the legislative body was with a legitimate object if it is
capable of being so construed, and we have no right to assume that the contrary was intended."
(People ex rel. McDonald vs. Keeler, 99 N.Y., 463; 52 Am. Rep., 49; 2 N.E., 615, quoted with
approval by the Supreme Court of the United States in the said case of McGrain vs. Daugherty, it is
necessary deduction from the decision in Re Chapman, 41 L. ed., 1154, that where the questions
are not pertinent to the matter under inquiry a witness rightfully may refuse to answer. So we are of
the opinion that where the alleged immateriality of the information sought by the legislative body
from a witness is relied upon to contest its jurisdiction, the court is in duty bound to pass upon the
contention. The fact that the legislative body has jurisdiction or the power to make the inquiry would
not preclude judicial intervention to correct a clear abuse of discretion in the exercise of that power.
Applying the criterion laid down in the last two preceding paragraphs to the resolution of the issue
under consideration, we find that the question for the refusal to answer which the petitioner was held
in contempt by the Senate is pertinent to the matter under inquiry. In fact, this is not and cannot be
disputed. Senate Resolution No. 8, the validity of which is not challenged by the petitioner, requires
the Special Committee, among other things, to determine the parties responsible for the Buenavista
and Tambobong estates deal, and it is obvious that the name of the person to whom the witness
gave the P440,000 involved in said deal is pertinent to that determination — it is in fact the very thing
sought to be determined. The contention is not that the question is impertinent to the subject of the
inquiry but that it has no relation or materiality to any proposed legislation. We have already
indicated that it is not necessary for the legislative body to show that every question propounded to a
witness is material to any proposed or possible legislation; what is required is that is that it be
pertinent to the matter under inquiry.
It is said that the Senate has already approved the three bills recommended by the Committee as a
result of the uncompleted investigation and that there is no need for it to know the name of the
person to whom the witness gave the P440,000. But aside from the fact that those bills have not yet
been approved by the lower house and by the President and that they may be withdrawn or modified
if after the inquiry is completed they should be found unnecessary or inadequate, there is nothing to
prevent the Congress from approving other measures it may deem necessary after completing the
investigation. We are not called upon, nor is it within our province, to determine or imagine what
those measures may be. And our inability to do so is no reason for overruling the question
propounded by the Senate to the witness.
The case of Re Chapman , 166 U.S., 661; 41 L. ed., 1154, is in point here. The inquiry there in
question was conducted under a resolution of the Senate and related to charges, published in the
press, that senators were yielding to corrupt influences in considering a tariff bill then before the
Senate and were speculating in stocks the value of which would be affected by pending
amendments to the bill. Chapman, a member of a firm of stock brokers dealing in the stock of the
American Sugar Refining Company, appeared before the committee in response to a subpoena and
asked, among others, the following questions:
Had the firm, during the month of March, 1894, bought or sold any stock or securities, known
as sugar stocks, for or in the interest, directly or indirectly, of any United Senate senator?
Was the said firm at that time carrying any sugar stock for the benefit of, or in the interest,
directly or indirectly, of any United Senate senator?
He refused to answer the questions and was prosecuted under an Act of Congress for contempt of
the Senate. Upon being convicted and sent to jail he petitioned the Supreme Court of the United
States for a writ of habeas corpus. One of the questions decided by the Supreme Court of the United
States in that case was whether the committee had the right to compel the witness to answer said
questions, and the Court held that the committee did have such right, saying:
The questions were undoubtedly pertinent to the subject-matter of the inquiry. The resolution
directed the committee to inquire whether any senator has been, or is, speculating in what
are known as sugar stocks during the consideration of the tariff bill now before the
Senate." What the Senate might or might not do upon the facts when ascertained, we cannot
say, nor are we called upon to inquire whether such ventures might be defensible, as
contended in argument, but is plain that negative answers would have cleared that body of
what the Senate regarded as offensive imputations, while affirmative answers might have led
to further action on the part of the Senate within its constitutional powers. (Emphasis
supplied.)
It may be contended that the determination of the parties responsible for the deal is incumbent upon
the judicial rather than upon the legislative branch. But we think there is no basis in fact or in law for
such assumption. The petitioner has not challenged the validity of Senate Resolution No. 8, and that
resolution expressly requires the committee to determine the parties responsible for the deal. We are
bound to presume that the Senate has acted in the due performance of its constitutional function in
instituting the inquiry, if the act is capable of being so construed. On the other hand, there is no
suggestion that the judiciary has instituted an inquiry to determine the parties responsible for the
deal. Under the circumstances of the case, it appearing that the questioned transaction was affected
by the head of the Department of Justice himself, it is not reasonable to expect that the Fiscal or the
Court of First Instance of Manila will take the initiative to investigate and prosecute the parties
responsible for the deal until and unless the Senate shall determined those parties are and shall
taken such measures as may be within its competence to take the redress the wrong that may have
been committed against the people as a result of the transaction. As we have said, the transaction
involved no less than P5,000,000 of public funds. That certainly is a matter of a public concern which
it is the duty of the constitutional guardian of the treasury to investigate.
If the subject of investigation before the committee is within the range of legitimate legislative
inquiry and the proposed testimony of the witness called relates to that subject, obedience, to its
process may be enforced by the committee by imprisonment. (Sullivan vs. Hill, 73 W. Va., 49; 79
S.E., 670; 40 Ann. Cas. [1916 B.], 1115.)
The decision in the case of Kilbourn vs. Thompson, 26 L. ed., 377, relied upon by the petitioner, is
not applicable here. In that case the inquiry instituted by the House of Representatives of the United
States related to a private real-estate pool or partnership in the District of Columbia. Jay Cook and
Company had had an interest in the pool but become bankrupts, and their estate was in course of
administration in a federal bankruptcy court in Pennsylvania. The United States was one of their
creditors. The trustee in the bankruptcy proceeding had effected a settlement of the bankrupts'
interest in the pool, and of course his action was subject to examination and approval or disapproval
by the bankruptcy court. Some of the creditors, including the United States, were dissatisfied with
the settlement. The resolution of the House directed the Committee "to inquire into the nature and
history of said real-estate pool and the character of said settlement, with the amount of property
involve, in which Jay Cooke and Co. were interested, and the amount paid or to be paid in said
settlement, with power to send for persons and papers, and report to this House." The Supreme
Court of the United States, speaking thru Mr. Justice Miller, pointed out that the resolution contained
no suggestion of contemplated legislation; that the matter was one in respect of which no valid
legislation could be had; that the bankrupts' estate and the trustee's settlement were still pending in
the bankruptcy court; and that the United States and other creditors were free to press their claims in
that proceeding. And on these grounds the court held that in undertaking the investigation "the
House of Representatives not only exceeded the limit of its own authority, but assumed a power
which could only be properly exercised by another branch of the government, because the power
was in its nature clearly judicial." The principles announced and applied in that case are: that neither
House of Congress possesses a "general power of making inquiry into the private affairs of the
citizen"; that the power actually possessed is limited to inquires relating to matters of which the
particular House has jurisdiction, and in respect of which it rightfully may take other action; that if the
inquiry relates to a matter wherein relief or redress could be had only by judicial proceeding, it is not
within the range of this power , but must be left to the court, conformably to the constitutional
separation of government powers.
That case differs from the present case in two important respects: (1) There the court found that the
subject of the inquiry, which related to a private real-estate pool or partnership, was not within the
jurisdiction of either House of Congress; while here if it is not disputed that the subject of the inquiry,
which relates to a transaction involving a questionable expenditure by the Government of
P5,000,000 of public funds, is within the jurisdiction of the Senate, (2) There the claim of the
Government as a creditor of Jay Cooke and Company, which had had an interest in the pool, was
pending adjudication by the court; while here the interposition of the judicial power on the subject of
the inquiry cannot be expected, as we have pointed out above, until after the Senate shall have
determined who the parties responsible are and shall have taken such measures as may be within
its competence to take to redress the wrong that may have been committed against the people as a
result of the transaction.
It is interesting to note that the decision in the case of Killbourn vs. Thompson has evoked strong
criticisms from legal scholars. (See Potts, Power of Legislative Bodies to Punish for
Contempt [1926], 74 U. Pa. L. Rev., 692-699; James L. Land is, Constitutional Limitations on the
Congressional Power of Investigation [1926], 40 Harvard L. Rev., 153, 154, 214-220.) We quoted
the following from Professor Land is' criticism: "Mr. Justice Miller saw the case purely as an attempt
by the House to secure to the Government certain priority rights as creditor of the bankrupt concern.
To him it assumed the character of a lawsuit between the Government and Jay Cooke and Co., with
the Government, acting through the House, attempting to override the orderliness of established
procedure and thereby prefer a creditors' bill not before the courts but before Congress. That
bankruptcy proceedings had already been instituted against Jay Cooke and Co., in a federal court
gave added impetus to such a conception. The House was seeking to oust a court of prior acquired
jurisdiction by an extraordinary and unwarranted assumption of "judicial power"! The broader aspect
of the investigation had not been disclosed to the Court. That Jay Cooke and Co.'s indebtedness
and the particular funds in question were only part of the great administrative problem connected
with the use and disposition of public monies, that the particular failure was of consequence mainly
in relation to the security demanded for all government deposits, that the facts connected with one
such default revealed the possibility of other and greater maladministration, such considerations had
not been put before the Court. Nor had it been acquainted with the every-day nature of the particular
investigation and the powers there exerted by the House, powers whose exercise was customary
and familiar in legislative practice. Instead of assuming the character of an extraordinary judicial
proceeding, the inquiry, place in its proper background, should have been regarded as a normal and
customary part of the legislative process. Detailed definiteness of legislative purpose was thus made
the demand of the court in Killbourn vs. Thompson. But investigators cannot foretell the results that
may be achieved. The power of Congress to exercise control over a real-estate pool is not a matter
for abstract speculation but one to be determined only after an exhaustive examination of the
problem. Relationship, and not their possibilities, determine the extent of congressional power.
Constitutionality depends upon such disclosures. Their presence, whether determinative of
legislative or judicial power, cannot be relegated to guesswork. Neither Congress nor the Court can
predict, prior to the event, the result of the investigation."
The other case relied upon by the petitioner is Marshall vs. Gordon, 243 U.S., 521; 61. ed., 881. The
question there was whether the House of Representatives exceeded its power in punishing, as for
contempt of its authority, the District Attorney of the Southern District of New York, who had written,
published, and sent to the chairman of one of its committees an ill-tempered and irritating letter
respecting the action and purposes of the committee in interfering with the investigation by the grand
jury of alleged illegal activities of a member of the House of Representatives. Power to make
inquires and obtain evidence by compulsory process was not involved. The court recognized
distinctly that the House of Representatives had implied power to punish a person not a member for
contempt, but held that its action in this instance was without constitutional justification. The decision
was put on the ground that the letter, while offensive and vexatious, was not calculated or likely to
affect the House in any of its proceedings or in the exercise of any of its functions. This brief
statement of the facts and the issues decided in that case is sufficient to show the inapplicability
thereof to the present case. There the contempt involved consisted in the district attorney's writing to
the chairman of the committee an offensive and vexatious letter, while here the contempt involved
consists in the refusal of the witness to answer questions pertinent to the subject of an inquiry which
the Senate has the power and jurisdiction to make . But in that case, it was recognized that the
House of Representatives has implied power to punish a person not a member of contempt. In that
respect the case is applicable here in favor of the Senate's (and not of the Petitioner's ) contention.
Second. It is next contended for the petitioner that the Senate lacks authority to commit him for
contempt for a term beyond its period of legislative session, which ended on May 18, 1950. This
contention is based on the opinion of Mr. Justice Malcolm, concurred in by Justices Street and Villa-
Real, in the case of Lopez vs. De los Reyes (1930), 55 Phil., 170. In that case it appears that on
October 23, 1929, Candido Lopez assaulted a member of the House of Representatives while the
latter was going to the hall of the House of Representatives to attend the session which was then
about to begin, as a result of which assault said representative was unable to attend the sessions on
that day and those of the two days next following by reason of the threats which Candido Lopez
made against him. By the resolution of the House adopted November 6, 1929, Lopez was declared
guilty of contempt of the House of Representatives and ordered punished by confinement in Bilibid
Prison for a period of twenty-four hours. That resolution was not complied with because the session
of the House of Representatives adjourned at midnight on November 8, 1929, and was reiterated at
the next session on September 16, 1930. Lopez was subsequently arrested, whereupon he applied
for the writ of habeas corpus in the Court of First Instance of Manila, which denied the application.
Upon appeal to the Supreme Court, six justices voted to grant the writ: Justice Malcolm, Street, and
Villa-real, on the ground that the term of imprisonment meted out to the petitioner could not legally
be extended beyond the session of the body in which the contempt occurred; and Justices Johns,
Villamor, and Ostrand, on the ground that the Philippine Legislature had no power to punish for
contempt because it was a creature merely of an Act of the Congress of the United States and not of
a Constitution adopted by the people. Chief Justice Avanceña, Justice Johnson, and Justice
Romualdez wrote separate opinions, concurring with Justice Malcolm, Street, and Villa-Real, that the
Legislature had inherent power to punish for contempt but dissenting from the opinion that the order
of commitment could only be executed during the particular session in which the act of contempt
was committed.
Thus, on the question under consideration, the Court was equally divided and no decisive
pronouncement was made. The opinion of Mr. Justice Malcolm is based mainly on the following
passage in the case of Anderson vs. Dunn, supra:
And although the legislative power continues perpetual, the legislative body ceases to exist
on the moment of its adjournment or periodical dissolution. It follows that imprisonment must
terminate with that adjournment.
as well as on the following quotation from Marshall vs. Gordon, supra:
And the essential nature of the power also makes clear the cogency and application of the
two limitations which were expressly pointed out in Anderson vs. Dunn, supra, that is, that
the power even when applied to subjects which justified its exercise is limited to
imprisonment and such imprisonment may not be extended beyond the session of the body
in which the contempt occurred.
Interpreting the above quotations, Chief Justice Avanceña held:
From this doctrine it follows, in my judgement, that the imposition of the penalty is limited to
the existence of the legislative body, which ceases to function upon its final periodical
dissolution. The doctrine refers to its existence and not to any particular session thereof. This
must be so, inasmuch as the basis of the power to impose such penalty is the right which the
Legislature has to self-preservation, and which right is enforceable during the existence of
the legislative body. Many causes might be conceived to constitute contempt to the
Legislature, which would continue to be a menace to its preservation during the existence of
the legislative body against which contempt was committed.
If the basis of the power of the legislature to punish for contempt exists while the legislative
body exercising it is in session, then that power and the exercise thereof must perforce
continue until the final adjournment and the election of its successor.
Mr. Justice Johnson's more elaborate opinion, supported by quotations from Cooley's Constitutional
Limitations and from Jefferson's Manual, is to the same effect. Mr. Justice Romualdez said: "In my
opinion, where as in the case before us, the members composing the legislative body against which
the contempt was committed have not yet completed their three-year term, the House may take
action against the petitioner herein."
We note that the quotations from Anderson vs. Dunn and Marshall vs. Gordon relied upon by Justice
Malcolm are obiter dicta. Anderson vs. Dunn was an action of trespass against the Sergeant-at-
Arms of the House of Representatives of the United States for assault and battery and false
imprisonment. The plaintiff had been arrested for contempt of the House, brought before the bar of
the House, and reprimanded by the Speaker, and then discharged from custody. The question as to
the duration of the penalty was not involved in that case. The question there was "whether the
House of Representatives can take cognizance of contempt committed against themselves, under
any circumstances." The court there held that the House of Representatives had the power to punish
for contempt, and affirmed the judgment of the lower court in favor of the defendant. In
Marshall vs. Gordon, the question presented was whether the House had the power under the
Constitution to deal with the conduct of the district attorney in writing a vexatious letter as a contempt
of its authority, and to inflict punishment upon the writer for such contempt as a matter of legislative
power. The court held that the House had no such power because the writing of the letter did not
obstruct the performance of legislative duty and did not endanger the preservation of the power of
the House to carry out its legislative authority. Upon that ground alone, and not because the House
had adjourned, the court ordered the discharge of the petitioner from custody.
The case where the question was squarely decided is McGrain vs. Daugherty, supra. There it
appears that the Senate had adopted a resolution authorizing and directing a select committee of
five senators to investigate various charges of misfeasance and nonfeasance in the Department of
Justice after Attorney General Harry M. Daugherty became its supervising head. In the course of the
investigation the committee caused to be served on Mally S. Daugherty, brother of Harry M.
Daugherty and president of the Midland National Bank of Washington Court House, Ohio, a
subpoena commanding him to appear before it for the purpose of giving testimony relating to the
subject under consideration. The witness failed to appear without offering any excuse for his failure.
The committee reported the matter to the Senate and the latter adopted a resolution, "That the
President of the Senate pro tempore issue his warrant commanding the Sergeant-at-Arms or his
deputy to take into custody the body of the said M.S. Daugherty wherever found, and to bring the
said M.S. Daugherty before the bar of the Senate, then and there to answer such questions pertinent
to the matter under inquiry as the Senate may order the President of the Senate pro tempore to
propound; and to keep the said M.S. Daugherty in custody to await the further order of the Senate."
Upon being arrested, the witness petitioned the federal court in Cincinnati for a writ of habeas
corpus. The federal court granted the writ and discharged the witness on the ground that the Senate,
in directing the investigation and in ordering the arrest, exceeded its power under the Constitution.
Upon appeal to the Supreme Court of the United States, one of the contentions of the witness was
that the case ha become moot because the investigation was ordered and the committee was
appointed during the Sixty-eighth Congress, which expired on March 4, 1926. In overruling the
contention, the court said:
. . . The resolution ordering the investigation in terms limited the committee's authority to the
period of the Sixty-eighth Congress; but this apparently was changed by a later and
amendatory resolution authorizing the committee to sit at such times and places as it might
deem advisable or necessary. It is said in Jefferson's Manual: "Neither House can continue
any portion of itself in any parliamentary function beyond the end of the session without the
consent of the other two branches. When done, it is by a bill constituting them
commissioners for the particular purpose." But the context shows that the reference is to the
two houses of Parliament when adjourned by prorogation or dissolution by the King. The rule
may be the same with the House of Representatives whose members are all elected for the
period of a single Congress: but it cannot well be the same with the Senate, which is a
continuing body whose members are elected for a term of six years and so divided into
classes that the seats of one third only become vacant at the end of each Congress, two
thirds always continuing into the next Congress, save as vacancies may occur through death
or resignation.
Mr. Hinds in his collection of precedents, says: "The Senate, as a continuing body, may
continue its committees through the recess following the expiration of a Congress;" and, after
quoting the above statement from Jefferson's Manual, he says: "The Senate, however being
a continuing body, gives authority to its committees during the recess after the expiration of a
Congress." So far as we are advised the select committee having this investigation in charge
has neither made a final report nor been discharged; nor has been continued by an
affirmative order. Apparently its activities have been suspended pending the decision of this
case. But, be this as it may, it is certain that the committee may be continued or revived now
by motion to that effect, and if, continued or revived, will have all its original powers. This
being so, and the Senate being a continuing body, the case cannot be said to have become
moot in the ordinary sense. The situation is measurably like that in Southern P. Terminal
Co. vs. Interstate Commerce Commission, 219 U. S., 498, 514-516; 55 L. ed., 310, 315, 316;
31 Sup. Ct. Rep., 279, where it was held that a suit to enjoin the enforcement of an order of
the Interstate Commerce Commission did not become moot through the expiration of the
order where it was capable of repetition by the Commission and was a matter of public
interest. Our judgment may yet be carried into effect and the investigation proceeded with
from the point at which it apparently was interrupted by reason of the habeas
corpus proceedings. In these circumstances we think a judgment should be rendered as was
done in the case cited.
What has been said requires that the final order in the District Court discharging the witness
from custody be reversed.
Like the Senate of the United States , the Senate of the Philippines is a continuing body whose
members are elected for a term of six years and so divided that the seats of only one-third become
vacant every two years, two-thirds always continuing into the next Congress save as vacancies may
occur thru death or resignation. Members of the House of Representatives are all elected for a term
of four years; so that the term of every Congress is four years. The Second Congress of the
Philippines was constituted on December 30, 1949, and will expire on December 30, 1953. The
resolution of the Senate committing the Petitioner was adopted during the first session of the Second
Congress, which began on the fourth Monday of January and ended in May 18, 1950.
Had said resolution of commitment been adopted by the House of Representatives, we think it could
be enforced until the final adjournment of the last session of the Second Congress in 1953. We find
no sound reason to limit the power of the legislative body to punish for contempt to the end of every
session and not to the end of the last session terminating the existence of that body. The very
reason for the exercise of the power to punish for contempt is to enable the legislative body to
perform its constitutional function without impediment or obstruction. Legislative functions may be
and in practice are performed during recess by duly constituted committees charged with the duty of
performing investigations or conducting hearing relative to any proposed legislation. To deny to such
committees the power of inquiry with process to enforce it would be to defeat the very purpose for
which that the power is recognized in the legislative body as an essential and appropriate auxiliary to
is legislative function. It is but logical to say that the power of self-preservation is coexistent with the
life to be preserved.
But the resolution of commitment here in question was adopted by the Senate, which is a continuing
body and which does not cease exist upon the periodical dissolution of the Congress or of the House
of Representatives. There is no limit as to time to the Senate's power to punish for contempt in
cases where that power may constitutionally be exerted as in the present case.
Mere reflection upon the situation at hand convinces us of the soundness of this proposition. The
Senate has ordered an investigation of the Buenavista and Tambobong estates deal, which we have
found it is within its competence to make. That investigation has not been completed because of the
refusal of the petitioner as a witness to answer certain questions pertinent to the subject of the
inquiry. The Senate has empowered the committee to continue the investigation during the recess.
By refusing to answer the questions, the witness has obstructed the performance by the Senate of
its legislative function, and the Senate has the power to remove the obstruction by compelling the
witness to answer the questions thru restraint of his liberty until he shall have answered them. That
power subsists as long as the Senate, which is a continuing body, persists in performing the
particular legislative function involved. To hold that it may punish the witness for contempt only
during the session in which investigation was begun, would be to recognize the right of the Senate to
perform its function but at the same time to deny to it an essential and appropriate means for its
performance. Aside from this, if we should hold that the power to punish for contempt terminates
upon the adjournment of the session, the Senate would have to resume the investigation at the next
and succeeding sessions and repeat the contempt proceedings against the witness until the
investigation is completed-an absurd, unnecessary, and vexatious procedure, which should be
avoided.
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively
and oppressively exerted by the Senate which might keep the witness in prison for life. But we must
assume that the Senate will not be disposed to exert the power beyond its proper bounds. And if,
contrary to this assumption, proper limitations are disregarded, the portals of this Court are always
open to those whose rights might thus be transgressed.
Third. Lastly, the petitioner invokes the privilege against self-incrimination. He contends that he
would incriminate himself if he should reveal the name of the person to whom he gave the P440,000
if that person be a public official be (witness) might be accused of bribery, and if that person be a
private individual the latter might accuse him of oral defamation.
The ground upon which the witness' claim is based is too shaky, in firm, and slippery to afford him
safety. At first he told the Committee that the transactions were legal, that no laws were violated, and
that all requisites had been replied with; but at the time he begged to be excused from making
answers "which might later be used against me." A little later he explained that although the
transactions were legal he refused to answer questions concerning them "because it violates the
right of a citizen to privacy in his dealings with other people . . . I simply stand on my privilege to
dispose of the money that has been paid to me as a result of a legal transaction without having to
account for the use of it." But after being apparently convinced by the Committee that his position
was untenable, the witness testified that, without securing any receipt, he turned over the P440,000
to a certain person, a representative of Burt, in compliance with Burt's verbal instruction made in
1946; that as far as he know, that certain person had nothing to do with the negotiations for the
settlement of the Buenavista and Tambobong cases; that he had seen that person several times
before he gave him the P440,000 on October 29, 1949, and that since then he had seen him again
two or three times, the last time being in December, 1949, in Manila; that the person was a male, 39
to 40 years of age, between 5 feet, 2 inches and 5 feet, 6 inches in height. Butt the witness would
not reveal the name of that person on these pretexts: " I don't remember the name; he was a
representative of Burt." "I am not sure; I don't remember the name."
We are satisfied that those answers of the witness to the important question, what is the name of
that person to whom you gave the P440,000? were obviously false. His insistent claim before the bar
of the Senate that if he should reveal the name he would incriminate himself, necessarily implied that
he knew the name. Moreover, it is unbelievable that he gave the P440,000 to a person to him
unknown.
"Testimony which is obviously false or evasive is equivalent to a refusal to testify and is punishable
as contempt, assuming that a refusal to testify would be so punishable." (12 Am. Jur., sec. 15,
Contempt, pp. 399-400.) In the case of Mason vs. U.S., 61 L. ed., 1198, it appears that Mason was
called to testify before a grand jury engaged in investigating a charge of gambling against six other
men. After stating that he was sitting at a table with said men when they were arrested, he refused to
answer two questions, claiming so to do might tend to incriminate him: (1) "Was there a game of
cards being played on this particular evening at the table at which you are sitting?" (2) "Was there a
game of cards being played at another table at this time?" The foreman of the grand jury reported
the matter to the judge, who ruled "that each and all of said questions are proper and that the
answers thereto would not tend to incriminate the witness." Mason was again called and refused to
answer the first question propounded to him, but, half yielding to frustration, he said in response to
the second question: "I don't know." In affirming the conviction for contempt, the Supreme Court of
the United States among other things said:
In the present case, the witness certainly were not relieved from answering merely because
they declared that so to do might incriminate them. The wisdom of the rule in this regard is
well illustrated by the enforced answer, "I don't know ," given by Mason to the second
question, after he had refused to reply under a claim of constitutional privilege.
Since according to the witness himself the transaction was legal, and that he gave the P440,000 to a
representative of Burt in compliance with the latter's verbal instruction, we find no basis upon which
to sustain his claim that to reveal the name of that person might incriminate him. There is no conflict
of authorities on the applicable rule, to wit:
Generally, the question whether testimony is privileged is for the determination of the Court.
At least, it is not enough for the witness to say that the answer will incriminate him. as he is
not the sole judge of his liability. The danger of self-incrimination must appear reasonable
and real to the court, from all the circumstances, and from the whole case, as well as from
his general conception of the relations of the witness. Upon the facts thus developed, it is the
province of the court to determine whether a direct answer to a question may criminate or
not. . . . The fact that the testimony of a witness may tend to show that he has violated the
law is not sufficient to entitle him to claim the protection of the constitutional provision against
self-incrimination, unless he is at the same time liable to prosecution and punishment for
such violation. The witness cannot assert his privilege by reason of some fanciful excuse, for
protection against an imaginary danger, or to secure immunity to a third person. ( 3
Wharton's Criminal Evidence, 11th ed., secs. 1135,1136.)
It is the province of the trial judge to determine from all the facts and circumstances of the
case whether the witness is justified in refusing to answer. (People vs. Gonzo, 23 N.E. [2d],
210 [Ill. App., 1939].) A witness is not relieved from answering merely on his own declaration
that an answer might incriminate him, but rather it is for the trial judge to decide that
question. (Mason vs. U.S., 244 U. S., 362; 61 L. ed., 1193, 1200.)
As against witness's inconsistent and unjustified claim to a constitutional right, is his clear duty as a
citizen to give frank, sincere, and truthful testimony before a competent authority. The state has the
right to exact fulfillment of a citizen's obligation, consistent of course with his right under the
Constitution. The witness in this case has been vociferous and militant in claiming constitutional
rights and privileges but patently recreant to his duties and obligations to the Government which
protects those rights under the law. When a specific right and a specific obligation conflict with each
other, and one is doubtful or uncertain while the other is clear and imperative, the former must give
way to the latter. The right to life is one of the most sacred that the citizen may claim, and yet the
state may deprive him of it if he violates his corresponding obligation to respect the life of others. As
Mr. Justice Johnson said in Anderson vs. Dunn: "The wretch beneath the gallows may repine at the
fate which awaits him, and yet it is not certain that the laws under which he suffers were made for
the security." Paraphrasing and applying that pronouncement here, the petitioner may not relish the
restraint of his liberty pending the fulfillment by him of his duty, but it is no less certain that the laws
under which his liberty is restrained were made for his welfare.
From all the foregoing, it follows that the petition must be denied, and it is so ordered, with costs.
Paras, Pablo, Bengzon, Montemayor, and Reyes, JJ., concur.

Balag v. Senate, G.R. No. 234608, July 3, 2018
G.R. No. 234608
ARVIN R. BALAG, Petitioner
vs.
SENATE OF THE PHILIPPINES, SENATE COMMITTEE ON PUBLIC ORDER AND DANGEROUS
DRUGS, SENATE COMMITTEE ON JUSTICE AND HUMAN RIGHTS, SENATE COMMITTEE ON
CONSTITUTIONAL AMENDMENTS AND REVISION OF CODES AND MGEN. JOSE V.
BALAJADIA, JR. (RET.) IN HIS CAPACITY AS SENATE SERGEANT-AT-ARMS, Respondents
DECISION
GESMUNDO, J.:
This is a petition for certiorari and prohibition with prayer for issuance of a temporary restraining
order (TRO) and/or writ of preliminary injunction seeking to annul, set aside and enjoin the
implementation of Senate P.S. Resolution (SR) No. 504 and the October 18, 2017 Order (Contempt
1 2
Order)of the Senate Committee on Public Order and Dangerous Drugs citing Arvin
Balag (petitioner) in contempt.
The Antecedents
On September 17, 2017, Horacio Tomas T. Castillo III (Horacio Ill), a first year law student of the
3
University of Sto. Tomas (UST), died allegedly due to hazing conducted by the Aegis Juris
Fraternity (AJ Fraternity) of the same university.
On September 19, 2017, SR No. 504, was filed by Senator Juan Miguel Zubiri (Senator
4
Zubiri) condemning the death of Horacio III and directing the appropriate Senate Committee to
5
conduct an investigation, in aid of legislation, to hold those responsible accountable.
On September 20, 2017, SR No. 510, entitled: "A Resolution Directing the Appropriate Senate
Committees to Conduct An Inquiry, In Aid of Legislation, into the Recent Death of Horacio Tomas
Castillo III Allegedly Due to Hazing-Related Activities" was filed by Senator Paolo Benigno Aquino
IV.
6
On the same day, the Senate Committee on Public Order and Dangerous Drugs chaired by Senator
Panfilo Lacson (Senator Lacson) together with the Committees on Justice and Human Rights and
Constitutional Amendment and Revision of Codes, invited petitioner and several other persons to the
Joint Public Hearing on September 25, 2017 to discuss and deliberate the following: Senate Bill Nos.
27, 199, 223, 1161, 1591, and SR No. 504.
7 8 9 10 11
Petitioner, however, did not attend the hearing scheduled on September 25, 2017. Nevertheless,
John Paul Solano, a member of AJ Fraternity, Atty. Nilo T. Divina, Dean of UST Institute of Civil Law
and Arthur Capili, UST Faculty Secretary, attended the hearing and were questioned by the senate
committee members.
On the same date, Spouses Carmina T. Castillo and Horacio M. Castillo, Jr. (Spouses
Castillo), parents of Horacio III, filed a Criminal Complaint for Murder and violation of Section 4 of
12
Republic Act (R.A.) No. 8049, before the Department of Justice (DOJ) against several members of

13
the AJ Fraternity, including petitioner. On October 9, 2017, Spouses Castillo filed a Supplemental
Complaint-Affidavit before the DOJ citing the relevant transcripts of stenographic notes during the
14
September 25, 2017 Senate Hearing.
On October 11, 2017, Senator Lacson as Chairman of Senate Committee on Public Order and
Dangerous Drugs, and as approved by Senate President Aquilino Pimentel III, issued a
Subpoena Ad Testifzcandum addressed to petitioner directing him to appear before the committee
15
and to testify as to the subject matter under inquiry. Another Subpoena Ad Testifzcandum was
16 17
issued on October 17, 2017, which was received by petitioner on the same day, requiring him to
attend the legislative hearing on October 18, 2017.
On said date, petitioner attended the senate hearing. In the course of the proceedings, at around
11:29 in the morning, Senator Grace Poe (Senator Poe) asked petitioner if he was the president of
AJ Fraternity but he refused to answer the question and invoked his right against self-incrimination.
Senator Poe repeated the question but he still refused to answer. Senator Lacson then reminded
him to answer the question because it was a very simple question, otherwise, he could be cited in
contempt. Senator Poe retorted that petitioner might still be clinging to the supposed "Code of
Silence" in his alleged text messages to his fraternity. She manifested that petitioner's signature
appeared on the application for recognition of the AJ Fraternity and on the organizational sheet,
indicating that he was the president. Petitioner, again, invoked his right against self-incrimination.
Senator Poe then moved to cite him in contempt, which was seconded by Senators Joel
Villanueva (Senator Villanueva) and Zubiri. Senator Lacson ruled that the motion was properly
seconded, hence, the Senate Sergeant-at-arms was ordered to place petitioner in detention after the
committee hearing. Allegedly, Senator Lacson threatened to order the detention of petitioner in
Pasay City Jail under the custody of the Senate Sergeant-at-arms and told him not to be evasive
because he would be merely affirming school records.
A few minutes later, at around 12:09 in the afternoon, Senators Lacson and Poe gave petitioner
another chance to purge himself of the contempt charge. Again, he was asked the same question
twice and each time he refused to answer. 18
Thereafter, around 1: 19 in the afternoon, Senator Villanueva inquired from petitioner whether he
knew whose decision it was to bring Horacio III to the Chinese General Hospital instead of the UST
Hospital. Petitioner apologized for his earlier statement and moved for the lifting of his contempt. He
admitted that he was a member of the AJ Fraternity but he was not aware as to who its president
was because, at that time, he was enrolled in another school.
Senator Villanueva repeated his question to petitioner but the latter, again, invoked his right against
self-incrimination. Petitioner reiterated his plea that the contempt order be lifted because he had
already answered the question regarding his membership in the AJ Fraternity. Senator Villanueva
replied that petitioner's contempt would remain. Senator Lacson added that he had numerous
opportunities to answer the questions of the committee but he refused to do so. Thus, petitioner was
placed under the custody of the Senate Sergeant-at-arms. The Contempt Order reads:
RE: PRIVILEGE SPEECH OF SEN. JUAN MIGUEL ZUBIRI ON THE DEATH OF HORA TIO "A TIO"
CASTILLO III DUE TO HAZING DELIVERED ON 20 SEPTEMBER 2017;
PS RES. NO. 504: RESOLUTION CONDEMNING IN THE STRONGEST SENSE THE DEATH OF
FRESHMAN LAW STUDENT HORA TIO TOMAS CASTILLO III AND DIRECTING THE
APPROPRIATE SENA TE COMMITTEES TO CONDUCT AN INVESTIGATION, IN AID OF
LEGISLATION, TO HOLD ACCOUNTABLE THOSE RESPONSIBLE FOR THIS SENSELESS ACT
(SEN. ZUBIRI); AND
SENATE BILLS NOS. 27, 199, 223, 1161, AND 1591.
xxx
For testifying falsely and evasively before the Committee on [October 18, 2017] and thereby
delaying, impeding and obstructing the inquiry into the death of Horacio "Atio" Castillo III. Thereupon
the motion of Senator Grace Poe and seconded by Senator Joel Villanueva and Senator Juan
Miguel Zubiri, the Committee hereby cites MR. ARVIN BALAG in contempt and ordered arrested and
detained at the Office of the Sergeant-at-Arms until such time that he gives his true testimony, or
otherwise purges himself of that contempt.
The Sergeant-at-Arms is hereby directed to carry out and implement this Order and make a return
hereof within twenty-four (24) hours from its enforcement.
SO ORDERED. 19
Hence, this petition.
ISSUE
WHETHER RESPONDENT SENATE COMMITTEES ACTED WITH GRAVE ABUSE OF

DISCRETION IN CONDUCTING THE LEGISLATIVE INQUIRY AND CITING PETITIONER IN
CONTEMPT.
Petitioner chiefly argues that the legislative inquiry conducted by respondent committees was not in
aid of legislation; rather, it was in aid of prosecution. He posits that the purpose of SR No. 504 was
to hold accountable those responsible for the senseless act of killing Horacio III, and not to aid
legislation. Petitioner underscores that the transcripts during the September 25, 2017 committee
hearing were used in the criminal complaint filed against him, which bolsters that the said hearings
were in aid of prosecution. He insists that the senate hearings would violate his right to due process
and would pre-empt the findings of the DOJ with respect to the criminal complaint filed against him.
Petitioner also asserts that he properly invoked his right against self-incrimination as the questions
propounded by Senator Poe regarding the officers, particularly the presidency of the AJ Fraternity,
were incriminating because the answer thereto involves an element of the crime of hazing. Despite
the questions being incriminating, he, nonetheless, answered them by admitting that he was a
member of the AJ Fraternity but he did not know of its current president because he transferred to
another school. He adds that his right to equal protection of laws was violated because the other
resource persons who refused to answer the questions of the Senate committees were not cited in
contempt.
Finally, petitioner prays for the issuance of TRO and/or writ of preliminary injunction because the
Senate illegally enforced and executed SR No. 504 and the Contempt Order, which caused him
grave and irreparable injury as he was deprived of his liberty without due process of law. He
contends that respondents did not exercise their power of contempt judiciously and with restraint.
In their Comment, respondents, through the Office of the Senate Legal Counsel, countered that the
20
purpose of the hearing was to re-examine R.A. No. 8049; that several documents showed that the
legislative hearing referred to Senate Bill Nos. 27, 199, 223, 1161, and 1591; that the statement of
the senators during the hearing demonstrated that the legislative inquiry was conducted in aid of
legislation; and that the Senate Rules of Procedure Governing Inquiries in Aid of Legislation (Senate
Rules) were duly published.
Respondents emphasized that petitioner was first asked on October 18, 2017, around 11:29 in the
morning, whether he was the president of the AJ Fraternity, based on school records, and he denied
it; he was asked again at 12:09 in the afternoon whether he was the president of the AJ Fraternity
but he still refused to answer the question; at 1:19 in the afternoon, he admitted that he was a
member of the fraternity but still he refused to say whether or not he was the president, only saying
that he is already studying in another school. On November 6, 2017, at the resumption of the
hearing, petitioner was still unresponsive. According to respondents, these acts were contemptuous
and were valid reasons to cite petitioner in contempt.
Respondents highlighted that there were numerous documents showing that petitioner was the
president of the AJ Fraternity but he continually refused to answer. They added that petitioner
cannot purge himself of contempt by continually lying.
Further, respondents underscored that the question propounded to petitioner was not incriminating
because an admission that he was an officer of the AJ Fraternity would not automatically make him
liable under R.A. No. 8049. They emphasized that the Senate respected petitioner's right to due
process because the hearing was conducted in aid of legislation; that the senators explained why he
would be cited in contempt; that he was given several chances to properly purge himself from
contempt; and that no incriminating question was asked. Respondents concluded that there was no
violation of petitioner's right to equal protection of laws because the other resource persons did not
invoke their right against self-incrimination when asked if they were the officers of the AJ Fraternity.
Respondents likewise explained that the legislative inquiry in aid of legislation may still continue in
spite of any pending criminal or administrative cases or investigation. They countered that the
actions for certiorari and prohibition were not proper because there were existing remedies that
petitioner could have availed of, particularly: a motion to reverse the contempt charge filed within 7
days under Section 18 of the Senate Rules; and a petition for habeas corpus as petitioner ultimately
would seek for his release from detention.
Finally, respondents asserted that the recourse for the issuance of TRO and/or writ of preliminary
injunction was not proper because petitioner was actually asking to be freed from detention, and this
was contemplated under a status quo ante order. For invoking the wrong remedy, respondents
concluded that a TRO and/or writ of preliminary injunction should not be issued.
In its Resolution dated December 12, 2017, the Court ordered in the interim the immediate release
21
of petitioner pending resolution of the instant petition.
In its Manifestation dated February 20, 2018, respondents stated that on January 23, 2018, the
22
Committees on Public Order and Dangerous Drugs and Justice and Human Rights jointly submitted
Committee Report Nos. 232 and 233 recommending that Senate Bill No. 1662 be approved in
substitution of Senate Bill Nos. 27, 199, 223, 1161, 1591, and 1609. The said committee reports
were approved by the majority of their members. On February 12, 2018, the Senate passed on 3rd
23
reading Senate Bill No. 1662, entitled: An Act Amending Republic Act No. 8049 to Strengthen the
Law on Hazing and Regulate Other Forms of Initiation Rites of Fraternities, Sororities, and Other
Organizations, Providing Penalties Therefor, and for Other Purposes, with its short title as "Anti-
Hazing Act of 2018."
The Court's Ruling

The petition is moot and academic.
The existence of an actual case or controversy is a necessary condition precedent to the court's
exercise of its power of adjudication. An actual case or controversy exists when there is a conflict of
legal rights or an assertion of opposite legal claims between the parties that is susceptible or ripe for
judicial resolution. In the negative, a justiciable controversy must neither be conjectural nor moot and
academic. There must be a definite and concrete dispute touching on the legal relations of the
parties who have adverse legal interests. The reason is that the issue ceases to be justiciable when
a controversy becomes moot and academic; otherwise, the court would engage in rendering an
advisory opinion on what the law would be upon a hypothetical state of facts. 24
In this case, the Court finds that there is no more justiciable controversy. Petitioner essentially
alleges that respondents unlawfully exercised their power of contempt and that his detention was
invalid. As discussed earlier, in its resolution dated December 12, 2017, the Court ordered in the
interim the immediate release of petitioner pending resolution of the instant petition. Thus, petitioner
was no longer detained under the Senate's authority.
Then, on January 23, 2018, the Committees on Public Order and Dangerous Drugs and Justice and
Human Rights jointly adopted Committee Report Nos. 232 and 233 and submitted the same to the
Senate. Committee Report No. 232 referred to the findings of respondent committees in the inquiry
conducted in aid of legislation; while Committee Report No. 233 referred to the recommendation that
Senate Bill No. 1662 be approved in substitution of Senate Bill Nos. 27, 199, 223, 1161, 1591, and
1609. On February 12, 2018, the Senate passed on 3rd reading Senate Bill No. 1662.
Evidently, respondent committees have terminated their legislative inquiry upon the approval of
Committee Report Nos. 232 and 233 by the majority of its members. The Senate even went further
by approving on its 3rd reading the proposed bill, Senate Bill No. 1662, the result of the inquiry in aid
of legislation. As the legislative inquiry ends, the basis for the detention of petitioner likewise ends.
Accordingly, there is no more justiciable controversy regarding respondents' exercise of their

constitutional power to conduct inquiries in aid of legislation, their power of contempt, and the validity
of petitioner's detention. Indeed, the petition has become moot and academic.
Nevertheless, there were occasions in the past when the Court passed upon issues although
supervening events had rendered those petitions moot and academic. After all, the moot and
academic principle is not a magical formula that can automatically dissuade the courts from
resolving a case. Courts will decide cases, otherwise moot and academic. This Court may assume
25
jurisdiction over a case that has been rendered moot and academic by supervening events when
any of the following instances are present:
(1) Grave constitutional violations;
(2) Exceptional character of the case;
(3) Paramount public interest;
(4) The case presents an opportunity to guide the bench, the bar, and the public; or
(5) The case is capable of repetition yet evading review. 26

In David v. Arroyo, several petitions assailed the constitutionality of the declaration of a state of
27
national emergency by then President Gloria Macapagal-Arroyo. During the pendency of the suits,
the said declaration was lifted. However, the Court still decided the cases on the merits because the
issues involved a grave violation of the Constitution and it affected public interest.
Similarly, in Republic v. Principalia Management and Personnel Consultants, Inc., the controversy
28
therein was whether the Regional Trial Court (RTC) had jurisdiction over an injunction complaint filed
against the Philippine Overseas Employment Administration (POEA) regarding the cancellation of
the respondent's license. The respondent then argued that the case was already moot and academic
because it had continuously renewed its license with the POEA. The Court ruled that although the
case was moot and academic, it could still pass upon the main issue for the guidance of both bar
and bench, and because the said issue was capable of repetition.
Recently, in Regulus Development, Inc. v. Dela Cruz, the issue therein was moot and academic
29
due to the redemption of the subject property by the respondent. However, the Court ruled that it
may still entertain the jurisdictional issue of whether the RTC had equity jurisdiction in ordering the
levy of the respondent's property since it posed a situation capable of repetition yet evading judicial
review.
In this case, the petition presents a critical and decisive issue that must be addressed by Court: what
is the duration of the detention for a contempt ordered by the Senate?
This issue must be threshed out as the Senate's exercise of its power of contempt without a definite
period is capable of repetition. Moreover, the indefinite detention of persons cited in contempt
impairs their constitutional right to liberty. Thus, paramount public interest requires the Court to
determine such issue to ensure that the constitutional rights of the persons appearing before a
legislative inquiry of the Senate are protected.
The contempt order issued against petitioner simply stated that he would be arrested and detained
until such time that he gives his true testimony, or otherwise purges himself of the contempt. It does
not provide any definite and concrete period of detention. Neither does the Senate Rules specify a
precise period of detention when a person is cited in contempt.
Thus, a review of the Constitution and relevant laws and jurisprudence must be conducted to
determine whether there is a limitation to the period of detention when the Senate exercises its
power of contempt during inquiries in aid of legislation.
Period of imprisonment for contempt

during inquiries in aid of legislation
The contempt power of the legislature under our Constitution is sourced from the American
system. A study of foreign jurisprudence reveals that the Congress' inherent power of contempt
30
must have a limitation. In the 1821 landmark case of Anderson v. Dunn, the Supreme Court of the
31
United States (SCOTUS) held that although the offense committed under the inherent power of
contempt by Congress may be undefinable, it is justly contended that the punishment need not be
indefinite. It held that as the legislative body ceases to exist from the moment of its adjournment or
periodical dissolution, then it follows that imprisonment under the contempt power of Congress must
terminate with adjournment.
As the US Congress was restricted of incarcerating an erring witnesses beyond their adjournment
under its inherent power of contempt, it enacted a statutory law that would fix the period of
imprisonment under legislative contempt. Section 102 of the Revised Statutes, enacted on January
24, 1857, provided that the penalty of imprisonment for legislative contempt was a fine of not more
than one thousand dollars nor less than one hundred dollars, and imprisonment in a common jail for
not less than one (1) month nor more than twelve (12) months. The legislative contempt under the
32
statutes must be initiated for criminal prosecution and it must heard before the courts in order to
convict the contumacious witness. 33
The case of In re Chapman involved the constitutionality of the statutory power of contempt of the
34
US Congress. There, the SCOTUS ruled that the said statute was valid because Congress, by
enacting this law, simply sought to aid each of the Houses in the discharge of its constitutional
functions.
Subsequently, in Jurney v. MacCracken, the SCOTUS clarified that the power of either Houses of
35
Congress to punish for contempt was not impaired by the enactment of the 1857 statute. The said
law was enacted, not because the power of both Houses to punish for a past contempt was doubted,
but because imprisonment limited to the duration of the session was not considered sufficiently
drastic as a punishment for contumacious witnesses. The purpose of the statutory contempt was
merely to supplement the inherent power of contempt by providing for additional punishment. On
June 22, 1938, Section 102 of the Revised Statutes was codified in Section 192, Title II of the U.S.
Code. 36
In our jurisdiction, the period of the imprisonment for contempt by Congress was first discussed
in Lopez v. De Los Reyes (Lopez). In that case, on September 16, 1930, the petitioner therein was
37
cited in contempt by the House of Representatives for physically attacking their member. However,
the assault occurred during the Second Congress, which adjourned on November 8, 1929. The
Court ruled therein that there was no valid exercise of the inherent power of contempt because the
House of Representatives already adjourned when it declared the petitioner in contempt.
It was held therein that imprisonment for a term not exceeding the session of the deliberative body in
which the contempt occurred was the limit of the authority to deal directly by way of contempt,
without criminal prosecution. Citing foreign jurisprudence, it was thoroughly discussed therein that
the power of contempt was limited to imprisonment during the session of the legislative body
affected by the contempt. The Court also discussed the nature of Congress' inherent power of
contempt as follows:
x x x We have said that the power to find in contempt rests fundamentally on the power of
self-preservation. That is true even of contempt of court where the power to punish is exercised on
the preservative and not on the vindictive principle. Where more is desired, where punishment as
such is to be imposed, a criminal prosecution must be brought, and in all fairness to the
culprit, he must have thrown around him all the protections afforded by the Bill of Rights.
Proceeding a step further, it is evident that, while the legislative power is perpetual, and while one of
the bodies composing the legislative power disappears only every three years, yet the sessions of
that body mark new beginnings and abrupt endings, which must be respected. (emphases
38
supplied)
The Court ruled therein that if the House of Representatives desires to punish the person cited in
contempt beyond its adjournment, then criminal prosecution must be brought. In that instance, the
said person shall be given an opportunity to defend himself before the courts.
Then came Arnault v. Nazareno (Arnault), where the Senate's power of contempt was discussed. In
39
that case, the Court held that the Senate "is a continuing body and which does not cease to exist
upon the periodical dissolution of Congress or of the House of Representatives. There is no limit as
to time [with] the Senate's power to punish for contempt in cases where that power may
constitutionally be exerted xxx" It was ruled therein that had contempt been exercised by the House
40
of Representatives, the contempt could be enforced until the final adjournment of the last session of
the said Congress. 41
Notably, Arnault gave a distinction between the Senate and the House of Representatives' power of
contempt. In the former, since it is a continuing body, there is no time limit in the exercise of its
power to punish for contempt; on the other hand, the House of Representatives, as it is not a
continuing body, has a limit in the exercise of its power to punish for contempt, which is on the final
adjournment of its last session. In the same case, the Court addressed the possibility that the
Senate might detain a witness for life, to wit:
As against the foregoing conclusion it is argued for the petitioner that the power may be abusively
and oppressively exerted by the Senate which might keep the witness in prison for life. But we must
assume that the Senate will not be disposed to exert the power beyond its proper bounds. And if,
contrary to this assumption, proper limitations are disregarded, the portals of this Court are always
open to those whose rights might thus be transgressed. 42
Further, the Court refused to limit the period of imprisonment under the power of contempt of the
Senate because "[l]egislative functions may be performed during recess by duly constituted
committees charged with the duty of performing investigations or conducting hearings relative to any
proposed legislation. To deny to such committees the power of inquiry with process to enforce it
would be to defeat the very purpose for which that power is recognized in the legislative body as an
essential and appropriate auxiliary to its legislative function. xxx."
43
Later, in Neri v. Senate (Neri), the Court clarified the nature of the Senate as continuing body:
44
On the nature of the Senate as a "continuing body", this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing'', as it is not dissolved as
an entity with each national election or change in the composition of its members. However, in the
conduct of its day-to-day business the Senate of each Congress acts separately and independently
of the Senate of the Congress before it. The Rules of the Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the next session in the
same status.
All pending matters and proceedings shall terminate upon the expiration of one (1) Congress, but
may be taken by the succeeding Congress as if present for the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and even
legislative investigations, of the Senate of a particular Congress are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to
take up such unfinished matters, not in the same status, but as if presented for the first time. The
logic and practicality of such a rule is readily apparent considering that the Senate of the succeeding
Congress (which will typically have a different composition as that of the previous Congress) should
not be bound by the acts and deliberations of the Senate of which they had no part. If the Senate is
a continuing body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course, continue into
the next Congress with the same status. 45
Based on the above-pronouncement, the Senate is a continuing institution. However, in the conduct
of its day-to-day business, the Senate of each Congress acts separately and independently of the
Senate of the Congress before it. Due to the termination of the business of the Senate during the
expiration of one (1) Congress, all pending matters and proceedings, such as unpassed bills
and even legislative investigations, of the Senate are considered terminated upon the
expiration of that Congress and it is merely optional on the Senate of the succeeding Congress to
take up such unfinished matters, not in the same status, but as if presented for the first time.
The termination of the Senate's business and proceedings after the expiration of Congress was
utilized by the Court in ruling that the Senate needs to publish its rules for its legislative inquiries in
each Congress. The pronouncement in Neri was reiterated in Garcillano v. House of
Representatives and Romero II v. Estrada.
46 47
The period of detention under

the Senate's inherent power of
contempt is not indefinite.
The Court finds that there is a genuine necessity to place a limitation on the period of imprisonment
that may be imposed by the Senate pursuant to its inherent power of contempt during inquiries in aid
of legislation. Section 21, Article VI of the Constitution states that Congress, in conducting inquiries
in aid of legislation, must respect the rights of persons appearing in or affected therein.
Under Arnault, however, a witness or resource speaker cited in contempt by the Senate may be
detained indefinitely due to its characteristic as a continuing body. The said witness may be detained
for a day, a month, a year, or even for a lifetime depending on the desire of the perpetual Senate.
Certainly, in that case, the rights of persons appearing before or affected by the legislative inquiry
are in jeopardy. The constitutional right to liberty that every citizen enjoys certainly cannot be
respected when they are detained for an indefinite period of time without due process of law.
As discussed in Lopez, Congress' power of contempt rests solely upon the right of self-preservation
and does not extend to the infliction of punishment as such. It is a means to an end and not the end
itself. Even arguendo that detention under the legislative's inherent power of contempt is not
48
entirely punitive in character because it may be used by Congress only to secure information from a
recalcitrant witness or to remove an obstruction, it is still a restriction to the liberty of the said
witness. It is when the restrictions during detention are arbitrary and purposeless that courts will infer
intent to punish. Courts will also infer intent to punish even if the restriction seems to be related
rationally to the alternative purpose if the restriction appears excessive in relation to that
purpose. An indefinite and unspecified period of detention will amount to excessive restriction and
49
will certainly violate any person's right to liberty.
Nevertheless, it is recognized that the Senate's inherent power of contempt is of utmost importance.
A legislative body cannot legislate wisely or effectively in the absence of information respecting the
conditions which the legislations are intended to affect or change. 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 through
the power of contempt during legislative inquiry. While there is a presumption of regularity that the
50
Senate will not gravely abuse its power of contempt, there is still a lingering and unavoidable
possibility of indefinite imprisonment of witnesses as long as there is no specific period of detention,
which is certainly not contemplated and envisioned by the Constitution.
Thus, the Court must strike a balance between the interest of the Senate and the rights of persons
cited in contempt during legislative inquiries. The balancing of interest requires that the Court take a
1avvphi1
conscious and detailed consideration of the interplay of interests observable in a given situation or
type of situation. These interests usually consist in the exercise by an individual of his basic
freedoms on the one hand, and the government's promotion of fundamental public interest or policy
objectives on the other.51
The Court finds that the period of imprisonment under the inherent power of contempt by the
Senate during inquiries in aid of legislation should only last until the termination of the
legislative inquiry under which the said power is invoked. In Arnault, it was stated that
obedience to its process may be enforced by the Senate Committee if the subject of investigation
before it was within the range of legitimate legislative inquiry and the proposed testimony called
relates to that subject. Accordingly, as long as there is a legitimate legislative inquiry, then the
52
inherent power of contempt by the Senate may be properly exercised. Conversely, once the said
legislative inquiry concludes, the exercise of the inherent power of contempt ceases and there is no
more genuine necessity to penalize the detained witness.
Further, the Court rules that the legislative inquiry of the Senate terminates on two instances:
First, upon the approval or disapproval of the Committee Report. Sections 22 and 23 of Senate
Rules state:
Sec. 22. Report of Committee. Within fifteen (15) days after the conclusion of the inquiry, the
Committee shall meet to begin the consideration of its Report.
The Report shall be approved by a majority vote of all its members. Concurring and dissenting
reports may likewise be made by the members who do not sign the majority report within seventy-
two (72) hours from the approval of the report. The number of members who sign reports concurring
in the conclusions of the Committee Report shall be taken into account in determining whether the
Report has been approved by a majority of the members: Provided, That the vote of a member who
submits both a concurring and dissenting opinion shall not be considered as part of the majority
unless he expressly indicates his vote for the majority position.
The Report, together with any concurring and/or dissenting opinions, shall be filed with the
Secretary of the Senate, who shall include the same in the next Order of Business.
Sec. 23. Action on Report. The Report, upon inclusion in the Order of Business, shall be referred to
the Committee on Rules for assignment in the Calendar. (emphases supplied)
As gleaned above, the Senate Committee is required to issue a Committee Report after the conduct
of the legislative inquiry. The importance of the Committee Report is highlighted in the Senate Rules
because it mandates that the committee begin the consideration of its Report within fifteen (15) days
from the conclusion of the inquiry. The said Committee Report shall then be approved by a majority
vote of all its members; otherwise, it is disapproved. The said Report shall be the subject matter of
the next order of business, and it shall be acted upon by the Senate. Evidently, the Committee
Report is the culmination of the legislative inquiry. Its approval or disapproval signifies the end of
such legislative inquiry and it is now up to the Senate whether or not to act upon the said Committee
Report in the succeeding order of business. At that point, the power of contempt simultaneously
ceases and the detained witness should be released. As the legislative inquiry ends, the basis for
the detention of the recalcitrant witness likewise ends.
Second, the legislative inquiry of the Senate also terminates upon the expiration of one (1)
Congress. As stated in Neri, all pending matters and proceedings, such as unpassed bills and even
legislative investigations, of the Senate are considered terminated upon the expiration of that
Congress and it is merely optional on the Senate of the succeeding Congress to take up such
unfinished matters, not in the same status, but as if presented for the first time. Again, while the
Senate is a continuing institution, its proceedings are terminated upon the expiration of that
Congress at the final adjournment of its last session. Hence, as the legislative inquiry ends upon that
expiration, the imprisonment of the detained witnesses likewise ends.
In Arnault, there have been fears that placing a limitation on the period of imprisonment pursuant to
the Senate's power of contempt would "deny to it an essential and appropriate means for its
performance." Also, in view of the limited period of imprisonment, "the Senate would have to
53
resume the investigation at the next and succeeding sessions and repeat the contempt proceedings
against the witness until the investigation is completed xxx."54
The Court is of the view that these fears are insufficient to permit an indefinite or an unspecified
period of imprisonment under the Senate's inherent power of contempt. If Congress believes that
there is a necessity to supplement its power of contempt by extending the period of imprisonment
beyond the conduct of its legislative inquiry or beyond its final adjournment of the last session, then it
can enact a law or amend the existing law that penalizes the refusal of a witness to testify or
produce papers during inquiries in aid of legislation. The charge of contempt by Congress shall be
tried before the courts, where the contumacious witness will be heard. More importantly, it shall
indicate the exact penalty of the offense, which may include a fine and/or imprisonment, and the
period of imprisonment shall be specified therein. This constitutes as the statutory power of
contempt, which is different from the inherent power of contempt.
Congress' statutory power of contempt has been recognized in foreign jurisdictions as reflected in
the cases of In re Chapman and Jurney v. MacCracken. Similarly, in this jurisdiction, the statutory
power of contempt of Congress was also acknowledged in Lopez. It was stated therein that in cases
that if Congress seeks to penalize a person cited in contempt beyond its adjournment, it must
institute a criminal proceeding against him. When his case is before the courts, the culprit shall be
afforded all the rights of the accused under the Constitution. He shall have an opportunity to defend
himself before he can be convicted and penalized by the State.
Notably, there is an existing statutory provision under Article 150 of the Revised Penal Code, which
penalizes the refusal of a witness to answer any legal inquiry before Congress, to wit:
Art. 150. Disobedience to summons issued by the National Assembly, its committees or
subcommittees, by the Constitutional Commissions, its committees, subcommittees or divisions. -
The penalty of arresto mayor or a fine ranging from two hundred to one thousand pesos, or both
such fine and imprisonment shall be imposed upon any person who, having been duly summoned to
attend as a witness before the National Assembly, (Congress), its special or standing committees
and subcommittees, the Constitutional Commissions and its committees, subcommittees, or
divisions, or before any commission or committee chairman or member authorized to summon
witnesses, refuses, without legal excuse, to obey such summons, or being present before any such
legislative or constitutional body or official, refuses to be sworn or placed under affirmation or to
answer any legal inquiry or to produce any books, papers, documents, or records in his
possession, when required by them to do so in the exercise of their functions. The same
penalty shall be imposed upon any person who shall restrain another from attending as a witness, or
who shall induce disobedience to a summon or refusal to be sworn by any such body or official.
(emphasis and underscoring supplied)
Verily, the said law may be another recourse for the Senate to exercise its statutory power of
contempt. The period of detention provided therein is definite and is not limited by the period of the
legislative inquiry. Of course, the enactment of a new law or the amendment of the existing law to
augment its power of contempt and to extend the period of imprisonment shall be in the sole
discretion of Congress.
Moreover, the apprehension in Arnault - that the Senate will be prevented from effectively
conducting legislative hearings during recess - shall be duly addressed because it is expressly
provided herein that the Senate may still exercise its power of contempt during legislative hearings
while on recess provided that the period of imprisonment shall only last until the termination of the
legislative inquiry, specifically, upon the approval or disapproval of the Committee Report. Thus, the
Senate's inherent power of contempt is still potent and compelling even during its recess. At the
same time, the rights of the persons appearing are respected because their detention shall not be
indefinite.
In fine, the interests of the Senate and the witnesses appearing in its legislative inquiry are
balanced. The Senate can continuously and effectively exercise its power of contempt during the
1âwphi1
legislative inquiry against recalcitrant witnesses, even during recess. Such power can be exercised
by the Senate immediately when the witness performs a contemptuous act, subject to its own rules
and the constitutional rights of the said witness.
In fine, the interests of the Senate and the witnesses appearing in its legislative inquiry are balanced.
The Senate can continuously and effectively exercise its power of contempt during the legislative
inquiry against recalcitrant witnesses, even during recess. Such power can be exercised by the
Senate immediately when the witness performs a contemptuous act, subject to its own rules and the
constitutional rights of the said witness.
In addition, if the Congress decides to extend the period of imprisonment for the contempt committed
by a witness beyond the duration of the legislative inquiry, then it may file a criminal case under the
existing statute or enact a new law to increase the definite period of imprisonment.
WHEREFORE, the petition is DENIED for being moot and academic. However, the period of
imprisonment under the inherent power of contempt of the Senate during inquiries in aid of
legislation should only last until the termination of the legislative inquiry.
The December 12, 2017 Resolution of the Court ordering the temporary release of Arvin R. Balag
from detention is hereby declared FINAL.
SO ORDERED.
NORECO v. Sang. Panlunsod of Dumaguete, 155 SCRA 421 (1987)
G.R. No. 72492 November 5, 1987
NEGROS ORIENTAL II ELECTRIC COOPERATIVE, INC., PATERIO TORRES and ARTURO

UMBAC, petitioners,
vs.
SANGGUNIANG PANLUNGSOD OF DUMAGUETE, THE AD HOC COMMITTEE OF THE
SANGGUNIANG PANLUNGSOD OF DUMAGUETE and ANTONIO S. RAMAS
UYPITCHING, respondents.
CORTES, J.:
An attempt by the respondent Ad Hoc Committee of the respondent Sangguniang Panlungsod of

Dumaguete to punish non-members for legislative contempt was halted by this special civil action of
certiorari and Prohibition with Preliminary Injunction and/or Restraining Order questioning the very
existence of the power in that local legislative body or in any of its committees. On November 7,
1985, this Court issued a Temporary Restraining Order:
. . . enjoining respondents, their agents, representatives, and police and other peace
officers acting in their behalf, to refrain from compelling the attendance and testimony
of Petitioners Paterio Torres and Arturo Umbac at any and all future investigations to
be conducted by aforesaid respondents, and from issuing any contempt order if one
has not been issued yet or from executing any such contempt order if one has
already been issued.
Assailed is the validity of a subpoena dated October 25, 1985 (Annex "A", Petition) sent by the
respondent Committee to the petitioners Paterio Torres and Arturo Umbac, Chairman of the Board of
Directors and the General Manager, respectively, of petitioner Negros Oriental II Electric
Cooperative NORECO II), requiring their attendance and testimony at the Committee's investigation
on October 29, 1985. Similarly under fire is the Order issued by the same Committee on the latter
date, (Annex "D", Petition) directing said petitioners to show cause why they should not be punished
for legislative contempt due to their failure to appear at said investigation.
The investigation to be conducted by respondent Committee was "in connection with pending
legislation related to the operations of public utilities" (Id.) in the City of Dumaguete where petitioner
NORECO II, an electric cooperative, had its principal place of business. Specifically, the inquiry was
to focus on the alleged installation and use by the petitioner NORECO II of inefficient power lines in
that city (Comment, Rollo, p. 50). Respondent Antonio S. Ramas Uypitching, as Chairman of the
Committee on Public Utilities and Franchises and Co-Chairman of the respondent Ad Hoc
Committee, signed both the subpoena and the Order complained of. Petitioners moved to quash the
subpoena on the following grounds:
a. The power to investigate, and to order the improvement of, alleged inefficient
power lines to conform to standards is lodged exclusively with the National
Electrification Administration; and
b. Neither the Charter of the City of Dumaguete nor the Local Government Code
grants (the Sangguniang Panlungsod) any specific power to investigate alleged
inefficient power lines of NORECO II. (Annex "C", Petition)
The motion to quash was denied in the assailed Order of October 29, 1985 directing the petitioners
Torres and Umbac to show cause why they should not be punished for contempt. Hence this Petition
for certiorari and Prohibition with Preliminary Injunction and/or Restraining Order.
Petitioners contend that the respondent Sangguniang Panlungsod of Dumaguete is bereft of the

power to compel the attendance and testimony of witnesses, nor the power to order the arrest of
witnesses who fail to obey its subpoena. It is further argued that assuming the power to compel the
attendance and testimony of witnesses to be lodged in said body, it cannot be exercised in the
investigation of matters affecting the terms and conditions of the franchise granted to NORECO II
which are beyond the jurisdiction of the Sangguniang Panlungsod (Rollo pp. 7-8).
Respondents, for their part, claim that inherent in the legislative functions performed by the
respondent Sangguniang Panlungsod is the power to conduct investigations in aid of legislation and
with it, the power to punish for contempt in inquiries on matters within its jurisdiction (Rollo, p. 46). It
is also the position of the respondents that the contempt power, if not expressly granted, is
necessarily implied from the powers granted the Sangguniang Panlungsod (Rollo, pp. 48-49).
Furthermore, the respondents assert that an inquiry into the installation or use of inefficient power
lines and its effect on the power consumption cost on the part of Dumaguete residents is well-within
the jurisdiction of the Sangguniang Panlungsod and its committees.
1. A line should be drawn between the powers of Congress as the repository of the legislative
power under the Constitution, and those that may be exercised by the legislative bodies of local
government unit, e.g. the Sangguniang Panlungsod of Dumaguete which, as mere creatures of law,
possess delegated legislative power. While the Constitution does not expressly vest Congress with
the power to punish non-members for legislative contempt, the power has nevertheless been
invoked by the legislative body as a means of preserving its authority and dignity (Arnault v.
Nazareno, 87 Phil. 29 [1950]); Amault v. Balagtas, 97 Phil. 358 [1955]), in the same way that courts
wield an inherent power to "enforce their authority, preserve their integrity, maintain their dignity, and
ensure the effectiveness of the administration of justice." (Commissioner v. Cloribel, 127 Phil. 716,
723 [1967]; In re Kelly 35 Phil. 944 950 [1916], and other cases). The exercise by Congress of this
awesome power was questioned for the first time in the leading case of Arnault v. Nazareno, (87
Phil. 29 [1950]) where this Court held that the legislative body indeed possessed the contempt
power.
That case arose from the legislative inquiry into the acquisition by the Philippine Government of the
Buenavista and Tambobong estates sometime in 1949. Among the witnesses called and examined
by the special committee created by a Senate resolution was Jean L. Arnault, a lawyer who
delivered a portion of the purchase price to a representative of the vendor. During the Senate,
investigation, Amault refused to reveal the Identity of said representative, at the same time invoking
his constitutional right against self-incrimination. The Senate adopted a resolution committing Arnault
to the custody of the Sergeant at Arms and imprisoned "until he shall have purged the contempt by
revealing to the Senate . . . the name of the person to whom he gave the P440,000, as wen as
answer other pertinent questions in connection therewith." (Arnault v. Nazareno, 87 Phil. 29, 43
[1950]). Arnault petitioned for a writ of Habeas Corpus.
In upholding the power of Congress to punish Arnault for contumacy the Court began with a
discussion of the distribution of the three powers of government under the 1935 Constitution.
Cognizant of the fact that the Philippines system of government under the 1935 Constitution was
patterned after the American system, the Court proceeded to resolve the issue presented, partly by
drawing from American precedents, and partly by acknowledging the broader legislative power of the
Philippine Congress as compared to the U.S. Federal Congress which shares legislative power with
the legislatures of the different states of the American union (Id., pp. 44-45). The Court held:
xxx xxx xxx
... (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. 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. (McGrain vs. Daugherty 273 U.S., 135; 71 L. ed., 580; 50
ALR 1) The fact that the Constitution expressly gives to Congress the power to
punish its Members for disorderly behaviour, does not by necessary implication
exclude the power to punish for contempt by any person. (Anderson vs. Dunn, 6
Wheaton 204; 5 L. ed., 242)
But no person can be punished for contumacy as a witness before either House,
unless his testimony is required in a matter into which that House has jurisdiction to
inquire. (Kilbourn vs. Thompson, 26, L.ed., 377.)
The Court proceeded to delve deeper into the essence of the contempt power of the Philippine
Congress in a subsequent decision (Arnault v. Balagtas, 97 Phil. 358 [1955]) arising from the same
factual antecedents:
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 real of its respective authority, it must have intended each
department's authority to be full and complete, independently of the 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 the affronts committed against its
authority or dignity. . . (Arnault v. Balagtas, L-6749, July 30, 1955; 97 Phil. 358, 370
[1955]).
The aforequoted pronouncements in the two Arnault cases, supra, broke ground in what was then

an unexplored area of jurisprudence, and succeeded in supplying the raison d' etre of this power of
Congress even in the absence of express constitutional grant. Whether or not the reasons for
upholding the existence of said power in Congress may be applied mutatis mutandis to a questioned
exercise of the power of contempt by the respondent committee of a city council is the threshold
issue in the present controversy.
3. The exercise by the legislature of the contempt power is a matter of self-preservation as that
branch of the government vested with the legislative power, independently of the judicial branch,
asserts its authority and punishes contempts thereof. The contempt power of the legislature is,
therefore, sui generis, and local legislative bodies cannot correctly claim to possess it for the same
reasons that the national legislature does. The power attaches not to the discharge of legislative
functions per se but to the character of the legislature as one of the three independent and
coordinate branches of government. The same thing cannot be said of local legislative bodies which
are creations of law.
4. To begin with, there is no express provision either in the 1973 Constitution or in the Local
Government Code (Batas Pambansa Blg. 337) granting local legislative bodies, the power to
subpoena witnesses and the power to punish non-members for contempt. Absent a constitutional or
legal provision for the exercise of these powers, the only possible justification for the issuance of a
subpoena and for the punishment of non-members for contumacious behaviour would be for said
power to be deemed implied in the statutory grant of delegated legislative power. But, the contempt
power and the subpoena power partake of a judicial nature. They cannot be implied in the grant of
legislative power. Neither can they exist as mere incidents of the performance of legislative
functions. To allow local legislative bodies or administrative agencies to exercise these powers
without express statutory basis would run afoul of the doctrine of separation of powers.
Thus, the contempt power, as well as the subpoena power, which the framers of the fundamental
law did not expressly provide for but which the then Congress has asserted essentially for self-
preservation as one of three co-equal branches of the government cannot be deemed implied in the
delegation of certain legislative functions to local legislative bodies. These cannot be presumed to
exist in favor of the latter and must be considered as an exception to Sec. 4 of B.P. 337 which
provides for liberal rules of interpretation in favor of local autonomy. Since the existence of the
contempt power in conjunction with the subpoena power in any government body inevitably poses a
potential derogation of individual rights, i.e. compulsion of testimony and punishment for refusal to
testify, the law cannot be liberally construed to have impliedly granted such powers to local
legislative bodies. It cannot be lightly presumed that the sovereign people, the ultimate source of all
government powers, have reposed these powers in all government agencies. The intention of the
sovereign people, through their representatives in the legislature, to share these unique and
awesome powers with the local legislative bodies must therefore clearly appear in pertinent
legislation.
There being no provision in the Local Government Code explicitly granting local legislative bodies,
the power to issue compulsory process and the power to punish for contempt, the Sanggunian
Panlungsod of Dumaguete is devoid of power to punish the petitioners Torres and Umbac for
contempt. The Ad-Hoc Committee of said legislative body has even less basis to claim that it can
exercise these powers.
5. Even assuming that the respondent Sangguniang Panlungsod and the respondent Ad-Hoc
Committee had the power to issue the subpoena and the order complained of, such issuances would
still be void for being ultra vires. The contempt power (and the subpoena power) if actually
possessed, may only be exercised where the subject matter of the investigation is within the
jurisdiction of the legislative body (Arnault v. Nazareno, supra, citing Kilbourn v. Thompson). As
admitted by the respondents in their Comment, the investigation to be conducted by the Ad-Hoc
Committee was to look into the use by NORECO II of inefficient power lines "of pre-war vintage"
which the latter had acquired from the Visayan Electric Com. company, and "to hear the side of the
petitioners" (Comment, Rollo, p. 50). It comes evident that the inquiry would touch upon the
efficiency of the electric service of NORECO II and, necessarily, its compliance with the franchise.
Such inquiry is beyond the jurisdiction of the respondent Sangguniang Panlungsod and the
respondent committee.
There is no doubt that a city government has the power to enact ordinances regulating the
installation and maintenance of electric power lines or wires within its territorial jurisdiction. The
power subsists notwithstanding the creation of the National Electrification Administration (NEA), to
which body the franchise powers of local government units were transferred by Presidential Decree
No. 269. Section 42 of the Decree states:
SEC. 42. Repeal of Franchise Powers of Municipal City and Provincial Governments.

— The powers of municipal, city and provincial governments to grant franchises, as
provided for in Title 34 of the Philippines Statutes or in any special law, are hereby
repealed; Provided, That this section shall not impair or invalidate any franchise
heretofore lawfully granted by such a government or repeal any other subsisting
power of such governments to require that electric facilities and related properties be
so located, constructed and operated and maintained as to be safe to the public and
not to unduly interfere with the primary use of streets, roads, alleys and other public
ways, buildings and grounds over, upon or under which they may be built. (This
Section was not among those amended by Pres. Dec. Nos. 1370 [May 2, 1978] and
1645 [October 8, 1979]).
This particular power of the city government is included in the enumeration of powers and duties of a
Sangguniang Panlungsod in Section 177 of the Local Government Code (Batas Pambansa Blg. 337,
February 10, 1983), to wit:
SEC. 177. Powers and Duties. — The Sangguniang Panlungsod shall:
xxx xxx xxx
(j) . . . regulate the digging and excavation for the laying of gas, water, power, and
other pipelines, the building and repair of tunnels, sewers and drains, and all
structures thereunder; the placing, stringing, attaching, installing, repair and
construction of all gas mains, electric, telegraph and telephone wires, conduits
meters and other apparatus, and the correction, condemnation of the same when
dangerous or defective;
xxx xxx xxx
The Sangguniang Panlungsod of Dumaguete may, therefore, enact ordinances to regulate the

installation and maintenance of electric power lines, e.g. prohibit the use of inefficient power lines, in
order to protect the city residents from the hazards these may pose. In aid of this ordinance making
power, said body or any of its committees may conduct investigations similar to, but not the same
as, the legislative investigations conducted by the national legislature. As already discussed, the
difference lies in the lack of subpoena power and of the power to punish for contempt on the part of
the local legislative bodies. They may only invite resource persons who are willing to supply
information which may be relevant to the proposed ordinance. The type of investigation which may
be conducted by the Sangguniang PanLungsod does not include within its ambit an inquiry into any
suspected violation by an electric cooperative of the conditions of its electric franchise.
The power to inquire into the efficiency of the service supplied by electric cooperatives is within the
franchising powers of the NEA under Sec. 43 of Pres. Dec. No. 269, i.e.:
(2) to repeal and cancel any franchise if the NEA finds that the holder thereof is not
then furnishing, and is unable to or unailling within reasonable time to furnish
adequate and dependable service on an area coverage within such area;
xxx xxx xxx
In the exercise of this power, the NEA may conduct hearings and investigations, issle subpoenas
and invoke the aid of the courts in case of disobedience to its subpoenas (Sec. 47 & Sec. 54, P.D.
269). Clearly, then, the Sangguniang Panlungsod of Dumaguete cannot look into an suspected
failure of NORECO II to comply with the standards of electric service prescribed by law and in its
franchise. The proper recourse is to file a complaint with the NEA against NORECO II if there be
sufficient basis therefor.
WHEREFORE, the subpoena dated October 25, 1985 requiring the attendance and testimony of the
petitioners at an investigation by the respondent Ad-Hoc Committee, and the Order issued by the
latter on October 29, 1985 directing herein petitioners to show cause why they should not be
punished for legislative contempt for their disobedience of said subpoena, is declared null and void
for being ultra vires. The respondent Sangguniang Panlungsod and the respondent Ad-Hoc
Committee are without power to punish non- members for contempt. The Temporary Restraining
Order issued by this Court on November 7, 1985 enjoining said respondents, their agents and
representatives, and the police and other peace officers from enforcing the aforesaid Order of the
respondent committee is made permanent. Petition is GRANTED. No costs.
SO ORDERED
David v. Macapagal-Arroyo, GR No. 171396, 3 May 2006
G.R. No. 171396 May 3, 2006
PROF. RANDOLF S. DAVID, LORENZO TAÑADA III, RONALD LLAMAS, H. HARRY

L. ROQUE, JR., JOEL RUIZ BUTUYAN, ROGER R. RAYEL, GARY S. MALLARI,
ROMEL REGALADO BAGARES, CHRISTOPHER F.C. BOLASTIG, Petitioners,
vs.
GLORIA MACAPAGAL-ARROYO, AS PRESIDENT AND COMMANDER-IN-CHIEF,
EXECUTIVE SECRETARY EDUARDO ERMITA, HON. AVELINO CRUZ II,
SECRETARY OF NATIONAL DEFENSE, GENERAL GENEROSO SENGA, CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, DIRECTOR GENERAL ARTURO
LOMIBAO, CHIEF, PHILIPPINE NATIONAL POLICE, Respondents.
x————————————-x
G.R. No. 171409 May 3, 2006
NIÑEZ CACHO-OLIVARES AND TRIBUNE PUBLISHING CO., INC., Petitioners,

vs.
HONORABLE SECRETARY EDUARDO ERMITA AND HONORABLE DIRECTOR
GENERAL ARTURO C. LOMIBAO, Respondents.
x————————————-x
G.R. No. 171485 May 3, 2006
FRANCIS JOSEPH G. ESCUDERO, JOSEPH A. SANTIAGO, TEODORO A. CASINO,

AGAPITO A. AQUINO, MARIO J. AGUJA, SATUR C. OCAMPO, MUJIV S.
HATAMAN, JUAN EDGARDO ANGARA, TEOFISTO DL. GUINGONA III,
EMMANUEL JOSEL J. VILLANUEVA, LIZA L. MAZA, IMEE R. MARCOS, RENATO
B. MAGTUBO, JUSTIN MARC SB. CHIPECO, ROILO GOLEZ, DARLENE
ANTONINO-CUSTODIO, LORETTA ANN P. ROSALES, JOSEL G. VIRADOR,
RAFAEL V. MARIANO, GILBERT C. REMULLA, FLORENCIO G. NOEL, ANA
THERESIA HONTIVEROS-BARAQUEL, IMELDA C. NICOLAS, MARVIC M.V.F.
LEONEN, NERI JAVIER COLMENARES, MOVEMENT OF CONCERNED CITIZENS
FOR CIVIL LIBERTIES REPRESENTED BY AMADO GAT INCIONG, Petitioners,
vs.
EDUARDO R. ERMITA, EXECUTIVE SECRETARY, AVELINO J. CRUZ, JR.,
SECRETARY, DND RONALDO V. PUNO, SECRETARY, DILG, GENEROSO SENGA,
AFP CHIEF OF STAFF, ARTURO LOMIBAO, CHIEF PNP, Respondents.
x————————————-x
G.R. No. 171483 May 3, 2006

KILUSANG MAYO UNO, REPRESENTED BY ITS CHAIRPERSON ELMER C.
LABOG AND SECRETARY GENERAL JOEL MAGLUNSOD, NATIONAL
FEDERATION OF LABOR UNIONS – KILUSANG MAYO UNO (NAFLU-KMU),
REPRESENTED BY ITS NATIONAL PRESIDENT, JOSELITO V. USTAREZ,
ANTONIO C. PASCUAL, SALVADOR T. CARRANZA, EMILIA P. DAPULANG,
MARTIN CUSTODIO, JR., AND ROQUE M. TAN, Petitioners,
vs.
HER EXCELLENCY, PRESIDENT GLORIA MACAPAGAL-ARROYO, THE
HONORABLE EXECUTIVE SECRETARY, EDUARDO ERMITA, THE CHIEF OF
STAFF, ARMED FORCES OF THE PHILIPPINES, GENEROSO SENGA, AND THE
PNP DIRECTOR GENERAL, ARTURO LOMIBAO, Respondents.
x————————————-x
G.R. No. 171400 May 3, 2006
ALTERNATIVE LAW GROUPS, INC. (ALG), Petitioner,

vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, LT. GEN. GENEROSO SENGA,
AND DIRECTOR GENERAL ARTURO LOMIBAO,Respondents.
G.R. No. 171489 May 3, 2006
JOSE ANSELMO I. CADIZ, FELICIANO M. BAUTISTA, ROMULO R. RIVERA, JOSE

AMOR M. AMORADO, ALICIA A. RISOS-VIDAL, FELIMON C. ABELITA III, MANUEL
P. LEGASPI, J.B. JOVY C. BERNABE, BERNARD L. DAGCUTA, ROGELIO V.
GARCIA AND INTEGRATED BAR OF THE PHILIPPINES (IBP), Petitioners,
vs.
HON. EXECUTIVE SECRETARY EDUARDO ERMITA, GENERAL GENEROSO
SENGA, IN HIS CAPACITY AS AFP CHIEF OF STAFF, AND DIRECTOR GENERAL
ARTURO LOMIBAO, IN HIS CAPACITY AS PNP CHIEF, Respondents.
x————————————-x
G.R. No. 171424 May 3, 2006
LOREN B. LEGARDA, Petitioner,
vs.
GLORIA MACAPAGAL-ARROYO, IN HER CAPACITY AS PRESIDENT AND
COMMANDER-IN-CHIEF; ARTURO LOMIBAO, IN HIS CAPACITY AS DIRECTOR-
GENERAL OF THE PHILIPPINE NATIONAL POLICE (PNP); GENEROSO SENGA, IN
HIS CAPACITY AS CHIEF OF STAFF OF THE ARMED FORCES OF THE
PHILIPPINES (AFP); AND EDUARDO ERMITA, IN HIS CAPACITY AS EXECUTIVE
SECRETARY, Respondents.
DECISION
SANDOVAL-GUTIERREZ, J.:
All powers need some restraint; practical adjustments rather than rigid formula are
necessary.1 Superior strength—the use of force—cannot make wrongs into rights. In
this regard, the courts should be vigilant in safeguarding the constitutional rights of the
citizens, specifically their liberty.
Chief Justice Artemio V. Panganiban’s philosophy of liberty is thus most relevant. He

said: “In cases involving liberty, the scales of justice should weigh heavily against
government and in favor of the poor, the oppressed, the marginalized, the
dispossessed and the weak.” Laws and actions that restrict fundamental rights come
to the courts “with a heavy presumption against their constitutional validity.” 2
These seven (7) consolidated petitions for certiorari and prohibition allege that in issuing
Presidential Proclamation No. 1017 (PP 1017) and General Order No. 5 (G.O. No. 5),
President Gloria Macapagal-Arroyo committed grave abuse of discretion. Petitioners
contend that respondent officials of the Government, in their professed efforts to defend
and preserve democratic institutions, are actually trampling upon the very freedom
guaranteed and protected by the Constitution. Hence, such issuances are void for being
unconstitutional.
Once again, the Court is faced with an age-old but persistently modern problem. How
does the Constitution of a free people combine the degree of liberty, without which, law
becomes tyranny, with the degree of law, without which, liberty becomes license?3
On February 24, 2006, as the nation celebrated the 20th Anniversary of the Edsa
People Power I, President Arroyo issued PP 1017 declaring a state of national
emergency, thus:
NOW, THEREFORE, I, Gloria Macapagal-Arroyo, President of the Republic of the

Philippines and Commander-in-Chief of the Armed Forces of the Philippines, by virtue
of the powers vested upon me by Section 18, Article 7 of the Philippine Constitution
which states that: “The President. . . whenever it becomes necessary, . . . may call out
(the) armed forces to prevent or suppress. . .rebellion. . .,” and in my capacity as their
Commander-in-Chief, do hereby command the Armed Forces of the Philippines, to
maintain law and order throughout the Philippines, prevent or suppress all forms
of lawless violence as well as any act of insurrection or rebellion and to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction; and as provided in Section 17, Article 12
of the Constitution do hereby declare a State of National Emergency.
She cited the following facts as bases:
WHEREAS, over these past months, elements in the political opposition have

conspired with authoritarians of the extreme Left represented by the NDF-CPP-
NPA and the extreme Right, represented by military adventurists—the historical
enemies of the democratic Philippine State—who are now in a tactical alliance and
engaged in a concerted and systematic conspiracy, over a broad front, to bring down
the duly constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down the President;
WHEREAS, the claims of these elements have been recklessly magnified by

certain segments of the national media;
WHEREAS, this series of actions is hurting the Philippine State—by obstructing

governance including hindering the growth of the economy and sabotaging the
people’s confidence in government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the
democratic Philippine State;
WHEREAS, Article 2, Section 4 of the our Constitution makes the defense and
preservation of the democratic institutions and the State the primary duty of
Government;
WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the integrity
of the Philippine State and of the Filipino people;
On the same day, the President issued G. O. No. 5 implementing PP 1017, thus:
WHEREAS, over these past months, elements in the political opposition have conspired
with authoritarians of the extreme Left, represented by the NDF-CPP-NPA and the
extreme Right, represented by military adventurists – the historical enemies of the
democratic Philippine State—and who are now in a tactical alliance and engaged in a
concerted and systematic conspiracy, over a broad front, to bring down the duly-
constituted Government elected in May 2004;
WHEREAS, these conspirators have repeatedly tried to bring down our republican
government;
WHEREAS, the claims of these elements have been recklessly magnified by certain
segments of the national media;
WHEREAS, these series of actions is hurting the Philippine State by obstructing

governance, including hindering the growth of the economy and sabotaging the people’s
confidence in the government and their faith in the future of this country;
WHEREAS, these actions are adversely affecting the economy;
WHEREAS, these activities give totalitarian forces; of both the extreme Left and
extreme Right the opening to intensify their avowed aims to bring down the democratic
Philippine State;
WHEREAS, Article 2, Section 4 of our Constitution makes the defense and preservation
of the democratic institutions and the State the primary duty of Government;
WHEREAS, the activities above-described, their consequences, ramifications and

collateral effects constitute a clear and present danger to the safety and the integrity of
the Philippine State and of the Filipino people;
WHEREAS, Proclamation 1017 date February 24, 2006 has been issued declaring a
State of National Emergency;
NOW, THEREFORE, I GLORIA MACAPAGAL-ARROYO, by virtue of the powers

vested in me under the Constitution as President of the Republic of the Philippines, and
Commander-in-Chief of the Republic of the Philippines, and pursuant to Proclamation
No. 1017 dated February 24, 2006, do hereby call upon the Armed Forces of the
Philippines (AFP) and the Philippine National Police (PNP), to prevent and suppress
acts of terrorism and lawless violence in the country;
I hereby direct the Chief of Staff of the AFP and the Chief of the PNP, as well as the
officers and men of the AFP and PNP, to immediately carry out the necessary and
appropriate actions and measures to suppress and prevent acts of terrorism and
lawless violence.
On March 3, 2006, exactly one week after the declaration of a state of national
emergency and after all these petitions had been filed, the President lifted PP 1017.
She issued Proclamation No. 1021 which reads:
WHEREAS, pursuant to Section 18, Article VII and Section 17, Article XII of the
Constitution, Proclamation No. 1017 dated February 24, 2006, was issued declaring a
state of national emergency;
WHEREAS, by virtue of General Order No.5 and No.6 dated February 24, 2006, which
were issued on the basis of Proclamation No. 1017, the Armed Forces of the Philippines
(AFP) and the Philippine National Police (PNP), were directed to maintain law and order
throughout the Philippines, prevent and suppress all form of lawless violence as well as
any act of rebellion and to undertake such action as may be necessary;
WHEREAS, the AFP and PNP have effectively prevented, suppressed and quelled the
acts lawless violence and rebellion;
NOW, THEREFORE, I, GLORIA MACAPAGAL-ARROYO, President of the Republic of
the Philippines, by virtue of the powers vested in me by law, hereby declare that the
state of national emergency has ceased to exist.
In their presentation of the factual bases of PP 1017 and G.O. No. 5, respondents
stated that the proximate cause behind the executive issuances was the conspiracy
among some military officers, leftist insurgents of the New People’s Army (NPA), and
some members of the political opposition in a plot to unseat or assassinate President
Arroyo.4 They considered the aim to oust or assassinate the President and take-over
the reigns of government as a clear and present danger.
During the oral arguments held on March 7, 2006, the Solicitor General specified the
facts leading to the issuance of PP 1017 and G.O. No. 5. Significantly, there was no
refutation from petitioners’ counsels.
The Solicitor General argued that the intent of the Constitution is to give
full discretionary powers to the President in determining the necessity of calling out
the armed forces. He emphasized that none of the petitioners has shown that PP 1017
was without factual bases. While he explained that it is not respondents’ task to state
the facts behind the questioned Proclamation, however, they are presenting the same,
narrated hereunder, for the elucidation of the issues.
On January 17, 2006, Captain Nathaniel Rabonza and First Lieutenants Sonny
Sarmiento, Lawrence San Juan and Patricio Bumidang, members of the Magdalo Group
indicted in the Oakwood mutiny, escaped their detention cell in Fort Bonifacio, Taguig
City. In a public statement, they vowed to remain defiant and to elude arrest at all costs.
They called upon the people to “show and proclaim our displeasure at the sham regime.
Let us demonstrate our disgust, not only by going to the streets in protest, but also by
wearing red bands on our left arms.” 5
On February 17, 2006, the authorities got hold of a document entitled “Oplan Hackle I ”
which detailed plans for bombings and attacks during the Philippine Military Academy
Alumni Homecoming in Baguio City. The plot was to assassinate selected targets
including some cabinet members and President Arroyo herself. 6 Upon the advice of her
security, President Arroyo decided not to attend the Alumni Homecoming. The next day,
at the height of the celebration, a bomb was found and detonated at the PMA parade
ground.
On February 21, 2006, Lt. San Juan was recaptured in a communist safehouse in
Batangas province. Found in his possession were two (2) flash disks containing minutes
of the meetings between members of the Magdalo Group and the National People’s
Army (NPA), a tape recorder, audio cassette cartridges, diskettes, and copies of
subversive documents. 7 Prior to his arrest, Lt. San Juan announced through DZRH that
the “Magdalo’s D-Day would be on February 24, 2006, the 20th Anniversary of Edsa I.”
On February 23, 2006, PNP Chief Arturo Lomibao intercepted information that members
of the PNP- Special Action Force were planning to defect. Thus, he immediately
ordered SAF Commanding General Marcelino Franco, Jr. to “disavow” any defection.
The latter promptly obeyed and issued a public statement: “All SAF units are under the
effective control of responsible and trustworthy officers with proven integrity and
unquestionable loyalty.“
On the same day, at the house of former Congressman Peping Cojuangco, President
Cory Aquino’s brother, businessmen and mid-level government officials plotted moves
to bring down the Arroyo administration. Nelly Sindayen of TIME Magazine reported that
Pastor Saycon, longtime Arroyo critic, called a U.S. government official about his
group’s plans if President Arroyo is ousted. Saycon also phoned a man code-named
Delta. Saycon identified him as B/Gen. Danilo Lim, Commander of the Army’s elite
Scout Ranger. Lim said “it was all systems go for the planned movement against
Arroyo.“8
B/Gen. Danilo Lim and Brigade Commander Col. Ariel Querubin confided to Gen.
Generoso Senga, Chief of Staff of the Armed Forces of the Philippines (AFP), that a
huge number of soldiers would join the rallies to provide a critical mass and armed
component to the Anti-Arroyo protests to be held on February 24, 2005. According to
these two (2) officers, there was no way they could possibly stop the soldiers because
they too, were breaking the chain of command to join the forces foist to unseat the
President. However, Gen. Senga has remained faithful to his Commander-in-Chief and
to the chain of command. He immediately took custody of B/Gen. Lim and directed Col.
Querubin to return to the Philippine Marines Headquarters in Fort Bonifacio.
Earlier, the CPP-NPA called for intensification of political and revolutionary work within
the military and the police establishments in order to forge alliances with its members
and key officials. NPA spokesman Gregorio “Ka Roger” Rosal declared: “The
Communist Party and revolutionary movement and the entire people look forward to the
possibility in the coming year of accomplishing its immediate task of bringing down the
Arroyo regime; of rendering it to weaken and unable to rule that it will not take much
longer to end it.”9
On the other hand, Cesar Renerio, spokesman for the National Democratic Front (NDF)
at North Central Mindanao, publicly announced: “Anti-Arroyo groups within the military
and police are growing rapidly, hastened by the economic difficulties suffered by the
families of AFP officers and enlisted personnel who undertake counter-insurgency
operations in the field.” He claimed that with the forces of the national democratic
movement, the anti-Arroyo conservative political parties, coalitions, plus the groups that
have been reinforcing since June 2005, it is probable that the President’s ouster is
nearing its concluding stage in the first half of 2006.
Respondents further claimed that the bombing of telecommunication towers and cell
sites in Bulacan and Bataan was also considered as additional factual basis for the
issuance of PP 1017 and G.O. No. 5. So is the raid of an army outpost in Benguet
resulting in the death of three (3) soldiers. And also the directive of the Communist
Party of the Philippines ordering its front organizations to join 5,000 Metro Manila
radicals and 25,000 more from the provinces in mass protests. 10
By midnight of February 23, 2006, the President convened her security advisers and
several cabinet members to assess the gravity of the fermenting peace and order
situation. She directed both the AFP and the PNP to account for all their men and
ensure that the chain of command remains solid and undivided. To protect the young
students from any possible trouble that might break loose on the streets, the President
suspended classes in all levels in the entire National Capital Region.
For their part, petitioners cited the events that followed after the issuance of PP
1017 and G.O. No. 5.
Immediately, the Office of the President announced the cancellation of all programs and
activities related to the 20th anniversary celebration of Edsa People Power I; and
revoked the permits to hold rallies issued earlier by the local governments. Justice
Secretary Raul Gonzales stated that political rallies, which to the President’s mind were
organized for purposes of destabilization, are cancelled.Presidential Chief of Staff
Michael Defensor announced that “warrantless arrests and take-over of facilities,
including media, can already be implemented.”11
Undeterred by the announcements that rallies and public assemblies would not be
allowed, groups of protesters (members of Kilusang Mayo Uno [KMU] and National
Federation of Labor Unions-Kilusang Mayo Uno [NAFLU-KMU]), marched from various
parts of Metro Manila with the intention of converging at the EDSA shrine. Those who
were already near the EDSA site were violently dispersed by huge clusters of anti-riot
police. The well-trained policemen used truncheons, big fiber glass shields, water
cannons, and tear gas to stop and break up the marching groups, and scatter the
massed participants. The same police action was used against the protesters marching
forward to Cubao, Quezon City and to the corner of Santolan Street and EDSA. That
same evening, hundreds of riot policemen broke up an EDSA celebration rally held
along Ayala Avenue and Paseo de Roxas Street in Makati City. 12
According to petitioner Kilusang Mayo Uno, the police cited PP 1017 as the ground for
the dispersal of their assemblies.
During the dispersal of the rallyists along EDSA, police arrested (without warrant)
petitioner Randolf S. David, a professor at the University of the Philippines and
newspaper columnist. Also arrested was his companion, Ronald Llamas, president of
party-list Akbayan.
At around 12:20 in the early morning of February 25, 2006, operatives of the Criminal
Investigation and Detection Group (CIDG) of the PNP, on the basis of PP 1017 and
G.O. No. 5, raided the Daily Tribune offices in Manila. The raiding team confiscated
news stories by reporters, documents, pictures, and mock-ups of the Saturday issue.
Policemen from Camp Crame in Quezon City were stationed inside the editorial and
business offices of the newspaper; while policemen from the Manila Police District were
stationed outside the building.13
A few minutes after the search and seizure at the Daily Tribune offices, the police
surrounded the premises of another pro-opposition paper, Malaya, and its sister
publication, the tabloid Abante.
The raid, according to Presidential Chief of Staff Michael Defensor, is “meant to show a
‘strong presence,’ to tell media outlets not to connive or do anything that would help the
rebels in bringing down this government.” The PNP warned that it would take over any
media organization that would not follow “standards set by the government during the
state of national emergency.” Director General Lomibao stated that “if they do not follow
the standards—and the standards are—if they would contribute to instability in the
government, or if they do not subscribe to what is in General Order No. 5 and Proc. No.
1017—we will recommend a ‘takeover.’” National Telecommunications’ Commissioner
Ronald Solis urged television and radio networks to “cooperate” with the government for
the duration of the state of national emergency. He asked for “balanced reporting” from
broadcasters when covering the events surrounding the coup attempt foiled by the
government. He warned that his agency will not hesitate to recommend the closure of
any broadcast outfit that violates rules set out for media coverage when the national
security is threatened.14
Also, on February 25, 2006, the police arrested Congressman Crispin Beltran,
representing the Anakpawis Party and Chairman of Kilusang Mayo Uno (KMU), while
leaving his farmhouse in Bulacan. The police showed a warrant for his arrest dated
1985. Beltran’s lawyer explained that the warrant, which stemmed from a case of
inciting to rebellion filed during the Marcos regime, had long been quashed. Beltran,
however, is not a party in any of these petitions.
When members of petitioner KMU went to Camp Crame to visit Beltran, they were told
they could not be admitted because of PP 1017 and G.O. No. 5. Two members were
arrested and detained, while the rest were dispersed by the police.
Bayan Muna Representative Satur Ocampo eluded arrest when the police went after
him during a public forum at the Sulo Hotel in Quezon City. But his two drivers,
identified as Roel and Art, were taken into custody.
Retired Major General Ramon Montaño, former head of the Philippine Constabulary,
was arrested while with his wife and golfmates at the Orchard Golf and Country Club in
Dasmariñas, Cavite.
Attempts were made to arrest Anakpawis Representative Satur Ocampo,

Representative Rafael Mariano, Bayan Muna Representative Teodoro Casiño and
Gabriela Representative Liza Maza. Bayan Muna Representative Josel Virador was
arrested at the PAL Ticket Office in Davao City. Later, he was turned over to the
custody of the House of Representatives where the “Batasan 5” decided to stay
indefinitely.
Let it be stressed at this point that the alleged violations of the rights of Representatives
Beltran, Satur Ocampo, et al., are not being raised in these petitions.
On March 3, 2006, President Arroyo issued PP 1021 declaring that the state of national
emergency has ceased to exist.
In the interim, these seven (7) petitions challenging the constitutionality of PP 1017 and
G.O. No. 5 were filed with this Court against the above-named respondents. Three (3)
of these petitions impleaded President Arroyo as respondent.
InG.R. No. 171396, petitioners Randolf S. David, et al. assailed PP 1017 on the
grounds that (1) it encroaches on the emergency powers of Congress; (2) itis a
subterfuge to avoid the constitutional requirements for the imposition of martial law;
and (3) it violates the constitutional guarantees of freedom of the press, of speech and
of assembly.
In G.R. No. 171409, petitioners Ninez Cacho-Olivares and Tribune Publishing Co.,

Inc.challenged the CIDG’s act of raiding the Daily Tribune offices as a clear case of
“censorship” or “prior restraint.” They also claimed that the term “emergency” refers only
to tsunami, typhoon, hurricane and similar occurrences, hence, there is “absolutely no
emergency” that warrants the issuance of PP 1017.
In G.R. No. 171485, petitioners herein are Representative Francis Joseph G. Escudero,

and twenty one (21) other members of the House of Representatives, including
Representatives Satur Ocampo, Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel
Virador. They asserted that PP 1017 and G.O. No. 5 constitute “usurpation of legislative
powers“; “violation of freedom of expression” and “a declaration of martial law.” They
alleged that President Arroyo “gravely abused her discretion in calling out the armed
forces without clear and verifiable factual basis of the possibility of lawless violence and
a showing that there is necessity to do so.“
In G.R. No. 171483,petitioners KMU, NAFLU-KMU, and their members averred that PP
1017 and G.O. No. 5 are unconstitutional because (1) they arrogate unto President
Arroyo the power to enact laws and decrees; (2) their issuance was without factual
basis; and (3) they violate freedom of expression and the right of the people to
peaceably assemble to redress their grievances.
In G.R. No. 171400, petitioner Alternative Law Groups, Inc. (ALGI) alleged that PP
1017 and G.O. No. 5 are unconstitutional because they violate (a) Section 415 of Article
II, (b) Sections 1,16 2,17 and 418 of Article III, (c) Section 2319 of Article VI, and (d) Section
1720 of Article XII of the Constitution.
In G.R. No. 171489, petitioners Jose Anselmo I. Cadiz et al., alleged that PP 1017 is an
“arbitrary and unlawful exercise by the President of her Martial Law powers.” And
assuming that PP 1017 is not really a declaration of Martial Law, petitioners argued that
“it amounts to an exercise by the President of emergency powers without congressional
approval.” In addition, petitioners asserted that PP 1017 “goes beyond the nature and
function of a proclamation as defined under the Revised Administrative Code.”
And lastly, in G.R. No. 171424,petitionerLoren B. Legarda maintained that PP 1017 and
G.O. No. 5 are “unconstitutional for being violative of the freedom of expression,
including its cognate rights such as freedom of the press and the right to access to
information on matters of public concern, all guaranteed under Article III, Section 4 of
the 1987 Constitution.” In this regard, she stated that these issuances prevented her
from fully prosecuting her election protest pending before the Presidential Electoral
Tribunal.
In respondents’ Consolidated Comment, the Solicitor General countered that: first, the

petitions should be dismissed for being moot; second,petitioners in G.R. Nos. 171400
(ALGI), 171424 (Legarda), 171483 (KMU et al.), 171485 (Escudero et al.) and 171489
(Cadiz et al.) have no legal standing; third, it is not necessary for petitioners to implead
President Arroyo as respondent; fourth, PP 1017 has constitutional and legal basis;
and fifth, PP 1017 does not violate the people’s right to free expression and redress of
grievances.
On March 7, 2006, the Court conducted oral arguments and heard the parties on the
above interlocking issues which may be summarized as follows:
A. PROCEDURAL:
1) Whether the issuance of PP 1021 renders the petitions moot and academic.
2) Whether petitioners in 171485 (Escudero et al.), G.R. Nos.

171400 (ALGI), 171483 (KMU et al.), 171489 (Cadiz et al.), and 171424 (Legarda) have
legal standing.
B. SUBSTANTIVE:
1) Whetherthe Supreme Court can review the factual bases of PP 1017.
2) Whether PP 1017 and G.O. No. 5 are unconstitutional.
a. Facial Challenge
b. Constitutional Basis
c. As Applied Challenge

A. PROCEDURAL
First, we must resolve the procedural roadblocks.
I- Moot and Academic Principle
One of the greatest contributions of the American system to this country is the concept
of judicial review enunciated in Marbury v. Madison.21 This concept rests on the
extraordinary simple foundation—
The Constitution is the supreme law. It was ordained by the people, the ultimate source
of all political authority. It confers limited powers on the national government. x x x If the
government consciously or unconsciously oversteps these limitations there must
be some authority competent to hold it in control, to thwart its unconstitutional
attempt, and thus to vindicate and preserve inviolate the will of the people as
expressed in the Constitution. This power the courts exercise. This is the
beginning and the end of the theory of judicial review.22
But the power of judicial review does not repose upon the courts a “self-starting
capacity.”23 Courts may exercise such power only when the following requisites are
present: first, there must be an actual case or controversy; second, petitioners have to
raise a question of constitutionality; third, the constitutional question must be raised at
the earliest opportunity; and fourth, the decision of the constitutional question must be
necessary to the determination of the case itself. 24
Respondents maintain that the first and second requisites are absent, hence, we shall
limit our discussion thereon.
An actual case or controversy involves a conflict of legal right, an opposite legal claims
susceptible of judicial resolution. It is “definite and concrete, touching the legal relations
of parties having adverse legal interest;” a real and substantial controversy admitting of
specific relief.25 The Solicitor General refutes the existence of such actual case or
controversy, contending that the present petitions were rendered “moot and academic”
by President Arroyo’s issuance of PP 1021.
Such contention lacks merit.
A moot and academic case is one that ceases to present a justiciable controversy by
virtue of supervening events,26 so that a declaration thereon would be of no practical
use or value.27 Generally, courts decline jurisdiction over such case 28 or dismiss it on
ground of mootness.29
The Court holds that President Arroyo’s issuance of PP 1021 did not render the present
petitions moot and academic. During the eight (8) days that PP 1017 was operative, the
police officers, according to petitioners, committed illegal acts in implementing it. Are
PP 1017 and G.O. No. 5 constitutional or valid? Do they justify these alleged
illegal acts?These are the vital issues that must be resolved in the present petitions. It
must be stressed that “an unconstitutional act is not a law, it confers no rights, it
imposes no duties, it affords no protection; it is in legal contemplation,
inoperative.”30
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; 31second, the exceptional
character of the situation and the paramount public interest is involved; 32 third, when
constitutional issue raised requires formulation of controlling principles to guide the
bench, the bar, and the public;33 and fourth, the case is capable of repetition yet evading
review.34
All the foregoing exceptions are present here and justify this Court’s assumption of
jurisdiction over the instant petitions. Petitioners alleged that the issuance of PP 1017
and G.O. No. 5 violates the Constitution. There is no question that the issues being
raised affect the public’s interest, involving as they do the people’s basic rights to
freedom of expression, of assembly and of the press. Moreover, the Court has the duty
to formulate guiding and controlling constitutional precepts, doctrines or rules. It has the
symbolic function of educating the bench and the bar, and in the present petitions, the
military and the police, on the extent of the protection given by constitutional
guarantees.35 And lastly, respondents’ contested actions are capable of repetition.
Certainly, the petitions are subject to judicial review.
In their attempt to prove the alleged mootness of this case, respondents cited Chief
Justice Artemio V. Panganiban’s Separate Opinion in Sanlakas v. Executive
Secretary.36 However, they failed to take into account the Chief Justice’s very statement
that an otherwise “moot” case may still be decided “provided the party raising it in a
proper case has been and/or continues to be prejudiced or damaged as a direct result
of its issuance.” The present case falls right within this exception to the mootness rule
pointed out by the Chief Justice.
II- Legal Standing
In view of the number of petitioners suing in various personalities, the Court deems it
imperative to have a more than passing discussion on legal standing or locus standi.
Locus standi is defined as “a right of appearance in a court of justice on a given

question.”37 In private suits, standing is governed by the “real-parties-in interest” rule as
contained in Section 2, Rule 3 of the 1997 Rules of Civil Procedure, as amended. It
provides that “every action must be prosecuted or defended in the name of the real
party in interest.” Accordingly, the “real-party-in interest” is “the party who stands to
be benefited or injured by the judgment in the suit or the party entitled to the
avails of the suit.“38 Succinctly put, the plaintiff’s standing is based on his own right to
the relief sought.
The difficulty of determining locus standi arises in public suits. Here, the plaintiff who
asserts a “public right” in assailing an allegedly illegal official action, does so as a
representative of the general public. He may be a person who is affected no differently
from any other person. He could be suing as a “stranger,” or in the category of a
“citizen,” or ‘taxpayer.” In either case, he has to adequately show that he is entitled to
seek judicial protection. In other words, he has to make out a sufficient interest in the
vindication of the public order and the securing of relief as a “citizen” or “taxpayer.
Case law in most jurisdictions now allows both “citizen” and “taxpayer” standing in
public actions. The distinction was first laid down in Beauchamp v. Silk,39 where it was
held that the plaintiff in a taxpayer’s suit is in a different category from the plaintiff in a
citizen’s suit. In the former, the plaintiff is affected by the expenditure of public
funds, while in the latter, he is but the mere instrument of the public concern. As
held by the New York Supreme Court in People ex rel Case v. Collins:40 “In matter of
mere public right, however…the people are the real parties…It is at least the right,
if not the duty, of every citizen to interfere and see that a public offence be
properly pursued and punished, and that a public grievance be remedied.” With
respect to taxpayer’s suits, Terr v. Jordan41 held that “the right of a citizen and a
taxpayer to maintain an action in courts to restrain the unlawful use of public
funds to his injury cannot be denied.“
However, to prevent just about any person from seeking judicial interference in any
official policy or act with which he disagreed with, and thus hinders the activities of
governmental agencies engaged in public service, the United State Supreme Court laid
down the more stringent “direct injury” test in Ex Parte Levitt,42 later reaffirmed
in Tileston v. Ullman.43 The same Court ruled that for a private individual to invoke the
judicial power to determine the validity of an executive or legislative action, he must
show that he has sustained a direct injury as a result of that action, and it is not
sufficient that he has a general interest common to all members of the public.
This Court adopted the “direct injury” test in our jurisdiction. In People v. Vera,44 it
held that the person who impugns the validity of a statute must have “a personal and
substantial interest in the case such that he has sustained, or will sustain direct
injury as a result.” The Vera doctrine was upheld in a litany of cases, such
as, Custodio v. President of the Senate,45Manila Race Horse Trainers’ Association v.
De la Fuente,46Pascual v. Secretary of Public Works 47 and Anti-Chinese League of the
Philippines v. Felix.48
However, being a mere procedural technicality, the requirement of locus standi may be

waived by the Court in the exercise of its discretion. This was done in the 1949
Emergency Powers Cases,Araneta v. Dinglasan,49 where the “transcendental
importance” of the cases prompted the Court to act liberally. Such liberality was neither
a rarity nor accidental. In Aquino v. Comelec,50 this Court resolved to pass upon the
issues raised due to the “far-reaching implications” of the petition notwithstanding its
categorical statement that petitioner therein had no personality to file the suit. Indeed,
there is a chain of cases where this liberal policy has been observed, allowing ordinary
citizens, members of Congress, and civic organizations to prosecute actions involving
the constitutionality or validity of laws, regulations and rulings. 51
Thus, the Court has adopted a rule that even where the petitioners have failed to show
direct injury, they have been allowed to sue under the principle of “transcendental
importance.” Pertinent are the following cases:
(1)Chavez v. Public Estates Authority, 52 where the Court ruled that the enforcement of
the constitutional right to information and the equitable diffusion of natural
resources are matters of transcendental importance which clothe the petitioner
with locus standi;
(2)Bagong Alyansang Makabayan v. Zamora, 53 wherein the Court held that “given the
transcendental importance of the issues involved, the Court may relax the
standing requirements and allow the suit to prosper despite the lack of direct
injury to the parties seeking judicial review” of the Visiting Forces Agreement;
(3) Lim v. Executive Secretary,54 while the Court noted that the petitioners may not file
suit in their capacity as taxpayers absent a showing that “Balikatan 02-01” involves the
exercise of Congress’ taxing or spending powers, it reiterated its ruling in Bagong
Alyansang Makabayan v. Zamora,55that in cases of transcendental importance, the
cases must be settled promptly and definitely and standing requirements may be
relaxed.
By way of summary, the following rules may be culled from the cases decided by this
Court. Taxpayers, voters, concerned citizens, and legislators may be accorded standing
to sue, provided that the following requirements are met:
(1) the cases involve constitutional issues;
(2) for taxpayers, there must be a claim of illegal disbursement of public funds or that

the tax measure is unconstitutional;
(3) for voters, there must be a showing of obvious interest in the validity of the election
law in question;
(4) for concerned citizens, there must be a showing that the issues raised are of
transcendental importance which must be settled early; and
(5) for legislators, there must be a claim that the official action complained of infringes
upon their prerogatives as legislators.
Significantly, recent decisions show a certain toughening in the Court’s attitude toward
legal standing.
In Kilosbayan, Inc. v. Morato,56 the Court ruled that the status of Kilosbayan as a
people’s organization does not give it the requisite personality to question the validity of
the on-line lottery contract, more so where it does not raise any issue of
constitutionality. Moreover, it cannot sue as a taxpayer absent any allegation that public
funds are being misused. Nor can it sue as a concerned citizen as it does not allege any
specific injury it has suffered.
In Telecommunications and Broadcast Attorneys of the Philippines, Inc. v.

Comelec,57 the Court reiterated the “direct injury” test with respect to concerned citizens’
cases involving constitutional issues. It held that “there must be a showing that the
citizen personally suffered some actual or threatened injury arising from the alleged
illegal official act.”
In Lacson v. Perez,58 the Court ruled that one of the petitioners, Laban ng

Demokratikong Pilipino (LDP), is not a real party-in-interest as it had not demonstrated
any injury to itself or to its leaders, members or supporters.
In Sanlakas v. Executive Secretary,59 the Court ruled that only the petitioners who are
members of Congress have standing to sue, as they claim that the President’s
declaration of a state of rebellion is a usurpation of the emergency powers of
Congress, thus impairing their legislative powers. As to petitioners Sanlakas,
Partido Manggagawa, and Social Justice Society, the Court declared them to be devoid
of standing, equating them with the LDP in Lacson.
Now, the application of the above principles to the present petitions.
The locus standi of petitioners in G.R. No. 171396, particularly David and Llamas, is
beyond doubt. The same holds true with petitioners in G.R. No. 171409, Cacho-
Olivares and Tribune Publishing Co. Inc. They alleged “direct injury” resulting from
“illegal arrest” and “unlawful search” committed by police operatives pursuant to PP
1017. Rightly so, the Solicitor General does not question their legal standing.
In G.R. No. 171485, the opposition Congressmen alleged there was usurpation of
legislative powers. They also raised the issue of whether or not the concurrence of
Congress is necessary whenever the alarming powers incident to Martial Law are used.
Moreover, it is in the interest of justice that those affected by PP 1017 can be
represented by their Congressmen in bringing to the attention of the Court the alleged
violations of their basic rights.
In G.R. No. 171400, (ALGI), this Court applied the liberality rule in Philconsa v.
Enriquez,60Kapatiran Ng Mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v.
Tan,61Association of Small Landowners in the Philippines, Inc. v. Secretary of Agrarian
Reform,62 Basco v. Philippine Amusement and Gaming Corporation, 63 and Tañada v.
Tuvera,64 that when the issue concerns a public right, it is sufficient that the petitioner is
a citizen and has an interest in the execution of the laws.
In G.R. No. 171483, KMU’s assertion that PP 1017 and G.O. No. 5 violated its right to
peaceful assembly may be deemed sufficient to give it legal standing. Organizations
may be granted standing to assert the rights of their members.65 We take judicial
notice of the announcement by the Office of the President banning all rallies and
canceling all permits for public assemblies following the issuance of PP 1017 and G.O.
No. 5.
In G.R. No. 171489, petitioners, Cadiz et al., who are national officers of the Integrated
Bar of the Philippines (IBP) have no legal standing, having failed to allege any direct or
potential injury which the IBP as an institution or its members may suffer as a
consequence of the issuance of PP No. 1017 and G.O. No. 5. In Integrated Bar of the
Philippines v. Zamora,66 the Court held that the mere invocation by the IBP of its duty to
preserve the rule of law and nothing more, while undoubtedly true, is not sufficient to
clothe it with standing in this case. This is too general an interest which is shared by
other groups and the whole citizenry. However, in view of the transcendental
importance of the issue, this Court declares that petitioner have locus standi.
In G.R. No. 171424, Loren Legarda has no personality as a taxpayer to file the instant
petition as there are no allegations of illegal disbursement of public funds. The fact that
she is a former Senator is of no consequence. She can no longer sue as a legislator on
the allegation that her prerogatives as a lawmaker have been impaired by PP 1017 and
G.O. No. 5. Her claim that she is a media personality will not likewise aid her because
there was no showing that the enforcement of these issuances prevented her from
pursuing her occupation. Her submission that she has pending electoral protest before
the Presidential Electoral Tribunal is likewise of no relevance. She has not sufficiently
shown that PP 1017 will affect the proceedings or result of her case. But considering
once more the transcendental importance of the issue involved, this Court may relax the
standing rules.
It must always be borne in mind that the question of locus standi is but corollary to the
bigger question of proper exercise of judicial power. This is the underlying legal tenet of
the “liberality doctrine” on legal standing. It cannot be doubted that the validity of PP No.
1017 and G.O. No. 5 is a judicial question which is of paramount importance to the
Filipino people. To paraphrase Justice Laurel, the whole of Philippine society now waits
with bated breath the ruling of this Court on this very critical matter. The petitions thus
call for the application of the “transcendental importance” doctrine, a relaxation of the
standing requirements for the petitioners in the “PP 1017 cases.”
This Court holds that all the petitioners herein have locus standi.
Incidentally, it is not proper to implead President Arroyo as respondent. Settled is the

doctrine that the President, during his tenure of office or actual incumbency, 67 may not
be sued in any civil or criminal case, and there is no need to provide for it in the
Constitution or law. It will degrade the dignity of the high office of the President, the
Head of State, if he can be dragged into court litigations while serving as such.
Furthermore, it is important that he be freed from any form of harassment, hindrance or
distraction to enable him to fully attend to the performance of his official duties and
functions. Unlike the legislative and judicial branch, only one constitutes the executive
branch and anything which impairs his usefulness in the discharge of the many great
and important duties imposed upon him by the Constitution necessarily impairs the
operation of the Government. However, this does not mean that the President is not
accountable to anyone. Like any other official, he remains accountable to the
people68 but he may be removed from office only in the mode provided by law and that
is by impeachment.69
B. SUBSTANTIVE
I. Review of Factual Bases
Petitioners maintain that PP 1017 has no factual basis. Hence, it was not “necessary”
for President Arroyo to issue such Proclamation.
The issue of whether the Court may review the factual bases of the President’s exercise
of his Commander-in-Chief power has reached its distilled point—from the indulgent
days of Barcelon v. Baker70 and Montenegro v. Castaneda71 to the volatile era
of Lansang v. Garcia,72Aquino, Jr. v. Enrile,73 and Garcia-Padilla v. Enrile.74 The tug-of-
war always cuts across the line defining “political questions,” particularly those
questions “in regard to which full discretionary authority has been delegated to the
legislative or executive branch of the government.” 75Barcelon and Montenegro were in
unison in declaring that the authority to decide whether an exigency has arisen
belongs to the President and his decision is final and conclusive on the
courts. Lansang took the opposite view. There, the members of the Court were
unanimous in the conviction that the Court has the authority to inquire into the existence
of factual bases in order to determine their constitutional sufficiency. From the
principle of separation of powers, it shifted the focus to the system of checks and
balances, “under which the President is supreme, x x x only if and when he acts
within the sphere allotted to him by the Basic Law, and the authority to determine
whether or not he has so acted is vested in the Judicial Department, which in this
respect, is, in turn, constitutionally supreme.“76 In 1973, the unanimous Court
of Lansang was divided in Aquino v. Enrile.77 There, the Court was almost evenly
divided on the issue of whether the validity of the imposition of Martial Law is a political
or justiciable question.78 Then came Garcia-Padilla v. Enrile which greatly
diluted Lansang. It declared that there is a need to re-examine the latter case,
ratiocinating that “in times of war or national emergency, the President must be
given absolute control for the very life of the nation and the government is in
great peril. The President, it intoned, is answerable only to his conscience, the
People, and God.”79
The Integrated Bar of the Philippines v. Zamora 80—a recent case most pertinent to
these cases at bar—echoed a principle similar to Lansang. While the Court considered
the President’s “calling-out” power as a discretionary power solely vested in his wisdom,
it stressed that “this does not prevent an examination of whether such power was
exercised within permissible constitutional limits or whether it was exercised in a
manner constituting grave abuse of discretion.”This ruling is mainly a result of the
Court’s reliance on Section 1, Article VIII of 1987 Constitution which fortifies the
authority of the courts to determine in an appropriate action the validity of the acts of the
political departments. Under the new definition of judicial power, the courts are
authorized not only “to settle actual controversies involving rights which are legally
demandable and enforceable,” but also “to determine whether or not there has been
a grave abuse of discretion amounting to lack or excess of jurisdiction on the
part of any branch or instrumentality of the government.” The latter part of the
authority represents a broadening of judicial power to enable the courts of justice to
review what was before a forbidden territory, to wit, the discretion of the political
departments of the government. 81 It speaks of judicial prerogative not only in terms
of power but also of duty.82
As to how the Court may inquire into the President’s exercise of

power, Lansang adopted the test that “judicial inquiry can go no further than to satisfy
the Court not that the President’s decision is correct,” but that “the President did not
act arbitrarily.” Thus, the standard laid down is not correctness, but
arbitrariness.83 In Integrated Bar of the Philippines, this Court further ruled that “it is
incumbent upon the petitioner to show that the President’s decision is totally
bereft of factual basis” and that if he fails, by way of proof, to support his assertion,
then “this Court cannot undertake an independent investigation beyond the
pleadings.”
Petitioners failed to show that President Arroyo’s exercise of the calling-out power, by
issuing PP 1017, is totally bereft of factual basis. A reading of the Solicitor General’s
Consolidated Comment and Memorandum shows a detailed narration of the events
leading to the issuance of PP 1017, with supporting reports forming part of the records.
Mentioned are the escape of the Magdalo Group, their audacious threat of the Magdalo
D-Day, the defections in the military, particularly in the Philippine Marines, and the
reproving statements from the communist leaders. There was also the Minutes of the
Intelligence Report and Security Group of the Philippine Army showing the growing
alliance between the NPA and the military. Petitioners presented nothing to refute such
events. Thus, absent any contrary allegations, the Court is convinced that the President
was justified in issuing PP 1017 calling for military aid.
Indeed, judging the seriousness of the incidents, President Arroyo was not expected to
simply fold her arms and do nothing to prevent or suppress what she believed was
lawless violence, invasion or rebellion. However, the exercise of such power or duty
must not stifle liberty.
II. Constitutionality of PP 1017 and G.O. No. 5

Doctrines of Several Political Theorists
on the Power of the President in Times of Emergency
This case brings to fore a contentious subject—the power of the President in times of
emergency. A glimpse at the various political theories relating to this subject provides
an adequate backdrop for our ensuing discussion.
John Locke, describing the architecture of civil government, called upon the English
doctrine of prerogative to cope with the problem of emergency. In times of danger to the
nation, positive law enacted by the legislature might be inadequate or even a fatal
obstacle to the promptness of action necessary to avert catastrophe. In these situations,
the Crown retained a prerogative “power to act according to discretion for the
public good, without the proscription of the law and sometimes even against
it.”84 But Locke recognized that this moral restraint might not suffice to avoid abuse of
prerogative powers. Who shall judge the need for resorting to the prerogative and
how may its abuse be avoided? Here, Locke readily admitted defeat, suggesting
that “the people have no other remedy in this, as in all other cases where they
have no judge on earth, but to appeal to Heaven.”85
Jean-Jacques Rousseau also assumed the need for temporary suspension of

democratic processes of government in time of emergency. According to him:
The inflexibility of the laws, which prevents them from adopting themselves to
circumstances, may, in certain cases, render them disastrous and make them bring
about, at a time of crisis, the ruin of the State…
It is wrong therefore to wish to make political institutions as strong as to render it

impossible to suspend their operation. Even Sparta allowed its law to lapse…
If the peril is of such a kind that the paraphernalia of the laws are an obstacle to their
preservation, the method is to nominate a supreme lawyer, who shall silence all the
laws and suspend for a moment the sovereign authority. In such a case, there is no
doubt about the general will, and it clear that the people’s first intention is that the State
shall not perish.86
Rosseau did not fear the abuse of the emergency dictatorship or “supreme
magistracy” as he termed it. For him, it would more likely be cheapened by “indiscreet
use.” He was unwilling to rely upon an “appeal to heaven.” Instead, he relied upon a
tenure of office of prescribed duration to avoid perpetuation of the dictatorship. 87
John Stuart Mill concluded his ardent defense of representative government: “I am far
from condemning, in cases of extreme necessity, the assumption of absolute
power in the form of a temporary dictatorship.”88
Nicollo Machiavelli’s view of emergency powers, as one element in the whole scheme of
limited government, furnished an ironic contrast to the Lockean theory of prerogative.
He recognized and attempted to bridge this chasm in democratic political theory, thus:
Now, in a well-ordered society, it should never be necessary to resort to extra-
constitutional measures; for although they may for a time be beneficial, yet the
precedent is pernicious, for if the practice is once established for good objects, they will
in a little while be disregarded under that pretext but for evil purposes. Thus, no republic
will ever be perfect if she has not by law provided for everything, having a remedy for
every emergency and fixed rules for applying it.89
Machiavelli—in contrast to Locke, Rosseau and Mill—sought to incorporate into the

constitution a regularized system of standby emergency powers to be invoked with
suitable checks and controls in time of national danger. He attempted forthrightly to
meet the problem of combining a capacious reserve of power and speed and vigor in its
application in time of emergency, with effective constitutional restraints. 90
Contemporary political theorists, addressing themselves to the problem of response to

emergency by constitutional democracies, have employed the doctrine of constitutional
dictatorship.91 Frederick M. Watkins saw “no reason why absolutism should not be
used as a means for the defense of liberal institutions,” provided it “serves to
protect established institutions from the danger of permanent injury in a period of
temporary emergency and is followed by a prompt return to the previous forms of
political life.”92 He recognized the two (2) key elements of the problem of emergency
governance, as well as all constitutional governance: increasing administrative
powers of the executive, while at the same time”imposing limitation upon that
power.”93 Watkins placed his real faith in a scheme of constitutional dictatorship. These
are the conditions of success of such a dictatorship: “The period of dictatorship must
be relatively short…Dictatorship should always be strictly legitimate in
character…Final authority to determine the need for dictatorship in any given
case must never rest with the dictator himself…”94 and the objective of such an
emergency dictatorship should be “strict political conservatism.”
Carl J. Friedrich cast his analysis in terms similar to those of Watkins. 95 “It is a problem
of concentrating power—in a government where power has consciously been divided—
to cope with… situations of unprecedented magnitude and gravity. There must be a
broad grant of powers, subject to equally strong limitations as to who shall exercise
such powers, when, for how long, and to what end.” 96 Friedrich, too, offered criteria for
judging the adequacy of any of scheme of emergency powers, to wit: “The emergency
executive must be appointed by constitutional means—i.e., he must be legitimate;
he should not enjoy power to determine the existence of an emergency;
emergency powers should be exercised under a strict time limitation; and last,
the objective of emergency action must be the defense of the constitutional
order.”97
Clinton L. Rossiter, after surveying the history of the employment of emergency powers
in Great Britain, France, Weimar, Germany and the United States, reverted to a
description of a scheme of “constitutional dictatorship” as solution to the vexing
problems presented by emergency. 98 Like Watkins and Friedrich, he stated a priori the
conditions of success of the “constitutional dictatorship,” thus:
1) No general regime or particular institution of constitutional dictatorship should be
initiated unless it is necessary or even indispensable to the preservation of the State
and its constitutional order…
2) …the decision to institute a constitutional dictatorship should never be in the hands of

the man or men who will constitute the dictator…
3) No government should initiate a constitutional dictatorship without making specific

provisions for its termination…
4) …all uses of emergency powers and all readjustments in the organization of the
government should be effected in pursuit of constitutional or legal requirements…
5) … no dictatorial institution should be adopted, no right invaded, no regular procedure

altered any more than is absolutely necessary for the conquest of the particular
crisis . . .
6) The measures adopted in the prosecution of the a constitutional dictatorship should

never be permanent in character or effect…
7) The dictatorship should be carried on by persons representative of every part of the

citizenry interested in the defense of the existing constitutional order. . .
8.) Ultimate responsibility should be maintained for every action taken under a

constitutional dictatorship. . .
9) The decision to terminate a constitutional dictatorship, like the decision to institute

one should never be in the hands of the man or men who constitute the dictator. . .
10) No constitutional dictatorship should extend beyond the termination of the crisis for
which it was instituted…
11) …the termination of the crisis must be followed by a complete return as possible to

the political and governmental conditions existing prior to the initiation of the
constitutional dictatorship…99
Rossiter accorded to legislature a far greater role in the oversight exercise of

emergency powers than did Watkins. He would secure to Congress final responsibility
for declaring the existence or termination of an emergency, and he places great faith in
the effectiveness of congressional investigating committees. 100
Scott and Cotter, in analyzing the above contemporary theories in light of recent

experience, were one in saying that, “the suggestion that democracies surrender the
control of government to an authoritarian ruler in time of grave danger to the
nation is not based upon sound constitutional theory.” To appraise emergency
power in terms of constitutional dictatorship serves merely to distort the problem and
hinder realistic analysis. It matters not whether the term “dictator” is used in its normal
sense (as applied to authoritarian rulers) or is employed to embrace all chief executives
administering emergency powers. However used, “constitutional dictatorship” cannot be
divorced from the implication of suspension of the processes of constitutionalism. Thus,
they favored instead the “concept of constitutionalism” articulated by Charles H.
McIlwain:
A concept of constitutionalism which is less misleading in the analysis of problems of

emergency powers, and which is consistent with the findings of this study, is that
formulated by Charles H. McIlwain. While it does not by any means necessarily exclude
some indeterminate limitations upon the substantive powers of government, full
emphasis is placed upon procedural limitations, and political responsibility.
McIlwain clearly recognized the need to repose adequate power in government. And in
discussing the meaning of constitutionalism, he insisted that the historical and proper
test of constitutionalism was the existence of adequate processes for keeping
government responsible. He refused to equate constitutionalism with the enfeebling of
government by an exaggerated emphasis upon separation of powers and substantive
limitations on governmental power. He found that the really effective checks on
despotism have consisted not in the weakening of government but, but rather in
the limiting of it; between which there is a great and very significant difference. In
associating constitutionalism with “limited” as distinguished from “weak”
government, McIlwain meant government limited to the orderly procedure of law
as opposed to the processes of force. The two fundamental correlative elements
of constitutionalism for which all lovers of liberty must yet fight are the legal
limits to arbitrary power and a complete political responsibility of government to
the governed.101
In the final analysis, the various approaches to emergency of the above political
theorists—from Lock’s “theory of prerogative,” to Watkins’ doctrine of “constitutional
dictatorship” and, eventually, to McIlwain’s “principle of constitutionalism”—ultimately
aim to solve one real problem in emergency governance, i.e., that of allotting
increasing areas of discretionary power to the Chief Executive, while insuring
that such powers will be exercised with a sense of political responsibility and
under effective limitations and checks.
Our Constitution has fairly coped with this problem. Fresh from the fetters of a
repressive regime, the 1986 Constitutional Commission, in drafting the 1987
Constitution, endeavored to create a government in the concept of Justice Jackson’s
“balanced power structure.”102 Executive, legislative, and judicial powers are dispersed
to the President, the Congress, and the Supreme Court, respectively. Each is supreme
within its own sphere. But none has the monopoly of power in times of emergency.
Each branch is given a role to serve as limitation or check upon the other. This
system does not weaken the President, it just limits his power, using the language of
McIlwain. In other words, in times of emergency, our Constitution reasonably demands
that we repose a certain amount of faith in the basic integrity and wisdom of the Chief
Executive but, at the same time, it obliges him to operate within carefully
prescribed procedural limitations.
a. “Facial Challenge”
Petitioners contend that PP 1017 is void on its face because of its “overbreadth.” They
claim that its enforcement encroached on both unprotected and protected rights under
Section 4, Article III of the Constitution and sent a “chilling effect” to the citizens.
A facial review of PP 1017, using the overbreadth doctrine, is uncalled for.
First and foremost, the overbreadth doctrine is an analytical tool developed for testing
“on their faces” statutes in free speech cases, also known under the American Law as
First Amendment cases.103
A plain reading of PP 1017 shows that it is not primarily directed to speech or even
speech-related conduct. It is actually a call upon the AFP to prevent or suppress all
forms of lawlessviolence. In United States v. Salerno,104 the US Supreme Court held
that “we have not recognized an ‘overbreadth’ doctrine outside the limited context
of the First Amendment” (freedom of speech).
Moreover, the overbreadth doctrine is not intended for testing the validity of a law that
“reflects legitimate state interest in maintaining comprehensive control over harmful,
constitutionally unprotected conduct.” Undoubtedly, lawless violence, insurrection and
rebellion are considered “harmful” and “constitutionally unprotected conduct.”
In Broadrick v. Oklahoma,105 it was held:
It remains a ‘matter of no little difficulty’ to determine when a law may properly be held
void on its face and when ‘such summary action’ is inappropriate. But the plain import
of our cases is, at the very least, that facial overbreadth adjudication is an
exception to our traditional rules of practice and that its function, a limited one at
the outset, attenuates as the otherwise unprotected behavior that it forbids the
State to sanction moves from ‘pure speech’ toward conduct and that conduct—
even if expressive—falls within the scope of otherwise valid criminal laws that
reflect legitimate state interests in maintaining comprehensive controls over
harmful, constitutionally unprotected conduct.
Thus, claims of facial overbreadth are entertained in cases involving statutes which, by
their terms, seek to regulate only “spoken words” and again, that “overbreadth
claims, if entertained at all, have been curtailed when invoked against ordinary
criminal laws that are sought to be applied to protected conduct.”106 Here, the
incontrovertible fact remains that PP 1017 pertains to a spectrum of conduct, not free
speech, which is manifestly subject to state regulation.
Second, facial invalidation of laws is considered as “manifestly strong medicine,” to

be used “sparingly and only as a last resort,” and is “generally disfavored;”107 The
reason for this is obvious. Embedded in the traditional rules governing constitutional
adjudication is the principle that a person to whom a law may be applied will not be
heard to challenge a law on the ground that it may conceivably be applied
unconstitutionally to others, i.e., in other situations not before the Court. 108 A writer
and scholar in Constitutional Law explains further:
The most distinctive feature of the overbreadth technique is that it marks an

exception to some of the usual rules of constitutional litigation. Ordinarily, a
particular litigant claims that a statute is unconstitutional as applied to him or
her; if the litigant prevails, the courts carve away the unconstitutional aspects of
the law by invalidating its improper applications on a case to case basis.
Moreover, challengers to a law are not permitted to raise the rights of third parties
and can only assert their own interests. In overbreadth analysis, those rules give
way; challenges are permitted to raise the rights of third parties; and the court
invalidates the entire statute “on its face,” not merely “as applied for” so that the
overbroad law becomes unenforceable until a properly authorized court construes it
more narrowly. The factor that motivates courts to depart from the normal adjudicatory
rules is the concern with the “chilling;” deterrent effect of the overbroad statute on third
parties not courageous enough to bring suit. The Court assumes that an overbroad
law’s “very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” An overbreadth ruling is designed to
remove that deterrent effect on the speech of those third parties.
In other words, a facial challenge using the overbreadth doctrine will require the Court to
examine PP 1017 and pinpoint its flaws and defects, not on the basis of its actual
operation to petitioners, but on the assumption or prediction that its very existence may
cause others not before the Court to refrain from constitutionally protected speech or
expression. In Younger v. Harris,109 it was held that:
[T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring
correction of these deficiencies before the statute is put into effect, is rarely if ever an
appropriate task for the judiciary. The combination of the relative remoteness of the
controversy, the impact on the legislative process of the relief sought, and above
all the speculative and amorphous nature of the required line-by-line analysis of
detailed statutes,…ordinarily results in a kind of case that is wholly unsatisfactory for
deciding constitutional questions, whichever way they might be decided.
And third, a facial challenge on the ground of overbreadth is the most difficult challenge
to mount successfully, since the challenger must establish that there can be no
instance when the assailed law may be valid. Here, petitioners did not even attempt
to show whether this situation exists.
Petitioners likewise seek a facial review of PP 1017 on the ground of vagueness. This,
too, is unwarranted.
Related to the “overbreadth” doctrine is the “void for vagueness doctrine” which holds
that “a law is facially invalid if men of common intelligence must necessarily
guess at its meaning and differ as to its application.“110 It is subject to the same
principles governing overbreadth doctrine. For one, it is also an analytical tool for testing
“on their faces” statutes in free speech cases. And like overbreadth, it is said that a
litigant may challenge a statute on its face only if it is vague in all its possible
applications. Again, petitioners did not even attempt to show that PP 1017 is
vague in all its application. They also failed to establish that men of common
intelligence cannot understand the meaning and application of PP 1017.
b. Constitutional Basis of PP 1017
Now on the constitutional foundation of PP 1017.
The operative portion of PP 1017 may be divided into three important provisions, thus:
First provision:
“by virtue of the power vested upon me by Section 18, Artilce VII … do hereby
command the Armed Forces of the Philippines, to maintain law and order throughout
the Philippines, prevent or suppress all forms of lawless violence as well any act of
insurrection or rebellion”
Second provision:
“and to enforce obedience to all the laws and to all decrees, orders and regulations
promulgated by me personally or upon my direction;”
Third provision:
“as provided in Section 17, Article XII of the Constitution do hereby declare a State of
National Emergency.”
First Provision: Calling-out Power
The first provision pertains to the President’s calling-out power. In Sanlakas v.

Executive Secretary,111 this Court, through Mr. Justice Dante O. Tinga, held that Section
18, Article VII of the Constitution reproduced as follows:
Sec. 18. The President shall be the Commander-in-Chief of all 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. 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 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 bases 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.
grants the President, as Commander-in-Chief, a “sequence” of graduated powers. 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.
Citing Integrated Bar of the Philippines v. Zamora,112 the Court ruled that the only
criterion for the exercise of the calling-out power is that “whenever it becomes
necessary,” the President may call the armed forces “to prevent or suppress lawless
violence, invasion or rebellion.” Are these conditions present in the instant cases? As
stated earlier, considering the circumstances then prevailing, President Arroyo found it
necessary to issue PP 1017. Owing to her Office’s vast intelligence network, she is in
the best position to determine the actual condition of the country.
Under the calling-out power, the President may summon the armed forces to aid him in
suppressing lawless violence, invasion and rebellion. This involves ordinary police
action. But every act that goes beyond the President’s calling-out power is considered
illegal or ultra vires. For this reason, a President must be careful in the exercise of his
powers. He cannot invoke a greater power when he wishes to act under a lesser power.
There lies the wisdom of our Constitution, the greater the power, the greater are the
limitations.
It is pertinent to state, however, that there is a distinction between the President’s
authority to declare a “state of rebellion” (in Sanlakas) and the authority to proclaim a
state of national emergency. While President Arroyo’s authority to declare a “state of
rebellion” emanates from her powers as Chief Executive, the statutory authority cited
in Sanlakas was Section 4, Chapter 2, Book II of the Revised Administrative Code of
1987, which provides:
SEC. 4. – Proclamations. – Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
President Arroyo’s declaration of a “state of rebellion” was merely an act declaring a

status or condition of public moment or interest, a declaration allowed under Section 4
cited above. Such declaration, in the words of Sanlakas, is harmless, without legal
significance, and deemed not written. In these cases, PP 1017 is more than that. In
declaring a state of national emergency, President Arroyo did not only rely on Section
18, Article VII of the Constitution, a provision calling on the AFP to prevent or suppress
lawless violence, invasion or rebellion. She also relied on Section 17, Article XII, a
provision on the State’s extraordinary power to take over privately-owned public utility
and business affected with public interest. Indeed, PP 1017 calls for the exercise of
an awesome power. Obviously, such Proclamation cannot be deemed harmless,
without legal significance, or not written, as in the case of Sanlakas.
Some of the petitioners vehemently maintain that PP 1017 is actually a declaration of

Martial Law. It is no so. What defines the character of PP 1017 are its wordings. It is
plain therein that what the President invoked was her calling-out power.
The declaration of Martial Law is a “warn[ing] to citizens that the military power has
been called upon by the executive to assist in the maintenance of law and order, and
that, while the emergency lasts, they must, upon pain of arrest and punishment, not
commit any acts which will in any way render more difficult the restoration of order and
the enforcement of law.”113
In his “Statement before the Senate Committee on Justice” on March 13, 2006, Mr.
Justice Vicente V. Mendoza,114 an authority in constitutional law, said that of the three
powers of the President as Commander-in-Chief, the power to declare Martial Law
poses the most severe threat to civil liberties. It is a strong medicine which should not
be resorted to lightly. It cannot be used to stifle or persecute critics of the government. It
is placed in the keeping of the President for the purpose of enabling him to secure the
people from harm and to restore order so that they can enjoy their individual freedoms.
In fact, Section 18, Art. VII, provides:
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.
Justice Mendoza also stated that PP 1017 is not a declaration of Martial Law. It is no
more than a call by the President to the armed forces to prevent or suppress lawless
violence. As such, it cannot be used to justify acts that only under a valid declaration of
Martial Law can be done. Its use for any other purpose is a perversion of its nature and
scope, and any act done contrary to its command is ultra vires.
Justice Mendoza further stated that specifically, (a) arrests and seizures without judicial
warrants; (b) ban on public assemblies; (c) take-over of news media and agencies and
press censorship; and (d) issuance of Presidential Decrees, are powers which can be
exercised by the President as Commander-in-Chief only where there is a valid
declaration of Martial Law or suspension of the writ of habeas corpus.
Based on the above disquisition, it is clear that PP 1017 is not a declaration of Martial
Law. It is merely an exercise of President Arroyo’s calling-out power for the armed
forces to assist her in preventing or suppressing lawless violence.
Second Provision: “Take Care” Power
The second provision pertains to the power of the President to ensure that the laws be
faithfully executed. This is based on Section 17, Article VII which reads:
SEC. 17. The President shall have control of all the executive departments, bureaus,
and offices. He shall ensure that the laws be faithfully executed.
As the Executive in whom the executive power is vested, 115 the primary function of the
President is to enforce the laws as well as to formulate policies to be embodied in
existing laws. He sees to it that all laws are enforced by the officials and employees of
his department. Before assuming office, he is required to take an oath or affirmation to
the effect that as President of the Philippines, he will, among others, “execute its
laws.”116 In the exercise of such function, the President, if needed, may employ the
powers attached to his office as the Commander-in-Chief of all the armed forces of the
country,117 including the Philippine National Police 118 under the Department of Interior
and Local Government.119
Petitioners, especially Representatives Francis Joseph G. Escudero, Satur Ocampo,

Rafael Mariano, Teodoro Casiño, Liza Maza, and Josel Virador argue that PP 1017 is
unconstitutional as it arrogated upon President Arroyo the power to enact laws and
decrees in violation of Section 1, Article VI of the Constitution, which vests the power to
enact laws in Congress. They assail the clause “to enforce obedience to all the laws
and to all decrees, orders and regulations promulgated by me personally or upon
my direction.”
Petitioners’ contention is understandable. A reading of PP 1017 operative clause shows
that it was lifted120 from Former President Marcos’ Proclamation No. 1081, which partly
reads:
NOW, THEREFORE, I, FERDINAND E. MARCOS, President of the Philippines by

virtue of the powers vested upon me by Article VII, Section 10, Paragraph (2) of the
Constitution, do hereby place the entire Philippines as defined in Article 1, Section 1 of
the Constitution under martial law and, in my capacity as their Commander-in-Chief, do
hereby command the Armed Forces of the Philippines, to maintain law and order
throughout the Philippines, prevent or suppress all forms of lawless violence as
well as any act of insurrection or rebellion and to enforce obedience to all the
laws and decrees, orders and regulations promulgated by me personally or upon
my direction.
We all know that it was PP 1081 which granted President Marcos legislative power. Its
enabling clause states: “to enforce obedience to all the laws and decrees, orders
and regulations promulgated by me personally or upon my direction.” Upon the
other hand, the enabling clause of PP 1017 issued by President Arroyo is: to enforce
obedience to all the laws and to all decrees, orders and regulations promulgated
by me personally or upon my direction.”
Is it within the domain of President Arroyo to promulgate “decrees“?
PP 1017 states in part: “to enforce obedience to all the laws and decrees x x
x promulgated by me personally or upon my direction.“
The President is granted an Ordinance Power under Chapter 2, Book III of Executive
Order No. 292 (Administrative Code of 1987). She may issue any of the following:
Sec. 2. Executive Orders. — Acts of the President providing for rules of a general or
permanent character in implementation or execution of constitutional or statutory
powers shall be promulgated in executive orders.
Sec. 3. Administrative Orders. — Acts of the President which relate to particular aspect
of governmental operations in pursuance of his duties as administrative head shall be
promulgated in administrative orders.
Sec. 4. Proclamations. — Acts of the President fixing a date or declaring a status or

condition of public moment or interest, upon the existence of which the operation of a
specific law or regulation is made to depend, shall be promulgated in proclamations
which shall have the force of an executive order.
Sec. 5. Memorandum Orders. — Acts of the President on matters of administrative

detail or of subordinate or temporary interest which only concern a particular officer or
office of the Government shall be embodied in memorandum orders.
Sec. 6. Memorandum Circulars. — Acts of the President on matters relating to internal
administration, which the President desires to bring to the attention of all or some of the
departments, agencies, bureaus or offices of the Government, for information or
compliance, shall be embodied in memorandum circulars.
Sec. 7. General or Special Orders. — Acts and commands of the President in his
capacity as Commander-in-Chief of the Armed Forces of the Philippines shall be issued
as general or special orders.
President Arroyo’s ordinance power is limited to the foregoing issuances. She cannot
issue decrees similar to those issued by Former President Marcos under PP 1081.
Presidential Decrees are laws which are of the same category and binding force as
statutes because they were issued by the President in the exercise of his legislative
power during the period of Martial Law under the 1973 Constitution. 121
This Court rules that the assailed PP 1017 is unconstitutional insofar as it grants
President Arroyo the authority to promulgate “decrees.” Legislative power is
peculiarly within the province of the Legislature. Section 1, Article VI categorically states
that “[t]he legislative power shall be vested in the Congress of the Philippines
which shall consist of a Senate and a House of Representatives.” To be sure,
neither Martial Law nor a state of rebellion nor a state of emergency can justify
President Arroyo’s exercise of legislative power by issuing decrees.
Can President Arroyo enforce obedience to all decrees and laws through the military?
As this Court stated earlier, President Arroyo has no authority to enact decrees. It
follows that these decrees are void and, therefore, cannot be enforced. With respect to
“laws,” she cannot call the military to enforce or implement certain laws, such as
customs laws, laws governing family and property relations, laws on obligations and
contracts and the like. She can only order the military, under PP 1017, to enforce laws
pertinent to its duty to suppress lawless violence.
Third Provision: Power to Take Over
The pertinent provision of PP 1017 states:
x x x and to enforce obedience to all the laws and to all decrees, orders, and regulations
promulgated by me personally or upon my direction; and as provided in Section 17,
Article XII of the Constitution do hereby declare a state of national emergency.
The import of this provision is that President Arroyo, during the state of national
emergency under PP 1017, can call the military not only to enforce obedience “to all the
laws and to all decrees x x x” but also to act pursuant to the provision of Section 17,
Article XII which reads:
Sec. 17. In times of national emergency, when the public interest so requires, the State
may, during the emergency and under reasonable terms prescribed by it, temporarily
take over or direct the operation of any privately-owned public utility or business
affected with public interest.
What could be the reason of President Arroyo in invoking the above provision when she
issued PP 1017?
The answer is simple. During the existence of the state of national emergency, PP 1017
purports to grant the President, without any authority or delegation from Congress, to
take over or direct the operation of any privately-owned public utility or business
affected with public interest.
This provision was first introduced in the 1973 Constitution, as a product of the “martial
law” thinking of the 1971 Constitutional Convention. 122 In effect at the time of its
approval was President Marcos’ Letter of Instruction No. 2 dated September 22, 1972
instructing the Secretary of National Defense to take over “the management, control
and operation of the Manila Electric Company, the Philippine Long Distance Telephone
Company, the National Waterworks and Sewerage Authority, the Philippine National
Railways, the Philippine Air Lines, Air Manila (and) Filipinas Orient Airways . . . for the
successful prosecution by the Government of its effort to contain, solve and end the
present national emergency.“
Petitioners, particularly the members of the House of Representatives, claim that

President Arroyo’s inclusion of Section 17, Article XII in PP 1017 is an encroachment on
the legislature’s emergency powers.
This is an area that needs delineation.
A distinction must be drawn between the President’s authority to declare “a state of

national emergency” and to exercise emergency powers. To the first, as elucidated by
the Court, Section 18, Article VII grants the President such power, hence, no legitimate
constitutional objection can be raised. But to the second, manifold constitutional issues
arise.
Section 23, Article VI of the Constitution reads:
SEC. 23. (1) The Congress, by a vote of two-thirds of both Houses in joint session
assembled, voting separately, shall have the sole power to declare the existence of a
state of war.
(2) In times of war or other national emergency, the Congress may, by law, authorize
the President, for a limited period and subject to such restrictions as it may prescribe, to
exercise powers necessary and proper to carry out a declared national policy. Unless
sooner withdrawn by resolution of the Congress, such powers shall cease upon the next
adjournment thereof.
It may be pointed out that the second paragraph of the above provision refers not only
to war but also to “other national emergency.” If the intention of the Framers of our
Constitution was to withhold from the President the authority to declare a “state of
national emergency” pursuant to Section 18, Article VII (calling-out power) and grant it
to Congress (like the declaration of the existence of a state of war), then the Framers
could have provided so. Clearly, they did not intend that Congress should first authorize
the President before he can declare a “state of national emergency.” The logical
conclusion then is that President Arroyo could validly declare the existence of a state of
national emergency even in the absence of a Congressional enactment.
But the exercise of emergency powers, such as the taking over of privately owned
public utility or business affected with public interest, is a different matter. This requires
a delegation from Congress.
Courts have often said that constitutional provisions in pari materia are to be construed
together. Otherwise stated, different clauses, sections, and provisions of a constitution
which relate to the same subject matter will be construed together and considered in the
light of each other.123 Considering thatSection 17 of Article XII and Section 23 of Article
VI, previously quoted, relate to national emergencies, they must be read together to
determine the limitation of the exercise of emergency powers.
Generally, Congress is the repository of emergency powers. This is evident in the

tenor of Section 23 (2), Article VI authorizing it to delegate such powers to the
President. Certainly, a body cannot delegate a power not reposed upon
it. However, knowing that during grave emergencies, it may not be possible or
practicable for Congress to meet and exercise its powers, the Framers of our
Constitution deemed it wise to allow Congress to grant emergency powers to the
President, subject to certain conditions, thus:
(1) There must be a war or other emergency.
(2) The delegation must be for a limited period only.
(3) The delegation must be subject to such restrictions as the Congress may

prescribe.
(4) The emergency powers must be exercised to carry out a national policy declared

by Congress.124
Section 17, Article XII must be understood as an aspect of the emergency powers
clause. The taking over of private business affected with public interest is just another
facet of the emergency powers generally reposed upon Congress. Thus, when Section
17 states that the “the State may, during the emergency and under reasonable
terms prescribed by it, temporarily take over or direct the operation of any
privately owned public utility or business affected with public interest,” it refers to
Congress, not the President. Now, whether or not the President may exercise such
power is dependent on whether Congress may delegate it to him pursuant to a law
prescribing the reasonable terms thereof. Youngstown Sheet & Tube Co. et al. v.
Sawyer,125 held:
It is clear that if the President had authority to issue the order he did, it must be found in
some provision of the Constitution. And it is not claimed that express constitutional
language grants this power to the President. The contention is that presidential power
should be implied from the aggregate of his powers under the Constitution. Particular
reliance is placed on provisions in Article II which say that “The executive Power shall
be vested in a President . . . .;” that “he shall take Care that the Laws be faithfully
executed;” and that he “shall be Commander-in-Chief of the Army and Navy of the
United States.
The order cannot properly be sustained as an exercise of the President’s military power
as Commander-in-Chief of the Armed Forces. The Government attempts to do so by
citing a number of cases upholding broad powers in military commanders engaged in
day-to-day fighting in a theater of war. Such cases need not concern us here. Even
though “theater of war” be an expanding concept, we cannot with faithfulness to
our constitutional system hold that the Commander-in-Chief of the Armed Forces
has the ultimate power as such to take possession of private property in order to
keep labor disputes from stopping production. This is a job for the nation’s
lawmakers, not for its military authorities.
Nor can the seizure order be sustained because of the several constitutional
provisions that grant executive power to the President. In the framework of our
Constitution, the President’s power to see that the laws are faithfully executed
refutes the idea that he is to be a lawmaker.The Constitution limits his functions
in the lawmaking process to the recommending of laws he thinks wise and the
vetoing of laws he thinks bad. And the Constitution is neither silent nor equivocal
about who shall make laws which the President is to execute. The first section of
the first article says that “All legislative Powers herein granted shall be vested in
a Congress of the United States. . .”126
Petitioner Cacho-Olivares, et al. contends that the term “emergency” under Section 17,

Article XII refers to “tsunami,” “typhoon,” “hurricane” and “similar occurrences.”This
is a limited view of “emergency.”
Emergency, as a generic term, connotes the existence of conditions suddenly

intensifying the degree of existing danger to life or well-being beyond that which is
accepted as normal. Implicit in this definitions are the elements of intensity, variety, and
perception.127 Emergencies, as perceived by legislature or executive in the United Sates
since 1933, have been occasioned by a wide range of situations, classifiable under
three (3) principal heads: a)economic,128b)natural disaster,129 and c)national
security.130
“Emergency,” as contemplated in our Constitution, is of the same breadth. It may
include rebellion, economic crisis, pestilence or epidemic, typhoon, flood, or other
similar catastrophe of nationwide proportions or effect. 131 This is evident in the Records
of the Constitutional Commission, thus:
MR. GASCON. Yes. What is the Committee’s definition of “national emergency” which
appears in Section 13, page 5? It reads:
When the common good so requires, the State may temporarily take over or direct the
operation of any privately owned public utility or business affected with public interest.
MR. VILLEGAS. What I mean is threat from external aggression, for

example, calamities or natural disasters.
MR. GASCON. There is a question by Commissioner de los Reyes. What about strikes
and riots?
MR. VILLEGAS. Strikes, no; those would not be covered by the term “national
emergency.”
MR. BENGZON. Unless they are of such proportions such that they would paralyze
government service.132
xxxxxx
MR. TINGSON. May I ask the committee if “national emergency” refers to military
national emergency or could this be economic emergency?”
MR. VILLEGAS. Yes, it could refer to both military or economic dislocations.
MR. TINGSON. Thank you very much.133
It may be argued that when there is national emergency, Congress may not be able to
convene and, therefore, unable to delegate to the President the power to take over
privately-owned public utility or business affected with public interest.
In Araneta v. Dinglasan,134 this Court emphasized that legislative power, through which

extraordinary measures are exercised, remains in Congress even in times of crisis.
“x x x
After all the criticisms that have been made against the efficiency of the system of the
separation of powers, the fact remains that the Constitution has set up this form of
government, with all its defects and shortcomings, in preference to the commingling of
powers in one man or group of men. The Filipino people by adopting parliamentary
government have given notice that they share the faith of other democracy-loving
peoples in this system, with all its faults, as the ideal. The point is, under this framework
of government, legislation is preserved for Congress all the time, not excepting periods
of crisis no matter how serious. Never in the history of the United States, the basic
features of whose Constitution have been copied in ours, have specific functions of the
legislative branch of enacting laws been surrendered to another department—unless we
regard as legislating the carrying out of a legislative policy according to prescribed
standards; no, not even when that Republic was fighting a total war, or when it was
engaged in a life-and-death struggle to preserve the Union. The truth is that under our
concept of constitutional government, in times of extreme perils more than in normal
circumstances ‘the various branches, executive, legislative, and judicial,’ given the
ability to act, are called upon ‘to perform the duties and discharge the responsibilities
committed to them respectively.”
Following our interpretation of Section 17, Article XII, invoked by President Arroyo in
issuing PP 1017, this Court rules that such Proclamation does not authorize her during
the emergency to temporarily take over or direct the operation of any privately owned
public utility or business affected with public interest without authority from Congress.
Let it be emphasized that while the President alone can declare a state of national
emergency, however, without legislation, he has no power to take over privately-owned
public utility or business affected with public interest. The President cannot decide
whether exceptional circumstances exist warranting the take over of privately-owned
public utility or business affected with public interest. Nor can he determine when such
exceptional circumstances have ceased. Likewise, without legislation, the President
has no power to point out the types of businesses affected with public interest that
should be taken over. In short, the President has no absolute authority to exercise all
the powers of the State under Section 17, Article VII in the absence of an emergency
powers act passed by Congress.
c. “AS APPLIED CHALLENGE”
One of the misfortunes of an emergency, particularly, that which pertains to security, is

that military necessity and the guaranteed rights of the individual are often not
compatible. Our history reveals that in the crucible of conflict, many rights are curtailed
and trampled upon. Here, the right against unreasonable search and seizure; the
right against warrantless arrest; and the freedom of speech, of expression, of the
press, and of assembly under the Bill of Rights suffered the greatest blow.
Of the seven (7) petitions, three (3) indicate “direct injury.”
In G.R. No. 171396, petitioners David and Llamas alleged that, on February 24, 2006,
they were arrested without warrants on their way to EDSA to celebrate the 20th
Anniversary of People Power I. The arresting officers cited PP 1017 as basis of the
arrest.
In G.R. No. 171409, petitioners Cacho-Olivares and Tribune Publishing Co., Inc.
claimed that on February 25, 2006, the CIDG operatives “raided and ransacked without
warrant” their office. Three policemen were assigned to guard their office as a possible
“source of destabilization.” Again, the basis was PP 1017.
And in G.R. No. 171483, petitioners KMU and NAFLU-KMU et al. alleged that their
members were “turned away and dispersed” when they went to EDSA and later, to
Ayala Avenue, to celebrate the 20th Anniversary of People Power I.
A perusal of the “direct injuries” allegedly suffered by the said petitioners shows that
they resulted from the implementation, pursuant to G.O. No. 5, of PP 1017.
Can this Court adjudge as unconstitutional PP 1017 and G.O. No 5 on the basis of
these illegal acts? In general, does the illegal implementation of a law render it
unconstitutional?
Settled is the rule that courts are not at liberty to declare statutes invalid although they
may be abused and misabused 135 and may afford an opportunity for abuse in the
manner of application.136 The validity of a statute or ordinance is to be determined
from its general purpose and its efficiency to accomplish the end desired, not from its
effects in a particular case.137 PP 1017 is merely an invocation of the President’s
calling-out power. Its general purpose is to command the AFP to suppress all forms of
lawless violence, invasion or rebellion. It had accomplished the end desired which
prompted President Arroyo to issue PP 1021. But there is nothing in PP 1017 allowing
the police, expressly or impliedly, to conduct illegal arrest, search or violate the citizens’
constitutional rights.
Now, may this Court adjudge a law or ordinance unconstitutional on the ground that its
implementor committed illegal acts? The answer is no. The criterion by which the
validity of the statute or ordinance is to be measured is the essential basis for the
exercise of power, and not a mere incidental result arising from its exertion.138 This
is logical. Just imagine the absurdity of situations when laws maybe declared
unconstitutional just because the officers implementing them have acted arbitrarily. If
this were so, judging from the blunders committed by policemen in the cases passed
upon by the Court, majority of the provisions of the Revised Penal Code would have
been declared unconstitutional a long time ago.
President Arroyo issued G.O. No. 5 to carry into effect the provisions of PP 1017.
General orders are “acts and commands of the President in his capacity as
Commander-in-Chief of the Armed Forces of the Philippines.” They are internal rules
issued by the executive officer to his subordinates precisely for the proper and efficient
administration of law. Such rules and regulations create no relation except between
the official who issues them and the official who receives them. 139 They are based on
and are the product of, a relationship in which power is their source, and obedience,
their object.140 For these reasons, one requirement for these rules to be valid is that they
must be reasonable, not arbitrary or capricious.
G.O. No. 5 mandates the AFP and the PNP to immediately carry out the “necessary
and appropriate actions and measures to suppress and prevent acts of terrorism
and lawless violence.”
Unlike the term “lawless violence” which is unarguably extant in our statutes and the
Constitution, and which is invariably associated with “invasion, insurrection or rebellion,”
the phrase “acts of terrorism” is still an amorphous and vague concept. Congress has
yet to enact a law defining and punishing acts of terrorism.
In fact, this “definitional predicament” or the “absence of an agreed definition of

terrorism” confronts not only our country, but the international community as well. The
following observations are quite apropos:
In the actual unipolar context of international relations, the “fight against terrorism” has
become one of the basic slogans when it comes to the justification of the use of force
against certain states and against groups operating internationally. Lists of states
“sponsoring terrorism” and of terrorist organizations are set up and constantly being
updated according to criteria that are not always known to the public, but are clearly
determined by strategic interests.
The basic problem underlying all these military actions—or threats of the use of force as
the most recent by the United States against Iraq—consists in the absence of an agreed
definition of terrorism.
Remarkable confusion persists in regard to the legal categorization of acts of violence

either by states, by armed groups such as liberation movements, or by individuals.
The dilemma can by summarized in the saying “One country’s terrorist is another
country’s freedom fighter.” The apparent contradiction or lack of consistency in the use
of the term “terrorism” may further be demonstrated by the historical fact that leaders of
national liberation movements such as Nelson Mandela in South Africa, Habib
Bourgouiba in Tunisia, or Ahmed Ben Bella in Algeria, to mention only a few, were
originally labeled as terrorists by those who controlled the territory at the time, but later
became internationally respected statesmen.
What, then, is the defining criterion for terrorist acts—the differentia

specifica distinguishing those acts from eventually legitimate acts of national resistance
or self-defense?
Since the times of the Cold War the United Nations Organization has been trying in vain
to reach a consensus on the basic issue of definition. The organization has intensified
its efforts recently, but has been unable to bridge the gap between those who associate
“terrorism” with any violent act by non-state groups against civilians, state functionaries
or infrastructure or military installations, and those who believe in the concept of the
legitimate use of force when resistance against foreign occupation or against systematic
oppression of ethnic and/or religious groups within a state is concerned.
The dilemma facing the international community can best be illustrated by reference to
the contradicting categorization of organizations and movements such as Palestine
Liberation Organization (PLO)—which is a terrorist group for Israel and a liberation
movement for Arabs and Muslims—the Kashmiri resistance groups—who are terrorists
in the perception of India, liberation fighters in that of Pakistan—the earlier Contras in
Nicaragua—freedom fighters for the United States, terrorists for the Socialist camp—or,
most drastically, the Afghani Mujahedeen (later to become the Taliban movement):
during the Cold War period they were a group of freedom fighters for the West, nurtured
by the United States, and a terrorist gang for the Soviet Union. One could go on and on
in enumerating examples of conflicting categorizations that cannot be reconciled in any
way—because of opposing political interests that are at the roots of those perceptions.
How, then, can those contradicting definitions and conflicting perceptions and
evaluations of one and the same group and its actions be explained? In our analysis,
the basic reason for these striking inconsistencies lies in the divergent interest of states.
Depending on whether a state is in the position of an occupying power or in that of a
rival, or adversary, of an occupying power in a given territory, the definition of terrorism
will “fluctuate” accordingly. A state may eventually see itself as protector of the rights of
a certain ethnic group outside its territory and will therefore speak of a “liberation
struggle,” not of “terrorism” when acts of violence by this group are concerned, and vice-
versa.
The United Nations Organization has been unable to reach a decision on the definition
of terrorism exactly because of these conflicting interests of sovereign states that
determine in each and every instance how a particular armed movement (i.e. a non-
state actor) is labeled in regard to the terrorists-freedom fighter dichotomy. A “policy of
double standards” on this vital issue of international affairs has been the unavoidable
consequence.
This “definitional predicament” of an organization consisting of sovereign states—and

not of peoples, in spite of the emphasis in the Preamble to the United Nations Charter!
—has become even more serious in the present global power constellation: one
superpower exercises the decisive role in the Security Council, former great powers of
the Cold War era as well as medium powers are increasingly being marginalized; and
the problem has become even more acute since the terrorist attacks of 11 September
2001 I the United States.141
The absence of a law defining “acts of terrorism” may result in abuse and oppression on
the part of the police or military. An illustration is when a group of persons are merely
engaged in a drinking spree. Yet the military or the police may consider the act as an
act of terrorism and immediately arrest them pursuant to G.O. No. 5. Obviously, this is
abuse and oppression on their part. It must be remembered that an act can only be
considered a crime if there is a law defining the same as such and imposing the
corresponding penalty thereon.
So far, the word “terrorism” appears only once in our criminal laws, i.e., in P.D. No. 1835
dated January 16, 1981 enacted by President Marcos during the Martial Law regime.
This decree is entitled “Codifying The Various Laws on Anti-Subversion and Increasing
The Penalties for Membership in Subversive Organizations.” The word “terrorism” is
mentioned in the following provision: “That one who conspires with any other person for
the purpose of overthrowing the Government of the Philippines x x x by force,
violence, terrorism, x x x shall be punished by reclusion temporal x x x.”
P.D. No. 1835 was repealed by E.O. No. 167 (which outlaws the Communist Party of
the Philippines) enacted by President Corazon Aquino on May 5, 1985. These two (2)
laws, however, do not define “acts of terrorism.” Since there is no law defining “acts of
terrorism,” it is President Arroyo alone, under G.O. No. 5, who has the discretion to
determine what acts constitute terrorism. Her judgment on this aspect is absolute,
without restrictions. Consequently, there can be indiscriminate arrest without warrants,
breaking into offices and residences, taking over the media enterprises, prohibition and
dispersal of all assemblies and gatherings unfriendly to the administration. All these can
be effected in the name of G.O. No. 5. These acts go far beyond the calling-out power
of the President. Certainly, they violate the due process clause of the Constitution.
Thus, this Court declares that the “acts of terrorism” portion of G.O. No. 5 is
unconstitutional.
Significantly, there is nothing in G.O. No. 5 authorizing the military or police to commit
acts beyond what are necessary and appropriate to suppress and prevent lawless
violence, the limitation of their authority in pursuing the Order. Otherwise, such acts are
considered illegal.
We first examine G.R. No. 171396(David et al.)
The Constitution provides that “the right of the people to be secured in their persons,
houses, papers and effects against unreasonable search and seizure of whatever
nature and for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally by the judge
after examination under oath or affirmation of the complainant and the witnesses he
may produce, and particularly describing the place to be searched and the persons or
things to be seized.”142 The plain import of the language of the Constitution is that
searches, seizures and arrests are normally unreasonable unless authorized by a
validly issued search warrant or warrant of arrest. Thus, the fundamental protection
given by this provision is that between person and police must stand the protective
authority of a magistrate clothed with power to issue or refuse to issue search warrants
or warrants of arrest.143
In the Brief Account144 submitted by petitioner David, certain facts are

established: first, he was arrested without warrant; second, the PNP operatives arrested
him on the basis of PP 1017; third, he was brought at Camp Karingal, Quezon City
where he was fingerprinted, photographed and booked like a criminal suspect; fourth,he
was treated brusquely by policemen who “held his head and tried to push him” inside an
unmarked car; fifth, he was charged with Violation of Batas Pambansa Bilang No.
880145 and Inciting to Sedition; sixth, he was detained for seven (7) hours;
and seventh,he was eventually released for insufficiency of evidence.
Section 5, Rule 113 of the Revised Rules on Criminal Procedure provides:
Sec. 5. Arrest without warrant; when lawful. – A peace officer or a private person
may, without a warrant, arrest a person:
(a) When, in his presence, the person to be arrested has committed, is actually

committing, or is attempting to commit an offense.
(b) When an offense has just been committed and he has probable cause to believe
based on personal knowledge of facts or circumstances that the person to be arrested
has committed it; and
x x x.
Neither of the two (2) exceptions mentioned above justifies petitioner David’s
warrantless arrest. During the inquest for the charges of inciting to
seditionand violation of BP 880, all that the arresting officers could invoke was their
observation that some rallyists were wearing t-shirts with the invective “Oust Gloria
Now” and their erroneous assumption that petitioner David was the leader of the
rally.146 Consequently, the Inquest Prosecutor ordered his immediate release on the
ground of insufficiency of evidence. He noted that petitioner David was not wearing the
subject t-shirt and even if he was wearing it, such fact is insufficient to charge him with
inciting to sedition. Further, he also stated that there is insufficient evidence for the
charge of violation of BP 880 as it was not even known whether petitioner David was
the leader of the rally.147
But what made it doubly worse for petitioners David et al. is that not only was their right
against warrantless arrest violated, but also their right to peaceably assemble.
Section 4 of Article III guarantees:
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.
“Assembly” means a right on the part of the citizens to meet peaceably for consultation
in respect to public affairs. It is a necessary consequence of our republican institution
and complements the right of speech. As in the case of freedom of expression, this right
is not to be limited, much less denied, except on a showing of a clear and present
danger of a substantive evil that Congress has a right to prevent. In other words, like
other rights embraced in the freedom of expression, the right to assemble is not subject
to previous restraint or censorship. It may not be conditioned upon the prior issuance of
a permit or authorization from the government authorities except, of course, if the
assembly is intended to be held in a public place, a permit for the use of such place,
and not for the assembly itself, may be validly required.
The ringing truth here is that petitioner David, et al. were arrested while they were
exercising their right to peaceful assembly. They were not committing any crime, neither
was there a showing of a clear and present danger that warranted the limitation of that
right. As can be gleaned from circumstances, the charges of inciting to
sedition and violation of BP 880 were mere afterthought. Even the Solicitor General,
during the oral argument, failed to justify the arresting officers’ conduct. In De Jonge v.
Oregon,148 it was held that peaceable assembly cannot be made a crime, thus:
Peaceable assembly for lawful discussion cannot be made a crime. The holding of
meetings for peaceable political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that score. The question, if
the rights of free speech and peaceful assembly are not to be preserved, is not as to the
auspices under which the meeting was held but as to its purpose; not as to the relations
of the speakers, but whether their utterances transcend the bounds of the freedom of
speech which the Constitution protects. If the persons assembling have committed
crimes elsewhere, if they have formed or are engaged in a conspiracy against the public
peace and order, they may be prosecuted for their conspiracy or other violations of valid
laws. But it is a different matter when the State, instead of prosecuting them for
such offenses, seizes upon mere participation in a peaceable assembly and a
lawful public discussion as the basis for a criminal charge.
On the basis of the above principles, the Court likewise considers the dispersal and
arrest of the members of KMU et al. (G.R. No. 171483) unwarranted. Apparently, their
dispersal was done merely on the basis of Malacañang’s directive canceling all permits
previously issued by local government units. This is arbitrary. The wholesale
cancellation of all permits to rally is a blatant disregard of the principle that “ freedom of
assembly is not to be limited, much less denied, except on a showing of a clear
and present danger of a substantive evil that the State has a right to
prevent.”149 Tolerance is the rule and limitation is the exception. Only upon a showing
that an assembly presents a clear and present danger that the State may deny the
citizens’ right to exercise it. Indeed, respondents failed to show or convince the Court
that the rallyists committed acts amounting to lawless violence, invasion or rebellion.
With the blanket revocation of permits, the distinction between protected and
unprotected assemblies was eliminated.
Moreover, under BP 880, the authority to regulate assemblies and rallies is lodged with
the local government units. They have the power to issue permits and to revoke such
permits after due notice and hearing on the determination of the presence of clear
and present danger. Here, petitioners were not even notified and heard on the
revocation of their permits. 150 The first time they learned of it was at the time of the
dispersal. Such absence of notice is a fatal defect. When a person’s right is restricted by
government action, it behooves a democratic government to see to it that the restriction
is fair, reasonable, and according to procedure.
G.R. No. 171409,(Cacho-Olivares, et al.) presents another facet of freedom of speech

i.e., the freedom of the press. Petitioners’ narration of facts, which the Solicitor General
failed to refute, established the following: first, the Daily Tribune’s offices were searched
without warrant;second, the police operatives seized several materials for
publication; third, the search was conducted at about 1:00 o’ clock in the morning of
February 25, 2006; fourth, the search was conducted in the absence of any official of
the Daily Tribune except the security guard of the building; and fifth, policemen
stationed themselves at the vicinity of the Daily Tribune offices.
Thereafter, a wave of warning came from government officials. Presidential Chief of

Staff Michael Defensor was quoted as saying that such raid was “meant to show a
‘strong presence,’ to tell media outlets not to connive or do anything that would
help the rebels in bringing down this government.” Director General Lomibao
further stated that “if they do not follow the standards—and the standards are if
they would contribute to instability in the government, or if they do not subscribe
to what is in General Order No. 5 and Proc. No. 1017—we will recommend
a ‘takeover.’” National Telecommunications Commissioner Ronald Solis urged
television and radio networks to “cooperate“ with the government for the duration of the
state of national emergency. He warned that his agency will not hesitate to
recommend the closure of any broadcast outfit that violates rules set out for
media coverage during times when the national security is threatened.151
The search is illegal. Rule 126 of The Revised Rules on Criminal Procedure lays down
the steps in the conduct of search and seizure. Section 4 requires that a search
warrant be issued upon probable cause in connection with one specific offence to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce. Section 8 mandates that the search of
a house, room, or any other premise be made in the presence of the lawful
occupant thereof or any member of his family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and discretion residing in the same
locality. And Section 9 states that the warrant must direct that it be served in
the daytime, unless the property is on the person or in the place ordered to be
searched, in which case a direction may be inserted that it be served at any time of the
day or night. All these rules were violated by the CIDG operatives.
Not only that, the search violated petitioners’ freedom of the press. The best gauge of a
free and democratic society rests in the degree of freedom enjoyed by its media. In
the Burgos v. Chief of Staff152 this Court held that—
As heretofore stated, the premises searched were the business and printing offices of
the “Metropolitan Mail” and the “We Forum” newspapers. As a consequence of the
search and seizure, these premises were padlocked and sealed, with the further
result that the printing and publication of said newspapers were discontinued.
Such closure is in the nature of previous restraint or censorship abhorrent to the
freedom of the press guaranteed under the fundamental law, and constitutes a
virtual denial of petitioners’ freedom to express themselves in print. This state of
being is patently anathematic to a democratic framework where a free, alert and
even militant press is essential for the political enlightenment and growth of the
citizenry.
While admittedly, the Daily Tribune was not padlocked and sealed like the “Metropolitan
Mail” and “We Forum” newspapers in the above case, yet it cannot be denied that the
CIDG operatives exceeded their enforcement duties. The search and seizure of
materials for publication, the stationing of policemen in the vicinity of the The Daily
Tribune offices, and the arrogant warning of government officials to media, are plain
censorship. It is that officious functionary of the repressive government who tells the
citizen that he may speak only if allowed to do so, and no more and no less than what
he is permitted to say on pain of punishment should he be so rash as to
disobey.153 Undoubtedly, the The Daily Tribune was subjected to these arbitrary
intrusions because of its anti-government sentiments. This Court cannot tolerate the
blatant disregard of a constitutional right even if it involves the most defiant of our
citizens. Freedom to comment on public affairs is essential to the vitality of a
representative democracy. It is the duty of the courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments thereon. The motto should
always be obsta principiis.154
Incidentally, during the oral arguments, the Solicitor General admitted that the search of
the Tribune’s offices and the seizure of its materials for publication and other papers are
illegal; and that the same are inadmissible “for any purpose,” thus:
JUSTICE CALLEJO:
You made quite a mouthful of admission when you said that the policemen, when
inspected the Tribune for the purpose of gathering evidence and you admitted that the
policemen were able to get the clippings. Is that not in admission of the admissibility of
these clippings that were taken from the Tribune?
SOLICITOR GENERAL BENIPAYO:
Under the law they would seem to be, if they were illegally seized, I think and I know,
Your Honor, and these are inadmissible for any purpose. 155
xxxxxxxxx
SR. ASSO. JUSTICE PUNO:
These have been published in the past issues of the Daily Tribune; all you have to do is
to get those past issues. So why do you have to go there at 1 o’clock in the morning and
without any search warrant? Did they become suddenly part of the evidence of rebellion
or inciting to sedition or what?
SOLGEN BENIPAYO:
Well, it was the police that did that, Your Honor. Not upon my instructions.
Are you saying that the act of the policeman is illegal, it is not based on any law, and it
is not based on Proclamation 1017.
SOLGEN BENIPAYO:
It is not based on Proclamation 1017, Your Honor, because there is nothing in 1017
which says that the police could go and inspect and gather clippings from Daily Tribune
or any other newspaper.
Is it based on any law?
SOLGEN BENIPAYO:
As far as I know, no, Your Honor, from the facts, no.
So, it has no basis, no legal basis whatsoever?
SOLGEN BENIPAYO:
Maybe so, Your Honor. Maybe so, that is why I said, I don’t know if it is premature to
say this, we do not condone this. If the people who have been injured by this
would want to sue them, they can sue and there are remedies for this.156
Likewise, the warrantless arrests and seizures executed by the police were, according
to the Solicitor General, illegal and cannot be condoned, thus:
CHIEF JUSTICE PANGANIBAN:
There seems to be some confusions if not contradiction in your theory.
SOLICITOR GENERAL BENIPAYO:

I don’t know whether this will clarify. The acts, the supposed illegal or unlawful acts
committed on the occasion of 1017, as I said, it cannot be condoned. You cannot
blame the President for, as you said, a misapplication of the law. These are acts of the
police officers, that is their responsibility. 157
The Dissenting Opinion states that PP 1017 and G.O. No. 5 are constitutional in every
aspect and “should result in no constitutional or statutory breaches if applied according
to their letter.”
The Court has passed upon the constitutionality of these issuances. Its ratiocination has
been exhaustively presented. At this point, suffice it to reiterate that PP 1017 is limited
to the calling out by the President of the military to prevent or suppress lawless
violence, invasion or rebellion. When in implementing its provisions, pursuant to G.O.
No. 5, the military and the police committed acts which violate the citizens’ rights under
the Constitution, this Court has to declare such acts unconstitutional and illegal.
In this connection, Chief Justice Artemio V. Panganiban’s concurring opinion, attached

hereto, is considered an integral part of this ponencia.
SUMMATION
In sum, the lifting of PP 1017 through the issuance of PP 1021—a supervening event—
would have normally rendered this case moot and academic. However, while PP 1017
was still operative, illegal acts were committed allegedly in pursuance thereof. Besides,
there is no guarantee that PP 1017, or one similar to it, may not again be issued.
Already, there have been media reports on April 30, 2006 that allegedly PP 1017 would
be reimposed “if the May 1 rallies” become “unruly and violent.” Consequently, the
transcendental issues raised by the parties should not be “evaded;” they must now be
resolved to prevent future constitutional aberration.
The Court finds and so holds that PP 1017 is constitutional insofar as it constitutes a
call by the President for the AFP to prevent or suppress lawless violence. The
proclamation is sustained by Section 18, Article VII of the Constitution and the relevant
jurisprudence discussed earlier. However, PP 1017’s extraneous provisions giving the
President express or implied power (1) to issue decrees; (2) to direct the AFP to enforce
obedience to all laws even those not related to lawless violence as well as decrees
promulgated by the President; and (3) to impose standards on media or any form of
prior restraint on the press, are ultra vires and unconstitutional. The Court also rules
that under Section 17, Article XII of the Constitution, the President, in the absence of a
legislation, cannot take over privately-owned public utility and private business affected
with public interest.
In the same vein, the Court finds G.O. No. 5 valid. It is an Order issued by the President
—acting as Commander-in-Chief—addressed to subalterns in the AFP to carry out the
provisions of PP 1017. Significantly, it also provides a valid standard—that the military
and the police should take only the “necessary and appropriate actions and
measures to suppress and prevent acts of lawless violence.”But the words “acts of
terrorism” found in G.O. No. 5 have not been legally defined and made punishable by
Congress and should thus be deemed deleted from the said G.O. While “terrorism” has
been denounced generally in media, no law has been enacted to guide the military, and
eventually the courts, to determine the limits of the AFP’s authority in carrying out this
portion of G.O. No. 5.
On the basis of the relevant and uncontested facts narrated earlier, it is also pristine
clear that (1) the warrantless arrest of petitioners Randolf S. David and Ronald Llamas;
(2) the dispersal of the rallies and warrantless arrest of the KMU and NAFLU-KMU
members; (3) the imposition of standards on media or any prior restraint on the press;
and (4) the warrantless search of the Tribune offices and the whimsical seizures of
some articles for publication and other materials, are not authorized by the Constitution,
the law and jurisprudence. Not even by the valid provisions of PP 1017 and G.O. No. 5.
Other than this declaration of invalidity, this Court cannot impose any civil, criminal or
administrative sanctions on the individual police officers concerned. They have not been
individually identified and given their day in court. The civil complaints or causes of
action and/or relevant criminal Informations have not been presented before this Court.
Elementary due process bars this Court from making any specific pronouncement of
civil, criminal or administrative liabilities.
It is well to remember that military power is a means to an end and substantive

civil rights are ends in themselves. How to give the military the power it needs to
protect the Republic without unnecessarily trampling individual rights is one of
the eternal balancing tasks of a democratic state.During emergency, governmental
action may vary in breadth and intensity from normal times, yet they should not be
arbitrary as to unduly restrain our people’s liberty.
Perhaps, the vital lesson that we must learn from the theorists who studied the various
competing political philosophies is that, it is possible to grant government the authority
to cope with crises without surrendering the two vital principles of constitutionalism: the
maintenance of legal limits to arbitrary power, and political responsibility of the
government to the governed.158
WHEREFORE, the Petitions are partly granted. The Court rules that PP 1017
is CONSTITUTIONAL insofar as it constitutes a call by President Gloria Macapagal-
Arroyo on the AFP to prevent or suppress lawless violence. However, the provisions
of PP 1017 commanding the AFP to enforce laws not related to lawless violence, as
well as decrees promulgated by the President, are declared UNCONSTITUTIONAL. In
addition, the provision in PP 1017 declaring national emergency under Section 17,
Article VII of the Constitution is CONSTITUTIONAL, but such declaration does not
authorize the President to take over privately-owned public utility or business affected
with public interest without prior legislation.
G.O. No. 5 is CONSTITUTIONAL since it provides a standard by which the AFP and
the PNP should implement PP 1017, i.e. whatever is “necessary and appropriate
actions and measures to suppress and prevent acts of lawless
violence.“ Considering that “acts of terrorism” have not yet been defined and made
punishable by the Legislature, such portion of G.O. No. 5 is
declared UNCONSTITUTIONAL.
The warrantless arrest of Randolf S. David and Ronald Llamas; the dispersal and
warrantless arrest of the KMU and NAFLU-KMU members during their rallies, in the
absence of proof that these petitioners were committing acts constituting lawless
violence, invasion or rebellion and violating BP 880; the imposition of standards on
media or any form of prior restraint on the press, as well as the warrantless search of
the Tribune offices and whimsical seizure of its articles for publication and other
materials, are declared UNCONSTITUTIONAL.
No costs.
SO ORDERED.
Lecaroz v. Sandiganbayan, 128 SCRA 324 [1984] (Focus on the
question of whether an impeachable officer can be charged criminally
while holding office)
[G.R. No. 56384. March 22, 1984.]
MAYOR FRANCISCO LECAROZ, Petitioner, v.

SANDIGANBAYAN, Respondent.
Roberto C. Diokno for Petitioner.
The Solicitor General for Respondent.
SYLLABUS
1. CONSTITUTIONAL LAW; 1973 CONSTITUTION; SANDIGANBAYAN;

JURISDICTION. — It is clear from the above-quoted constitutional provision that
respondent court has jurisdictional competence not only over criminal and civil
cases involving graft and corrupt practices committed by public officers and
employees but also over other crimes committed by them in relation to their office,
though not involving graft and corrupt practices, as may be determined by law. The
intention of the framers of the New Constitution is patent from the explicit language
thereof as well as from Section 1 of the same Article XIII titled "Accountability of
Public Officers."
2. ID.; ID.; ID.; SECTION 4(c), PRESIDENTIAL DECREE NO. 1486, AS AMENDED,
NOT VIOLATIVE OF NEW CONSTITUTION. — There is no merit in petitioner’s
contention that Section 4(c) of Presidential Decree No. 1486, as amended, is
violative of the provision of Section 5 of Article XIII of the New Constitution because
the former enlarges what the latter limited. Said constitutional provision delegates
to the lawmaking body the determination of "such other offenses" committed by
public officers over which the Sandiganbayan shall have jurisdiction. Accordingly,
the President of the Philippines, exercising his lawmaking authority and prerogative
vested in him by the Constitution, issued Presidential Decree No. 1486 which
mandates in Section 4(c) thereof that the Sandiganbayan shall have jurisdiction
over "other crimes or offenses committed by public officers or employees, including
those employed in government-owned or controlled corporation, in relation to their
office." (Italics supplied) When the lawmaking authority chose to include all public
office-related offenses over which respondent court shall have jurisdiction, the
courts will not review questions of legislative policy. It is enough that the act is
within the constitutional power of the lawmaking body or authority and, if it is, the
courts are bound to follow and apply.
3. ID.; ID.; ID.; ID.; CONCURRENT JURISDICTION WITH REGULAR COURTS UNDER
SECTION 4, PRESIDENTIAL DECREE NO. 1606. — The crime for which petitioner is
charged, grave coercion, is penalized by arresto mayor and a fine not exceeding
P500.00 under the first paragraph of Article 286 of the Revised Penal Code, as
amended. Respondent court, pursuant to the provisions of Section 4 of Presidential
Decree No. 1606, as amended, has concurrent jurisdiction with the regular courts.
Well established is the rule that once a court acquires jurisdiction in a case where
said jurisdiction is concurrent with another court, it must continue exercising the
same to the exclusion of all other courts. In Laquian v. Baltazar, 31 SCRA 551, We
ruled that "in case of concurrent jurisdiction, it is axiomatic that the court first
acquiring jurisdiction excludes the other courts." Thus, respondent’s denial of
petitioner’s request for the transfer of the case to the Court of First Instance of
Marinduque was well-grounded and certainly not a grave abuse of discretion.
4. ID.; ID.; ID.; DISPOSITION OF PENDING CASES AS OF EFFECTIVITY DATE OF

PRESIDENTIAL DECREE NO. 1861; CASE AT BAR. — It is true that on March 23,
1983, Presidential Decree No. 1861 amended Presidential Decree No. 1606, and it
provides, among others, that where the penalty for offenses or felonies committed
by public officers and employees in relation to their office does not exceed prision
correctional or imprisonment for six(6) years, or fine of P6,000.00, they are no
longer within the concurrent jurisdiction of respondent court and the regular courts
but are now vested in the latter. However, Section 2 of said Presidential Decree No.
1861 states: "SECTION 2. All cases pending in the Sandiganbayan or in the
appropriate courts as of the date of the effectivity of this Decree shall remain with
and be disposed of by the courts where they are pending." (Italics supplied) The
information against petitioner was filed in 1980; therefore, respondent court retains
jurisdiction over the case subject of instant petition.
5. ID.; ID.; PUBLIC OFFICERS; IMPEACHMENT; EFFECTS. — Section 2, Article XIII

of the 1973 Constitution proscribes removal from office of the aforementioned
constitutional officers by any other method; otherwise, to allow a public officer who
may be removed solely by impeachment to be charged criminally while holding his
office with an offense that carries the penalty of removal from office, would be
violative of the clear mandate of the fundamental law. The effect of impeachment is
limited to the loss of position and disqualification to hold any office of honor, trust
or profit under the Republic. It is equally manifest that the party thus convicted
may be proceeded against, tried and thereafter punished in accordance with law.
There can be no clearer expression of the constitutional intent as to the scope of
the impeachment process (The Constitution of the Philippines, pp. 465-466)." The
clear implication is, the party convicted in the impeachment proceeding shall
nevertheless be liable and subject to prosecution, trial and punishment according to
law; and that if the same does not result in a conviction and the official is not
hereby removed, the filing of a criminal action "in accordance with law" may not
prosper.
DECISION
RELOVA, J.:
On October 21, 1980, petitioner was charged with the crime of grave coercion in an
information filed before the respondent court, which reads: jgc:chanrobles.com.ph
"That on or about July 2, 1979, in the municipality of Sta. Cruz, Province of

Marinduque, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, a public officer, being then the mayor of Sta. Cruz,
Marinduque, taking advantage of his public position and which offense was
committed in relation to his office, did then and there, wilfully, unlawfully and
feloniously take over the operation and control of the gasoline station owned by
Pedro Par, sell the gasoline therein to the public issuing the invoices of said gasoline
station and some pieces of yellow pad paper for the purpose, and padlock
dispensing pump thereof without authority of law, depriving Pedro Par of the
possession and exercise of a lawful trade or occupation, by means of threat, force
and/or violence, thereby preventing said Pedro Par from doing something not
prohibited by law or compelling him to do something against his will, whether it be
right or wrong.
"CONTRARY TO LAW." cralaw virtua1aw library
(p. 10, Rollo)
On November 27, 1980, the information was amended with the insertion of the
phrase "by ordering his policemen companions" between the words "Pedro Par" and
"to sell the gasoline."
Petitioner filed a motion to quash the information principally on the ground that the
respondent court lacks jurisdiction to entertain the case and that it should have
been filed with the ordinary courts in Marinduque where the alleged crime was
committed.
Respondent court denied the motion. Hence, petitioner instituted this proceeding
for certiorari seeking the same relief, alleging that —
1. The offense for which he was charged is not related to his office as mayor;
2. The offense of grave coercion is not among those mentioned or determined by

Section 4(c), Presidential Decree No. 1486, as amended; and
3. Assuming that respondent has jurisdiction to try this case, it committed grave
abuse of discretion in denying the transfer of the hearing of the case to the Court of
First Instance of Marinduque because all witnesses of both the prosecution and
defense will have to come from Marinduque, a far away island.
Section 5, Article XIII of the Constitution, provides for the creation of a special
court known as the Sandiganbayan and defines the jurisdiction thereof. It states: jgc:chanrobles.com.ph
"SEC. 5. The National Assembly 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." cralaw virtua1aw library
It is clear from the above-quoted constitutional provision that respondent court has
jurisdictional competence not only over criminal and civil cases involving graft and
corrupt practices committed by public officers and employees but also over other
crimes committed by them in relation to their office, though not involving graft and
corrupt practices, as may be determined by law. The intention of the framers of the
New Constitution is patent from the explicit language thereof as well as from
Section 1 of the same Article XIII titled "Accountability of Public Officers," which
provides:red:chanrobles.com.ph
"SECTION 1. Public office is a public trust. Public officers and employees shall serve
with the highest degree of responsibility, integrity, loyalty, and efficiency, and shall
remain accountable to the people." cralaw virtua1aw library
There is no merit in petitioner’s contention that Section 4(c) of Presidential Decree

No. 1486, as amended, is violative of the provision of Section 5 of Article XIII of the
New Constitution because the former enlarges what the latter limited. Said
constitutional provision delegates to the lawmaking body the determination of "such
other offenses" committed by public officers over which the Sandiganbayan shall
have jurisdiction. Accordingly, the President of the Philippines, exercising his
lawmaking authority and prerogative vested in him by the Constitution, issued
Presidential Decree No. 1486 which mandates in Section 4(c) thereof that the
Sandiganbayan shall have jurisdiction over "other crimes or offenses committed by
public officers or employees, including those employed in government-owned or
controlled corporation, in relation to their office." (Emphasis supplied) When the
lawmaking authority chose to include all public office-related offenses over which
respondent court shall have jurisdiction, the courts will not review questions of
legislative policy. It is enough that the act is within the constitutional power of the
lawmaking body or authority and, if it is, the courts are bound to follow and apply.
The original and amended information clearly alleged that petitioner took advantage
of his position as mayor when he intimidated the gasoline station’s owner in taking
over the operation and control of the establishment, ordering his policemen to sell
the gasoline therein and padlocking the dispensing pump thereof without legal
authority. Stated differently, if petitioner were not the mayor he would not have
allegedly directed the policeman and the latter would not have followed his orders
and instructions to sell Pedro Par’s gasoline and padlocked the station. The fact that
he is the mayor did not vest him with legal authority to take over the operations
and control of complainant’s gasoline station and padlock the same without
observing due process.
The crime for which petitioner is charged, grave coercion, is penalized by arresto
mayor and a fine not exceeding P500.00 under the first paragraph of Article 286 of
the Revised Penal Code, as amended. Respondent court, pursuant to the provisions
of Section 4 of Presidential Decree No. 1606, as amended, has concurrent
jurisdiction with the regular courts. Well established is the rule that once a court
acquires jurisdiction in a case where said jurisdiction is concurrent with another
court, it must continue exercising the same to the exclusion of all other courts. In
Laquian v. Baltazar, 31 SCRA 551, We ruled that "in case of concurrent jurisdiction,
it is axiomatic that the court first acquiring jurisdiction excludes the other courts."
Thus, respondent’s denial of petitioner’s request for the transfer of the case to the
Court of First Instance of Marinduque was well-grounded and certainly not a grave
abuse of discretion.chanrobles.com:cralaw:red
It is true that on March 23, 1983, Presidential Decree No. 1861 amended
Presidential Decree No. 1606, and it provides, among others, that where the
penalty for offenses or felonies committed by public officers and employees in
relation to their office does not exceed prision correccional or imprisonment for
six(6) years, or fine of P6,000.00, they are no longer within the concurrent
jurisdiction of respondent court and the regular courts but are now vested in the
latter. However, Section 2 of said Presidential Decree No. 1861 states: jgc:chanrobles.com.ph
"SECTION 2. All cases pending in the Sandiganbayan or in the appropriate courts as

of the date of the effectivity of this Decree shall remain with and be disposed of by
the courts where they are pending." (Emphasis supplied)
The information against petitioner was filed in 1980; therefore, respondent court
retains jurisdiction over the case subject of instant petition.
The broad power of the New Constitution vests the respondent court with
jurisdiction over "public officers and employees, including those in government-
owned or controlled corporations." There are exceptions, however, like
constitutional officers, particularly those declared to be removed by impeachment.
Section 2, Article XIII of the 1973 Constitution provides: jgc:chanrobles.com.ph
"SEC. 2. The President, the Members of the Supreme Court, and the Members of
the Constitutional Commissions shall be removed from office on impeachment for,
and conviction of, culpable violation of the Constitution, treason, bribery, other high
crimes, or graft and corruption." cralaw virtua1aw library
Thus, the provision proscribes removal from office of the aforementioned

constitutional officers by any other method; otherwise, to allow a public officer who
may be removed solely by impeachment to be charged criminally while holding his
office with an offense that carries the penalty of removal from office, would be
violative of the clear mandate of the fundamental law. chanrobles.com.ph : virtual law library
Chief Justice Enrique M. Fernando, in his authoritative dissertation on the New

Constitution, states that "judgment in cases of impeachment shall be limited to
removal from office and disqualification to hold ANY office of honor, trust, or profit
under the Republic of the Philippines, but the party convicted shall nevertheless be
liable and subject to prosecution, trial, and punishment, in accordance with law.
The above provision is a reproduction of what was found in the 1935 Constitution.
It is quite apparent from the explicit character of the above provision that the,
effect of impeachment is limited to the loss of position and disqualification to hold
any office of honor, trust or profit under the Republic. It is equally manifest that the
party thus convicted may be proceeded against, tried and thereafter punished in
accordance with law. There can be no clearer expression of the constitutional intent
as to the scope of the impeachment process (The Constitution of the Philippines,
pp. 465-466)." The clear implication is, the party convicted in the impeachment
proceeding shall nevertheless be liable and subject to prosecution, trial and
punishment according to law; and that if the same does not result in a conviction
and the official is not hereby removed, the filing of a criminal action "in accordance
with law" may not prosper.
ACCORDINGLY, the petition is dismissed for lack of merit and the temporary
restraining order issued on March 12, 1982 is hereby DISSOLVED.
SO ORDERED.
RE: EM No. 03-010 – Order of the First Division of the Commission -
on Elections Dated August 15, 2003
A.M. No. 03-8-22-SC. September 16, 2003
RE: EM NO. 03-010 - ORDER OF THE FIRST DIVISION OF THE COMMISSION ON ELECTIONS
DATED AUGUST 15, 2003.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of the Court En Banc dated 16 SEP 2003
A.M. No. 03-8-22 SC. (Re: EM No. 03-010 Order of the First Division of the Commission on Elections dated
August 15, 2003.)
On 10 September 2003, the First Division bf the Commission Elections (COMELEC) promulgated a Resolution
in EM Nos. 03-010 & 03-011,[1] which disposed thus:
cralaw
"WHEREFORE, for the reasons given, this Commission may be persuaded to

pronounce the existence of sufficient grounds to declare respondents in contempt of this
Commission and accordingly impose the proper penalty. Nevertheless, we are
constitutionally enjoined from doing so without respondents first going through the process
of impeachment.
"As prayed for by Petitioner Rodolfo T. AIbano III and Intervenor Rodrigo B.
Gutang, let [a] copy of this resolution be forwarded [to] the House of Representatives.
"However, in the light of the foregoing discussion, we find the filing of the present
petitions premature because of the authoritative doctrine that impeachable officers must
first be removed from office by impeachment before any punitive measure may be imposed
against them. Consequently, the actions being untimely filed, as explained by the Supreme
Court, the Petitions for Indirect Contempt deserve nothing less than outright dismissal. Let
the above-captioned cases be, as they are hereby ordered, DISMISSED.
"SO ORDERED."
On 26 August 2003, prior to the promulgation of the above Resolution of the COMELEC's First Division, this
Court en banc issued its own Resolution, quoted in full as follows:
"Acting on the Order of the Commission on Elections dated August 15, 2003 signed
by Presiding Commissioner Rufino SB. Javier of the Comelec First Division addressed to
Chief Justice Hilario G. Davide Jr. and Associate Justices Josue N. Bellosillo, Reynato S.
Puno and Artemio V. Panganiban, sending them copies of Petition's for Indirect Contempt
filed against them in the Commission by the Malay Democrats of the Philippines (signed by
Ma. Linda Olaguer Montayre), Rodolfo T. Albano III and Rodrigo B. Gutang, and advising
them that they may, if they so desire, send to (the) Commission within a reasonable time
their observation or comment on the afore-enumerated pleadings to help the Commission
in intelligently disposing of them, the Court RESOLVED (1) to treat it as an administrative
matter cognizable by the Courts en banc as it affects the entire Court, and (2.) to inform
the Commission that the subject matter of the Petitions involves a, review of the final
decision and/or official actions of this Court in G.R. Nos. 147589 and 147613, June 26,
2001 (Ang Bagong Bayani-OFW Labor Party vs. commission on Elections, et al.), a review
that is, unquestionably beyond the jurisdiction of the Commission. Under the Constitution
and pursuant to the principle of separation of powers, decisions, orders and official actions
of the Supreme Court and its Members cannot be reviewed, passed upon, modified, much
less reversed by any department, agency or branch of government, whether directly or
indirectly under any guise whatsoever. Accordingly, the Petitions for Indirect Contempt
deserve nothing less than outright dismissal.
"SO ORDERED"
While this Court does not fault the COMELEC's First Division for outrightly DISMISSING the Petitions for
Contempt, it cannot let the "reasons given" therefor pass unchallenged and uncorrected. These reasons
were proffered without jurisdiction or with grave abuse of discretion, in clear contravention of the
Constitution and the above-quoted Resolution.
In its 38-page Resolution, the COMELEC First Division basically insinuates two points as follows:
(1) that it possesses the power to hold in contempt the Chief Justice and
some Associate Justices for their participation and vote in decisions and
orders of this Court, which allegedly interfered with or impeded the
proceedings of the Commission; and
(2) that it had in fact determined the "existence of sufficient grounds to

declare respondents in contempt of [the] Commission and to 'impose the
proper penalty," were it not for the fact that the Justices were
impeachable officers who "must first be removed from office by
impeachment before any punitive measure may be imposed against
them."
These ratiocinations constitute plain and simple legal balderdash.
FIRST, as already stated in our foregoing 26 August 2003 Resolution, the Commission has no. jurisdiction to
hold the Court or any of its Members in contempt for any, decision, order or official action they issue.
Initially, the COMELEC's First Division and its three signatory Commissioners openly conceded that, indeed,
they did not have any power to review, alter or reverse such act. Yet, it did pass upon them in its Resolution
and concluded thereafter that the "June 6, 2001 Decision, Order of October 8, 2002, and Resolution dated
February 18, 2003 restrained the COMELEC from performing its constitutional duties and prerogatives." That
restraint allegedly constituted contempt of the Commission.
There is no need to explain in detail or to defend the aforesaid three issuances of this Court in G.R. Nos.
147589 and 147613, (Ang Bagong Bayani-OFW Labor Party v. Commission on Elections), because they
speak for themselves. Suffice it to say that they were its official actions promulgated in appropriate
certiorari proceedings, in, which the Commission's previous Decision on the matter was, REVERSED. That
the Supreme Court has the authority to pass upon, modify or reverse the quasi-judicial actions of the
COMELEC is UNQUESTIONED.
Verily, under Article VIII, Section 1 of the Constitution "[j]udicial power includes the duty of the courts of
justice x x x 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." More specifically,
Article. IX, Section 7 of the Constitution grants the Supreme Court the authority to pass upon on certiorari
"any decision, order or ruling" of the COMELEC and other constitutional commissions.
Giving flesh to these constitutional provisions is Rule 64 of the Rules of Court which provides that" "[a]
judgment or final order or resolution of the Commission on Elections x x x may be brought x x x to .the
Supreme Court on certiorari under Rule 65." On the other hand, Rule 65 states: "When any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted Without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, x x x" the Supreme
Court may annul or modify the proceedings of such tribunal, board or officer, and grant such incidental
reliefs as law and justice may require. Finally, Rules 135 and 136 list the inherent powers of courts and
judicial officers to ensure that their decisions or orders are: carried out, including the power of meting out
contempt.
True, the COMELEC -- along with the Commission on Audit, the Commission on Civil Service and the,
Ombudsman -- is a constitutionally created body with constitutionally mandated functions. However, as
already stated, the actions of all such constitutional, bodies are subject to" certiorari review by the Supreme
Court as was done in G.R. Nos. 147589 and 147613. Thus, the Court may intervene, strike down or modify
COMELEC's actions without itself incurring any liability for contempt; whether its Justices happen to be
impeachable officers or not if the Supreme Court (or its Members) can be held liable for contempt for official
actions, then it would cease to be "supreme" in its task of interpreting the law and would become
subordinate to whichever agency claims the power to cite the Court or its Members for contempt.
In short, the fact that Supreme Court Justices are impeachable officers should not be the ground for the
COMELEC's dismissal of the contempt charges. Rather, they cannot be held liable for contempt, because
their herein questioned Decision, Resolution, and Order that have allegedly interfered with, proceedings of
the COMELEC were made pursuant to their constitutional function. To stop or impede COMELEC's
proceedings when these have been conducted without or in excess of jurisdiction or with grave abuse of
discretion is not merely a judicial prerogative; the Constitution mandates such move as a judicial duty." The
performance of this duty cannot subject the Court or its Members to contempt of the COMELEC; otherwise,
they would not be able to reverse or modify its abusive actions.
"The sound, salutary and self-evident principle, prevailing in this as in most

jurisdictions, is that judgments of the highest tribunal of the land may not be reviewed by
any other agency branch, department, or official of Government. Once the Supreme Court
has spoken, there the matter must rest. Its decision should not and cannot be appealed to
or reviewed by any other entity, much less reversed or modified on the ground that it is,
tainted by error in its findings of fact or conclusions of law, flawed in its logic or language,
or otherwise erroneous in some other respect. This, on the indisputable and unshakeable
foundation of public policy, and constitutional and traditional principle." (In Re Joaquin T.
Borromeo, 311 Phil. 441, 509, February 21, 1995)
SECOND. The COMELEC's notion that impeachable officers cannot be held in contempt is palpably incorrect
or at least misleading. Maliciously implied in this notion is that the Supreme Court erred in holding the
Chairman and Members of the COMELEC in contempt via its Resolution dated 18 February 2003 in the same
G.R. Nos. 147589 and 147613.
As mentioned earlier, this Court has undisputed certiorari powers over the actions of the Commission on
Elections. As an incident of such prerogative, the Court has the inherent authority to enforce its orders and
to hold the COMELEC's Chairman and Commissioners in contempt when they impede, obstruct, or degrade
its proceedings or orders, or disobey, ignore or otherwise offend its dignity.
Clearly, the COMELEC has no reciprocal constitutional power to pass upon the actions of this Court or its
Members Hence, the Commission has absolutely no authority to hold them in contempt as an incident of its
inexistent power of review. Even more clearly, it has no right to recriminate or sulk when its imprudent
actions are reversed, or its Members held in contempt for their rash actions.
By voluntarily paying the fine imposed in our contempt Resolution of 18 February 2003, the Chairman and
all the Commissioners of the COMELEC displayed a becoming regard for the rule of law in thereby
recognizing this Court's authority to hold in contempt impeachable officials like them. It is a source of
wonder why the First Division composed of only three -- a minority -- of the seven COMELEC members are
now in a tantrum over a final and executed contempt Order of this Court.
"x x x [T]he punishment for contempt of court is a remedial, preservative or

coercive act, rather than a vindictive or punitive one, and is imposed for the benefit of
complainant or the other party to the suit who has been injured, and its object is to compel
obedience to, or the performance of, the court's orders or decrees, which the contemnor
refuses to obey although able to do so, and thus, to secure, preserve, vindicate, enforce,
or advance the rights of such private parties, as well as to vindicate the court's authority."
(Facinal vs. Cruz, 213 SCRA 23.8, 244-245, September 2, 1992)
As to the First division's reckless innuendo that. COMELEC Commissioners are exempt' from criminal
prosecution and thus from the criminal aspects of contempt, they should read De. Venecia vs.
Sandiganbayan (G.R. No. 130240, February 5, 2002), People vs. Jalosjos (381 Phil. 6901, February .3,
2000), Santiago vs. Sandiganbayan; (363 Phil. 605, March 8, 1999), Paredes, vs. Sandiganbayan (G.R. No.
118354, August 8, 1995), and Martinez vs. Morfe (44 SCRA 22, March 24, 1972). In those Decisions,
lawmakers are not totally exempt from criminal proceedings; how then can the First Division Commissioners
pretend to be more special than they?
THIRD, under the doctrine of separation of powers, the three major branches of government -- the
Executive, the Legislative and the Judicial -- are coequal and coordinate with each other. But none may
interfere with, review or pass upon the exclusive powers vested in each of them by the Constitution.
Specifically, not even the other two great branches of government may reverse or modify decisions and
orders of the Supreme Court in given case -- not the President, not Congress much less the COMELEC.
But, as part of the system of checks and balances, if. Congress does not agree with the Court's
interpretation of a law, it may repeal, modify or amend the statute; but it cannot directly overturn the
decision or hold the magistrates writing or voting thereon liable for contempt or for any administrative,
criminal, civil or any other liability. On the other hand, the President may appoint justices who may change
the interpretation in the future. But no act of Congress or the President may alter a final and executory
decision of this Court.
"Indeed, resolutions of the Supreme Court as a collegiate court, whether en banc

or division, speak for themselves and are entitled to full faith and credence and are beyond
investigation or inquiry under the same principle of conclusiveness of enrolled bills of the
legislature. (U.S. vs. Pons, 34 Phil. 729; Gardiner, et al. vs. Paredes, et al., 61 Phil. 118;
Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme Court's pronouncement of the doctrine
that (l)t is well settled that the enrolled bill . . . is conclusive upon the courts as regards
the tenor of the measure passed by Congress and approved by the President. If there has
been any mistake in the printing of the bill before it was certified by the officers of
Congress and approved by the Executive [as claimed by petitioner-importer who
unsuccessfully sought refund of margin fees] - on which' we cannot speculate, without
jeopardizing the principle of separation of powers and undermining one of the cornerstones
of our democratic system - the remedy is by amendment or curative legislation, not by
judicial decree is fully and reciprocally applicable to Supreme Court orders, resolutions and
decisions, mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7 SCRA 347,
350. (Citing Primicias vs. Paredes, 61 'Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1;
Macias vs. Comelec, 3 SCRA 1)
"The Court has consistently stressed that the doctrine of separation, of powers
calls for the executive, legislative and judicial departments being left alone to discharge
their duties as they see fit (Tan vs. Macapagal, 43 SCRA 677). It has thus maintained in
the same way that the judiciary has a right to expect that neither the President nor
Congress would cast doubt on the mainspring of its orders or decisions, it should refrain
from speculating as to alleged hidden forces at work that could have impelled either
coordinate branch into acting the way it did. The concept of separation of powers
presupposes mutual' respect by and between the three departments of the government
(Tecson vs. Salas, 34 SCRA 275, 286-287)
"To allow litigants to go beyond the Courts resolution and claim that the members
acted 'with deliberate bad faith' and rendered (an) 'unjust resolution' in disregard or
violation of the duty of their high office to act upon their own independent consideration
and judgment of the matter at hand would be to destroy the authenticity, integrity and
conclusiveness of such collegiate acts and resolutions and to disregard utterly' the
presumption of regular performance' of official duty. To allow such collateral attack would
destroy the separation of powers and undermine the role of the Supreme Court as the final
arbiter of all justiciable disputes." (In Re Wenceslao Laureta, 148 SCRA 382, 419-420,
March 12, 1987; italics in original)
While the COMELEC is given specific powers and functions by the Constitution, the Commission does not
have the same level and standing as the three great branches of government. Hence, erroneous and
whimsical are all pretentions of equality, with those three, as unabashedly propositioned directly or
indirectly -- in the COMELEC Order of 10 September 2003.
FOURTH, citing the Separate Opinions of Justices Jose C. Vitug and, Vicente V. Mendoza in the same cases
(G.R. Nos. 147589 and 147613), the COMELEC's First division peremptorily and erroneously charges the
Chief Justice and the concerned Associate Justices with "judicial legislation" allegedly constituting contempt.
To begin with, the, dissenting Justices, particularly Justice Vitug who is still a sitting Member, merely said
that the ponencia "x x x may unwittingly be crossing the limits of judicial legislation." The Dissent advisedly
used the words "may" and "unwittingly," but the First Division deviously misinterpreted these terms to mean
a positive charge of judicial lawmaking.
The main objection of the COMELEC's First Division which was earlier espoused by Justices Vitug and
Mendoza during 'the Court's deliberation namely, that the majority ignored the alleged intent of the framers
of the Constitution to open the party-list system to all groups, and not exclusively to the "marginalized and
underrepresented," has already been adequately: addressed by the Court's 26 June 2001 Decision, from
which we quote in part as follows:
"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. 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.
"Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in
Civil Liberties Union v. Executive Secretary 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 of our fellow citizens whose votes at
the polls 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, relatives 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 hot an issue here. Hence, they remain parts of the law, which must be applied
plainly and simply." (Citations omitted.)
Also, the Opinions of' the two esteemed Justices were merely those of individual Members But the Court's
Decision, Resolution and Order impugned by the COMELEC's First Division constituted the collective rulings
of the Court, not individual opinions of those writing or voting for them. Unlike the members of the First
Division, the dissenting Justices have graciously accepted without any complaint, rancor or tantrum these
collective actions of the Court which, to quote the First Division itself, "form part of the legal system of the
land."
The fact that the dissenters touched on the subject of judicial legislation means that the issue had been
thoroughly discussed by the Justices; but that after meticulous deliberation and judicious study, the Court
by majority vote held that its carefully crafted Decision did not amount to usurpation of legislative'
functions.
Despite the foregoing explanation, the C0MELEC First Division still condemned the Court for .championing
"the cause of the marginalized and underrepresented sectors [and] judicially [giving] them a better chance
to win the elections by prescribing that "nominees x x x must [also] belong to marginalized and
underrepresented sectors." It likewise contended that by disqualifying parties that received funding, from
the government (and not just from foreign governments), the Court had unconstitutionally expanded the
grounds for disqualification of party-list candidates.
Again, our 26 June 2001 Decision has adequately taken up these concerns quite extensively. We need not
repeat here the lengthy discussions therein, except to say that:
(1) The Court's conclusion that the party-list system was intended for the marginalized and
underrepresented was, painstakingly and carefully culled from the Constitution and the law. It was made
only after, debate, discussion and a long study, as can be gleaned from even a cursory reading of our
Decision. That there were dissents even among the justices themselves is proof enough of these spirited
Deliberations. Finally, in consonance with the social justice principle espoused by the partly-list law, the
Court said:
"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. (Citation omitted)
Additionally, to stress the social Justice rationale of the law, the Court observed, as follows:
"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 patty-list system truly empowers the masses and
ushers a new hope for genuine change. Verily, it invites those marginalized and under
represented 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."
(2) Citing Section 2(4) of Article IX (B) of the Constitution and Article 261(o) of B.P. Big. 881, the Court
held that "the participation of the government or its officials in the affairs of a party-list candidate is not only
illegal 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." Thus, in formulating one of the guidelines for determining the qualifications of a party-list
candidate, the Court ruled that the "party or organization must not be an adjunct of, or a project organized
or an entity funded or assisted by, the government"
FIFTH, the COMELEC'S First Division ruled that in the same cases (G.R. Nos. 147589 and 1 4761 3), the
Court had allegedly degraded the Commission by making the latter a mere recommendatory body" and thus
deprived it of its constitutional powers to enforce election laws. Again, this is pure legal heresy.
In our 26 June 2001 Decision in those cases, a fact-finding task was delegated to the COMELEC: to
determine which of the party-list candidates had complied with the eight-point guideline we had issued. This
task had to be delegated because the Court is not a trier of facts, and' the Corn mission is' precisely the
constitutional agency that is supposedly knowledgeable of election matters and the principal trier thereof.
Clearly delineated in our Decision was the specific work remanded to the COMELEC fact-findings It did not
involve, much less impair, the normal powers and duties of the poll body. To stress, its task of fact-finding
was specific and limited, one that accrued only as a direct result of the disposition" in the said cases. In
other words, its authority in this specific instance was coextensive only with that which, was delegated to it
to implement the Decision.
To its credit, it performed its delegated task without much ado and later submitted its three Compliance
Reports, which were subsequently affirmed by this Court.
Thus, the Court is now bewildered at these new sanctimonious perorations of the First Division, complaining
about the COMELEC being allegedly "scale(d) down to a mere recommendatory body x x x virtually making
it a mere rubber stamp" of the Court. These complaints had never been aired by the Commission en banc
which, as earlier stated, had performed its fact-finding mission with commendable alacrity. Only when it
overstepped as very limited and delegated fact-finding authority and usurped the Court's work in relation to
the aforementioned cases (G.R. Nos. 147589 and 147613) did its attention have to be called by way of our
contempt Resolution dated 28 February 2003.
Incidentally, in this connection, the First Division is "astonished" at the fact that after penalizing the
COMELEC Commissioners for their improvident issuance of their Resolution proclaiming certain party-list
candidates, this Court did not void the proclamation. Plainly, the answer is contained in our 25 June 2003
Resolution: The affected parties deserve due process, and a decision or order affecting them may be issued
only after they have completed their arguments on the legal effects of the wrongful proclamation Indeed,
there is a distinction between holding in contempt the authors of an arbitrary proclamation resolution, on
the one hand, and, on the other, unseating those who have been proclaimed, have taken their seats in
Congress, and have begun performing their lawmaking duties. Has the First Division, wallowing in its own
tantrums, overlooked this significant difference?
SIXTH. The First Division also raised a big fuss about the alleged deprivation of due process and equal
protection. Again, the Honorable Division may have overlooked the fact that the basic requirement of due
process is the opportunity to be heard. The COMELEC has had more than as just share of that opportunity.
Prior to the Court's imposition of a penalty on them, the COMELEC's Chairman and Members were asked to
show cause why they should not be cited for contempt via our rather lengthy Resolution dated December
17, 2002. And they responded and tried vainly, it turned out in the end to justify their contumacious actions.
Too, they were heard via their Motion for Reconsideration which, after due deliberation, was denied by this
Court. As already stated, all seven Members (including the Chairman) of the Comelec paid the fine. Why are
the three Members of, the First Division a minority in the banc of seven now whining about their liability for
contempt?
SEVENTH. That the official actions of this Court may be commented on or even criticized is a right granted
by the Constitution. But criticism that takes the form of malicious insinuation, brazen ridicule or capricious
innuendo has no place in a formal resolution of an agency that seeks wrongly to hold in contempt this
Court's Members for issuing decisions and orders that have allegedly interfered with its proceedings. This
truism remains clear and untrammeled in our system of government, no matter how extravagantly the
Members of the Commission First Division may regard their own intellectual capacities and how poorly those
of others. They must bear in mind that there is only one Supreme Court to which all judicial and quasi-
judicial agencies must take their bearings. By their oath of office, they are bound to respect and obey its
decisions and orders, even if they may not agree with them. They need only to be reminded of the following
dictum which, though issued by the Court many years ago, still holds sway up to now:
"We concede that a lawyer may think highly of his intellectual, endowment. That is his privilege. And, he
may suffer frustration at what he feels is others' lack of it. That is his misfortune. x x x (S)uch frame of
mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words
calculated to jettison the time-honored aphorism that courts are the temples of right." (Rheem of the
Philippines vs. Ferrer, 20 SCRA 441, 444, June 26, 1967)
WHEREFORE, the Resolution promulgated by the First Division of the Commission on Elections in EM-03-
010 and EM-03-01 1, is NOTED insofar as it DISMISSED the Petitions for Contempt; but its "reasons
given" therefor are DECLARED UTTERLY BASELESS for having been 'palpably issued without jurisdiction,
being in clear contravention of the Constitution and, of our Resolution dated 26 August 2003.
Inasmuch as "the COMELEC's First Division forwarded September 2003 Resolution to the House of
Representatives, let a copy of this unanimous en banc' Resolution of the Court be sent also to the House of
Representatives as well as to- the Chairman of the Commission on Elections.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
A.M. No. 03-8- 22-SC, September 16, 2003
A.M. No. 03-8-22-SC. September 16, 2003
RE: EM NO. 03-010 - ORDER OF THE FIRST DIVISION OF THE COMMISSION ON ELECTIONS
DATED AUGUST 15, 2003.
EN BANC
Gentlemen:
Quoted hereunder, for your information, is a resolution of the Court En Banc dated 16 SEP 2003
A.M. No. 03-8-22 SC. (Re: EM No. 03-010 Order of the First Division of the Commission on Elections dated
August 15, 2003.)
On 10 September 2003, the First Division bf the Commission Elections (COMELEC) promulgated a Resolution
in EM Nos. 03-010 & 03-011,[1] which disposed thus:
cralaw
"WHEREFORE, for the reasons given, this Commission may be persuaded to

pronounce the existence of sufficient grounds to declare respondents in contempt of this
Commission and accordingly impose the proper penalty. Nevertheless, we are
constitutionally enjoined from doing so without respondents first going through the process
of impeachment.
"As prayed for by Petitioner Rodolfo T. AIbano III and Intervenor Rodrigo B.
Gutang, let [a] copy of this resolution be forwarded [to] the House of Representatives.
"However, in the light of the foregoing discussion, we find the filing of the present
petitions premature because of the authoritative doctrine that impeachable officers must
first be removed from office by impeachment before any punitive measure may be imposed
against them. Consequently, the actions being untimely filed, as explained by the Supreme
Court, the Petitions for Indirect Contempt deserve nothing less than outright dismissal. Let
the above-captioned cases be, as they are hereby ordered, DISMISSED.
"SO ORDERED."
On 26 August 2003, prior to the promulgation of the above Resolution of the COMELEC's First Division, this
Court en banc issued its own Resolution, quoted in full as follows:
"Acting on the Order of the Commission on Elections dated August 15, 2003 signed
by Presiding Commissioner Rufino SB. Javier of the Comelec First Division addressed to
Chief Justice Hilario G. Davide Jr. and Associate Justices Josue N. Bellosillo, Reynato S.
Puno and Artemio V. Panganiban, sending them copies of Petition's for Indirect Contempt
filed against them in the Commission by the Malay Democrats of the Philippines (signed by
Ma. Linda Olaguer Montayre), Rodolfo T. Albano III and Rodrigo B. Gutang, and advising
them that they may, if they so desire, send to (the) Commission within a reasonable time
their observation or comment on the afore-enumerated pleadings to help the Commission
in intelligently disposing of them, the Court RESOLVED (1) to treat it as an administrative
matter cognizable by the Courts en banc as it affects the entire Court, and (2.) to inform
the Commission that the subject matter of the Petitions involves a, review of the final
decision and/or official actions of this Court in G.R. Nos. 147589 and 147613, June 26,
2001 (Ang Bagong Bayani-OFW Labor Party vs. commission on Elections, et al.), a review
that is, unquestionably beyond the jurisdiction of the Commission. Under the Constitution
and pursuant to the principle of separation of powers, decisions, orders and official actions
of the Supreme Court and its Members cannot be reviewed, passed upon, modified, much
less reversed by any department, agency or branch of government, whether directly or
indirectly under any guise whatsoever. Accordingly, the Petitions for Indirect Contempt
deserve nothing less than outright dismissal.
"SO ORDERED"
While this Court does not fault the COMELEC's First Division for outrightly DISMISSING the Petitions for
Contempt, it cannot let the "reasons given" therefor pass unchallenged and uncorrected. These reasons
were proffered without jurisdiction or with grave abuse of discretion, in clear contravention of the
Constitution and the above-quoted Resolution.
In its 38-page Resolution, the COMELEC First Division basically insinuates two points as follows:
(1) that it possesses the power to hold in contempt the Chief Justice and
some Associate Justices for their participation and vote in decisions and
orders of this Court, which allegedly interfered with or impeded the
proceedings of the Commission; and
(2) that it had in fact determined the "existence of sufficient grounds to

declare respondents in contempt of [the] Commission and to 'impose the
proper penalty," were it not for the fact that the Justices were
impeachable officers who "must first be removed from office by
impeachment before any punitive measure may be imposed against
them."
These ratiocinations constitute plain and simple legal balderdash.
FIRST, as already stated in our foregoing 26 August 2003 Resolution, the Commission has no. jurisdiction to
hold the Court or any of its Members in contempt for any, decision, order or official action they issue.
Initially, the COMELEC's First Division and its three signatory Commissioners openly conceded that, indeed,
they did not have any power to review, alter or reverse such act. Yet, it did pass upon them in its Resolution
and concluded thereafter that the "June 6, 2001 Decision, Order of October 8, 2002, and Resolution dated
February 18, 2003 restrained the COMELEC from performing its constitutional duties and prerogatives." That
restraint allegedly constituted contempt of the Commission.
There is no need to explain in detail or to defend the aforesaid three issuances of this Court in G.R. Nos.
147589 and 147613, (Ang Bagong Bayani-OFW Labor Party v. Commission on Elections), because they
speak for themselves. Suffice it to say that they were its official actions promulgated in appropriate
certiorari proceedings, in, which the Commission's previous Decision on the matter was, REVERSED. That
the Supreme Court has the authority to pass upon, modify or reverse the quasi-judicial actions of the
COMELEC is UNQUESTIONED.
Verily, under Article VIII, Section 1 of the Constitution "[j]udicial power includes the duty of the courts of
justice x x x 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." More specifically,
Article. IX, Section 7 of the Constitution grants the Supreme Court the authority to pass upon on certiorari
"any decision, order or ruling" of the COMELEC and other constitutional commissions.
Giving flesh to these constitutional provisions is Rule 64 of the Rules of Court which provides that" "[a]
judgment or final order or resolution of the Commission on Elections x x x may be brought x x x to .the
Supreme Court on certiorari under Rule 65." On the other hand, Rule 65 states: "When any tribunal, board
or officer exercising judicial or quasi-judicial functions has acted Without or in excess of its or his
jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, x x x" the Supreme
Court may annul or modify the proceedings of such tribunal, board or officer, and grant such incidental
reliefs as law and justice may require. Finally, Rules 135 and 136 list the inherent powers of courts and
judicial officers to ensure that their decisions or orders are: carried out, including the power of meting out
contempt.
True, the COMELEC -- along with the Commission on Audit, the Commission on Civil Service and the,
Ombudsman -- is a constitutionally created body with constitutionally mandated functions. However, as
already stated, the actions of all such constitutional, bodies are subject to" certiorari review by the Supreme
Court as was done in G.R. Nos. 147589 and 147613. Thus, the Court may intervene, strike down or modify
COMELEC's actions without itself incurring any liability for contempt; whether its Justices happen to be
impeachable officers or not if the Supreme Court (or its Members) can be held liable for contempt for official
actions, then it would cease to be "supreme" in its task of interpreting the law and would become
subordinate to whichever agency claims the power to cite the Court or its Members for contempt.
In short, the fact that Supreme Court Justices are impeachable officers should not be the ground for the
COMELEC's dismissal of the contempt charges. Rather, they cannot be held liable for contempt, because
their herein questioned Decision, Resolution, and Order that have allegedly interfered with, proceedings of
the COMELEC were made pursuant to their constitutional function. To stop or impede COMELEC's
proceedings when these have been conducted without or in excess of jurisdiction or with grave abuse of
discretion is not merely a judicial prerogative; the Constitution mandates such move as a judicial duty." The
performance of this duty cannot subject the Court or its Members to contempt of the COMELEC; otherwise,
they would not be able to reverse or modify its abusive actions.
"The sound, salutary and self-evident principle, prevailing in this as in most

jurisdictions, is that judgments of the highest tribunal of the land may not be reviewed by
any other agency branch, department, or official of Government. Once the Supreme Court
has spoken, there the matter must rest. Its decision should not and cannot be appealed to
or reviewed by any other entity, much less reversed or modified on the ground that it is,
tainted by error in its findings of fact or conclusions of law, flawed in its logic or language,
or otherwise erroneous in some other respect. This, on the indisputable and unshakeable
foundation of public policy, and constitutional and traditional principle." (In Re Joaquin T.
Borromeo, 311 Phil. 441, 509, February 21, 1995)
SECOND. The COMELEC's notion that impeachable officers cannot be held in contempt is palpably incorrect
or at least misleading. Maliciously implied in this notion is that the Supreme Court erred in holding the
Chairman and Members of the COMELEC in contempt via its Resolution dated 18 February 2003 in the same
G.R. Nos. 147589 and 147613.
As mentioned earlier, this Court has undisputed certiorari powers over the actions of the Commission on
Elections. As an incident of such prerogative, the Court has the inherent authority to enforce its orders and
to hold the COMELEC's Chairman and Commissioners in contempt when they impede, obstruct, or degrade
its proceedings or orders, or disobey, ignore or otherwise offend its dignity.
Clearly, the COMELEC has no reciprocal constitutional power to pass upon the actions of this Court or its
Members Hence, the Commission has absolutely no authority to hold them in contempt as an incident of its
inexistent power of review. Even more clearly, it has no right to recriminate or sulk when its imprudent
actions are reversed, or its Members held in contempt for their rash actions.
By voluntarily paying the fine imposed in our contempt Resolution of 18 February 2003, the Chairman and
all the Commissioners of the COMELEC displayed a becoming regard for the rule of law in thereby
recognizing this Court's authority to hold in contempt impeachable officials like them. It is a source of
wonder why the First Division composed of only three -- a minority -- of the seven COMELEC members are
now in a tantrum over a final and executed contempt Order of this Court.
"x x x [T]he punishment for contempt of court is a remedial, preservative or

coercive act, rather than a vindictive or punitive one, and is imposed for the benefit of
complainant or the other party to the suit who has been injured, and its object is to compel
obedience to, or the performance of, the court's orders or decrees, which the contemnor
refuses to obey although able to do so, and thus, to secure, preserve, vindicate, enforce,
or advance the rights of such private parties, as well as to vindicate the court's authority."
(Facinal vs. Cruz, 213 SCRA 23.8, 244-245, September 2, 1992)
As to the First division's reckless innuendo that. COMELEC Commissioners are exempt' from criminal
prosecution and thus from the criminal aspects of contempt, they should read De. Venecia vs.
Sandiganbayan (G.R. No. 130240, February 5, 2002), People vs. Jalosjos (381 Phil. 6901, February .3,
2000), Santiago vs. Sandiganbayan; (363 Phil. 605, March 8, 1999), Paredes, vs. Sandiganbayan (G.R. No.
118354, August 8, 1995), and Martinez vs. Morfe (44 SCRA 22, March 24, 1972). In those Decisions,
lawmakers are not totally exempt from criminal proceedings; how then can the First Division Commissioners
pretend to be more special than they?
THIRD, under the doctrine of separation of powers, the three major branches of government -- the
Executive, the Legislative and the Judicial -- are coequal and coordinate with each other. But none may
interfere with, review or pass upon the exclusive powers vested in each of them by the Constitution.
Specifically, not even the other two great branches of government may reverse or modify decisions and
orders of the Supreme Court in given case -- not the President, not Congress much less the COMELEC.
But, as part of the system of checks and balances, if. Congress does not agree with the Court's
interpretation of a law, it may repeal, modify or amend the statute; but it cannot directly overturn the
decision or hold the magistrates writing or voting thereon liable for contempt or for any administrative,
criminal, civil or any other liability. On the other hand, the President may appoint justices who may change
the interpretation in the future. But no act of Congress or the President may alter a final and executory
decision of this Court.
"Indeed, resolutions of the Supreme Court as a collegiate court, whether en banc

or division, speak for themselves and are entitled to full faith and credence and are beyond
investigation or inquiry under the same principle of conclusiveness of enrolled bills of the
legislature. (U.S. vs. Pons, 34 Phil. 729; Gardiner, et al. vs. Paredes, et al., 61 Phil. 118;
Mabanag vs. Lopez Vito, 78 Phil. 1) The Supreme Court's pronouncement of the doctrine
that (l)t is well settled that the enrolled bill . . . is conclusive upon the courts as regards
the tenor of the measure passed by Congress and approved by the President. If there has
been any mistake in the printing of the bill before it was certified by the officers of
Congress and approved by the Executive [as claimed by petitioner-importer who
unsuccessfully sought refund of margin fees] - on which' we cannot speculate, without
jeopardizing the principle of separation of powers and undermining one of the cornerstones
of our democratic system - the remedy is by amendment or curative legislation, not by
judicial decree is fully and reciprocally applicable to Supreme Court orders, resolutions and
decisions, mutatis mutandis. (Casco Phil. Chemical Co., Inc. vs. Gimenez, 7 SCRA 347,
350. (Citing Primicias vs. Paredes, 61 'Phil. 118, 120; Mabanag vs. Lopez Vito, 78 Phil. 1;
Macias vs. Comelec, 3 SCRA 1)
"The Court has consistently stressed that the doctrine of separation, of powers
calls for the executive, legislative and judicial departments being left alone to discharge
their duties as they see fit (Tan vs. Macapagal, 43 SCRA 677). It has thus maintained in
the same way that the judiciary has a right to expect that neither the President nor
Congress would cast doubt on the mainspring of its orders or decisions, it should refrain
from speculating as to alleged hidden forces at work that could have impelled either
coordinate branch into acting the way it did. The concept of separation of powers
presupposes mutual' respect by and between the three departments of the government
(Tecson vs. Salas, 34 SCRA 275, 286-287)
"To allow litigants to go beyond the Courts resolution and claim that the members
acted 'with deliberate bad faith' and rendered (an) 'unjust resolution' in disregard or
violation of the duty of their high office to act upon their own independent consideration
and judgment of the matter at hand would be to destroy the authenticity, integrity and
conclusiveness of such collegiate acts and resolutions and to disregard utterly' the
presumption of regular performance' of official duty. To allow such collateral attack would
destroy the separation of powers and undermine the role of the Supreme Court as the final
arbiter of all justiciable disputes." (In Re Wenceslao Laureta, 148 SCRA 382, 419-420,
March 12, 1987; italics in original)
While the COMELEC is given specific powers and functions by the Constitution, the Commission does not
have the same level and standing as the three great branches of government. Hence, erroneous and
whimsical are all pretentions of equality, with those three, as unabashedly propositioned directly or
indirectly -- in the COMELEC Order of 10 September 2003.
FOURTH, citing the Separate Opinions of Justices Jose C. Vitug and, Vicente V. Mendoza in the same cases
(G.R. Nos. 147589 and 147613), the COMELEC's First division peremptorily and erroneously charges the
Chief Justice and the concerned Associate Justices with "judicial legislation" allegedly constituting contempt.
To begin with, the, dissenting Justices, particularly Justice Vitug who is still a sitting Member, merely said
that the ponencia "x x x may unwittingly be crossing the limits of judicial legislation." The Dissent advisedly
used the words "may" and "unwittingly," but the First Division deviously misinterpreted these terms to mean
a positive charge of judicial lawmaking.
The main objection of the COMELEC's First Division which was earlier espoused by Justices Vitug and
Mendoza during 'the Court's deliberation namely, that the majority ignored the alleged intent of the framers
of the Constitution to open the party-list system to all groups, and not exclusively to the "marginalized and
underrepresented," has already been adequately: addressed by the Court's 26 June 2001 Decision, from
which we quote in part as follows:
"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. 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.
"Indeed, as cited in the Separate Opinion of Justice Mendoza, this Court stated in
Civil Liberties Union v. Executive Secretary 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 of our fellow citizens whose votes at
the polls 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, relatives 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 hot an issue here. Hence, they remain parts of the law, which must be applied
plainly and simply." (Citations omitted.)
Also, the Opinions of' the two esteemed Justices were merely those of individual Members But the Court's
Decision, Resolution and Order impugned by the COMELEC's First Division constituted the collective rulings
of the Court, not individual opinions of those writing or voting for them. Unlike the members of the First
Division, the dissenting Justices have graciously accepted without any complaint, rancor or tantrum these
collective actions of the Court which, to quote the First Division itself, "form part of the legal system of the
land."
The fact that the dissenters touched on the subject of judicial legislation means that the issue had been
thoroughly discussed by the Justices; but that after meticulous deliberation and judicious study, the Court
by majority vote held that its carefully crafted Decision did not amount to usurpation of legislative'
functions.
Despite the foregoing explanation, the C0MELEC First Division still condemned the Court for .championing
"the cause of the marginalized and underrepresented sectors [and] judicially [giving] them a better chance
to win the elections by prescribing that "nominees x x x must [also] belong to marginalized and
underrepresented sectors." It likewise contended that by disqualifying parties that received funding, from
the government (and not just from foreign governments), the Court had unconstitutionally expanded the
grounds for disqualification of party-list candidates.
Again, our 26 June 2001 Decision has adequately taken up these concerns quite extensively. We need not
repeat here the lengthy discussions therein, except to say that:
(1) The Court's conclusion that the party-list system was intended for the marginalized and
underrepresented was, painstakingly and carefully culled from the Constitution and the law. It was made
only after, debate, discussion and a long study, as can be gleaned from even a cursory reading of our
Decision. That there were dissents even among the justices themselves is proof enough of these spirited
Deliberations. Finally, in consonance with the social justice principle espoused by the partly-list law, the
Court said:
"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. (Citation omitted)
Additionally, to stress the social Justice rationale of the law, the Court observed, as follows:
"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 patty-list system truly empowers the masses and
ushers a new hope for genuine change. Verily, it invites those marginalized and under
represented 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."
(2) Citing Section 2(4) of Article IX (B) of the Constitution and Article 261(o) of B.P. Big. 881, the Court
held that "the participation of the government or its officials in the affairs of a party-list candidate is not only
illegal 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." Thus, in formulating one of the guidelines for determining the qualifications of a party-list
candidate, the Court ruled that the "party or organization must not be an adjunct of, or a project organized
or an entity funded or assisted by, the government"
FIFTH, the COMELEC'S First Division ruled that in the same cases (G.R. Nos. 147589 and 1 4761 3), the
Court had allegedly degraded the Commission by making the latter a mere recommendatory body" and thus
deprived it of its constitutional powers to enforce election laws. Again, this is pure legal heresy.
In our 26 June 2001 Decision in those cases, a fact-finding task was delegated to the COMELEC: to
determine which of the party-list candidates had complied with the eight-point guideline we had issued. This
task had to be delegated because the Court is not a trier of facts, and' the Corn mission is' precisely the
constitutional agency that is supposedly knowledgeable of election matters and the principal trier thereof.
Clearly delineated in our Decision was the specific work remanded to the COMELEC fact-findings It did not
involve, much less impair, the normal powers and duties of the poll body. To stress, its task of fact-finding
was specific and limited, one that accrued only as a direct result of the disposition" in the said cases. In
other words, its authority in this specific instance was coextensive only with that which, was delegated to it
to implement the Decision.
To its credit, it performed its delegated task without much ado and later submitted its three Compliance
Reports, which were subsequently affirmed by this Court.
Thus, the Court is now bewildered at these new sanctimonious perorations of the First Division, complaining
about the COMELEC being allegedly "scale(d) down to a mere recommendatory body x x x virtually making
it a mere rubber stamp" of the Court. These complaints had never been aired by the Commission en banc
which, as earlier stated, had performed its fact-finding mission with commendable alacrity. Only when it
overstepped as very limited and delegated fact-finding authority and usurped the Court's work in relation to
the aforementioned cases (G.R. Nos. 147589 and 147613) did its attention have to be called by way of our
contempt Resolution dated 28 February 2003.
Incidentally, in this connection, the First Division is "astonished" at the fact that after penalizing the
COMELEC Commissioners for their improvident issuance of their Resolution proclaiming certain party-list
candidates, this Court did not void the proclamation. Plainly, the answer is contained in our 25 June 2003
Resolution: The affected parties deserve due process, and a decision or order affecting them may be issued
only after they have completed their arguments on the legal effects of the wrongful proclamation Indeed,
there is a distinction between holding in contempt the authors of an arbitrary proclamation resolution, on
the one hand, and, on the other, unseating those who have been proclaimed, have taken their seats in
Congress, and have begun performing their lawmaking duties. Has the First Division, wallowing in its own
tantrums, overlooked this significant difference?
SIXTH. The First Division also raised a big fuss about the alleged deprivation of due process and equal
protection. Again, the Honorable Division may have overlooked the fact that the basic requirement of due
process is the opportunity to be heard. The COMELEC has had more than as just share of that opportunity.
Prior to the Court's imposition of a penalty on them, the COMELEC's Chairman and Members were asked to
show cause why they should not be cited for contempt via our rather lengthy Resolution dated December
17, 2002. And they responded and tried vainly, it turned out in the end to justify their contumacious actions.
Too, they were heard via their Motion for Reconsideration which, after due deliberation, was denied by this
Court. As already stated, all seven Members (including the Chairman) of the Comelec paid the fine. Why are
the three Members of, the First Division a minority in the banc of seven now whining about their liability for
contempt?
SEVENTH. That the official actions of this Court may be commented on or even criticized is a right granted
by the Constitution. But criticism that takes the form of malicious insinuation, brazen ridicule or capricious
innuendo has no place in a formal resolution of an agency that seeks wrongly to hold in contempt this
Court's Members for issuing decisions and orders that have allegedly interfered with its proceedings. This
truism remains clear and untrammeled in our system of government, no matter how extravagantly the
Members of the Commission First Division may regard their own intellectual capacities and how poorly those
of others. They must bear in mind that there is only one Supreme Court to which all judicial and quasi-
judicial agencies must take their bearings. By their oath of office, they are bound to respect and obey its
decisions and orders, even if they may not agree with them. They need only to be reminded of the following
dictum which, though issued by the Court many years ago, still holds sway up to now:
"We concede that a lawyer may think highly of his intellectual, endowment. That is his privilege. And, he
may suffer frustration at what he feels is others' lack of it. That is his misfortune. x x x (S)uch frame of
mind, however, should not be allowed to harden into a belief that he may attack a court's decision in words
calculated to jettison the time-honored aphorism that courts are the temples of right." (Rheem of the
Philippines vs. Ferrer, 20 SCRA 441, 444, June 26, 1967)
WHEREFORE, the Resolution promulgated by the First Division of the Commission on Elections in EM-03-
010 and EM-03-01 1, is NOTED insofar as it DISMISSED the Petitions for Contempt; but its "reasons
given" therefor are DECLARED UTTERLY BASELESS for having been 'palpably issued without jurisdiction,
being in clear contravention of the Constitution and, of our Resolution dated 26 August 2003.
Inasmuch as "the COMELEC's First Division forwarded September 2003 Resolution to the House of
Representatives, let a copy of this unanimous en banc' Resolution of the Court be sent also to the House of
Representatives as well as to- the Chairman of the Commission on Elections.
Very truly yours,
LUZVIMINDA D. PUNO
Clerk of Court
Republic v. Sereno, G.R. No. 237428, June 19, 2018
G.R. No. 237428, June 19, 2018
REPUBLIC OF THE PHILIPPINES, REPRESENTED BY SOLICITOR GENERAL JOSE

C. CALIDA, Petitioner, v. MARIA LOURDES P. A. SERENO, Respondent.
RESOLUTION
TIJAM, J.:
This resolution treats of the following motions:
1. Maria Lourdes P. A. Sereno's (respondent) Ad Cautelam Motion for

Reconsideration of this Court's Decision1 dated May 11, 2018, the dispositive
portion of which states:
WHEREFORE, the Petition for Quo Warranto is GRANTED. Respondent Maria

Lourdes P. A. Sereno is found DISQUALIFIED from and is hereby
adjudged GUILTY of UNLAWFULLY HOLDING and EXERCISING the OFFICE
OF THE CHIEF JUSTICE. Accordingly, Respondent Maria Lourdes P. A. Sereno
is OUSTED and EXCLUDED therefrom.
The position of the Chief Justice of the Supreme Court is declared vacant and the
Judicial and Bar Council is directed to commence the application and nomination
process.
This Decision is immediately executory without need of further action from the
Court.
Respondent Maria Lourdes P. A. Sereno is ordered to SHOW CAUSE within ten

(10) days from receipt hereof why she should not be sanctioned for violating the
Code of Professional Responsibility and the Code of Judicial Conduct for
transgressing the sub judice rule and for casting aspersions and ill motives to the
Members of the Supreme Court.
SO ORDERED.2
2. Respondent's Ad Cautelam Motion for Extension of Time to File Reply (to the

Show Cause Order dated 11 May 2018).
We first dispose of respondent's Motion for Reconsideration.
Respondent claims denial of due process because her case was allegedly not heard by
an impartial tribunal. She reiterates that the six (6) Justices ought to have inhibited
themselves on the grounds of actual.bias, of having personal knowledge of disputed
evidentiary facts, and of having acted as a material witness in the matter in
controversy. Respondent also argues denial of due process when the Court supposedly
took notice of extraneous matters as corroborative evidence and when the Court based
its main Decision on facts without observing the mandatory procedure for reception of
evidence.
She reiterates her arguments that the Court is without jurisdiction to oust an
impeachable officer through quo warranto; that the official acts of the Judicial and Bar
Council (JBC) and the President involves political questions that cannot be annulled
absent any allegation of grave abuse of discretion; that the petition for quo warranto is
time-barred; and that respondent was and is a person of proven integrity.
By way of Comment, the Republic of the Philippines (Republic), through the Office of
the Solicitor General (OSG), seeks a denial of respondent's motion for reconsideration
tor being pro forma. In any case, the OSG argues that respondent's motion lacks merit
as there was no denial of due process and that quo warranto is the appropriate remedy
to oust an ineligible impeachable officer. The OSG adds that the issue of whether
respondent is a person of proven integrity is justiciable considering that the decision-
making powers of the JBC are limited by judicially discoverable standards. Undeviating
from its position, the OSG maintains that the petition is not time-barred as Section II,
Rule 66 of the Rules of Court does not apply to the State and that the peculiar
circumstances of the instant case preclude the strict application of the prescriptive
period.
Disputing respondent's claims, the OSG reiterates that respondent's repeated failure to
file her Statement of Assets, Liabilities and Net Worth (SALN) and her non-submission
thereof to the JBC which the latter required to prove the integrity of an applicant affect
respondent's integrity. The OSG concludes that respondent, not having possessed of
proven integrity, failed to meet the constitutional requirement for appointment to the
Judiciary.
Carefully weighing the arguments advanced by both parties, this Court finds no reason
to reverse its earlier Decision.
Respondent is seriously in error for claiming denial of due process. Respondent refuses
to recognize the Court's jurisdiction over the subject matter and over her person on the
ground that respondent, as a purported impeachable official, can only be removed
exclusively by impeachment. Reiterating this argument, respondent filed her Comment
to the Petition, moved that her case be heard on Oral Argument, filed her
Memorandum, filed her Reply/Supplement to the OSG's Memorandum and now,
presently moves for reconsideration. All these representations were made ad
cautelam which, stripped of its legal parlance, simply means that she asks to be heard
by the Court which jurisdiction she does not acknowledge. She asked relief from the
Court and was in fact heard by the Court, and yet she claims to have been denied of
due process. She repeatedly discussed the supposed merits of her opposition to the
present quo warranto petition in various social and traditional media, and yet she
claims denial of due process. The preposterousness of her claim deserves scant
consideration.
Respondent also harps on the alleged bias on the part of the six (6) Justices and that
supposedly, their failure to inhibit themselves from deciding the instant petition
amounts to a denial of due process.
Respondent's contentions were merely a rehash of the issues already taken into
consideration and properly resolved by the Court. To reiterate, mere imputation of bias
or partiality is not enough ground for inhibition, especially when the charge is without
basis. Acts or conduct clearly indicative of arbitrariness or prejudice has to be
shown.3 Verily, for bias and prejudice to be considered sufficient justification for the
inhibition of a Member of this Court, mere suspicion is not enough.
Moreover, as discussed in the main Decision, respondent's allegations on the grounds

for inhibition were merely based on speculations, or on distortions of the language,
context and meaning of the answers given by the concerned Justices as resource
persons in the proceedings of the Committee on Justice of the House of
Representatives. These matters were squarely resolved by the Court in its main
Decision, as well as in the respective separate opinions of the Justices involved.
Indeed, the Members of the Court's right to inhibit are weighed against their duty to
adjudicate the case without fear of repression. Respondent's motion to require the
inhibition of Justices Teresita J. Leonardo-De Castro, Lucas P. Bersamin, Diosdado M.
Peralta, Francis H. Jardeleza, Samuel R. Martires, and Noel Gimenez Tijam, who all
concurred to the main Decision, would open the floodgates to the worst kind of forum
shopping, and on its face, would allow respondent to shop for a Member of the Court
who she perceives to be more compassionate and friendly to her cause, and is clearly
antithetical to the fair administration of justice.
Bordering on the absurd, respondent alleges prejudice based on the footnotes of the
main Decision which show that the draft thereof was being prepared as early as March
15, 2018 when respondent has yet to file her Comment. Respondent forgets to mention
that the Petition itself was filed on March 5, 2018 where the propriety of the remedy
of quo warranto was specifically raised. Certainly, there is nothing irregular nor
suspicious for the Member-in-Charge, nor for any of the Justices for that matter, to
have made a requisite initial determination on the matter of jurisdiction. In professing
such argument, respondent imputes fault on the part of the Justices for having been
diligent in the performance of their work.
Respondent also considers as irregular the query made by the Member-in-Charge with
the JBC Office of the Executive Officer (OEO) headed by Atty. Annaliza S. Ty-Capacite
(Atty. Capacite). Respondent points out that the same is not allowed and shows
prejudice on the part of the Court.
For respondent's information, the data were gathered pursuant to the Court En
Banc's Resolution dated March 20, 2018 wherein the Clerk of Court En Banc and the
JBC, as custodian and repositories of the documents submitted by respondent, were
directed to provide the Court with documents pertinent to respondent's application and
appointment as an Associate Justice in 2010 and as Chief Justice of the Court in 2012
for the purpose of arriving at a judicious, complete, and efficient resolution of the
instant case. In the same manner, the "corroborative evidence" referred to by
respondent simply refers to respondent's acts and representations ascertainable
through an examination of the documentary evidence appended by both parties to their
respective pleadings as well as their representations during the Oral Argument.
Reference to respondent's subsequent acts committed during her incumbency as Chief
Justice, on the other hand, are plainly matters of public record and already determined
by the House of Representatives as constituting probable cause for impeachment.
II
The Court reaffirms its authority to decide the instant quo warranto action. This
authority is expressly conferred on the Supreme Court by the Constitution under
Section 5, Article VIII which states that:
Sec. 5. The Supreme Court shall have the following powers:
1. Exercise original jurisdiction over cases affecting ambassadors, other public

ministers and consuls, and over petitions for certiorari,
prohibition, mandamus, quo warranto, and habeas corpus.
x x x x (Emphasis ours)
Section 5 of Article VIII does not limit the Court's quo warranto jurisdiction only to
certain public officials or that excludes impeachable officials therefrom. In Sarmiento v.
Mison,4 the Court ruled:
The task of the Court is rendered lighter by the existence of relatively clear provisions
in the Constitution. In cases like this, we follow what the Court, speaking through Mr.
Justice (later, Chief Justice) Jose Abad Santos stated in Gold Creek Mining Corp. v.
Rodriguez, that:
The fundamental principle of constitutional construction is to give effect to the intent of

the framers of the organic law and of the people adopting it. The intention to which
force is to be given is that which is embodied and expressed in the
constitutional provisions themselves.5 (Emphasis ours)
The Constitution defines judicial power as a "duty" to be performed by the courts of

justice.6 Thus, for the Court to repudiate its own jurisdiction over this case would be to
abdicate a constitutionally imposed responsibility.
As the Court pointed out in its Decision, this is not the first time the Court took
cognizance of a quo warranto petition against an impeachable officer. In the
consolidated cases of Estrada v. Macapagal-Arroyo7 and Estrada v. Desierto,8 the Court
assumed jurisdiction over a quo warranto petition that challenged Gloria Macapagal-
Arroyo's title to the presidency.
Arguing that the aforesaid cases cannot serve as precedent for the Court to take
cognizance of this case, respondent makes it appear that they involved a totally
different issue, one that concerned Joseph E. Estrada's immunity from suit, specifically:
"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." 9
Respondent's allegation is utterly false and misleading. A cursory reading of the cases
will reveal that Estrada's immunity from suit was just one of the issues raised therein.
Estrada in fact sought a quo warranto inquiry into Macapagal-Arroyo's right to assume
the presidency, claiming he was simply a President on leave.
Respondent also asserts that Estrada cannot serve as precedent for the Court to decide
this case because it was dismissed, and unlike the instant petition, it was filed within
the prescribed one (1)-year period under Section 11, Rule 66 of the Rules of Court. 10
The argument fails to persuade. Estrada was dismissed not because the Court had no
jurisdiction over the quo warranto petition but because Estrada's challenge to
Macapagal-Arroyo's presidency had no merit. In ruling upon the merits of Estrada's quo
warranto petition, the Court has undeniably exercised its jurisdiction under Section 5(1)
of Article VIII. Thus, Estrada clearly demonstrates that the Court's quo
warranto jurisdiction extends to impeachable officers.
Furthermore, as will be discussed elsewhere in this Resolution, the filing of the instant
petition was not time-barred. The issue of prescription must be addressed in light of the
public interest that quo warranto is meant to protect.
Accordingly, the Court could, as it did in Estrada, assume jurisdiction over the
instant quo warranto petition against an impeachable officer.
Quo warranto and impeachment are two distinct proceedings, although both may result
in the ouster of a public officer. Strictly speaking, quo warranto grants the relief of
"ouster", while impeachment affords "removal."
A quo warranto proceeding is the proper legal remedy to determine a person's right or

title to a public office and to oust the holder from its enjoyment. 11 It is the proper action
to inquire into a public officer's eligibility 12 or the validity of his appointment. 13 Under
Rule 66 of the Rules of Court, a quo warranto proceeding involves a judicial
determination of the right to the use or exercise of the office.
Impeachment, on the other hand, is a political process undertaken by the legislature to

determine whether the public officer committed any of the impeachable offenses,
namely, culpable violation of the Constitution, treason, bribery, graft and corruption,
other high crimes, or betrayal of public trust. 14 It does not ascertain the officer's
eligibility for appointment or election, or challenge the legality of his assumption of
office. Conviction for any of the impeachable offenses shall result in the removal of the
impeachable official from office.15
The OSG's quo warranto petition challenged respondent's right and title to the position
of Chief Justice. He averred that in failing to regularly disclose her assets, liabilities and
net worth as a member of the career service prior to her appointment as an Associate
Justice of the Court, respondent could not be said to possess the requirement of proven
integrity demanded of every aspiring member of the Judiciary. The OSG thus prayed
that respondent's appointment as Chief Justice be declared void.
Clearly, the OSG questioned the respondent's eligibility for appointment as Chief Justice
and sought to invalidate such appointment. The OSG's petition, therefore, is one
for quo warranto over which the Court exercises original jurisdiction.
As the Court previously held, "where the dispute is on the eligibility to perform the
duties by the person sought to be ousted or disqualified a quo warranto is the proper
action."16
Respondent harps on the supposed intent of the framers of the Constitution for
impeachable officers to be removed only through impeachment. 17 However, a
circumspect examination of the deliberations of the 1986 Constitutional Commission will
reveal that the framers presumed that the impeachable officers had duly qualified for
the position. Indeed, the deliberations which respondent herself cited 18 showed that the
framers did not contemplate a situation where the impeachable officer was unqualified
for appointment or election.
Accordingly, respondent's continued reliance on the Court's pronouncement in Mayor

Lecaroz v. Sandiganbayan,19Cuenco v. Hon. Fernan,20In Re Gonzales,21Jarque v.
Desierto22 and Marcoleta v. Borra23 (Lecaroz etc.) is misplaced. Not one of these cases
concerned the validity of an impeachable officer's appointment. To repeat, Lecaroz
involved a criminal charge against a mayor before the Sandiganbayan, while the rest
were disbarment cases filed against impeachable officers principally for acts done
during their tenure in public office. The officers' eligibility or the validity of their
appointment was not raised before the Court. The principle laid down in said cases is to
the effect that during their incumbency, impeachable officers cannot be criminally
prosecuted for an offense that carries with it the penalty of removal, and if they are
required to be members of the Philippine Bar to qualify for their positions, they cannot
be charged with disbarment. The proscription does not extend to actions assailing the
public officer's title or right to the office he or she occupies. The ruling therefore cannot
serve as authority to hold that a quo warranto action can never be filed against an
impeachable officer.
The Court's quo warranto jurisdiction over impeachable officers also finds basis in

paragraph 7, Section 4, Article VII of the Constitution which designates it as the sole
judge of the qualifications of the President and Vice President, both of whom are
impeachable officers. With this authority, the remedy of quo warranto was provided in
the rules of the Court sitting as the Presidential Electoral Tribunal (PET).
Respondent, however, argues that quo warranto petitions may be filed against the
President and Vice-President under the PET Rules "only because the Constitution
specifically permits" them under Section 4, Article VII. According to respondent, no
counterpart provision exists in the Constitution giving the same authority to the Court
over the Chief Justice, the members of the Constitutional Commissions and the
Ombudsman. Respondent, thus, asserts that the Constitution made a distinction
between elected and appointive impeachable officials, and limited quo warranto to
elected impeachable officials. For these reasons, respondent concludes that by
constitutional design, the Court is denied power to remove any of its members. 24
The Court is not convinced. The argument, to begin with, acknowledges that the
Constitution in fact allows quo warranto actions against impeachable officers, albeit
respondent limits them to the President and Vice-President. This admission refutes the
very position taken by respondent that all impeachable officials cannot be sued
through quo warranto because they belong to a "privileged class" of officers who can be
removed only through impeachment.25 To be sure, Lecaroz, etc. did not distinguish
between elected and appointed impeachable officers.
Furthermore, that the Constitution does not show a counterpart provision to paragraph
7 of Section 4, Article VII for members of this Court or the Constitutional Commissions
does not mean that quo warranto cannot extend to non-elected impeachable officers.
The authority to hear quo warranto petitions against appointive impeachable officers
emanates from Section 5(1) of Article VIII which grants quo warranto jurisdiction to
this Court without qualification as to the class of public officers over whom the same
may be exercised.
Respondent argues that Section 5(1) of Article VIII is not a blanket authority, otherwise
paragraph 7 of Section 4, Article VII would be "superfluous." Superfluity, however, is
not the same as inconsistency. Section 4, Article VII is not repugnant to, and clearly
confirms, the Court's quo warranto jurisdiction under Section 5(1) of Article VIII.
Respondent herself has not alleged any irreconcilability in these provisions.
Indeed, contrary to respondent's claim, Section 4 of Article VII is not meant to limit the
Court's quo warranto jurisdiction under Article VIII of the Constitution. In fact, We held
that "[t]he power wielded by PET is "a derivative of the plenary judicial power allocated
to the courts of law, expressly provided in the Constitution." 26 Thus, the authority under
Section 4 of Article VII to hear quo warranto petitions assailing the qualifications of the
President and Vice-President is simply a component of the Court's quo
warranto jurisdiction under Article VIII. This finds support in the nature of quo
warranto as a remedy to determine a person's right or title to a public office, 27 which is
not confined to claims of ineligibility but extends to other instances or claims of
usurpation or unlawful holding of public office as in the cases of Lota v. CA and
Sangalang,28Moro v. Del Castillo, Jr.,29Mendoza v. Allas,30Sen. Defensor Santiago v.
Sen. Guingona, Jr.31 and Estrada. It will be recalled that in Estrada, the Court took
cognizance of, and ruled upon, a quo warranto challenge to a vice-president's
assumption of the presidency; the challenge was based, not on ineligibility, but on
therein petitioner's claim that he had not resigned and was simply a president on leave.
To sustain respondent's argument, therefore, is to unduly curtail the Court's judicial
power and to dilute the efficacy of quo warranto as a remedy against the "unauthorized
arbitrary assumption and exercise of power by one without color of title or who is not
entitled by law thereto."32 It bears to reiterate that:
While an appointment is an essentially discretionary executive power, it is subject to

the limitation that the appointee should possess none of the disqualifications but all the
qualifications required by law. Where the law prescribes certain qualifications for
a given office or position, courts may determine whether the appointee has
the requisite qualifications, absent which, his right or title thereto may be
declared void.33 (Citations omitted and emphasis ours)
This Court has the constitutional mandate to exercise jurisdiction over quo

warranto petitions. And as Estrada and the PET Rules show, impeachable officers are
not immune to quo warranto actions. Thus, a refusal by the Court to take cognizance of
this case would not only be a breach of its duty under the Constitution, it would also
accord respondent an exemption not given to other impeachable officers. Such privilege
finds no justification either in law, as impeachable officers are treated without
distinction under the impeachment provisions34 of the Constitution, or in reason, as the
qualifications of the Chief Justice are no less important than the President's or the Vice-
President's.
Respondent's insistence that she could not be removed from office except through
impeachment is predicated on Section 2, Article XI of the Constitution. It reads:
Sec. 2. The President, the Vice-President, the Members of the Supreme Court, the
Members of the Constitutional Commissions, and the Ombudsman may be removed
from office on impeachment for, and conviction of, culpable violation of the
Constitution, treason, bribery, graft and corruption, other high crimes, or
betrayal of public trust. All other public officers and employees may be removed
from office as provided by law, but not by impeachment. (Emphasis ours)
By its plain language, however, Section 2 of Article XI does not preclude a quo
warranto action questioning an impeachable officer's qualifications to assume office.
These qualifications include age, citizenship and professional experience - matters
which are manifestly outside the purview of impeachment under the above-cited
provision.
Furthermore, Section 2 of Article XI cannot be read in isolation from Section 5(1) of

Article VIII of the Constitution which gives this Court its quo warranto jurisdiction, or
from Section 4, paragraph 7 of Article VII of the Constitution which designates the
Court as the sole judge of the qualifications of the President and Vice-President.
In Civil Liberties Union v. The Executive Secretary,35 the Court held:
It is a well-established rule in constitutional construction that no one provision of the

Constitution is to be separated from all the others, to be considered alone, but that all
the provisions bearing upon a particular subject are to be brought into view and to be
so interpreted as to effectuate the great purposes of the instrument. Sections bearing
on a particular subject should be considered and interpreted together as to effectuate
the whole purpose of the Constitution and one section is not to be allowed to defeat
another, if by any reasonable construction, the two can be made to stand together.
In other words, the court must harmonize them, if practicable, and must lean in favor
of a construction which will render every word operative, rather than one which may
make the words idle and nugatory.36 (Citations omitted)
Section 2 of Article XI provides that the impeachable officers may be removed from
office on impeachment for and conviction of culpable violation of the Constitution,
treason, bribery, graft and corruption, other high crimes, or betrayal of public trust.
Lack of qualifications for appointment or election is evidently not among the stated
grounds for impeachment. It is, however, a ground for a quo warranto action over
which this Court was given original jurisdiction under Section 5(1) of Article VIII. The
grant of jurisdiction was not confined to unimpeachable officers. In fact, under Section
4, paragraph 7 of Article VII, this Court was expressly authorized to pass upon the
qualifications of the President and Vice President. Thus, the proscription against the
removal of public officers other than by impeachment does not apply to quo
warranto actions assailing the impeachable officer's eligibility for appointment or
election.
This construction allows all three provisions to stand together and to give effect to the
clear intent of the Constitution to address not only the impeachable offenses but also
the issue of qualifications of public officers, including impeachable officers.
As this Court intoned in its Decision, to take appointments of impeachable officers

beyond the reach of judicial review is to cleanse them of any possible defect pertaining
to the constitutionally prescribed qualifications which cannot otherwise be raised in an
impeachment proceeding.
To illustrate this, the Court cited the requirement that the impeachable officer must be
a natural-born citizen of the Philippines. We explained that if it turns out that the
impeachable officer is in fact of foreign nationality, respondent's argument will prevent
this Court from inquiring into this important qualification that directly affects the
officer's ability to protect the interests of the State. Unless convicted of an impeachable
offense, the officer will continue in office despite being clearly disqualified from holding
it. We stressed that this could not have been the intent of the framers of the
Constitution.
Respondent, however, contends that the above-cited defect will actually constitute a
ground for impeachment because the appointee's continued exercise of public functions
despite knowledge of his foreign nationality amounts to a culpable violation of the
Constitution.
The argument is untenable. Citizenship is a qualification issue which this Court has the
authority to resolve. Thus, in Kilosbayan Foundation v. Exec. Sec. Ermita,37 where the
appointment of Sandiganbayan Justice Gregory S. Ong (Ong) to this Court was sought
to be annulled for the latter's supposed failure to comply with the citizenship
requirement under the Constitution, We stated that:
Third, as to the proper forum for litigating the issue of respondent Ong's qualification
for membership of this Court. This case is a matter of primordial importance
involving compl.iance with a Constitutional mandate. As the body tasked with
the determination of the merits of conflicting claims under the Constitution,
the Court is the proper forum for resolving the issue, even as the JBC has the
initial competence to do so.38 (Citation omitted and emphasis ours)
In the subsequent case of Topacio v. Assoc. Justice Gregory Santos Ong, et al.,39 Ong's
citizenship was raised anew, this time to prevent him from further exercising the office
of a Sandiganbayan Associate Justice. The Court held that the challenge was one
against Ong's title to the office which must be raised in a quo warranto proceeding,
thus:
While denominated as a petition for certiorari and prohibition, the petition

partakes of the nature of a quo warranto proceeding with respect to Ong, for it
effectively seeks to declare null and void his appointment as an Associate
Justice of the Sandiganbayan for being unconstitutional. While the petition
professes to be one for certiorari and prohibition, petitioner even adverts to a quo
warranto aspect of the petition.
Being a collateral attack on a public officer's title, the present petition for certiorari and
prohibition must be dismissed.
The title to a public office may not be contested except directly, by quo
warranto proceedings; and it cannot be assailed collaterally, even
through mandamus or a motion to annul or set aside order. In Nacionalista Party v. De
Vera, the Court ruled that prohibition does not lie to inquire into the validity of the
appointment of a public officer.
x x x [T]he writ of prohibition, even when directed against persons acting as judges or
other judicial officers, cannot be treated as a substitute for quo warranto or be
rightfully called upon to perform any of the functions of the writ. If there is a
court, judge or officer de facto, the title to the office and the right to act cannot be
questioned by prohibition. If an intruder takes possession of a judicial office, the person
dispossessed cannot obtain relief through a writ of prohibition commanding the alleged
intruder to cease from performing judicial acts, since in its very nature prohibition is
an improper remedy by which to determine the title to an office.40 (Citations
omitted and emphasis ours)
Determining title to the office on the basis of a public officer's qualifications is the
function of quo warranto. For this reason, impeachment cannot be treated as a
substitute for quo warranto.
Furthermore, impeachment was designed as a mechanism "to check abuse of

power."41 The grounds for impeachment, including culpable violation of the Constitution,
have been described as referring to "serious crimes or misconduct" 42 of the "vicious and
malevolent" kind.43 Citizenship issues are hardly within the ambit of this constitutional
standard.
The Constitution must be construed in light of the object sought to be accomplished and
the evils sought to be prevented or remedied. 44 An interpretation that would cause
absurdity is not favored.45
It thus bears to reiterate that even the PET Rules expressly provide for the remedy of
election protest. Following respondent's theory that an impeachable officer can be
removed only through impeachment means that a President or Vice-President against
whom an election protest has been filed can demand for the dismissal of the protest on
the ground that it can potentially cause his/her removal from office through a mode
other than by impeachment. To sustain respondent's position is to render election
protests under the PET Rules nugatory. The Constitution could not have intended such
absurdity since fraud and irregularities in elections cannot be countenanced, and the
will of the people as reflected in their votes must be determined and respected.
The preposterousness of allowing unqualified public officials to continue occupying their

positions by making impeachment the sole mode of removing them was likewise aptly
discussed by Our esteemed colleague Justice Estela M. Perlas-Bernabe when she stated
that qualification should precede authority, viz:
Owing to both the "political" and "offense-based" nature of these grounds, I am thus
inclined to believe that impeachment is not the sole mode of "removing" impeachable
officials as it be clearly absurd for any of them to remain in office despite their failure to
meet the minimum eligibility requirements, which failure does not constitute a ground
for impeachment. Sensibly, there should be a remedy to oust all our public officials, no
matter how high-ranking they are or criticial their functions may be, upon a
determination that they have not actually qualified for election or appointment. While I
do recognize the wisdom of insulating impeachable officials from suits that may impede
the performance of vital public functions, ultimately, this concern cannot override the
basic qualification requirements of public office. There is no doubt that qualification
should precede authority. Every public office is created and conferred by law. x x
x.46 (Emphasis in the original)
Underlying all constitutional provisions on government service is the principle that

public office is a public trust. 47 The people, therefore, have the right to have only
qualified individuals appointed to public office. To construe Section 2, Article XI of the
Constitution as proscribing a quo warranto petition is to deprive the State of a remedy
to correct a public wrong arising from defective or void appointments. Equity, however,
will not suffer a wrong to be without remedy.48 It stands to reason, therefore, that quo
warranto should be available to question the validity of appointments especially of
impeachable officers since they occupy the upper echelons of government and are
capable of wielding vast power and influence on matters of law and policy.
III
Much noise and hysteria have been made that a sitting Chief Justice can only be
removed by impeachment and that quo warranto is an improper remedy not sanctioned
by the Constitution. The wind of disinformation was further fanned by respondent who
claimed that her ouster was orchestrated by the President. This campaign of
misinformation attempted to conceal and obfuscate the fact that the main issue in the
petition which the Court is tasked to resolve is the qualification of respondent.
In the instant motion, respondent made mention of Senate Resolution No. 738, 49 which
urges this Court to review Our May 11, 2018 Decision as it sets a "dangerous precedent
that transgresses the exclusive powers of the legislative branch to initiate, try and
decide all cases of impeachment." This Resolution was supposedly aimed to express
"the sense of the Senate to uphold the Constitution on the matter of removing a Chief
Justice from office." We have to remind the respondent, however, that while a majority
of the Senators - 14 out of the 23 members - signed the said Resolution, the same has
not yet been adopted by the Senate to date. In fact, the Court takes judicial notice that
on May 31, 2018, the Senate adjourned its interpellation without any conclusion as to
whether the Resolution is adopted. 50 Without such approval, the Senate Resolution
amounts to nothing but a mere scrap of paper at present.
The Senate Resolution also appears to have been drafted, signed by some Senators,
and interpellated on while respondent's motion for reconsideration is still pending
consideration by the Court. While the concerned Members of the Senate insist on non-
encroachment of powers, the Senate Resolution itself tends to influence, if not exert
undue pressure on, the Court on how it should resolve the pending motion for
reconsideration. The importance and high regard for the institution that is the Senate is
undisputed. But the Court, in the discharge of its Constitutional duty, is also entitled to
the same degree of respect and deference.
At any rate, and with due regard to the Members of the Senate, We emphasize that the
judicial determination of actual controversies presented before the courts is within the
exclusive domain of the Judiciary. "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 govemment."51 Thus, the act of some of the Senators questioning the Court's
judicial action is clearly an unwarranted intrusion to the Court's powers and mandate.
To disabuse wandering minds, there is nothing violative or intrusive of the Senate's

power to remove impeachable officials in the main Decision. In fact, in the said assailed
Decision, We recognized that the Senate has the sole power to try and decide all cases
of impeachment. We have extensively discussed therein that the Court merely
exercised its Constitutional duty to resolve a legal question referring to respondent's
qualification as a Chief Justice of the Supreme Court. We also emphasized that this
Court's action never intends to deprive the Congress of its mandate to make a
determination on impeachable officials' culpability for acts committed while in office. We
even explained that impeachment and quo warranto may proceed independently and
simultaneously, albeit a ruling of removal or ouster of the respondent in one case will
preclude the same ruling in the other due to legal impossibility and mootness.
Quo warranto is not a figment of imagination or invention of this Court. It is a mandate
boldly enshrined in the Constitution 52 where the judiciary is conferred original
jurisdiction to the exclusion of the other branches of the government. Quo warranto,
not impeachment, is the constitutional remedy prescribed to adjudicate and resolve
questions relating to qualifications, eligibility and entitlement to public office. Those who
chose to ignore this fact are Constitutionally blind. US Supreme Court Justice Scalia
once said: "If it is in the Constitution, it is there. If it is not in the Constitution, it is not
there."53 There is nothing in Our Constitution that says that impeachable officers are
immuned, exempted, or excluded from quo warranto proceedings when the very issue
to be determined therein is the status of an officer as such. No amount of public
indignation can rewrite or deface the Constitution.
IV
The plain issue in the instant case is whether respondent is eligible to occupy the
position of Chief Justice. To determine whether or not respondent is eligible, the
primordial consideration is whether respondent met the requisite Constitutional
requirements for the position. Questions on eligibility therefore present a justiciable
issue, which can be resolved by juxtaposing the facts with the Constitution, as well as
pertinent laws and jurisprudence. In Kilosbayan Foundation,54 the Court affirmed its
jurisdiction to resolve the issue on the qualification for membership of this Court as the
body tasked with the determination of the merits of conflicting claims under the
Constitution, even when the JBC has the initial competence to do so. 55
True enough, constitutionally committed to the JBC is the principal function of

recommending appointees to the Judiciary. The function to recommend appointees
carries with it the concomitant duty to screen applicants therefor. The JBC's exercise of
its recommendatory function must nevertheless conform with the basic premise that
the appointee possesses the non-negotiable qualifications prescribed by the
Constitution. While the JBC enjoys a certain leeway in screening aspiring magistrates,
such remains to be tightly circumscribed by the Constitutional qualifications for aspiring
members of the Judiciary.56 These Constitutional prerequisites are therefore deemed
written into the rules and standards which the JBC may prescribe in the discharge of its
primary function. The JBC cannot go beyond or less than what the Constitution
prescribes.
The surrender to the JBC of the details as to how these qualifications are to be
determined is rendered necessary and in keeping with its recommendatory function
which is nevertheless made expressly subject to the Court's exercise of supervision.
As an incident of its power of supervision over the JBC, the Court has the authority to
insure that the JBC performs its duties under the Constitution and complies with its own
rules and standards. Indeed, supervision is an active power and implies the authority to
inquire into facts and conditions that renders the power of supervision real and
effective.57 Under its power of supervision, the Court has ample authority to look into
the processes leading to respondent's nomination for the position of Chief Justice on the
face of the Republic's contention that respondent was ineligible to be a candidate to the
position to begin with.
Arguments were raised against the Court's assumption over the quo warranto petition
on the premise that the determination of the integrity requirement lies solely on the
JBC's discretion and thus, a prior nullification of the JBC's act on the ground of grave
abuse of discretion through a certiorari petition is the proper legal route.
The question of whether or not a nominee possesses the requisite qualifications is

determined based on facts and as such, generates no exercise of discretion on the part
of the nominating body. Thus, whether a nominee is of the requisite age, is a natural-
born citizen, has met the years of law practice, and is of proven competence, integrity,
probity, and independence are to be determined based on facts and cannot be made
dependent on inference or discretion, much less concessions, which the recommending
authority may make or extend. To say that the determination of whether a nominee is
of "proven integrity" is a task absolutely contingent upon the discretion of the JBC is to
place the integrity requirement on a plateau different from the rest of the Constitutional
requirements, when no such distinction is assigned by the Constitution. As well, to treat
as discretionary on the part of the JBC the question of whether a nominee is of "proven
integrity" is to render the Court impotent to nullify an otherwise unconstitutional
nomination unless the Court's jurisdiction is invoked on the ground of grave abuse of
discretion. Such severely limiting course of action would effectively diminish the Court's
collegial power of supervision over the JBC.
To re-align the issue in this petition, the Republic charges respondent of unlawfully
holding or exercising the position of Chief Justice of the Supreme Court. The contents of
the petition pose an attack to respondent's authority to hold or exercise the position.
Unmoving is the rule that title to a public office may not be contested except directly,
by quo warranto proceedings.58 As it cannot be assailed collaterally, certiorari is an
infirm remedy for this purpose. It is for this reason that the Court previously denied
a certiorari and prohibition petition which sought to annul appointment to the Judiciary
of an alleged naturalized citizen.59
Aguinaldo, et al. v. Aquino, et al.,60 settles that when it is the qualification for the
position that is in issue, the proper remedy is quo warranto pursuant to Topacio.61 But
when it is the act of the appointing power that is placed under scrutiny and not any
disqualification on the part of the appointee, a petition for certiorari challenging the
appointment for being unconstitutional or for having been done in grave abuse of
discretion is the apt legal course. In Aguinaldo, the Court elucidated:
The Court recognized in Jardeleza v. Sereno that 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.
In opposing the instant Petition for Certiorari and Prohibition, the OSG cites Topacio in
which the Court declares that title to a public office may not be contested except
directly, by quo warranto proceedings; and it cannot be assailed collaterally, such as
by certiorari and prohibition.
However, Topacio is not on all fours with the instant case. In Topacio, the writs
of certiorari and prohibition were sought against Sandiganbayan Associate Justice
Gregory S. Ong on the ground that he lacked the qualification of Filipino citizenship for
said position. In contrast, the present Petition for Certiorari and Prohibition puts under
scrutiny, not any disqualification on the part of respondents Musngi and Econg, but the
act of President Aquino in appointing respondents Musngi and Econg as Sandiganbayan
Associate Justices without regard for the clustering of nominees into six separate
shortlists by the JBC, which allegedly violated the Constitution and constituted grave
abuse of discretion amounting to lack or excess of jurisdiction. This would not be the
first time that the Court, in the exercise of its expanded power of judicial review, takes
cognizance of a petition for certiorari that challenges a presidential appointment for
being unconstitutional or for having been done in grave abuse of discretion. x x
x.62 (Italics and citations omitted.)
A certiorari petition also lacks the safeguards installed in a quo warranto action

specifically designed to promote stability in public office and remove perpetual
uncertainty in the title of the person holding the office. For one, a certiorari petition
thrives on allegation and proof of grave abuse of discretion. In a quo warranto action, it
is imperative to demonstrate that the respondent have usurped, intruded into or
unlawfully held or exercised a public office, position or franchise.
For another, certiorari may be filed by any person alleging to have been aggrieved by

an act done with grave abuse of discretion. In a quo warranto action, it is the Solicitor
General or a public prosecutor, when directed by the President or when upon complaint
or when he has good reason to believe that the grounds for quo warranto can be
established by proof, who must commence the action. The only instance when an
individual is allowed to commence such action is when he or she claims to be entitled to
a public office or position usurped or unlawfully held or exercised by another. In such
case, it is incumbent upon the private person to present proof of a clear and indubitable
right to the office. If certiorari is accepted as the proper legal vehicle to assail eligibility
to public office then any person, although unable to demonstrate clear and indubitable
right to the office, and merely upon claim of grave abuse of discretion, can place title to
public office in uncertainty.
Tellingly also, the rules on quo warranto do not require that the recommending or
appointing authority be impleaded as a necessary party, much less makes the
nullification of the act of the recommending authority a condition precedent before the
remedy of quo warranto can be availed of. The JBC itself did not bother to intervene in
the instant petition.
Under Section 6, Rule 66 of the Rules of Court, when the action is against a person for
usurping a public office, position or franchise, it is only required that, if there be a
person who claims to be entitled thereto, his or her name should be set forth in the
petition with an averment of his or her right to the office, position or franchise and that
the respondent is unlawfully in possession thereof. All persons claiming to be entitled to
the public office, position or franchise may be made parties and their respective rights
may be determined in the same quo warranto action. The appointing authority, or in
this case the recommending authority which is the JBC, is therefore not a necessary
party in a quo warranto action.
Peculiar also to the instant petition is the surrounding circumstance that an

administrative matter directly pertaining to the nomination of respondent is pending
before the Court. While the administrative matter aims to determine whether there is
culpability or lapses on the part of the JBC members, the factual narrative offered by
the latter are all extant on record which the Court can take judicial notice of. Thus,
considerations regarding the lack of due process on the part of the JBC present only a
superficial resistance to the Court's assumption of jurisdiction over the instant quo
warranto petition.
In any case, the rules on quo warranto vests upon the Court ancillary jurisdiction to
render such further judgment as "justice requires."63 Indeed, the doctrine of ancillary
jurisdiction implies the grant of necessary and usual incidental powers essential to
effectuate its jurisdiction and subject to existing laws and constitutional provisions,
every regularly constituted court has power to do all things that are reasonably
necessary for the administration of justice within the scope of its jurisdiction and for the
enforcement of its judgments and mandates.64 Accordingly, "demands, matters or
questions ancillary or incidental to, or growing out of, the main action, and coming
within the above principles, may be taken cognizance of by the court and determined,
since such jurisdiction is in aid of its authority over the principal matter, even though
the court may thus be called on to consider and decide matters which, as original
causes of action, would not be within its cognizance." 65
This Court had likewise amply laid down the legal and factual bases for its ruling against
the dismissal of the instant petition on the ground of prescription. Our ruling on this
matter is anchored upon the very purpose of such prescriptive period as consistently
held by this Court for decades and also upon consideration of the unique underlying
circumstances in this case which cannot be ignored.
In addition to the catena of cases cited in the assailed Decision, the Court, in Madrigal
v. Prov. Gov. Lecaroz,66 exhaustively explained the rationale behind the prescriptive
period:
The unbending jurisprudence in this jurisdiction is to the effect that a petition for quo
warranto and mandamus affecting titles to public office must be filed within one (1)
year from the date the petitioner is ousted from his position. x x x The reason behind
this being was expounded in the case of Unabia v. City Mayor, etc., x x x where We
said:
"x x x [W]e note that in actions of quo warranto involving right to an office, the action
must be instituted within the period of one year. This has been the law in the island
since 1901, the period having been originally fixed in Section 216 of the Code of Civil
Procedure (Act No. 190). We find this provision to be an expression of policy on
the part of the State that persons claiming a right to an office of which they
are illegally dispossessed should immediately take steps to recover said office
and that if they do not do so within a period of one year, they shall be
considered as having lost their right thereto by abandonment. There are weighty
reasons of public policy and convenience that demand the adoption of a similar period
for persons claiming rights to positions in the civil service. There must be stability in
the service so that public business may [not] be unduly retarded; delays in the
statement of the right to positions in the service must be discouraged. The
following considerations as to public officers, by Mr. Justice Bengzon, may well be
applicable to employees in the civil service:
'Furthermore, constitutional rights may certainly be waived, and the inaction of

the officer for one year could be validly considered as waiver, i.e., a renunciation which
no principle of justice may prevent, he being at liberty to resign his position anytime he
pleases.
'And there is good justification for the limitation period; it is not proper that the title to
public office should be subjected to continued uncertain[t]y, and the peoples' interest
require that such right should be determined as speedily as practicable.'
"Further, the Government must be immediately informed or advised if any

person claims to be entitled to an office or a position in the civil service as
against another actually holding it, so that the Government may not be faced
with the predicament of having to pay the salaries, one, for the person
actually holding the office, although illegally, and another, for one not actually
rendering service although entitled to do so. x x x."67 (Citations omitted and
emphasis ours)
The long line of cases decided by this Court since the 1900's, which specifically
explained the spirit behind the rule providing a prescriptive period for the filing of an
action for quo warranto, reveals that such limitation can be applied only against private
individuals claiming rights to a public office, not against the State.
Indeed, there is no proprietary right over a public office. Hence, a claimed right over a
public office may be waived. In fact, even Constitutionally-protected rights may be
waived. Thus, We have consistently held that the inaction of a person claiming right
over a public office to assert the same within the prescriptive period provided by the
rules, may be considered a waiver of such right. This is where the difference between
a quo warranto filed by a private individual as opposed to one filed by the State
through the Solicitor General lies. There is no claim of right over a public office where it
is the State itself, through the Solicitor General, which files a petition for quo
warranto to question the eligibility of the person holding the public office. As We have
emphasized in the assailed Decision, unlike Constitutionally-protected rights,
Constitutionally-required qualifications for a public office can never be waived either
deliberately or by mere passage of time. While a private individual may, in proper
instances, be deemed to have waived his or her right over title to public office and/or to
have acquiesced or consented to the loss of such right, no organized society would
allow, much more a prudent court would consider, the State to have waived by mere
lapse of time, its right to uphold and ensure compliance with the requirements for such
office, fixed by no less than the Constitution, the fundamental law upon which the
foundations of a State stand, especially so when the government cannot be faulted for
such lapse.
On another point, the one-year prescriptive period was necessary for the government
to be immediately informed if any person claims title to an office so that the
government may not be faced with the predicament of having to pay two salaries, one
for the person actually holding it albeit illegally, and another to the person not
rendering service although entitled to do so. It would thus be absurd to require the
filing of a petition for quo warranto within the one-year period for such purpose when it
is the State itself which files the same not for the purpose of determining who among
two private individuals are entitled to the office. Stated in a different manner, the
purpose of the instant petition is not to inform the government that it is facing a
predicament of having to pay two salaries; rather, the government, having learned of
the predicament that it might be paying an unqualified person, is acting upon it head-
on.
Most importantly, urgency to resolve the controversy on the title to a public office to
prevent a hiatus or disruption in the delivery of public service is the ultimate
consideration in prescribing a limitation on when an action for quo warranto may be
instituted. However, it is this very same concern that precludes the application of the
prescriptive period when it is the State which questions the eligibility of the person
holding a public office and not merely the personal interest of a private individual
claiming title thereto. Again, as We have stated in the assailed Decision, when the
government is the real party in interest and asserts its rights, there can be no defense
on the ground of laches or limitation,68 otherwise, it would be injurious to public interest
if this Court will not act upon the case presented before it by the Republic and merely
allow the uncertainty and controversy surrounding the Chief Justice position to
continue.
Worthy to mention is the fact that this is not the first time that this Court precluded the
application of the prescriptive period in filing a petition for quo warranto. In Cristobal v.
Melchor,69 the Court considered certain exceptional circumstances attending the case,
which took it out of the rule on the one-year prescriptive period. Also, in Agcaoili v.
Suguitan,70 the Court considered, among others, therein petitioner's good faith and the
injustice that he suffered due to his forcible ouster from office in ruling that he is not
bound by the provision on the prescriptive period in filing his action for quo warranto to
assert his right to the public office. When the Court in several cases exercised liberality
in the application of the statute of limitations in favor of private individuals so as not to
defeat their personal interests on a public position, is it not but proper, just,
reasonable, and more in accord with the spirit of the rule for this Court to decide
against the application of the prescriptive period considering the public interest
involved? Certainly, it is every citizen's interest to have qualified individuals to hold
public office, especially that of the highest position in the Judiciary.
From the foregoing disquisition, it is clear that this Court's ruling on the issue of
prescription is not grounded upon provisions of the Civil Code, specifically Article
1108(4)71 thereof. Instead, the mention thereof was intended merely to convey that if
the principle that "prescription does not lie against the State" can be applied with
regard to property disputes, what more if the underlying consideration is public
interest.
To be clear, this Court is not abolishing the limitation set by the rules in instituting a
petition for quo warranto. The one-year presciptive period under Section 11, Rule 66 of
the Rules of Court still stands. However, for reasons explained above and in the main
Decision, this Court made distinctions as to when such prescriptive period applies, to
wit: (1) when filed by the State at its own instance, through the Solicitor
General,72 prescription shall not apply. This, of course, does not equate to a blanket
authority given to the Solicitor General to indiscriminately file baseless quo
warranto actions in disregard of the constitutionally-protected rights of individuals; (2)
when filed by the Solicitor General or public prosecutor at the request and upon relation
of another person, with leave of court,73 prescription shall apply except when
established jurisprudential exceptions74 are present; and (3) when filed by an individual
in his or her own name,75 prescription shall apply, except when established
jurisprudential exceptions are present. In fine, Our pronouncement in the assailed
Decision as to this matter explained that certain circumstances preclude the absolute
and strict application of the prescriptive period provided under the rules in filing a
petition for quo warranto.
Thus, this Court finds no reason to reverse its ruling that an action for quo warranto is
imprescriptible if brought by the State at its own instance, as in the instant case.
In any case, and as aptly discussed in the main Decision, the peculiarities of the instant
case preclude strict application of the one-year prescriptive period against the State. As
observed by Justice Perlas-Bernabe in her Separate Opinion, "x x x if there is one thing
that is glaringly apparent from these proceedings, it is actually the lack of respondent's
candor and forthrightness in the submission of her SALNs." 76 Respondent's actions
prevented the State from discovering her disqualification within the prescriptive period.
Most certainly, thus the instant case is one of those proper cases where the one-year
prescriptive period set under Section 11, Rule 66 of the Rules of Court should not apply.
VI
Respondent reiterates her argument that her case should be treated similarly as
in Concerned Taxpayer v. Doblada Jr.77
As extensively discussed in the main Decision, respondent, unlike Doblada, did not
present contrary proof to rebut the Certifications from U.P. HRDO that respondent's
SALNs for 1986, 1987, 1988, 1992, 1999, 2000, 2001, 2003, 2004, 2005 and 2006 are
not in its possession and from the Ombudsman that based on its records, there is no
SALN filed by respondent except that for 1998. Being uncontroverted, these documents
suffice to support this Court's conclusion that respondent failed to file her SALNs in
accordance with law.
In Doblada, the contrary proof was in the form of the letter of the head of the personnel
of Branch 155 that the SALN for 2000 exists and was duly transmitted and received by
the Office of the Court Administrator as the repository agency. In respondent's case,
other than her bare allegations attacking the credibility of the aforesaid certifications
from U.P. HRDO and the Ombudsman, no supporting proof was presented. It bears to
note that these certifications from the aforesaid public agencies enjoy a presumption
that official duty has been regularly performed. These certifications suffice as proof of
respondent's failure to file her SALN until contradicted or overcome by sufficient
evidence. Consequently, absent a countervailing evidence, such disputable presumption
becomes conclusive.78
As what this Court has stated in its May 11, 2018 Decision, while government
employees cannot be required to keep their SALNs for more than 10 years based from
the provisions of Section 8, paragraph C(4) of Republic Act No. 6713, 79 the same cannot
substitute for respondent's manifest ineligibility at the time of her application. Verily,
even her more recent SALNs, such as those in the years of 2002 to 2006, which in the
ordinary course of things would have been easier to retrieve, were not presented nor
accounted for by respondent.
Respondent attempts to strike a parallelism with Doblada by claiming that she, too,
religiously filed her SALNs. The similarity however, ends there. Unlike in Doblada,
respondent failed to present contrary proof to rebut the evidence of non-filing. If,
indeed, she never missed filing her SALNs and the same were merely lost, or missing in
the records of the repository agency, this Court sees nothing that would prevent
respondent from securing a Certification which would provide a valid or legal reason for
the copies' non-production.
VII
Respondent insists that the filing of SALNs bears no relation to the Constitutional
qualification of integrity. For her, the measure of integrity should be as what the JBC
sets it to be and that in any case, the SALN laws, being malum prohibitum, do not
concern adherence to moral and ethical principles.
Respondent's argument, however, dangerously disregards that the filing of SALN is not
only a requirement under the law, but a positive duty required from every public officer
or employee, first and foremost by the Constitution. 80 The SALN laws were passed in aid
of the enforcement of the Constitutional duty to submit a declaration under oath of
one's assets, liabilities, and net worth. This positive Constitutional duty of filing one's
SALN is so sensitive and important that it even shares the same category as the
Constitutional duty imposed upon public officers and employees to owe allegiance to
the State and the Constitution.81 As such, offenses against the SALN laws are not
ordinary offenses but violations of a duty which every public officer and employee owes
to the State and the Constitution. In other words, the violation of SALN laws, by itself,
defeats any claim of integrity as it is inherently immoral to violate the will of the
legislature and to violate the Constitution.
Integrity, as what this Court has defined in the assailed Decision, in relation to a
judge's qualifications, should not be viewed separately from the institution he or she
represents. Integrity contemplates both adherence to the highest moral standards and
obedience to laws and legislations. Integrity, at its minimum, entails compliance with
the law.
ln sum, respondent has not presented any convincing ground that would merit a
modification or reversal of Our May 11, 2018 Decision. Respondent, at the time of her
application, lacked proven integrity on account of her failure to file a substantial
number of SALNs and also, her failure to submit the required SALNs to the JBC during
her application for the position. Although deviating from the majority opinion as to the
proper remedy, Justice Antonio T. Carpio shares the same finding:
Since respondent took her oath and assumed her position as Associate Justice of the
Supreme Court on 16 August 2010, she was required to file under oath her SALN within
thirty (30) days after assumption of office, or until 15 September 2010, and the
statements must be reckoned as of her first day (lf service, pursuant to the relevant
provisions on SALN filing.
However, respondent failed to file a SALN containing sworn statements

reckoned as of her first day of service within thirty (30) days after assuming
office. While she allegedly submitted an "entry SALN" on 16 September 2010, it was
unsubscribed and the statements of her assets, liabilities and net worth were reckoned
as of 31 December 2009, and not as of her first day of service, or as of 16 August
2010. x x x
xxxx
The Constitution, law, and mles clearly require that the sworn entry SALN "must be
reckoned as of his/her first day of service" and must be filed "within thirty (30) days
after assumption of office." Evidently, respondent failed to file under oath a SALN
reckoned as of her first day of service, or as of 16 August 2010, within the prescribed
period of thirty (30) days after her assumption of office. In other words, respondent
failed to file the required SALN upon her assumption of office, which is a clear
violation of Section 17, Article XI of the Constitution. In light of her previous failure to
file her SALNs for several years while she was a UP College of Law Professor, her failure
to file her SALN upon assuming office in 2010 as Associate Justice of this Court
constitutes culpable violation of the Constitution, a violation committed while she was
already serving as an impeachable office.82 (Citation omitted and emphasis ours)
Having settled respondent's ineligibility and ouster from the position, the Court
reiterates its directive to the JBC to immediately commence the application, nomination
and recommendation process for the position of Chief Justice of the Supreme Court.
WHEREFORE, respondent Maria Lourdes P. A. Sereno's Ad Cautelam Motion for
Reconsideration is DENIED with FINALITY for lack of merit. No further pleadings shall
be entertained. Let entry of judgment be made immediately.
The Court REITERATES its order to the Judicial and Bar Council to commence the
application and nomination process for the position of the Chief Justice without delay.
The ninety-day (90) period83 for filling the vacancy shall be reckoned from the date of
the promulgation of this Resolution.
SO ORDERED.
Bersamin, Martires, Reyes, Jr., and Gesmundo, JJ., concur.

Carpio, J., I maintain my Dissent.
Velasco, Jr., J., I maintain my dissent.
Leonardo-De Castro, J., Please see my Separate Concurring Opinion.
Peralta, J., See seperate concurring opinion.
Del Castillo, J., I maintain my dissent.
Perlas-Bernabe, J., I maintain my Separate Opinion.
Leonen, J., I maintain my dissent.
Jardeleza, J., Please see Concurring Opinion.
Caguioa, J., I maintain my dissent.
NOTICE OF JUDGMENT
Sirs/Mesdames:
Please take notice that on June 19, 2018 a Decision/Resolution, copy attached
herewith, was rendered by the Supreme Court in the above-entitled case, the original
of which was received by this Office on June 19, 2018 at 4:40 p.m.
Very truly yours,
(SGD)
EDGAR O. ARICHETA
Clerk of Court
Endnotes:
1
Rollo, pp. 6230-6382.
2
Id. at 6380.
3
Barnes v. Reyes, et al., 614 Phil. 299, 304 (2009).
4
No. L-79974, December 17, 1987, 156 SCRA 549.
5
Id. at 552.
6
Section 1 of Article VIII states:
Sec. 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government.
(Emphasis ours)
7
406 Phil. 1 (2001).
8
Supra.
9
Respondent's Ad Cautelam Motion for Reconsideration, pp. 68-69.
10
Respondent's Ad Cautelam Motion for Reconsideration, p. 69.
11
Sen. Defensor Santiago v. Sen. Guingona, Jr., 359 Phil. 276, 302 (1998).
12
Fortuno v. Judge Palma, 240 Phil. 656, 664 ( 1987).
13
Nacionalista Party v. De Vera, 85 Phil. 126, 133 (1949) and J/Sr. Supt. Engaño v.
Court of Appeals, 526 Phil. 291, 297 (2006).
14
1987 CONSTITUTION, Article XI, Section 2.
15
1987 CONSTITUTION, Article XI. Sections 2 and 3(7).
16
Fortuna v. Judge Palma, supra at 664.
17
18
19
213 Phil. 288 (1984).
20
241 Phil. 162 (1988).
21
243 Phil. 167 (1988).
22
En Banc Resolution dated December 5, 1995 in A.C. No. 5409.
23
601 Phil. 470 (2009).
24
25
26
Atty. Macalintal v. Presidential Electoral Tribunal, 650 Phil. 326, 359 (2010).
27
Sen. Defensor Santiago v. Sen. Guingona. Jr., supra note 11, at 302.
28
112 Phil. 619 (1961).
29
662 Phil. 331 (2011).
30
362 Phil. 238 (1999).
31
359 Phil. 276 (1998)
12
Sen. Defensor Santiago v. Sen. Guingona, Jr., supra note 11, at 302.
33
J/Sr. Supt. Engaño v. Court of Appeals, supra note 13, at 299.
34
1987 CONSTITUTION, Article XI, Sections 2 and 3.
35
272 Phil. 147 (1991).
36
Id. at 162.
37
553 Phil. 331 (2007).
38
Id. at 340.
39
595 Phil. 491 (2008).
40
Id. at 503.
41
Chief Justice Corona v. Senate of the Philippines, et al., 691 Phil. 156, 170 (2012).
42
Id.
43
Gonzales III v. Office of the President of the Philippines, et al., 694 Phil. 52, 102
(2012).
44
Atty. Macalintal v. Presidential Electoral Tribunal, supra note 26, at 340; People of the
Philippines v. Lacson, 448 Phil. 317, 386 (2003).
45
Southern Cross Cement Corp. v. Cement Manufacturers Association of the Phil., 503
Phil. 485, 524 (2005).
46
Separate Opinion of Justice Estela M. Perlas-Bernabe in G.R. No. 237428 dated May
11, 2018, rollo, pp. 6578-6579.
47
1987 CoNSTITUTION, Article XI, Sectin 1.
48
Re: Request of National Committee on Legal Aid to Exempt Legal Aid Clients from
Paying Filing, Docket and Other Fees, A.M. No. 08-11-7-SC, August 28, 2009.
49
RESOLUTION EXPRESSING THE SENSE OF THE SENATE TO UPHOLD THE
CONSTITUTION ON THE MATTER OF REMOVING A CHIEF JUSTICE FROM OFFICE.
50
<http://news.abs-cbn.com/news/05/31/18/senate-fails-to-adopt-resolution-
challenging-sereno-ouster> (visited on June 1, 2018).
51
Padilla, et al. v. Congress of the Phils., G.R. No. 231671, July 25, 2017.
52
1987 CONSTITUTION, Article VIII, Section 5.
53
Scalia and Garner, READING THE LAW: THE INTERPRETATION OF LEGAL TEXTS, pp.
4-6 (2012).
54
Supra note 37.
55
Id. at 340.
56
Villanueva v. Judicial and Bar Council, 757 Phil. 534 (2015).
57
Planas v. Gil, 67 Phil. 62, 77 (1939).
58
Topacio v. Assoc. Justice Gregory Santos Ong, et al., supra note 39, at 503
citing Gonzales v. COMELEC, et al., 129 Phil. 7, 29 (1967).
59
Id.
60
G.R. No. 224302, November 29, 2016.
61
Supra note 39.
62
Aguinaldo, et al. v. Aquino, et al., supra.
63
Section 9, Rule 66 of the Rules of Court.
64
The City of Manila, et al. v. Judge Grecia-Cuerdo, et al., 726 Phil. 9, 27 (2014).
65
Id. at 27-28.
66
269 Phil. 20 (1990).
67
Id. at 25-26.
68
Republic of the Phils. v. Court of Appeals, 253 Phil. 698, 713 (1989)
citing Government of the U.S. v. Judge of the First Instance of Pampanga, 49 Phil. 495,
500 (1965).
69
168 Phil. 328 (1977).
70
48 Phil. 676 (1929).
71
Article 1108. Prescription, both acquisitive and extinctive, runs against:
xxxx
(4) Juridical persons. except the State and its subdivisions.

72
73
74
(1) there was no acquiescence to or inaction on the part of the petitioner, amounting
to the abandonment of his right to the position; (2) it was an act of the government
through its responsible officials which contributed to the delay in the filing of the action;
and (3) the petition was grounded upon the assertion that petitioner's removal from the
questioned position was contrary to law. [Cristobal v. Melchor and Arcala, 168 Phil. 328
(1977)].
75
76
Rollo, p. 6584.
77
498 Phil. 395 (2005).
78
See Alcantara v. Alcantara, 558 Phil. 192 (2007).
79
AN ACT ESTABLISHING A CODE OF CONDUCT AND ETHICAL STANDARDS FOR
PUBLIC OFFICIALS AND EMPLOYEES, TO UPHOLD THE TIME-HONORED PRINCIPLE OF
PUBLIC OFFICE BEING A PUBLIC TRUST, GRANTING INCENTIVES AND REWARDS FOR
EXEMPLARY SERVICE, ENUMERATING PROHIBITED ACTS AND TRANSACTIONS AND
PROVIDING PENALTIES FOR VIOLATIONS THEREOF AND FOR OTHER PURPOSES.
Approved on February 20, 1989.
80
1987 CONSTITUTION, Article XII. Section 17.
81
1987 CONSTITUTION, Article XII, Section 18.
82
Dissenting Opinion of Justice Antonio T. Carpio in G.R. No. 237428 dated May 11,
2018, pp. 6401-6404.
83
1987 CoNSTITUTlON, Anicie VIII, Section 4.
CONCURRING OPINION
On May 11, 2018, the majority of this Court voted to grant the Petition for Quo
Warranto filed by petitioner Republic of the Philippines, represented by the Office of the
Solicitor General (OSG), against respondent Maria Lourdes P. A. Sereno, fundamentally
based on the categorical finding of respondent's ineligibility for the position of Chief
Justice in view of her failure to submit to the Judicial and Bar Council (JBC) several of
her Statements of Assets, Liabilities and Net Worth (SALNs) covered within the required
10-year period, such failure means that her integrity was not established at the time of
her application for the said position. The dispositive portion of the Decision, penned by
Associate Justice Noel Gimenez Tijam, reads:
WHEREFORE, the Petition for Quo Warranto is GRANTED. Respondent Maria Lourdes

P. A. Sereno is found DISQUALIFIED from and is hereby adjudged GUILTY of
UNLAWFULLY HOLDING and EXERClSING the OFFICE OF THE CHIEF JUSTICE.
Accordingly, Respondent Maria Lourdes P. A. Sereno
is OUSTED and EXCLUDED therefrom.
The position of the Chief Justice of the Supreme Court is declared vacant and the
Judicial and Bar Council is directed to commence the application and nomination
process.
This Decision is immediately executory without need of further action from the Court.
Respondent Maria Lourdes P. A. Sereno is ordered to SHOW CAUSE within ten (10)

days from receipt hereof why she should not be sanctioned for violating the Code of
Professional Responsibility and the Code of Judicial Conduct for transgressing the sub
judice rule and for casting aspersions and ill motives to the Members of the Supreme
Court.
I wrote my Concurring Opinion to the aforementioned Decision so I could further
explain my vote to deny res1Jondent's motion for my inhibition and to concur with the
grant of the said Petition.
Respondent comes again before this Court through the instant Ad Cautelam Motion for
Reconsideration of the Decision dated May 11, 2018, seeking the following reliefs:
WHEREFORE, Respondent, the Hon. Chief Justice Maria Lourdes P. A. Sereno,

respectfully prays that this Honorable Court:
1) RECONSIDER the denial of Respondent's Ad Cautelam Motions for Inhibition of the Hon. Associate
Justices Teresita J. Leonardo-De Castro, Diosdado M. Peralta, Francis H. Jardeleza, Noel G. Tijam,
Lucas P. Bersamin, and Samuel R. Martires;
2) RECONSIDER and SET ASIDE the Decision dated II May 2018; and
3) DISMISS the Petition for Quo Warranto dated 2 March 2018 filed by the Office of the Solicitor
General.1
Once more, I concur in Justice Tijam's Resolution denying respondent's motion for
reconsideration, but I am compelled to write a separate Concurring Opinion to address
respondent's insistence that I, along with five other Justices, should have recused
ourselves from the present case allegedly due to our evident bias and the applicable
grounds for our mandatory inhibition.
I reiterate that there is no factual or legal basis for respondent's motion for my
inhibition.
May I stress that I testified before the House of Representatives Committee on Justice,
not as a complainant, but as a resource person during the committee hearings on the
determination of probable cause in Atty. Lorenzo G. Gadon's impeachment complaint
against respondent. I attended in deference to the invitation of the Committee on
Justice of the House of Representatives, a co-equal branch, only after securing
authorization2 from the Court en banc to testify on administrative matters and specific
adjudication matters subject of the said impeachment complaint.
I have no personal knowledge of the evidentiary fact in dispute in this Petition, which is
about respondent's failure to submit to the JBC her SALNs. The said fact remained
hidden for a period of about six years until respondent's letter dated July 23, 2012 was
revealed by JBC officials during the hearing before the Committee on Justice of the
House of Representatives. Moreover, respondent refused to appear and testify
personally before the said Committee to shed light on this factual matter. Neither did
respondent answer my and our other colleagues' question on whether or not she filed
her SALNs as professor of the University of the Philippines (UP). Respondent's
consistent reply was that she would answer this question only before the Impeachment
Court.
I testified before the House of Representatives Committee on Justice only on matters
raised in the impeachment complaint, which were within my personal knowledge and
which essentially constituted of respondent's misdeeds or misfeasance as Chief
Justice, viz.:
(a) Respondent's creation of the Judiciary Decentralized Office (JDO) in the 7 th Judicial
Region without the knowledge and approval of the Court en banc and the falsification of
a Court resolution to make it appear that the Court en banc ratified the operation of the
JDO, under the pretext that she was merely reviving the Regional Court Administration
Office (RCAO) in the 7th Judicial Region;
(b) Respondent's falsification and unlawful expansion of the c.overage of the Temporary
Restraining Order issued in the consolidated Petitions in G.R. Nos. 206844-45 and G.R.
No. 206982, Coalition of Associations of Senior Citizens in the Philippines, Inc. v.
Commission on Elections,3 in contravention of my recommendation as the Member-in-
Charge;
(c) Respondent's false claim in her letter dated May 29, 2014 that several Supreme
Court Associate Justices recommended to do away with Section 1, Rule 8 of JBC-
009,4 thus, depriving the Court en banc of the opportunity, under said rule, to submit
its recommendees to the JBC for the vacant post of Supreme Court Associate Justice
vice retired Associate Justice Roberto A. Abad, all apparently in furtherance of
respondent's manipulations to block the inclusion of then Solicitor General, now
Supreme Court Associate Justice Francis H. Jardeleza, in the shortlist of qualified
nominees for the said vacant post; and
(d) The JBC, during respondent's incumbency as Chairperson, clustered the nominees
for six simultaneous vacancies in the Sandiganbayan into six separate shortlists in
violation of the Constitution; laws, rules, and jurisprudence; and the qualified
nominees' rights to due process and equal opportunity to be appointed.
Indeed, my testimony could not be said to have been motivated by prejudice or

personal grudge, or to be indicative of bias or partiality. My testimony before the House
of Representatives Committee on Justice was objective, factual, and truthful; fully
supported by official documents, including Court Decisions and issuances; substantiated
by other resource persons who likewise testified before the said Committee; and more
importantly, has remained unrebutted by respondent up to now. The matters I
testified on were also clearly work-related and not personal, as when I called the
Court en banc's attention when respondent violated Court en banc Resolutions, falsified
Court Resolution, and misled or lied to us, her colleagues in the Supreme Court, on
official matters.
I have vehemently denied in my Concurring Opinion to the main Decision the blatant

lies about the alleged conversation that I had with respondent upon her appointment
as Chief Justice.
In addition, the matters taken up during the hearings before the House of
Representatives Committee on Justice concerned respondent's actuations while she
held the position of Chief Justice, which might constitute impeachable offenses and did
not involve respondent's qualifications for appointment to the post of Supreme Court
Chief Justice. While the questioning by the Committee Members during the hearings did
reveal respondent's non-submission of her SALNs for the past 10-year period to the
JBC, a specific requirement for filling-up the vacant post of Chief Justice vice Chief
Justice Renato C. Corona, it was a matter which the said Committee did not act upon.
The issue of whether or not respondent is qualified to be Chief Justice is a totally
different and separate matter from the grounds adduced in the impeachment
complaint, and is appropriately within this Court's jurisdiction, raised via this Petition
for Quo Warranto.
Furthermore, respondent objects to references to and discussions of the other false

entries in her sworn Personal Data Sheet (PDS), which no longer involved her SALNs.
To be sure, the past action of a person is a valuable yardstick of his/her character. This
is true as regards respondent who advanced in her career in the Judiciary through her
lies and deceptions, which were recounted in detail in my Concurring Opinion, beginning
with the false entries in the PDS she submitted when she applied for Supreme Court
Associate Justice in 2010, and repeated in the PDS she submitted when she
subsequently applied for Supreme Court Chief Justice in 2012.
It bears to point out that in the Resolution dated April 3, 2018 in the case at bar, the
Court acted on respondent's Ad Cautelam Motion to Set for Oral Argument dated April
2, 2018 and resolved, among other things, to:
(a) GRANT the subject Motion, not for the purpose cited therein, but for the sole purpose of
granting the respondent a final opportunity to answer specific questions, under oath, needed
for the judicious resolution of the instant case[.] (Emphasis mine.)
The Amended Advisory attached to the Resolution explicitly laid down the conditions
and guidelines for the oral arguments, to wit:
Accordingly, without necessarily giving due course to the petition, the Oral Argument is
set on April 10, 2018, 2 p.m., at the Session Hall, Supreme
Court, Baguio City. This is subject to the conditions that respondent shall: (a)
personally appear and testify under oath and (b) affirm and verify under oath the
truth and veracity of the allegations in the Comment filed by counsels
supposedly on her behalf.
For the orderly proceeding of Oral argument, the parties are required to observe the
following guidelines:
xxxx
V. The Members of the Court maintain their privilege to ask any question on
any relevant matter or require submission of any document necessary for an
enlightened resolution of this case. (Emphases mine.)
Respondent herself opened the door to questions as to the entries in her PDS 5 as she
had attached to her Comment Ad Cautelam the nominations and endorsements for the
position of Chief Justice of "various persons and groups in the legal and evangelical
community." Among said attachments were the nominations of respondent by Atty.
Fidel Thaddeus I. Borja6 and Atty. Jordan M. Pizarras and Atty. Janalyn B. Gainza-
Tang,7 who mentioned respondent's credentials as a former lecturer in the University of
Western Australia (UWA) and Murdoch University. Hence, it was completely within my
authority as a Member of the Court to verify such matter which respondent herself put
into the record, during the oral arguments. And, as my questions during the oral
arguments exposed, which I discussed in my Concurring Opinion to the Decision of May
11, 2018, that respondent was not being entirely truthful in her PDS when she
deliberately omitted the fact that she was a lecturer in the Masters in Business
Administration (MBA) program of a Manila-based school, unnamed in her PDS, which
happened to have a partnership with UWA and Murdoch University.
I likewise have a legitimate basis for questioning respondent during the oral arguments
regarding her entry in her PDS that she served as Deputy Commissioner of the
Commission on Human Rights (CHR). CHR officers and employees are undeniably public
officers and employees mandated by the Constitution and statutes to file their SALNs.
Other than verifying the veracity of respondent's purported title of CHR Deputy
Commissioner, I merely intended to inquire if respondent filed her SALN during her
tenure with the CHR, thus:
JUSTICE DE CASTRO:
In your PDS, you mentioned that you're a Deputy Commissioner of the Commission on
Human Rights. When was that period of time? Because your PDS did not mention the
year when you were a Deputy Commissioner of the Commission of Human Rights. What
was the period that you served in the CHR?
CHIEF JUSTICE SERENO:
It was a functional title. I don't have the exact details because you did not ask me to
prepare for my PDS, allegations on the PDS. At least I didn't see that. So...
JUSTICE DE CASTRO:
So, it was not a Position Title because the...
It was a functional... No, no, it was a functional...
JUSTICE DE CASTRO:
Excuse me. Let me finish. The PDS has a matrix and the information required of the
one accomplishing the PDS stated that you should put there your Position Title. But, so,
when you accomplished that form, of the PDS, you mentioned that you were a Deputy
Commissioner of the Commission on Human Rights. So the question is, is there such a
position in the Commission on Human Rights?
If you are going to look at the way the PDS was trying to condense, the Commission on
Human rights succeeded the Presidential Committee on Human Rights. I was first hired
with the Presidential Committee on Human Rights and given a title of Technical
Consultant then a functional title of Deputy Commissioner where I could vote vice
Abelardo - who was the Commissioner. Then, it morphed into the Commission on
Human Rights but the terms of reference that were still to be carried over into that CHR
was still to carry that because I was there for a while. I was going to explain this
eventually.
JUSTICE DE CASTRO:
So, you're saying...
And this is not, I'm sorry, Justice Tess, this is outside already of the petition.
JUSTICE DE CASTRO:
This is, let me...
So, I want to find out, are we going...
JUSTICE DE CASTRO:
This is connected...
Is it a global roaming...
JUSTICE DE CASTRO:
No, I asked this...
Global roaming event?

JUSTICE DE CASTRO:
No, I asked this because this is connected. I want to know if you occupy a
permanent position there...
No...
JUSTICE DE CASTRO:
...as Deputy Commissioner. So, I'd like to know whether you submitted your
SALN?
No, no, it was not permanent.
JUSTICE DE CASTRO:
So, you're now saying there's no such Position Title as Deputy Commissioner?
No. There is.
JUSTICE DE CASTRO:
You said it's a functional title?
Position slash functional title, they merged.
JUSTICE DE CASTRO:
What is the meaning, but there's, why...
Maybe we need to talk to people from the Commission on Human Rights and PCHR,
they can explain this in great detail including the organizational birth of PCHR morphing
into the CHR and why perfectly, it is perfectly all right to use that functional title.
JUSTICE DE CASTRO:
So you...
And the petition is only about my UP, my UP stint not my CHR stint, Justice Tess. I was
not prepared, I did not bring my documents, I don't think I should be examined under
these conditions.
xxxx
JUSTICE DE CASTRO:
And your PDS says that you were a Deputy Commissioner of the Commission
on Human Rights. So, I'd like to know if you're a permanent official of the CHR
and if so, whether you filed your SALN and I wanted to know if that was the
period you resigned from UP. So, if you... That's why I...
No, I was with UP also at the same time.
JUSTICE DE CASTRO:
So, that's why I'm asking...
It was a UP SALN...8 (Emphases mine.)
It was evident that during the oral arguments, respondent was very evasive as to
questions concerning entries in her sworn PDS, which falsely stated that she held
the position of Deputy Commissioner of the CHR, when the said position did not
exist. Respondent repeatedly asserted that such entries were outside the jurisdiction of
the Court, but these were actually factual matters closely related to her claimed
qualifications for the posts of Associate Justice and Chief Justice of the Supreme Court.
These concerned personal information, if true, would have been easily answered by
respondent without need for extensive review or preparation.
Lastly, it is worthy to note that up to this time, respondent has yet to provide any
categorical and demonstrably truthful explanation regarding the incomplete and
improper submission of her SALNs.
From the outset, the thrust of respondent's argument is that the issues raised in the
Petition for Quo Warranto and the relief sought therein, i.e., her removal from office,
are matters that should be taken cognizance of, not by the Court, but by the Senate
sitting as Impeachment Court.
Yet, respondent's assertion that she will address the questions regarding her non-
submission of SALNs before the. Senate sitting as Impeachment Court, on closer look,
is duplicitous.
In her Comment Ad Cautelam, respondent .claimed that she "continues to recover

and retrieve her missing SALNs and will present them before the Senate
sitting as the Impeachment Tribunal[,]" but in the same breath, said statement is
followed by the reservation that her presentation of the SALNs was "without
prejudice to her legal defenses in light of the fact that her alleged failure to
file SALNs before she joined the Supreme Court is not within the scope of the
impeachment complaint or the grounds for impeachment provided in the
Constitution."9 Again, said Comment Ad Cautelam stated "x x x with most of the
missing SALNs ready to be produced at the Senate Impeachment Trial, but without
prejudice to the Chief Justice's objections based on jurisdiction and
relevance."10
Respondent further insisted in her Memorandum Ad Cautelam that "only the Senate

sitting as an Impeachment Tribunal may try and decide the factual issue of
whether she filed her SALNs as a U.P. Professor (and only
assuming arguendo that this matter - which took place before she joined the
Supreme Court - may be considered an impeachable offense)."11
It is readily apparent that respondent has taken the position that the Senate sitting as
Impeachment Court has no jurisdiction over her failure to file her SALNs, which
happened before she was appointed Chief Justice. This is precisely the thrust of this
Petition for Quo Warranto. The SALN issue lies at the heart of the qualification of
integrity required for appointment as Chief Justice. Respondent's omission to file her
SALNs was an antecedent fact or a prior factual requirement before she could qualify
for appointment as Chief Justice.
The foregoing only reinforces the ruling of the Court that under the particular
circumstances of this case, the remedy of quo warranto before the Supreme Court is
appropriate to challenge respondent's qualifications to be Chief Justice as there can be
no void in available remedies so as to hold respondent accountable for the
consequences of her actions prior to her invalid appointment and assumption to the
position of Chief Justice, i.e., her failure to submit to the JBC her SALNs for the 10-year
period before 2012, particularly for 2002, 2003, 2004, 2005, 2006, and August 24,
2010, which were explicitly required for applications for the Chief Justice vacancy in
2012, as well as her deceptive letter dated July 23, 2012 to the JBC to justify her non-
submission.
As I pointed out during the Oral Arguments, if respondent succeeds in preventing the
Court, and also the Senate, from looking into her SALNs, nobody will ever know
whether or not she has properly complied with the constitutionally mandated obligation
of the filing of SALNs.12 Respondent's obvious defense strategy is to avoid revealing the
truth about her missing SALNs whether in this Petition for Quo Warranto or in the
Senate Impeachment Court.
Respondent's crafty defense strategy should not be countenanced.
Considering the foregoing, I vote to DENY respondent's Ad Cautelam Motion for

Reconsideration for utter lack of merit.
Endnotes:
1
2
The Court Resolution dated November 28, 2017 pertinently states:
NOW, THEREFORE, the Court En Banc hereby authorizes the invited officials and
Justices to so appear and testify, if they wish to do so, under the following conditions:
xxxx
3. Justice Teresita J. Leonardo-De Castro of this Court may testifY on administrative

matters, and on adjudicatory matters only in the following cases:
a. G.R. Nos. 206844-45 (Coalition of Association of Senior Citizens in the Philippines

Party List v. Commission on Elections): Justice Leonardo-De Castro may testify only on
the issuance of the Temporary Restraining Order and on the exchange of
communications between Chief Justice Sereno and Justice Leonardo-De Castro, but not
on the deliberations of the En Banc in this case;
b. G.R. No. 224302 (Hon. Philip Aguinaldo, et al. v. President Benigno S. Aquino III):
Justice Leonardo-De Castro may testifY only on the merits of her ponencia but not on
the deliberations of the En Banc in this case;
c. G.R. No. 213181 (Francis H. Jardeleza v. Chief Justice Maria Lourdes P. A. Sereno):
Justice Leonardo-De Castro may testify only on the merits of her separate concurring
opinion, but not on the deliberations of the Court in this case.
3
714 Phil. 606 (2013).
4
JBC-009 was promulgated on October 18, 2000. Said rules had been superseded
by JBC No. 2016-01 (the Revised Rules of the Judicial and Bar Council), which took
effect on October 24, 2016, without notice to the Supreme Court en banc.
5
Annex "A" of the Petition.
6
Annex "7" of the Comment Ad Cautelam.
7
Annex "8" of the Comment Ad Cautelam.
8
TSN, April 10, 2018, pp. 161-165.
9
Respondent's Comment Ad Cautelam, p. 60.
10
Id. at 68-69.
11
Respondent's Memorandum Ad Cautelam, p. 25.
12
TSN, April 10, 2018, p. 158.
SEPARATE CONCURRING OPINION
PERALTA, J.:
Respondent Hon. Chief Justice Maria Lourdes P. A. Sereno filed an Ad Cautelam Motion
for Reconsideration, praying for the Court to set aside its May 11, 2018 Decision, which
granted the Petition for Quo Warranto filed by the Office of the Solicitor General, and to
reconsider the denial of her Ad Cautelam Motions for Inhibition.
Respondent raised the following grounds in support of her motion for reconsideration:
A.
The Decision is null and void, rendered in violation of Respondent's fundamental right to
due process of law.
A.1. The existence of an impartial tribunal is an indispensable prerequisite of due process.
A.2. The six (6) disqualified Justices ought to have inhibited themselves from hearing and deciding
the case. There were compelling grounds to believe that they were not impartial.
A.2.1. The disqualification of Associate Justices De Castro, Peralta, Jardeleza, Tijam,

Bersamin and Martires is mandatory, grounded on actual bias and not mere
participation in the hearings held by the House Committee on Justice.
A.2.2. The majority failed to refute actual bias on the part of Justices De Castro and
Jardeleza, and did not address other grounds for mandatory disqualification present
in the cases of Justices De Castro and Peralta.
A.2.3. This Honorable Court has required inhibition of trial court judges for far lesser
reasons. Established jurisprudence on the inhibition of judges should be equally
applied in this case.
A.3. The majority acted without jurisdiction and in gross violation of Respondent's right to due
process when it took cognizance of extraneous matters as "corroborative evidence" of
Respondent's supposed lack of integrity.
A.4. The Petition is ultimately based on disputed questions of fact which could not have been
validly resolved by the Court without observing the mandatory procedure for reception of
evidence under the Rules of Court and the Internal Rules of the Supreme Court.
B.
The Decision is contrary to the Constitution. The Honorable Court is without

jurisdiction to oust an impeachable officer via quo warranto.
B.1. The indisputable intent of the Constitution is that impeachable officers, save for the
President and Vice President, can be removed from office only by impeachment.
B.1.1. Textually, impeachment is the only method for removal of appointive constitutional
officers permitted under the Constitution.
B.1.2. The intent that impeachment be exclusive is shown by the deliberations of the 1986
Constitutional Commission. It is also expressed by the views of the members of that
Commission.
B.1.3. Jurisprudence prior to the 11 May 2018 Decision consistently held that impeachment
is an exclusive mode for removal from office.
B.1.4. The use of the word "may" does not denote an alternative to impeachment.
B.1.5. Statutes providing for removal of public officers must be strictly construed.
B.1.6. The reasons and public policy behind impeachment as the Constitutionally-mandated
mode of removal of Justices of the Supreme Court negate any other mode of
removal.
B.1.7. A difficult process deliberately chosen by the Constitution cannot be substituted with
an expedient procedure.
B.1.8. Assuming arguendo that Respondent is a de facto officer, she can still only be
removed by impeachment.
B.2. The Honorable Court should have exercised judicial restraint to avoid the possibility
of a constitutional crisis.
B.3. The Republic is guilty of forum-shopping. This Honorable Court ought to have
dismissed the Petition and allowed these issues to be resolved by the proper
constitutional body: the Congress.
B.4. Respondent did not waive her jurisdictional objections.
C.
The Honorable Court seriously erred in annulling the official act of the Judicial
and Bar Council ("JBC") and the President absent any allegation, much less
finding of, grave abuse of discretion. The JBC's and the President's
determination of Respondent's integrity is a political question beyond the pale
of judicial review.
D.
Assuming the quo warranto is initially available, the petition is now time-barred.
E.
Assuming arguendo that this Honorable Court has jurisdiction, the Decision is contrary
to law and evidence. The Chief justice was and is a person of proven integrity.
E.1. The Honorable Court erred in ruling that Respondent "chronically failed to file her
SALNS."
E.2. This Honorable Court seriously erred when it ignored the JBC's standards and criteria
for determining "integrity," and crafter and applied its own definition of that abstract
quality.
E.2.1. Applying the JBC's standards, criteria, and guidelines, the Respondent was able to
show that she is a person of "proven integrity."
E.2.2. The JBC never considered the filing per se of SALNs as a measure of an applicant's
integrity. The SALNs were meant to be a tool to uncover the applicant's hidden cash
assets, if any.
E.3. The filing per se of a SALN neither proves nor negates a person's integrity.
The Ad Cautelam Motion for Reconsideration should be denied for lack of merit.
I will first address respondent's arguments why the Ad Cautelam Respectful Motion for
Inhibition (Of Hon. Associate Justice Diosdado M. Peralta) should not be reconsidered.
Respondent argues that I should inhibit in this case because I had expressed my view
under oath that she should have been disqualified from nomination for the position of
Chief Justice due to her failure to submit the JBC her SALNs for the years that she was
employed as a professor at the University of the Philippines (U.P.). She points out that
my statement that I would have "objected to the selection of the Chief Justice" as her
failure to submit her U.P. SALNs was a "very clear deviation from existing rules,"
suffices to produce in the mind "a firm belief or conviction" that he had already
prejudged the case. She contends that it is clear from jurisprudence that prejudgment
of an issue could occur even before the case from which a judge is sought to be
disqualified has been filed.
Respondent's arguments are a mere rehash of those raised in her Ad Cautelam

Respectful Motion for Inhibition, which have already been addressed in my Separate
Concurring Opinion, in this wise:
In saying that "had I been informed of this letter dated July 23, 2012, and a certificate
of clearance, I could have immediately objected to the selection of the Chief Justice for
voting because this is a very clear deviation from existing rules that if a member of the
Judiciary would like ... or ... a candidate would like to apply for Chief Justice, then she
or he is mandated to submit the SALNs," I merely made a hypothetical statement of
fact, which will not necessarily result in the disqualification of respondent from
nomination, if it would be proven that she had indeed filed all her SALNs even before
she became an Associate Justice in 2010.
There is nothing in the statement that manifests bias against respondent per se as the
same was expressed in view of my function as then Acting Ex-Officio Chairperson of the
JBC, which is tasked with determining the constitutional and statutory eligibility of
applicants for the position of Chief Justice. It would have been but rational and proper
for me or anyone else in such position to have objected to the inclusion of any nominee
who was not known to have met all the requirements for the subject position. The
significance of his responsibility as Acting Ex-Officio Chairperson of the JBC gave rise to
the imperative to choose the nominee for Chief Justice who was best qualified for the
position, i.e. one who must be of proven competence, integrity, probity and
independence. Be it stressed that when the hypothetical statement was made, there
was no petition for quo warranto yet, so I cannot be faulted for pre-judging something
that is not pending before the Court.
Besides, in my honest view, what is being assailed in this petition for quo warranto is
respondent's failure to prove her integrity on the ground that she deliberately concealed
from the JBC the material fact that she failed to file her SALNs for the years 2000,
2001, 2003, 2004, 2005 and 2006, among others, even before she became an
Associate Justice of the Supreme Court in 2010. Thus, whether hypothetical or not, my
statement that she should have been disqualified to be nominated as Chief Justice, is
not relevant or material to this petition for quo warranto.
For one, in connection with her application for Associate Justice in July 2010, what the
Office of Recruitment, Selection and Nomination (ORSN) received on July 28, 2010 from
respondent was her un-notarized 2006 SALN dated July 2010. However, in a recent
letter dated February 2, 2018 addressed to the ORSN, she explained that such SALN
was really intended to be her SALN as of July 27, 2010. During the Oral Arguments,
respondent further explained that she merely downloaded the SALN form, and forgot to
erase the year "2006" printed thereon and that she was not required by the ORSN to
submit a subscribed SALN. Assuming that her said SALN is for 2010, it should have
been filed only in the following year (2011) as the calendar year 201 0 has not yet
passed, and her appointment would still be in August 16, 2010. She cannot also claim
that said SAL for 2009 because she was still in private practice that time.
For another, she also failed to file her SALN when she resigned from the University of
the Philippines (U.P.) in 2006 in violation of R.A. No. 6713. Accordingly, whatever I
testified on during the Congressional Hearings has no bearing on this petition because
my concern is her qualification of proven integrity before she even became an Associate
Justice in 2010, and not when she applied for Chief Justice in 2012.
Respondent also insists that she raised other mandatory grounds for my inhibition,
which were not refuted, such as (1) having personal knowledge of disputed evidentiary
facts; (2) having served as material witness in the matter in controversy; and (3)
having acted as Acting Ex-Officio Chairperson of the JBC for the matter in controversy.
She explains that as such Ex-Officio Chairperson of the JBC, I would have personal
knowledge of disputed evidentiary facts concerning the proceedings; thus, my
disqualification is mandated by Section S(a), Canon 3 of the New Code of Judicial
Conduct and Rule 3.12(a), Canon 3 of the 1989 Code of Judicial Conduct. She asserts
that my explanation to the effect that it was the Office of the Recruitment, Selection
and Nomination (ORSN) of the JBC which was tasked to determine the completeness of
the applicant's documentary requirements including SALNs, is in itself a personal
account of what transpired during the selection of nominees for the Chief Justice
position in 2012, and thus still covered by Canon 3, Section 5(a) of the New Code of
Judicial Conduct. She adds that another ground for my disqualification is Section 1(f),
Rule 8 of the Internal Rules of the Supreme Court because I signed the short list of
nominees for the position of Chief Justice, which was transmitted to the Office of the
President; thus, I acted in an official capacity on the subject matter of this case.
According to her, the fact that the validity of my official action is in question, ought to
have sufficed for my compulsory disqualification in this case.
Contrary to respondent's view that Section 5(a),1 Canon 8 of the New Code of Judicial
Conduct, which mandates that the inhibition of a judge who has "actual bias or
prejudice against a party" is a compulsory ground for inhibition, the said ground is
merely voluntary or discretionary under Rule 137 2 of the Rules of Court and Rule 83 of
the Internal Rules of the Supreme Court, which are the applicable rules governing
inhibition in this petition for quo warranto.
Respondent's supposed grounds for my mandatory inhibition are also reiterations of

matters that have already been passed upon in my Separate Concurring Opinion, thus:
Contrary to respondent's contention, I have no personal knowledge of the disputed

facts concerning the proceedings (e.g., the matters considered by the members of the
JBC in preparing the shortlist of nominees). As can be gathered from the Minutes of the
July 20, 2012 JBC En Banc Special Meeting, it is the ORSN and the JBC Execom which
was given the duty to determine the completeness of the documentary requirements,
including the SALNs, of applicants to judicial positions. Suffice it to state that because
of my usual heavy judicial workload, it is inconceivable and impractical for me, as then
Acting Ex-Officio JBC Chairperson, to examine the voluminous dossier of several
applicants and determine whether they have complete documentary requirements.
Equally noteworthy is the fact that there are no disputed evidentiary facts concerning
the proceedings before Congress or the Court. In the July 24, 2012 Report of ORSN
regarding the Documentary Requirements and SALNs of Candidates for the Position of
the Chief Justice of the Philippines, then Associate Justice Maria Lourdes P. A. Sereno
was noted to have "Complete Requirements" with notation "Letter 7/23/12-considering
her government records in the academe are more than 15 years old, it is reasonable to
consider it infeasible to retrieve all those file." Despite her employment at the UP
College of Law from November 1986 to June 1, 2006, the record of the UP Human
Resources Department Office only contains her SALNs filed for 1985, 1990, 1991, 1993,
1994, 1995, 1996, 1997 and 2002,4 but her SALNs for 2000, 2001, 2003, 2004, 2005
and 2006 are not on file,5 whereas the records of the Central Records Division of the
Office of the Ombudsman reveal that no SALN was filed by respondent from 2000 to
2009, except for the SALN for 1998. Respondent neither disputes the foregoing facts
nor the authenticity and due execution of the foregoing documents.
Significantly, when I was Acting Ex-Officio Chairperson in 2012, I have had no personal

knowledge that respondent had not filed her SALNs for 2000, 2001, 2003, 2004, 2005
and 2006. I may have had access to her SALNs for 2009, 2010 and 2011, but it was
only during the Congressional Hearings that it was discovered that she failed to file her
SALNs for the period between 2000-2006, as borne by the Certifications issued by the
Office of the Ombudsman and the U.P. HRDO pursuant to subpoena duces tecum issued
by the Committee on Justice.
It is likewise important to distinguish the proceedings before the Committee on Justice

of the House of Representatives and the quo warranto petition pending before the
Court. The issue in the petition for quo warranto is whether respondent unlawfully holds
or exercises a public office in view of the contention of the Solicitor General that her
failure to file SALNs, without lawful justification, underscored her inability to prove her
integrity which is a constitutional qualification to become a member of the Supreme
Court. In contrast, the issue in the Congressional Hearings where I was invited as a
Resource Person was the determination of probable cause to impeach the respondent
where her qualifications prior to her appointment as Chief Justice was never an issue
nor raised as ground for impeachment.
There is no merit in respondent's claim that I am compulsorily disqualified to act in this

case because as then Ex-Officio Chairperson of the JBC, I signed the short list of
nominees for the position of Chief Justice, and the validity of my official action is
purportedly in question. Suffice it to state that there is no dispute in this case as to the
validity of my act oftransmitting to the Office of the President the short list of
nominees. I may have participated in the deliberation of the names included in the
short list, but since respondent deliberately concealed from the JBC the material fact
that she failed to file her SALNs in 2000, 2001, 2003, 2004, 2005 and 2006, I was
denied the opportunity to pass upon her qualification of "proven integrity." As a matter
of course, respondent's name would not have been included in the deliberation for the
said short list, if only the JBC Executive Committee (Execom) and the ORSN had
exercised reasonable diligence in the performance of their ministerial duty to ensure the
complete documentary requirements of the applicants to the position of Chief Justice.
For all her harping on the mandatory grounds of inhibition, respondent should be well
aware of what constitutes a clear case of "conflict of interest" which is a ground for
recusal. In the November 17, 2017 deliberations where the JBC En Banc voted for the
applicants to be shortlisted for the position of Court of Appeals Presiding Justice,
respondent should not have allowed another round of voting, but should have sustained
the motion of Judge Toribio Ilao, Jr. to re-open the position, considering that only two
(2) of the five (5) candidates were voted by the JBC En Banc when the Constitution
requires that three (3) from five (5) or more qualified candidates be voted upon.
Instead, respondent insisted on are-vote among the three (3) candidates who were not
initially voted upon (first in the history of the JBC), to include one applicant in the
shortlist of nominees, who penned a decision reversing the ruling of the trial court,
which found that the fees awarded to the lawyers (including respondent) who
represented the Philippine Government in a case, were exorbitant and unenforceable
for being contrary to public policy. Note that when the second round of voting took
place, there was still a pending motion for reconsideration of the said applicant's
decision which is favorable to respondent. It may even be said that respondent
concealed such conflict of interest from the other JBC Ex-Officio members, who could
have called for her inhibition as then Ex-Officio Chairperson.
In claiming that I am compulsorily disqualified from acting on this petition for quo

warranto, respondent ignores the crucial distinction between the subject matter of this
petition and that of the 2012 deliberations of the JBC En Banc when I acted as its
Acting Ex-Officio Chairperson. Note that the subject matter of this petition for quo
warranto is her ineligibility to become a member of the Judiciary because she was not a
person of "proven integrity" for deliberately concealing from the JBC the fact that she
had failed to file her SALNs, whereas the subject matter of the 2012 deliberations of the
JBC En Banc is the overall qualifications of applicants, including respondent, to become
a Chief Justice. Equally noteworthy is the fact that while there is a disputed evidentiary
fact in this petition for quo warranto as to whether or not respondent had failed to file
her SALNs before the Ombudsman Central Records Division or the U.P. Human
Resource Department Office (HRDO), there was no disputed evidentiary fact during the
JBC deliberations with respect to her SALN requirement. Then as now, however, there
is no question that she had failed to file her SALNs before the JBC for so many years,
including those for 2000, 2001, 2003, 2004, 2005 and 2006, but the ORSN erroneously
stated in its report dated July 24, 2012 that she had "COMPLETE REQUIREMENTS [-]
Letter 7/23/12 considering that her government records in the academe are more than
15 years old, it is reasonable to consider it infeasible to retrieve all those file."
Respondent further asserts that I was a material witness in the matter in controversy
because I testified before the House Committee on Justice that the JBC should have
disqualified her for failure to submit her SALNs for the years when she was a U.P.
Professor; hence, disqualified to sit in judgment pursuant to Canon 3, Section S(b) of
the New Code of Judicial Conduct and Rule 3.12(b), Canon 3 of the 1989 Code of
Judicial Conduct. She claims that my opinion before the House Committee on Justice as
to her invalid nomination for failure to submit SALNs to the JBC, given about a month
before the petition for quo warranto was filed, might in some way or another, influence
my decision in this case, because I already have personal knowledge of disputed
evidentiary facts.
Respondent fails to persuade. A "material witness" is one who can testify about matters
having logical connection with the consequential facts, specially iffew others, if any,
know about those matters6 For one, whether or not I will be a material witness in the
impeachment proceedings would be for the prosecution panel to eventually decide. For
another, as can be clearly gathered from the Minutes of the July 20, 2012 JBC En
Banc Special Meeting and the transcript of the Congressional Hearings, I cannot be a
material witness in the first place, because I have no personal knowledge as to whether
there was substantial compliance with the SALN requirement, the determination of
which having been expressly delegated to the JBC Execom. Because of my usual heavy
judicial workload as an Associate Justice, it was inconceivable and impractical for me,
as then Acting Ex-Officio JBC Chairperson, to examine the voluminous dossier of
several applicants and determine whether they have complete documentary
requirements, including SALNs.
To my mind, the material witnesses who could testify whether there was substantial
SALN requirement are the members of the JBC Execom and the ORSN. On my part, I
could corroborate the matters that transpired during the July 20, 2012 JBC En
Banc Special Meeting, and the fact that respondent's letter dated July 23, 2012 never
reached the JBC En Banc before the deadline for the submission of documentary
requirements. It is also important to stress that when I was Acting Ex-
Officio Chairperson in 2012, I have had no personal knowledge that respondent had not
filed her SALNs for 2000, 2001, 2003, 2004, 2005 and 2006. I may have had access to
her SALNs for 2009, 2010 and 2011, but it was only during the Congressional Hearings
in 2018 that it was discovered that she failed to file her SALNs for the periods between
2000-2006, as borne by the Certifications issued by the Office of the Ombudsman and
the U.P. HRDO pursuant to subpoena duces tecum issued by the Committee on Justice.
Even assuming that respondent's name was included in the shortlist of nominees for the
position of Chief Justice submitted by the JBC to the Office of the President, there is a
difference between determining her qualifications and the violation of the SALN law.
Granted that there was a waiver on the part of the JBC with regard to respondent's
incomplete SALNs, the fact remains that there were violations of the statutory and
constitutional Jaws for failure to file SALNs, which not only cast doubt on her integrity,
but also constitute culpable violation of the Constitution, and violation of R.A. Nos. 6713
and 3019 for as many years that she failed to file her SALNs. Because the said
violations were committed even prior to respondent's appointment as Associate Justice
of the Supreme Court in 2010, then they are proper subject of quo
warranto proceedings instead of impeachment.
As to the respondent's right to due process, I have already explained in a Separate

Concurring Opinion that my participation in the Congressional Hearings did not violate
her right to due process, because it was never shown that I am disqualified on either
compulsory or voluntary grounds for inhibition under the Rules of Court and the
Internal Rules of the Supreme Court. Respondent's allegations of actual bias and
partiality are unsubstantiated, conjectural, and not founded on rational assessment of
the factual circumstances on which the motion to inhibit is anchored. When I made the
statements before the Congressional Hearings for the determination of probable cause
to impeach the respondent Chief Justice, no petition for quo warranto was filed yet
before the Court, hence, I could not have pre-judged the case. Once again, the genuine
issue in this petition for quo warranto is not the eligibility of respondent to be appointed
as Chief Justice in 2012, but her qualification of "proven integrity" when she was
appointed as an Associate Justice in 2010 despite concealment ofher habitual failure to
file SALNs. Of utmost importance is the fact that I, like every other member of the
Supreme Court, have never let personal reasons and political considerations shroud my
judgment and cast doubt in the performance of my sworn duty, my only guide in
deciding cases being a clear conscience in rendering justice without fear or favor in
accordance with the law and the Constitution.
Jointly addressing the substantive issues in respondent's Ad Cautelam Motion for

Reconsideration, Irestate my position that there is nothing in Section 2, Article XI of the
1987 Constitution that states that Members of the Supreme Court, among other public
officers, may be removed from office "only" through impeachment. The provision simply
means than only the enumerated high government officials may be removed via
impeachment, but it does not follow that they could not be proceeded against in any
other manner, if warranted. Otherwise, the constitutional precept that public office is a
public trust would be undermined simply because political or other Improper
consideration may prevent an impeachment proceeding being initiated.
Since Section 2, Article XI of the 1987 Constitution is clear and unambiguous, it is

neither necessary nor permissible to resort to extrinsic aids for its interpretation, such
as the records of deliberation of the constitutional convention, history or realities
existing at the time of the adoption of the Constitution, changes in phraseology, prior
laws and judicial decisions, contemporaneous constructions, and consequences of
alternative interpretations.7 It is only when the intent of the framers does not clearly
appear in the text of the provision, as when it admits of more than one interpretation,
where reliance on such extrinsic aids may be made.8 After all, the Constitution is not
primarily a lawyer's document, and it does not derive its force from the convention that
framed it, but from the people who ratified it.9
As a rule, an action against a public officer or employee for his ouster from office -
within one year from the date the petitioner is ousted from his position 10 or when the
right of the claimant to hold office arises.11 Exception to the rule is when the petitioner
was constantly promised and reassured or reinstatement, in which case laches may not
be applied because petitioner is not guilty of inaction, and it was the continued
assurance of the government, through its responsible officials, that led petitioner to
wait for the government to fulfill its commitment. 12 Thus, I posit that the one-year
prescriptive period to file a petition for quo warranto should commence from the time of
discovery of the cause for the ouster from public office, especially in cases where the
ground for disqualification is not apparent or is concealed.
It is not amiss to stress that under American jurisprudence, which has persuasive effect
in this jurisdiction, it had been held that the power to impeach executive officers,
vested in the legislature, does not affect the jurisdiction of the Supreme Court to try the
right to office, since such right to an office is a proper matter of judicial cognizance, and
impeachment is not a remedy equivalent to, or intended to take the place of quo
warranto.13
Contrary to respondent's claim that the burden of proof to show unlawful holding or
exercise of public office rests on the petitioner in a quo warranto proceeding, the
general rule under American jurisprudence is that the burden of proof is on respondent
when the action is brought by the attorney general, to test right to public office.
Therefore, it is the respondent, not the petitioner, who bears the burden to prove that
she possessed the constitutional qualification of proven integrity when she applied for
the position of Associate Justice of the Supreme Court in 2010, despite her failure to
comply with the statutory and constitutional requisite of filing SALNs for the years of
2000, 2001, 2003, 2004, 2005 and 2006 while she was in government service, albeit
on official leave intermittently.
In sum, the filing of Statement of Assets, Liabilities and Net Worth (SALN) is a
constitutional and statutory obligation of public officers and employees. Submission of
SALN is a pre-requisite of the Judicial and Bar Council for applicants to the Judiciary
who come from government service. Its significance in determining the integrity of
applicants to the Judiciary came to the fore when former Chief Justice Renato C. Corona
was impeached for failure to properly declare assets in his SALNs. Based on the
certifications issued by the University of the Philippines Human Resource Department
Office and the Office of the Ombudsman Central Records Division, respondent failed to
file her SALNs for the years 2000, 2001, 2003, 2004, 2005 and 2006. When respondent
deliberately concealed from the JBC the fact that she failed to file her said SALNs while
she was a Professor at the University of the Philippines College Law, she demonstrated
that her integrity is dubious and questionable. Therefore, her appointment as an
Associate Justice in August 16, 2010 is void ab initio, for she lacks the constitutional
qualification of"proven integrity" in order to become a member of the Court.
WHEREFORE, I vote to DENY respondent's Ad Cautelam Motion for Reconsideration

for lack of merit.
Respectfully submitted.
Endnotes:
1
Section 5. Judges shall disqualify themselves from participating in any proceedings in
which they are unable to decide the matter impartially or in which it may appear to a
reasonable observer that they are unable to decide a matter impartially. Such
proceedings include, but are not limited to instances where:
(a) The judge has actual bias or prejudice concerning a party or personal knowledge of
disputed evidentiary facts concerning the proceedings. x x x
2
Section 1. Disqualification of Judicial Officers. - No Judge or judicial officer shall sit in
any case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth degree of
consanguinity of affinity, or to counsel within the fourth degree, computed according to
the rules of the civil law, or in which he has been executor, administrator, guardian,
trustee or counsel, or in which he has presided in any inferior court when his ruling or
decision is the subject of review, without the written consent of all parties in interest,
signed by them and entered upon the record.
Any judge may, in the exercise ofhis sound discretion, disqualify himself from sitting in
a case, for just or valid reason other than those mentioned above.
3
Section 1. Grounds for Inhibition. - A Member of the Court shall inhibit himself of
herself from participating in the resolution of the case for any of these or similar
reasons:
a) the Member of the Court was the ponente of the decision or participated in
proceedings before the appellate or trial court;
a) the Member of the Court was the ponente of the decision or participated in the
proceedings before the appellate or trial court;
b) the Member of the Court was counsel, partner or member oflaw firm that is or was
the counsel in the case subject of Section 3(c) of this rule;
c) the Member of the Court or his or her spouse, parent or child is pecuniarily interested
in the case
d) the Member of the Court is related to either party in the case within the sixth degree
of consanguinity or affinity, or to an attorney or any member of a law firm who is
counsel of record in the case within the fourth degree of consanguinity or affinity;
e) the Member of the Court was executor, administrator, guardian or trustee in the
case; and
f) the Member of the Court was an official or is the spouse of an official or former
official of the government agency or private agency or private entity that is a party to
the case, and the Justice or his or her spouse has reviewed or acted on any matter
relating to the case.
A Member of the Court may in the exercise of his or her sound discretion, inhibit
himself of herself for a just or valid reason other than any of those mentioned above.
4
Petitioner's Memorandum, Annex "O."
5
Id., Annex "B."
6
Black's Law Dictionary, Eight Edition.
7
Statutory Construction, Ruben E. Agpalo, p. 439 (2003).
8
People v. Muñoz, 252 Phil. 105, 118 (1989).
9
People v. Derilo, 338 Phil. 350, 376 (1997).
10
Madrigal v. Lecaroz, 269 Phil. 20, 24 (1990).
11
Unabia v. City Mayor of Cebu, 99 Phil. 253 (1956).
12
Cristobal v. Melchor, 189 Phil. 658, 1997.

13
74 C.J.S. Quo Warranto § 15.
SEPARATE OPINION
JARDELEZA, J.:
I vote to DENY respondent's Ad Cautelam Motion for Reconsideration.
Much of the controversy surrounding this case involves the conventional wisdom (one
which I myself then thought to be self-evident) that impeachment is the only mode of
removing a sitting member of the Supreme Court. However, my study into, and
consideration of, applicable original understanding, constitutional text and structure,
case precedent and historical practice, both American and Philippine, occasioned as it
was by this case, has since shown me otherwise.
Last May 11, 2018, a Majority of this Court relied on the special civil action for quo
warranto to oust a sitting member of the Court, for her failure to meet a constitutional
qualification. Lest there be misunderstanding, I emphasize that Our holding was neither
an invention nor improvisation of existing remedies cut by this Court out of whole cloth.
On the contrary, as this Concurring Opinion will attempt to show, on the issue of
jurisdiction, the majority's conclusion is supported by the following propositions:
1. The American Constitution provides that all civil officers of the United States
shall be removed on impeachment.1 Nevertheless, the controversy of whether
impeachment should be the exclusive mode to remove federal judges (including
justices of the United States Supreme Court) persists in pertinent scholarly
discourses,2 case law3 and even practice of state courts4 on the matter. It would
also take a century and a half after the Philadelphia Convention of 1787 before
the United States Supreme Court would be confronted with the question. In
1937, the appointment of Justice Hugo L. Black to the American Supreme Court
was questioned by a citizen by direct action on the ground that it violated the
emoluments clause of the Constitution. 5 In Ex Parte Levitt, the United States
Supreme Court dismissed the petition on the ground that the petitioner lacked
standing, not that impeachment is the exclusive mode to unseat a sitting justice
of the Court.6 In 2009, the United States Supreme Court denied certiorari7 and
let stand a United States Court of Appeals decision denying standing to a litigant
who questioned then President Barack Obama's natural born citizenship. 8
2. Meanwhile, while we essentially incorporated the text of the impeachment clause

of the American Constitution into our 1935 Constitution, 9 this Court, in 1966 and
in the context of the doctrine of separation of powers, would stake a grand
constitutional principle defining the reach of judicial power respecting contests
relating to the qualifications of all public officers. In Lopez v. Roxas,10 it would
hold that the power to be the judge of contests relating to, among others,
the qualifications of all public officers is a power that belongs exclusively to the
judicial department. The 1987 Constitution would constitutionalize this deep
principle by providing that the Supreme Court, sitting en banc, shall be the sole
judge of all contests relating to, among others, the qualifications of the President
or the VicePresident.11 It would also not be amiss to note that the 1934
Constitutional Convention, in a marked departure from the process under the
American Constitution on the removal of members of Congress, 12 provided for an
Electoral Commission for each house of the Congress, the membership of which
included three justices of the Supreme Court. This Commission was mandated to
be the sole judge of all contests relating to, among others, the qualifications of
the Members of Congress.13
3. In 2011, in In the matter of the charges of Plagiarism, etc., against Associate
Justice Mariano C. Del Castillo (In re Del Castillo), twelve Members of the Court
asserted the administrative authority to investigate and discipline its Members
for official infractions that do not constitute impeachable offenses and mete
penalties short of removal.14
After careful consideration and analysis of all the foregoing, I am convinced that (and
contrary to respondent's claim) judicial integrity can only be preserved if the Supreme
Court, in the exercise of its judicial powers, is recognized to be vested with the
authority to oust and remove one of their Own, if that sitting Justice is proven to lack a
constitutional qualification.
I find that the raison d'etre for the removal (with the sole or substantial participation of
this Court) of the President, the Vice-President, and Members of Congress, all duly-
elected high-ranking officials of the two other separate and co-equal Branches of
Government, applies with equal, if not more, cogency to the case of a member of the
Court whose constitutional qualification has been similarly put in issue. Since judicial
power is defined to include the exclusive authority of the judicial department to judge
contests relating to the qualifications of any public officer, to which class a Member of
this Court undeniably belongs, perforce the Court has the authority to oust one of its
Own when the Court finds that he/she lacks the qualifications required of him/her by
the Constitution.
To be sure, impeachment is accurately described as a process fundamentally political in

nature,15 with the French aptly calling it "political justice." 16 So different was it from the
judicial process that then Representative Gerald Ford, in furtherance of President
Richard M. Nixon's aborted campaign to impeach United States Supreme Court Justice
William O. Douglas, would cynically define an impeachable offense as "whatever a
majority of the House of Representatives considers it to be at a given moment in in
history."17 Conviction by the Senate, he explained, would depend only on "whatever
offense or offenses two-thirds of the other body considers... sufficiently serious to
require removal of the accused from office."18
It is in these lights that I cast my lot with the Majority. For me, it is unnatural, even
aberrant, of any Member of this Court to prefer that a case (where his or her
legal qualification to the office of Justice of this Court is in issue) be decided by way of a
political, rather than judicial, process.
Impeachment is an exceptional method of removing public officials lodged with, and

exercised by, the Congress with great circumspection. 19 It is fundamentally political in
nature,20 as it involves government and the interplay of the sovereign power in
removing unfit public officials vis-a-vis the state's protection of its high-level public
officers.21 From the face of Sections 1 to 3 of Article XI of the 1987 Constitution, it
further discernibly appears that the main purpose of the institution of an impeachment
proceeding is to exact accountability in the enumerated impeachable public officers.
As it stands now in accordance with our Constitution, in the judicial branch, it is only
the Justices of the Supreme Court who are removable via impeachment. 22 In
contemplation of the lengthier terms that Supreme Court justices may occupy their
positions, impeachment was created as a recourse against an erring judicial officer who
would otherwise remain unremoved until retirement:
To guard against the selection or retention of unfit presidents and vice-presidents, the
Constitution provides for periodic elections. Frequent and regular elections mean that if
the American people are unhappy with the job that these officers are doing, or
disapprove of their behavior generally, they may turn them out of office... But what
about judges who engage in odious behavior, but who ostensibly hold their offices for
life? To provide a means for removing civil officers who abuse their power in office, the
impeachment process was devised as a grave remedy of last resort. 23
The exclusivity of impeachment as a mode of removing a judicial officer, however, is far

from settled. My survey of existing scholarly writing on the issue shows that there have
been two main opposing views on the dispute. The first view champions the
impeachment-only argument, with Hamilton,24 Story,25 Kent,26 Tucker27 and
Kaufman28 as its leading advocates. In The Federalist, No. 79, Alexander Hamilton
wrote:
The precautions for [judges'] responsibility are comprised in the article respecting
impeachments. They are liable to be impeached for malconduct by the House of
Representatives and tried by the Senate; and, if convicted, may be dismissed from
office and disqualified for holding any other. This is the only provision on the point
which is consistent with the necessary independence of the judicial character, and is the
only one which we find in our own Constitution in respect to our own judges. The want
of a provision for removing the judges on account of inability has been a subject of
complaint. But all considerate men will be sensible that such a provision would either
not be practiced upon or would be more liable to abuse than calculated to answer any
good purpose. The mensuration of the faculties of the mind has, I believe, no place in
the catalogue of known arts. An attempt to fix the boundary between the regions of
ability and inability would much oftener give scope to personal and party attachments
and enmities than advance the interests of justice or the public good. The result, except
in the case of insanity, must for the most part be arbitrary; and insanity, without any
formal or express provision, may be safely pronounced to be a virtual disqualification. 29
Hamilton's other Federalist writings also support a narrow reading of the above

passage. In another part of the Federalist No. 79, Hamilton observed that judges "if
they behave properly, will be secure in their places for life." 30 However, despite several
writings expressing the narrower view of mode of removal, the American Constitution's
text did not textually embrace Hamilton's position, and his writings ran contradictory to
centuries of contrary convention of constitutional textual support. 31
Irving Kaufman, a hardliner for the impeachment-only view, acknowledged the steady
rise in the number of scholars who suggest that impeachment is not the only mode to
effect judicial removal.32 He opined, however, "that the very absence of a removal
provision in Article III of the U.S. Constitution indicated that the Framers must have
intended that bad behavior be dealt with by impeachment." 33 Kaufman added that if
easier procedures for removal are appropriate for the judges in whom the Constitution
vested the judicial power of the country, their independence may as well be a "snare"
and a "delusion."34
Since impeachment and conviction entail, by design, a highly deliberative and

cumbersome decision-making process, it has been argued that it would be implausible
for the founders to have purposefully chosen a painstaking mechanism for disciplining
judicial "Treason, Bribery, or other high Crimes and Misdemeanors," then leave open to
Congress or to the President the removal of federal judges on lesser grounds and less
exacting means. This exclusivity view was also seen as consistent with Supreme Court
decisions on the separation of powers, where it found impeachment to be the sole
mechanism through which Congress may participate in decisions to remove executive
officers.35
On the contrapositive side of the argument are those who contend that impeachment
is not the exclusive mode of removing a federal judge, keeping open the legal
defensibility and compelling logic of judicial modes of removal.
Burke Shartel, as echoed by Raoul Berger and Michael Gerhardt, proffer along this line
of reasoning. They rest their case in large measure on the proposition that the
Constitution should not be understood to have ruled out a "rational method of
improving the administration of justice." 36 The main argument asserts that since there
might be transgressions of the "good behavior" standard which do not rise to the level
of impeachable offenses, it is not constitutionally inconceivable to have a mechanism
for removal apart from impeachment for judges whose conduct are unimpeachable but
nonetheless warrant removal.
In his advocacy of judicial removal of judges, Shartel stopped short of removal of

Supreme Court Justices on the ground that "there is no agency in the judiciary branch
to remove the Justices of the Supreme Court." He suggested instead that "perhaps
Congress could confer statutory authority on the Supreme Court as a whole to remove
its own offending members."37 Shartel's reasoning was further described, thus:
He contended that the impeachment clause of Article II was a limitation on the power of
the Congress to remove judges, and Article III a limitation on the executive power of
removal. No constitutional limitation existed on the power of Congress to define "good
behavior" in Article III and to provide a mechanism whereby the judiciary could try the
fitness of its own members. In other words, judicial power to try the fitness of judges
was not prohibited, though the executive was deprived of all power, and the legislature
limited to impeachment. Slight support for this conclusion can be found in the case law
construing Article II with respect to non-judicial civil officers; in that context, it has
been held that impeachment is not the sole power of removal, as there might be
conduct less than good behavior that is not a high crime or misdemeanor, for example,
insanity or senility where the judge's condition is morally blameless. 38
Berger, for his analysis, argued against the exclusivity of impeachment in this wise:
Judicial tenure "during good behaviour" was terminated at common law by bad
behavior, and since impeachable offenses, that is, "high crimes and misdemeanors" are
not identical with all breaches of "good behavior" but merely overlap in the case of
serious misconduct, there exist an implied power to remove judges whose
"misbehavior" falls short of "high crimes and misdemeanors." Traditionally, forfeiture
upon a breach of a condition subsequent was a judicial function, and a forfeiture of a
judicial office therefore falls within Article III "judicial power." Congress may add the
forfeiture of a judicial office for misbehavior to the forfeiture jurisdiction or, if
necessary, it may under the "necessary and proper" clause provide a new remedy for
forfeiture of judicial office, in order to effectuate the implied power to remove a judge
whose tenure was terminated by his misbehavior.
The argument that the impeachment provisions bar the way [to other modes of
removal] sacrifices a necessary power to a canon of construction. With Chief Justice
Marshall, I should want nothing less than an express prohibition to preclude beneficial
exercise of an implied means. Those who would deny to Congress the right to select the
means for the termination implicit in the constitutional text - "during good behavior" -
have the burden of establishing the preclusion.
In addition, Berger, responding to the strong criticism of a judicial mode of removal of a

judge which Kaufman described as one that would "pose an ominous threat to...judicial
independence,"39 and effectively be "a dragnet that would inevitably sweep into its
grasp the maverick, the dissenter, the innovator," countered:
To object to the trial of a judge for misconduct, by his judicial peers drawn from the
entire United States is to cast doubt on the fairness of the judicial process. If such a
panel cannot be trusted to fairly try a "dissenter" for alleged judicial misconduct, no
more can a district judge be trusted to try social rebels. If the process is good enough
for the common man in matters of life or death, it is good enough for the trial of a
judge's fitness to try others.
Berger further reckoned that, in the actual history of the impeachment power as a tool
for disciplining judges who commit misdemeanors, the very tedious design of the
process has in fact proven counterproductive, as it took the time of the entire Senate
away from legislative duties. It had consistently been resorted to with "extreme
reluctance," even in cases of the most reprehensible impropriety. 40 This, in turn,
resulted in a scenario where a majority of cases of misconduct went unvisited, finally
achieving an end opposite that which the Framers conceivably intended - that
impeachment became a "standing invitation for judges to abuse their authority with
impunity and without fear of removal." Berger further added that judicious search
revealed that other leading legal luminaries on the bench, including Chief Justice
Burger,41 Justice Blackmun,42 Justice Rehnquist,43 and Justice Tom Clark,44 saw
proposals for judicial removal of judges as non-threats, and regarded them as
constitutional.
While these debates have been ongoing since the time American founding fathers
decided (in the Philadelphia Convention of 1759) to subject federal judges to removal
by impeachment, state courts would in the meantime continue to turn to other devices
(specifically, quo warranto) to oust erring judges. State legal history and jurisprudence
present us with cases, dating back as early as the 1800's, where the fitness of a sitting
judge was challenged through the application for a writ of quo warranto on allegations
of constitutional disqualifications.45
In 1833, the Supreme Court of Alabama, in State Ex. Rel. Attorney Gen. v. Paul,
refused to resolve the question of the right of a judge to hold the office of justice of a
newly-created judicial circuit, when his appointment to the same was made by the very
legislature of which the judge was a member immediately prior thereto. 46 In its
application for a writ of quo warranto, the Attorney General raised, as a constitutional
disqualification, the section of the State Constitution which provided "that no senator or
representative shall, during the terms which he shall have been elected, be appointed
to any civil office of profit, under this State, which shall have been created, or the
emoluments of which shall have been increased, during such term; except such offices
as may be filled by elections by the people."47 There, the Court, after deciding that the
action for writ of quo warranto was a proper proceeding, held that the separation of
powers of government left the judiciary powerless to review the act of the legislature in
making the appointment.48
Seven years later, the same issue was brought before the same State Supreme Court,
in the case of State ex. rel. Attorney Gen. v. Porter.49 Although the case became moot
due to the resignation of the judge so challenged upon commencement of the
proceedings, the court in Porter nevertheless took the opportunity to overrule its 1833
decision by upholding its competency to decide the constitutionality of such an
appointment. It announced further that "the powers of this court not only authorize, but
require it, in a proper case, to determine whether an individual, elected to the bench by
the two houses of the General Assembly, possesses the constitutional qualifications for
the office."50 In Porter, the court was "entirely satisfied that the respondent was
ineligible to the judgeship of the tenth circuit... and should cause a judgment of ouster
to be rendered," had the issue not been rendered moot.
At the next crucial point, the case of Ex Parte Levitt51 became most instructive. In
October 1937, the appointment of Hugo L. Black to the office of Associate Justice of the
United States Supreme Court was similarly challenged, through a direct action to show
cause,52 filed by one Albert Levitt, a citizen and member of the bar. Prior to his
appointment, Justice Black served as Senator from Alabama for over a decade, ending
in his recommendation and appointment to a seat in the U.S. Supreme Court
(succeeding retired Justice Willis Van Devanter) by President Franklin D. Roosevelt. The
petition centered on Justice Black's alleged ineligibility due to the prohibition in the
Constitution under the emoluments clause.53 On October 11, 1937, the U.S. Supreme
Court dismissed Levitt's action on the ground of lack of sufficient interest in the
contested office. Chief Justice Hughes, departing from familiar practice, announced
from the Bench the Court's reasons for its action:
The motion papers disclose no interest upon the part of the petitioner other than that of
a citizen and a member of the bar of this court. That is insufficient. It is an established
principle that to entitle a private individual to invoke the judicial power to determine the
validity of executive or legislative action, he must show that he has sustained or is
immediately in danger of sustaining a direct injury as the result of that action and it is
not sufficient that he has merely a general interest common to all members of the
public.54
It bears stressing what the U.S. Supreme Court did not do in Levitt. Despite the
received tradition that justices of the American Supreme Court can be removed from
office exclusively by impeachment, 55 it did not dismiss Levitt's motion on the ground
that impeachment is the exclusive mode of removing a sitting Justice of the Court. This,
to me, signified that the U.S. High Court deemed itself proper to entertain a petition to
remove a sitting Justice from its very own bench.
Contemporary scholarly commentary on Ex Parte Levitt56 analyzed the various federal

remedies available to those who dispute the right to occupy a public office,
including habeas corpus, injunction, writ of prohibition, writ
of certiorari, mandamus and quo warranto.57 Clulow, et.al.'s central argument is: short
of finding a proper party, "[t]he only other remedy which is undoubtedly
available is quo warranto."58
As earlier stated, the U.S. Supreme Court, in the 2009 case of Berg v. Obama,
denied certiorari and allowed to stand a United States Court of Appeals decision
dismissing a declaratory judgment finding then Presidential Candidate Obama ineligible
under the natural-born clause requirement of the U.S. Constitution. 59 The Court of
Appeals held that plaintiff Berg, a lawyer, lacked sufficient standing, holding the door
open to a list of parties "...who could have challenged, or could still challenge, Obama's
eligibility through various means..."60
II
This Part shall discuss the development of our own Constitution's provisions on removal
of public officials on issues of qualification.
In 1966, this Court, in Lopez v. Roxas,61 was asked to resolve a petition to prevent the
Presidential Electoral Tribunal, created by Republic Act No. 1793 (R.A. No. 1793) and
composed of the Chief Justice and the other ten members of the Supreme Court, from
hearing and deciding an election contest for the position of Vice President of the
Republic of the Philippines. In dismissing the petition, We upheld the inherently judicial
nature of deciding questions of qualification and said:
x x x the power to be the "judge ... of ... contests relating to the election,
returns, and qualifications" of any public officer is essentially judicial. As such
under the very principle of separation of powers invoked by petitioner herein - it
belongs exclusively to the judicial department, except only insofar as the
Constitution provides otherwise. This is precisely the reason why said organic law
ordains that "the Senate and the House of Representatives shall each have an Electoral
Tribunal which shall be the sole judge of all contests relating to the election, returns,
and qualifications of their respective Members." In other words, the purpose of this
provision was to exclude the power to decide such contests relating to Members of
Congress-which by nature is judicial-from the operation of the general grant of judicial
power to "the Supreme Court and such inferior courts as may be established by law." 62
Prior to Lopez, however, there had already been textual recognition of the essentially
judicial (and concededly, counter-majoritarian) nature of the process for resolving
questions of eligibility/qualification of public officers.
As earlier discussed, our 1935 Constitution, for example, created an Electoral

Commission to act as the sole judge of all contests relating to the election, returns, and
qualifications of members of each house of the Congress. 63 In stark contrast with the
process under the U.S. Constitution, which provided that each House of Congress shall
be the judge of the election, returns, and qualifications of its own members, 64 our
framers provided that such issues shall be decided by a nine person-tribunal, three
members of whom shall come from the Supreme Court. 65 Justice Laurel, in the
landmark case of Angara v. Electoral Commission,66 noted that the Constitutional
Convention sought to cure, with a body "endowed with judicial temper," the evil of the
"scandalously notorious canvassing of votes by political parties." 67
The 1973 Constitution would later give the Supreme Court not only original jurisdiction
over petitions for quo warranto,68 a grant which the Legislature cannot remove, but also
the express power to discipline (and, by a vote of at least eight members, dismiss)
judges of inferior courts.69 The 1986 Constitution would contain a further provision
"constitutionalizing" R.A. No. 1793 (and Lopez) by expressly empowering the Supreme
Court, sitting en banc, to be the sole judge of all contests relating to the election,
returns, and qualifications of the President or Vice President. 70
In addition to the foregoing, our Constitution, in its three iterations since 1935, would
also adopt provisions relating to the qualification requirements for judges, and the
vetting process for the confirmation of judicial appointments, all of which bear directly
on the question of whether in our jurisdiction the impeachment mode to remove judges
has remained exclusive. These include: (1) the addition of the so-called moral provision
to the qualifications of members of the judiciary, namely, that they be of proven
competence, integrity, probity, and independence;71 (2) the creation of a Judicial and
Bar Council, which is vested with the principal function of recommending to the
President appointees to the Judiciary;72 (3) the requirement, upon assumption of office
and as often thereafter as may be required by law, for all public officers and employees
to submit a declaration under oath of his assets, liabilities, and net worth
(SALN);73 and, finally, (4) the grant to the Supreme Court of its so-called expanded
power of judicial review, which is the duty to determine whether 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.74
To my mind, the textual recognition of the essentially judicial nature of questions of

qualifications, coupled with the accumulated effect of all of the above changes to the
Constitution we have surveyed, have been to create a distinctive Philippine
constitutional law on impeachment and removal, respecting judges. Unlike the
American constitutional provision which seems to maintain impeachment as the
exclusive mode of removing judicial officials, the exigencies of our recognized need to
exact accountability from public officials in general, and members of the judiciary, in
particular, has led us to create a constitutional structure where the existence of the
inarguably political power of impeachment against members of this Court does not
necessarily preclude/exclude removal by the Court itself of its own members on issues
of eligibility for failure to meet constitutionally-set qualifications.
III
Judicial independence, or the independence of the judiciary as an institution from other
branches of government,75 is said to be most crucial in "periods of intolerance." 76 Here,
it has been repeatedly alleged that, by giving due course to the Solicitor General's
petition for quo warranto filed against respondent, the Court may have irreparably
compromised its independence for political ends. Not only does this argument have no
basis other than the fact that respondent has styled herself as one of the staunchest
critics of the present Administration, it also appears to operate on the erroneous
premise that judicial independence is incompatible with judicial discipline. 77 On this
score, I find Justice Brion's following words in In re Del Castillo to be apropos:
x x x Another interest to consider is the need for judicial integrity - a term not
expressly mentioned in the Article on the Judiciary (Article VIII), but is a basic concept
found in Article XI (on Accountability of Public Officers) of the Constitution. It is
important as this constitutional interest underlies the independent and responsible
Judiciary that Article VIII establishes and protects. To be exact, it complements judicial
independence as integrity and independence affect and support one another; only a
Judiciary with integrity can be a truly independent Judiciary. Judicial integrity, too,
directly relates to public trust and accountability that the Constitution seeks in the
strongest terms. x x x78
Conversely, a proscription against the Court disciplining its own members - by virtue of
the argument that impeachment (undertaken solely by Congress) is the only
administrative disciplinary proceeding available - is arguably counterintuitive to the
spirit of judicial independence, as it ties the Court's hands from meting out the extreme
penalty of removal in the disciplining of its own bench.
Indeed, while judicial independence and freedom are unquestionably desirable (if not
necessary) values, judicial discipline is also equally important to ensure that the
conduct of the justice system's individual judges, especially its highest magistrates, is
beyond question.79 The purpose of judicial discipline is, after all, not to punish the erring
judge but more to preserve the integrity of the judicial system and safeguard the bench
and the prtblic from those who are unfit. 80 Thus, and in concrete terms, our Cbnstitution
sets out several disciplinary powers that necessarily capacitate 81 the Court to "keep its
own house in order," and thereby preserve the integrity of the judicial system, namely:
(1) admission and discipline of members of the Bar, 82 (2) contempt powers,83 (3)
discipline and removal of judges of lower courts,84 and (4) the general power of
administrative supervision over all courts and the personnel thereof.85 Moreover, the
Internal Rules of the Supreme Court (2010)86 expressly included, for the first time,
"cases involving the discipline of a Member of the Court" 87 as among those matters and
cases falling within the purview of the Court en banc.88
There have been at least three cases of judicial discipline respecting sitting members of
the Supreme Court. The most recent one is In Re: Del Castillo,89 which involved charges
of plagiarism against a sitting member of the Supreme Court and confronted the long-
held debate over the disciplinary measures that may be taken against a sitting
Supreme Court Justice. In her Separate Dissenting Opinion therein, Justice Carpio-
Morales noted two other instances, In re Undated Letter of Biraogo and Bar Matter No.
979, wherein the Supreme Court conducted disciplinary proceedings against two
Justices, both of whom were incumbent members at the time of the proceedings. While
the Decisions in these cases meted penalties short of removal (in In Re Del Castillo, the
Court eventually resolved to dismiss the case for lack of merit), all of them
unequivocally signified an acknowledgment on the part of the Court of its power to
enforce judicial discipline within its ranks. To me, the underlying principles supporting a
recognition of such power on the part of the Court is no different from those that
support a finding of a power to inquire into (and decide) issues of its own members with
respect to constitutionally-set qualifications.
On another note, I disagree with the view of Justice Leonen, as expressed in his
Dissent, that vesting in the Court the power to oust one of its Own could result to
dissenters being targeted for judicial removal. With respect, for me, this argument
proceeds from the erroneous premise that judicial accountability and the power of
dissent cancel each other out. As shown by history, judicial discipline and accountability
have always held the line to safeguard both institutional and individual judicial
independence, and to impute that the freedom of dissent will be negated by the option
of judicial removal is a precarious fallacy of unwarranted assumptions.
In converse truth, the very existence of the elbow room for dissent owes itself in large
measure to judicial accountability, inasmuch as dissents continuously ensure that no
one sitting magistrate may stifle the voice of another who is moved to "show why the
judgment of his fellows are worthy of contradiction." 90 Disabusing the Court from the
notion that judicial unanimity was required for legitimacy, the subsequent and
prevailing tradition has since been to allow dissenting opinions to serve many utilities,
including: (1) leading the majority opinion to sharpen and polish its initial draft; (2)
attracting public attention for legislative change; and (3) giving the Court the farsighted
contingency to correct its mistake in case of a future opportunity. 91
A dissenter has indeed been described as one whose opinion 'speak[s] to the future...
his voice... pitched to a key that will carry through the years, 92 "recording prophecy and
shaping history."93 Most dissents that have become the majority opinion in later years
have also proven right by Chief Justice Hughes' elegant definition of the same when he
said "a dissent in a court of last resort is an appeal to the brooding spirit of the law, to
the intelligence of a future day, when a later decision may possibly correct the error
into which the dissenting judge believes the court to have been betrayed." 94
These celebrated dissents were made possible through the synergized efforts of striving
for judicial independence without sacrificing the system's corporate and individual
integrity. Judicial accountability provided a court environment conducive for the
flourishing of dissents by serving as the constant check for abuse and intimidation. It
has made vastly more difficult any given majority of a multi-membered court to gag
their colleagues into concession or silence. It has made space for the glorious dissents
of Justice Curtis in Dred Scott,95 Justice Harlan in Plessy,96 and Justice Jackson
in Korematsu,97 to be heard. I find that the claim that the exercise of the general
supervision of the Court over its own members would equate to silencing of dissent
unduly underestimates the good faith and good sense of the Members of the Court.
Judicial accountability and integrity operatively protect all types of dissent, whether
self-seeking or sincere, whether truly intuitive of future wisdom or merely self-
consciously done for the sake of itself. It safeguards dissents whether borne out of
honest convictions or self-perpetuation. What remains to be seen is verifiable empirical
proofto substantiate the belief that the dissenting voice has been persecuted in the
historical experience of judicial removal; an unease that seems to be more apparent
than it is real.98 There is only therefore a cognitive leap between judicial options for
removal and stifling of dissent, as judicial accountability and integrity give dissent a
protected platform and a breathing room, a voice that warrants the belief of
authenticity.
Conclusion
It is not difficult to concede that the impeachment-only argument is popular, especially

if the Constitution is understood as a restricted enumeration of powers. 99 As I stated in
the outset, I myself previously thought its premises to be correct. The reality, however,
is that, prior to this case, there has been no factual occasion for the examination (or
rejection) of the plausibility of the impeachment-only view in the context of an actual
case and controversy involving an incumbent Justice of the Supreme Court, where this
exclusive view could be tested on all accounts. 100 Thus, while it is not hard to imagine
how the impeachment-only argument respecting our country's highest ranking judicial
magistrates might be accepted as resolved, this case has forced us to look more closely
into its historical, legal, and logical bases. Upon doing so, I am convinced that
impeachment is not an exclusive mode of removal respecting justices of the Supreme
Court, respecting their constitutional qualifications.
I am further convinced that this reading gives more life to the Constitution's promise of
accountability of public officers, not excluding the Court's own. I thus affirm my non-
recusal and concurrence to the analysis of the ponencia and Justice De Castro on why,
under the facts, respondent's integrity was not proven on account of her repeated
failures to file her SALNs. The Chief Justice of the Supreme Court is the highest
fiduciary in the Judicial Branch of the government. The discharge of the fiduciary duties
of the Chief Justice, respecting her obligation to file her SALNs, is thus not measured by
the standard applicable to Doblado.101 Rather, in the words of Judge Cardozo, "Not
honesty alone, but the punctilio of an honor the most sensitive, is... the standard
ofbehavior."102
FOR ALL THE FOREGOING REASONS, I vote to DENY respondent's Ad Cautelam Motion

for Reconsideration.
Abakada Guro Party List v. Purisima, G.R. No. 166715, August 14,
2008
G.R. No. 166715 August 14, 2008
ABAKADA GURO PARTY LIST (formerly AASJS)1 OFFICERS/MEMBERS SAMSON S. ALCANTARA,

ED VINCENT S. ALBANO, ROMEO R. ROBISO, RENE B. GOROSPE and EDWIN R.
SANDOVAL, petitioners,
vs.
HON. CESAR V. PURISIMA, in his capacity as Secretary of Finance, HON. GUILLERMO L.
PARAYNO, JR., in his capacity as Commissioner of the Bureau of Internal Revenue, and HON.
ALBERTO D. LINA, in his Capacity as Commissioner of Bureau of Customs, respondents.
DECISION
CORONA, J.:
This petition for prohibition1 seeks to prevent respondents from implementing and enforcing Republic Act
(RA) 93352 (Attrition Act of 2005).
RA 9335 was enacted to optimize the revenue-generation capability and collection of the Bureau of
Internal Revenue (BIR) and the Bureau of Customs (BOC). The law intends to encourage BIR and BOC
officials and employees to exceed their revenue targets by providing a system of rewards and sanctions
through the creation of a Rewards and Incentives Fund (Fund) and a Revenue Performance Evaluation
Board (Board).3 It covers all officials and employees of the BIR and the BOC with at least six months of
service, regardless of employment status.4
The Fund is sourced from the collection of the BIR and the BOC in excess of their revenue targets for the
year, as determined by the Development Budget and Coordinating Committee (DBCC). Any incentive or
reward is taken from the fund and allocated to the BIR and the BOC in proportion to their contribution in
the excess collection of the targeted amount of tax revenue. 5
The Boards in the BIR and the BOC are composed of the Secretary of the Department of Finance (DOF)
or his/her Undersecretary, the Secretary of the Department of Budget and Management (DBM) or his/her
Undersecretary, the Director General of the National Economic Development Authority (NEDA) or his/her
Deputy Director General, the Commissioners of the BIR and the BOC or their Deputy Commissioners, two
representatives from the rank-and-file employees and a representative from the officials nominated by
their recognized organization.6
Each Board has the duty to (1) prescribe the rules and guidelines for the allocation, distribution and
release of the Fund; (2) set criteria and procedures for removing from the service officials and employees
whose revenue collection falls short of the target; (3) terminate personnel in accordance with the criteria
adopted by the Board; (4) prescribe a system for performance evaluation; (5) perform other functions,
including the issuance of rules and regulations and (6) submit an annual report to Congress. 7
The DOF, DBM, NEDA, BIR, BOC and the Civil Service Commission (CSC) were tasked to promulgate
and issue the implementing rules and regulations of RA 9335, 8 to be approved by a Joint Congressional
Oversight Committee created for such purpose.9
Petitioners, invoking their right as taxpayers filed this petition challenging the constitutionality of RA 9335,
a tax reform legislation. They contend that, by establishing a system of rewards and incentives, the law
"transform[s] the officials and employees of the BIR and the BOC into mercenaries and bounty hunters"
as they will do their best only in consideration of such rewards. Thus, the system of rewards and
incentives invites corruption and undermines the constitutionally mandated duty of these officials and
employees to serve the people with utmost responsibility, integrity, loyalty and efficiency.
Petitioners also claim that limiting the scope of the system of rewards and incentives only to officials and
employees of the BIR and the BOC violates the constitutional guarantee of equal protection. There is no
valid basis for classification or distinction as to why such a system should not apply to officials and
employees of all other government agencies.
In addition, petitioners assert that the law unduly delegates the power to fix revenue targets to the
President as it lacks a sufficient standard on that matter. While Section 7(b) and (c) of RA 9335 provides
that BIR and BOC officials may be dismissed from the service if their revenue collections fall short of the
target by at least 7.5%, the law does not, however, fix the revenue targets to be achieved. Instead, the
fixing of revenue targets has been delegated to the President without sufficient standards. It will therefore
be easy for the President to fix an unrealistic and unattainable target in order to dismiss BIR or BOC
personnel.
Finally, petitioners assail the creation of a congressional oversight committee on the ground that it
violates the doctrine of separation of powers. While the legislative function is deemed accomplished and
completed upon the enactment and approval of the law, the creation of the congressional oversight
committee permits legislative participation in the implementation and enforcement of the law.
In their comment, respondents, through the Office of the Solicitor General, question the petition for being
premature as there is no actual case or controversy yet. Petitioners have not asserted any right or claim
that will necessitate the exercise of this Court’s jurisdiction. Nevertheless, respondents acknowledge that
public policy requires the resolution of the constitutional issues involved in this case. They assert that the
allegation that the reward system will breed mercenaries is mere speculation and does not suffice to
invalidate the law. Seen in conjunction with the declared objective of RA 9335, the law validly classifies
the BIR and the BOC because the functions they perform are distinct from those of the other government
agencies and instrumentalities. Moreover, the law provides a sufficient standard that will guide the
executive in the implementation of its provisions. Lastly, the creation of the congressional oversight
committee under the law enhances, rather than violates, separation of powers. It ensures the fulfillment of
the legislative policy and serves as a check to any over-accumulation of power on the part of the
executive and the implementing agencies.
After a careful consideration of the conflicting contentions of the parties, the Court finds that petitioners
have failed to overcome the presumption of constitutionality in favor of RA 9335, except as shall hereafter
be discussed.
Actual Case And Ripeness
An actual case or controversy involves a conflict of legal rights, an assertion of opposite legal claims
susceptible of judicial adjudication.10 A closely related requirement is ripeness, that is, the question must
be ripe for adjudication. And a constitutional question is ripe for adjudication when the governmental act
being challenged has a direct adverse effect on the individual challenging it. 11 Thus, to be ripe for judicial
adjudication, the petitioner must show a personal stake in the outcome of the case or an injury to himself
that can be redressed by a favorable decision of the Court. 12
In this case, aside from the general claim that the dispute has ripened into a judicial controversy by the
mere enactment of the law even without any further overt act, 13 petitioners fail either to assert any specific
and concrete legal claim or to demonstrate any direct adverse effect of the law on them. They are unable
to show a personal stake in the outcome of this case or an injury to themselves. On this account, their
petition is procedurally infirm.
This notwithstanding, public interest requires the resolution of the constitutional issues raised by
petitioners. The grave nature of their allegations tends to cast a cloud on the presumption of
constitutionality in favor of the law. And where an action of the legislative branch is alleged to have
infringed the Constitution, it becomes not only the right but in fact the duty of the judiciary to settle the
dispute.14
Accountability of
Public Officers
Section 1, Article 11 of the Constitution states:
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.
Public office is a public trust. It must be discharged by its holder not for his own personal gain but for the
benefit of the public for whom he holds it in trust. By demanding accountability and service with
responsibility, integrity, loyalty, efficiency, patriotism and justice, all government officials and employees
have the duty to be responsive to the needs of the people they are called upon to serve.
Public officers enjoy the presumption of regularity in the performance of their duties. This presumption
necessarily obtains in favor of BIR and BOC officials and employees. RA 9335 operates on the basis
thereof and reinforces it by providing a system of rewards and sanctions for the purpose of encouraging
the officials and employees of the BIR and the BOC to exceed their revenue targets and optimize their
revenue-generation capability and collection.15
The presumption is disputable but proof to the contrary is required to rebut it. It cannot be overturned by
mere conjecture or denied in advance (as petitioners would have the Court do) specially in this case
where it is an underlying principle to advance a declared public policy.
Petitioners’ claim that the implementation of RA 9335 will turn BIR and BOC officials and employees into
"bounty hunters and mercenaries" is not only without any factual and legal basis; it is also purely
speculative.
A law enacted by Congress enjoys the strong presumption of constitutionality. To justify its nullification,
there must be a clear and unequivocal breach of the Constitution, not a doubtful and equivocal one. 16 To
invalidate RA 9335 based on petitioners’ baseless supposition is an affront to the wisdom not only of the
legislature that passed it but also of the executive which approved it.
Public service is its own reward. Nevertheless, public officers may by law be rewarded for exemplary and
exceptional performance. A system of incentives for exceeding the set expectations of a public office is
not anathema to the concept of public accountability. In fact, it recognizes and reinforces dedication to
duty, industry, efficiency and loyalty to public service of deserving government personnel.
In United States v. Matthews,17 the U.S. Supreme Court validated a law which awards to officers of the
customs as well as other parties an amount not exceeding one-half of the net proceeds of forfeitures in
violation of the laws against smuggling. Citing Dorsheimer v. United States,18 the U.S. Supreme Court
said:
The offer of a portion of such penalties to the collectors is to stimulate and reward their zeal and
industry in detecting fraudulent attempts to evade payment of duties and taxes.
In the same vein, employees of the BIR and the BOC may by law be entitled to a reward when, as a
consequence of their zeal in the enforcement of tax and customs laws, they exceed their revenue targets.
In addition, RA 9335 establishes safeguards to ensure that the reward will not be claimed if it will be either
the fruit of "bounty hunting or mercenary activity" or the product of the irregular performance of official
duties. One of these precautionary measures is embodied in Section 8 of the law:
SEC. 8. Liability of Officials, Examiners and Employees of the BIR and the BOC. – The officials,
examiners, and employees of the [BIR] and the [BOC] who violate this Act or who are guilty of
negligence, abuses or acts of malfeasance or misfeasance or fail to exercise extraordinary
diligence in the performance of their duties shall be held liable for any loss or injury suffered by
any business establishment or taxpayer as a result of such violation, negligence, abuse,
malfeasance, misfeasance or failure to exercise extraordinary diligence.
Equal Protection
Equality guaranteed under the equal protection clause is equality under the same conditions and among
persons similarly situated; it is equality among equals, not similarity of treatment of persons who are
classified based on substantial differences in relation to the object to be accomplished. 19 When things or
persons are different in fact or circumstance, they may be treated in law differently. In Victoriano v.
Elizalde Rope Workers’ Union,20 this Court declared:
The guaranty of equal protection of the laws is not a guaranty of equality in the application of the
laws upon all citizens of the [S]tate. It is not, therefore, a requirement, in order to avoid the
constitutional prohibition against inequality, that every man, woman and child should be affected
alike by a statute. Equality of operation of statutes does not mean indiscriminate operation on
persons merely as such, but on persons according to the circumstances surrounding them. It
guarantees equality, not identity of rights. The Constitution does not require that things which
are different in fact be treated in law as though they were the same. The equal protection
clause does not forbid discrimination as to things that are different. It does not prohibit
legislation which is limited either in the object to which it is directed or by the territory within
which it is to operate.
The equal protection of the laws clause of the Constitution allows classification. Classification in
law, as in the other departments of knowledge or practice, is the grouping of things in speculation
or practice because they agree with one another in certain particulars. A law is not invalid
because of simple inequality. The very idea of classification is that of inequality, so that it goes
without saying that the mere fact of inequality in no manner determines the matter of
constitutionality. All that is required of a valid classification is that it be reasonable, which
means that the classification should be based on substantial distinctions which make for
real differences, that it must be germane to the purpose of the law; that it must not be
limited to existing conditions only; and that it must apply equally to each member of the
class. This Court has held that the standard is satisfied if the classification or distinction is
based on a reasonable foundation or rational basis and is not palpably arbitrary.
In the exercise of its power to make classifications for the purpose of enacting laws over matters
within its jurisdiction, the state is recognized as enjoying a wide range of discretion. It is not
necessary that the classification be based on scientific or marked differences of things or in their
relation. Neither is it necessary that the classification be made with mathematical nicety. Hence,
legislative classification may in many cases properly rest on narrow distinctions, for the equal
protection guaranty does not preclude the legislature from recognizing degrees of evil or harm,
and legislation is addressed to evils as they may appear. 21 (emphasis supplied)
The equal protection clause recognizes a valid classification, that is, a classification that has a reasonable
foundation or rational basis and not arbitrary.22 With respect to RA 9335, its expressed public policy is the
optimization of the revenue-generation capability and collection of the BIR and the BOC. 23 Since the
subject of the law is the revenue- generation capability and collection of the BIR and the BOC, the
incentives and/or sanctions provided in the law should logically pertain to the said agencies. Moreover,
the law concerns only the BIR and the BOC because they have the common distinct primary function of
generating revenues for the national government through the collection of taxes, customs duties, fees and
charges.
The BIR performs the following functions:
Sec. 18. The Bureau of Internal Revenue. – The Bureau of Internal Revenue, which shall be
headed by and subject to the supervision and control of the Commissioner of Internal Revenue,
who shall be appointed by the President upon the recommendation of the Secretary [of the DOF],
shall have the following functions:
(1) Assess and collect all taxes, fees and charges and account for all revenues collected;
(2) Exercise duly delegated police powers for the proper performance of its functions and duties;
(3) Prevent and prosecute tax evasions and all other illegal economic activities;
(4) Exercise supervision and control over its constituent and subordinate units; and
On the other hand, the BOC has the following functions:
Sec. 23. The Bureau of Customs. – The Bureau of Customs which shall be headed and subject to
the management and control of the Commissioner of Customs, who shall be appointed by the
President upon the recommendation of the Secretary[of the DOF] and hereinafter referred to as
Commissioner, shall have the following functions:
(1) Collect custom duties, taxes and the corresponding fees, charges and penalties;
(2) Account for all customs revenues collected;
(3) Exercise police authority for the enforcement of tariff and customs laws;
(4) Prevent and suppress smuggling, pilferage and all other economic frauds within all ports of
entry;
(5) Supervise and control exports, imports, foreign mails and the clearance of vessels and
aircrafts in all ports of entry;
(6) Administer all legal requirements that are appropriate;
(7) Prevent and prosecute smuggling and other illegal activities in all ports under its jurisdiction;
(8) Exercise supervision and control over its constituent units;

Both the BIR and the BOC are bureaus under the DOF. They principally perform the special function of
being the instrumentalities through which the State exercises one of its great inherent functions –
taxation. Indubitably, such substantial distinction is germane and intimately related to the purpose of the
law. Hence, the classification and treatment accorded to the BIR and the BOC under RA 9335 fully satisfy
the demands of equal protection.
Undue Delegation
Two tests determine the validity of delegation of legislative power: (1) the completeness test and (2) the
sufficient standard test. A law is complete when it sets forth therein the policy to be executed, carried out
or implemented by the delegate.26 It lays down a sufficient standard when it provides adequate guidelines
or limitations in the law to map out the boundaries of the delegate’s authority and prevent the delegation
from running riot.27 To be sufficient, the standard must specify the limits of the delegate’s authority,
announce the legislative policy and identify the conditions under which it is to be implemented. 28
RA 9335 adequately states the policy and standards to guide the President in fixing revenue targets and
the implementing agencies in carrying out the provisions of the law. Section 2 spells out the policy of the
law:
SEC. 2. Declaration of Policy. – It is the policy of the State to optimize the revenue-generation
capability and collection of the Bureau of Internal Revenue (BIR) and the Bureau of Customs
(BOC) by providing for a system of rewards and sanctions through the creation of a Rewards and
Incentives Fund and a Revenue Performance Evaluation Board in the above agencies for the
purpose of encouraging their officials and employees to exceed their revenue targets.
Section 4 "canalized within banks that keep it from overflowing" 29 the delegated power to the President to
fix revenue targets:
SEC. 4. Rewards and Incentives Fund. – A Rewards and Incentives Fund, hereinafter referred to
as the Fund, is hereby created, to be sourced from the collection of the BIR and the BOC in
excess of their respective revenue targets of the year, as determined by the Development
Budget and Coordinating Committee (DBCC), in the following percentages:
Excess of Collection of the Percent (%) of the Excess Collection to Accrue

Excess the Revenue Targets to the Fund
30% or below – 15%
More than 30% – 15% of the first 30% plus 20% of the
remaining excess
The Fund shall be deemed automatically appropriated the year immediately following the year
when the revenue collection target was exceeded and shall be released on the same fiscal year.
Revenue targets shall refer to the original estimated revenue collection expected of the
BIR and the BOC for a given fiscal year as stated in the Budget of Expenditures and
Sources of Financing (BESF) submitted by the President to Congress. The BIR and the
BOC shall submit to the DBCC the distribution of the agencies’ revenue targets as allocated
among its revenue districts in the case of the BIR, and the collection districts in the case of the
BOC.

Revenue targets are based on the original estimated revenue collection expected respectively of the BIR
and the BOC for a given fiscal year as approved by the DBCC and stated in the BESF submitted by the
President to Congress.30 Thus, the determination of revenue targets does not rest solely on the President
as it also undergoes the scrutiny of the DBCC.
On the other hand, Section 7 specifies the limits of the Board’s authority and identifies the conditions
under which officials and employees whose revenue collection falls short of the target by at least 7.5%
may be removed from the service:
SEC. 7. Powers and Functions of the Board. – The Board in the agency shall have the following
powers and functions:
xxx xxx xxx
(b) To set the criteria and procedures for removing from service officials and employees
whose revenue collection falls short of the target by at least seven and a half percent
(7.5%), with due consideration of all relevant factors affecting the level of collection as
provided in the rules and regulations promulgated under this Act, subject to civil service laws,
rules and regulations and compliance with substantive and procedural due process:
Provided, That the following exemptions shall apply:
1. Where the district or area of responsibility is newly-created, not exceeding two years in
operation, as has no historical record of collection performance that can be used as basis
for evaluation; and
2. Where the revenue or customs official or employee is a recent transferee in the middle
of the period under consideration unless the transfer was due to nonperformance of
revenue targets or potential nonperformance of revenue targets: Provided, however, That
when the district or area of responsibility covered by revenue or customs officials or
employees has suffered from economic difficulties brought about by natural calamities
or force majeure or economic causes as may be determined by the Board, termination
shall be considered only after careful and proper review by the Board.
(c) To terminate personnel in accordance with the criteria adopted in the preceding paragraph:
Provided, That such decision shall be immediately executory: Provided, further, That the
application of the criteria for the separation of an official or employee from service under
this Act shall be without prejudice to the application of other relevant laws on
accountability of public officers and employees, such as the Code of Conduct and Ethical
Standards of Public Officers and Employees and the Anti-Graft and Corrupt Practices Act;
Clearly, RA 9335 in no way violates the security of tenure of officials and employees of the BIR and the
BOC. The guarantee of security of tenure only means that an employee cannot be dismissed from the
service for causes other than those provided by law and only after due process is accorded the
employee.31 In the case of RA 9335, it lays down a reasonable yardstick for removal (when the revenue
collection falls short of the target by at least 7.5%) with due consideration of all relevant factors affecting
the level of collection. This standard is analogous to inefficiency and incompetence in the performance of
official duties, a ground for disciplinary action under civil service laws. 32 The action for removal is also
subject to civil service laws, rules and regulations and compliance with substantive and procedural due
process.
At any rate, this Court has recognized the following as sufficient standards: "public interest," "justice and
equity," "public convenience and welfare" and "simplicity, economy and welfare." 33 In this case, the
declared policy of optimization of the revenue-generation capability and collection of the BIR and the BOC
is infused with public interest.
Separation Of Powers
SEC. 12. Joint Congressional Oversight Committee. – There is hereby created a Joint

Congressional Oversight Committee composed of seven Members from the Senate and seven
Members from the House of Representatives. The Members from the Senate shall be appointed
by the Senate President, with at least two senators representing the minority. The Members from
the House of Representatives shall be appointed by the Speaker with at least two members
representing the minority. After the Oversight Committee will have approved the implementing
rules and regulations (IRR) it shall thereafter become functus officio and therefore cease to exist.
The Joint Congressional Oversight Committee in RA 9335 was created for the purpose of approving the
implementing rules and regulations (IRR) formulated by the DOF, DBM, NEDA, BIR, BOC and CSC. On
May 22, 2006, it approved the said IRR. From then on, it became functus officio and ceased to exist.
Hence, the issue of its alleged encroachment on the executive function of implementing and enforcing the
law may be considered moot and academic.
This notwithstanding, this might be as good a time as any for the Court to confront the issue of the
constitutionality of the Joint Congressional Oversight Committee created under RA 9335 (or other similar
laws for that matter).
The scholarly discourse of Mr. Justice (now Chief Justice) Puno on the concept of congressional
oversight in Macalintal v. Commission on Elections34 is illuminating:
Concept and bases of congressional oversight
Broadly defined, the power of oversight embraces all activities undertaken by Congress to

enhance its understanding of and influence over the implementation of legislation it has
enacted. Clearly, oversight concerns post-enactment measures undertaken by Congress:
(a) to monitor bureaucratic compliance with program objectives, (b) to determine whether
agencies are properly administered, (c) to eliminate executive waste and dishonesty, (d) to
prevent executive usurpation of legislative authority, and (d) to assess executive
conformity with the congressional perception of public interest.
The power of oversight has been held to be intrinsic in the grant of legislative power itself and
integral to the checks and balances inherent in a democratic system of government. x x x x x x x
xx
Over the years, Congress has invoked its oversight power with increased frequency to check the
perceived "exponential accumulation of power" by the executive branch. By the beginning of the
20th century, Congress has delegated an enormous amount of legislative authority to the
executive branch and the administrative agencies. Congress, thus, uses its oversight power to
make sure that the administrative agencies perform their functions within the authority delegated
to them. x x x x x x x x x
Categories of congressional oversight functions
The acts done by Congress purportedly in the exercise of its oversight powers may be divided
into three categories, namely: scrutiny, investigation and supervision.
a. Scrutiny
Congressional scrutiny implies a lesser intensity and continuity of attention to

administrative operations. Its primary purpose is to determine economy and efficiency of
the operation of government activities. In the exercise of legislative scrutiny, Congress
may request information and report from the other branches of government. It can give
recommendations or pass resolutions for consideration of the agency involved.
xxx xxx xxx
b. Congressional investigation
While congressional scrutiny is regarded as a passive process of looking at the facts that
are readily available, congressional investigation involves a more intense digging of facts.
The power of Congress to conduct investigation is recognized by the 1987 Constitution
under section 21, Article VI, xxx xxx xxx
c. Legislative supervision
The third and most encompassing form by which Congress exercises its oversight power is thru
legislative supervision. "Supervision" connotes a continuing and informed awareness on the part
of a congressional committee regarding executive operations in a given administrative area.
While both congressional scrutiny and investigation involve inquiry into past executive branch
actions in order to influence future executive branch performance, congressional supervision
allows Congress to scrutinize the exercise of delegated law-making authority, and permits
Congress to retain part of that delegated authority.
Congress exercises supervision over the executive agencies through its veto power. It typically
utilizes veto provisions when granting the President or an executive agency the power to
promulgate regulations with the force of law. These provisions require the President or an agency
to present the proposed regulations to Congress, which retains a "right" to approve or disapprove
any regulation before it takes effect. Such legislative veto provisions usually provide that a
proposed regulation will become a law after the expiration of a certain period of time, only if
Congress does not affirmatively disapprove of the regulation in the meantime. Less frequently,
the statute provides that a proposed regulation will become law if Congress affirmatively
approves it.
Supporters of legislative veto stress that it is necessary to maintain the balance of power between
the legislative and the executive branches of government as it offers lawmakers a way to
delegate vast power to the executive branch or to independent agencies while retaining the
option to cancel particular exercise of such power without having to pass new legislation or to
repeal existing law. They contend that this arrangement promotes democratic accountability as it
provides legislative check on the activities of unelected administrative agencies. One proponent
thus explains:
It is too late to debate the merits of this delegation policy: the policy is too deeply
embedded in our law and practice. It suffices to say that the complexities of modern
government have often led Congress-whether by actual or perceived necessity- to
legislate by declaring broad policy goals and general statutory standards, leaving the
choice of policy options to the discretion of an executive officer. Congress articulates
legislative aims, but leaves their implementation to the judgment of parties who may or
may not have participated in or agreed with the development of those aims.
Consequently, absent safeguards, in many instances the reverse of our constitutional
scheme could be effected: Congress proposes, the Executive disposes. One safeguard,
of course, is the legislative power to enact new legislation or to change existing law. But
without some means of overseeing post enactment activities of the executive branch,
Congress would be unable to determine whether its policies have been implemented in
accordance with legislative intent and thus whether legislative intervention is appropriate.
Its opponents, however, criticize the legislative veto as undue encroachment upon the

executive prerogatives. They urge that any post-enactment measures undertaken by the
legislative branch should be limited to scrutiny and investigation; any measure beyond
that would undermine the separation of powers guaranteed by the Constitution. They
contend that legislative veto constitutes an impermissible evasion of the President’s veto authority
and intrusion into the powers vested in the executive or judicial branches of government.
Proponents counter that legislative veto enhances separation of powers as it prevents the
executive branch and independent agencies from accumulating too much power. They submit
that reporting requirements and congressional committee investigations allow Congress to
scrutinize only the exercise of delegated law-making authority. They do not allow Congress to
review executive proposals before they take effect and they do not afford the opportunity for
ongoing and binding expressions of congressional intent. In contrast, legislative veto permits
Congress to participate prospectively in the approval or disapproval of "subordinate law" or those
enacted by the executive branch pursuant to a delegation of authority by Congress. They further
argue that legislative veto "is a necessary response by Congress to the accretion of policy control
by forces outside its chambers." In an era of delegated authority, they point out that legislative
veto "is the most efficient means Congress has yet devised to retain control over the evolution
and implementation of its policy as declared by statute."
In Immigration and Naturalization Service v. Chadha, the U.S. Supreme Court resolved the
validity of legislative veto provisions. The case arose from the order of the immigration judge
suspending the deportation of Chadha pursuant to § 244(c)(1) of the Immigration and Nationality
Act. The United States House of Representatives passed a resolution vetoing the suspension
pursuant to § 244(c)(2) authorizing either House of Congress, by resolution, to invalidate the
decision of the executive branch to allow a particular deportable alien to remain in the United
States. The immigration judge reopened the deportation proceedings to implement the House
order and the alien was ordered deported. The Board of Immigration Appeals dismissed the
alien’s appeal, holding that it had no power to declare unconstitutional an act of Congress. The
United States Court of Appeals for Ninth Circuit held that the House was without constitutional
authority to order the alien’s deportation and that § 244(c)(2) violated the constitutional doctrine
on separation of powers.
On appeal, the U.S. Supreme Court declared § 244(c)(2) unconstitutional. But the Court shied
away from the issue of separation of powers and instead held that the provision violates the
presentment clause and bicameralism. It held that the one-house veto was essentially legislative
in purpose and effect. As such, it is subject to the procedures set out in Article I of the
Constitution requiring the passage by a majority of both Houses and presentment to the
President. x x x x x x x x x
Two weeks after the Chadha decision, the Court upheld, in memorandum decision, two lower
court decisions invalidating the legislative veto provisions in the Natural Gas Policy Act of 1978
and the Federal Trade Commission Improvement Act of 1980. Following this precedence, lower
courts invalidated statutes containing legislative veto provisions although some of these
provisions required the approval of both Houses of Congress and thus met the bicameralism
requirement of Article I. Indeed, some of these veto provisions were not even
exercised.35 (emphasis supplied)
In Macalintal, given the concept and configuration of the power of congressional oversight and
considering the nature and powers of a constitutional body like the Commission on Elections, the Court
struck down the provision in RA 9189 (The Overseas Absentee Voting Act of 2003) creating a Joint
Congressional Committee. The committee was tasked not only to monitor and evaluate the
implementation of the said law but also to review, revise, amend and approve the IRR promulgated by the
Commission on Elections. The Court held that these functions infringed on the constitutional
independence of the Commission on Elections.36
With this backdrop, it is clear that congressional oversight is not unconstitutional per se, meaning, it
neither necessarily constitutes an encroachment on the executive power to implement laws nor
undermines the constitutional separation of powers. Rather, it is integral to the checks and balances
inherent in a democratic system of government. It may in fact even enhance the separation of powers as
it prevents the over-accumulation of power in the executive branch.
However, to forestall the danger of congressional encroachment "beyond the legislative sphere," the
Constitution imposes two basic and related constraints on Congress. 37 It may not vest itself, any of its
committees or its members with either executive or judicial power. 38 And, when it exercises its legislative
power, it must follow the "single, finely wrought and exhaustively considered, procedures" specified under
the Constitution,39 including the procedure for enactment of laws and presentment.
Thus, any post-enactment congressional measure such as this should be limited to scrutiny and
investigation. In particular, congressional oversight must be confined to the following:
(1) scrutiny based primarily on Congress’ power of appropriation and the budget hearings
conducted in connection with it, its power to ask heads of departments to appear before and be
heard by either of its Houses on any matter pertaining to their departments and its power of
confirmation40 and
(2) investigation and monitoring41 of the implementation of laws pursuant to the power of
Congress to conduct inquiries in aid of legislation.42
Any action or step beyond that will undermine the separation of powers guaranteed by the Constitution.
Legislative vetoes fall in this class.
Legislative veto is a statutory provision requiring the President or an administrative agency to present the
proposed implementing rules and regulations of a law to Congress which, by itself or through a committee
formed by it, retains a "right" or "power" to approve or disapprove such regulations before they take effect.
As such, a legislative veto in the form of a congressional oversight committee is in the form of an inward-
turning delegation designed to attach a congressional leash (other than through scrutiny and
investigation) to an agency to which Congress has by law initially delegated broad powers. 43 It radically
changes the design or structure of the Constitution’s diagram of power as it entrusts to Congress a direct
role in enforcing, applying or implementing its own laws.44
Congress has two options when enacting legislation to define national policy within the broad horizons of
its legislative competence.45 It can itself formulate the details or it can assign to the executive branch the
responsibility for making necessary managerial decisions in conformity with those standards. 46 In the
latter case, the law must be complete in all its essential terms and conditions when it leaves the hands of
the legislature.47 Thus, what is left for the executive branch or the concerned administrative agency when
it formulates rules and regulations implementing the law is to fill up details (supplementary rule-making) or
ascertain facts necessary to bring the law into actual operation (contingent rule-making). 48
Administrative regulations enacted by administrative agencies to implement and interpret the law which
they are entrusted to enforce have the force of law and are entitled to respect. 49 Such rules and
regulations partake of the nature of a statute 50 and are just as binding as if they have been written in the
statute itself. As such, they have the force and effect of law and enjoy the presumption of constitutionality
and legality until they are set aside with finality in an appropriate case by a competent court. 51 Congress,
in the guise of assuming the role of an overseer, may not pass upon their legality by subjecting them to its
stamp of approval without disturbing the calculated balance of powers established by the Constitution. In
exercising discretion to approve or disapprove the IRR based on a determination of whether or not they
conformed with the provisions of RA 9335, Congress arrogated judicial power unto itself, a power
exclusively vested in this Court by the Constitution.
Considered Opinion of
Mr. Justice Dante O. Tinga
Moreover, the requirement that the implementing rules of a law be subjected to approval by Congress as
a condition for their effectivity violates the cardinal constitutional principles of bicameralism and the rule
on presentment.52
Section 1, Article VI of the Constitution states:
Section 1. The legislative power shall be vested in the Congress of the Philippines which
shall consist of a Senate and a House of Representatives, except to the extent reserved to
the people by the provision on initiative and referendum. (emphasis supplied)
Legislative power (or the power to propose, enact, amend and repeal laws) 53 is vested in Congress which
consists of two chambers, the Senate and the House of Representatives. A valid exercise of legislative
power requires the act of both chambers. Corrollarily, it can be exercised neither solely by one of the two
chambers nor by a committee of either or both chambers. Thus, assuming the validity of a legislative veto,
both a single-chamber legislative veto and a congressional committee legislative veto are invalid.
Additionally, Section 27(1), Article VI of the Constitution provides:
Section 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it, otherwise, he shall veto it
and return the same with his objections to the House where it originated, which shall enter the
objections at large in its Journal and proceed to reconsider it. If, after such reconsideration, two-
thirds of all the Members of such House shall agree to pass the bill, it shall be sent, together with
the objections, to the other House by which it shall likewise be reconsidered, and if approved by
two-thirds of all the Members of that House, it shall become a law. In all such cases, the votes of
each House shall be determined by yeas or nays, and the names of the members voting for or
against shall be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise, it shall
become a law as if he had signed it. (emphasis supplied)
Every bill passed by Congress must be presented to the President for approval or veto. In the absence of
presentment to the President, no bill passed by Congress can become a law. In this sense, law-making
under the Constitution is a joint act of the Legislature and of the Executive. Assuming that legislative veto
is a valid legislative act with the force of law, it cannot take effect without such presentment even if
approved by both chambers of Congress.
In sum, two steps are required before a bill becomes a law. First, it must be approved by both Houses of
Congress.54 Second, it must be presented to and approved by the President. 55 As summarized by Justice
Isagani Cruz56 and Fr. Joaquin G. Bernas, S.J.57, the following is the procedure for the approval of bills:
A bill is introduced by any member of the House of Representatives or the Senate except for
some measures that must originate only in the former chamber.
The first reading involves only a reading of the number and title of the measure and its referral by
the Senate President or the Speaker to the proper committee for study.
The bill may be "killed" in the committee or it may be recommended for approval, with or without
amendments, sometimes after public hearings are first held thereon. If there are other bills of the
same nature or purpose, they may all be consolidated into one bill under common authorship or
as a committee bill.
Once reported out, the bill shall be calendared for second reading. It is at this stage that the bill is
read in its entirety, scrutinized, debated upon and amended when desired. The second reading is
the most important stage in the passage of a bill.
The bill as approved on second reading is printed in its final form and copies thereof are
distributed at least three days before the third reading. On the third reading, the members merely
register their votes and explain them if they are allowed by the rules. No further debate is allowed.
Once the bill passes third reading, it is sent to the other chamber, where it will also undergo the
three readings. If there are differences between the versions approved by the two chambers, a
conference committee58 representing both Houses will draft a compromise measure that if ratified
by the Senate and the House of Representatives will then be submitted to the President for his
consideration.
The bill is enrolled when printed as finally approved by the Congress, thereafter authenticated
with the signatures of the Senate President, the Speaker, and the Secretaries of their respective
chambers…59
The President’s role in law-making.
The final step is submission to the President for approval. Once approved, it takes effect as law
after the required publication.60
Where Congress delegates the formulation of rules to implement the law it has enacted pursuant to
sufficient standards established in the said law, the law must be complete in all its essential terms and
conditions when it leaves the hands of the legislature. And it may be deemed to have left the hands of the
legislature when it becomes effective because it is only upon effectivity of the statute that legal rights and
obligations become available to those entitled by the language of the statute. Subject to the indispensable
requisite of publication under the due process clause, 61 the determination as to when a law takes effect is
wholly the prerogative of Congress.62 As such, it is only upon its effectivity that a law may be executed
and the executive branch acquires the duties and powers to execute the said law. Before that point, the
role of the executive branch, particularly of the President, is limited to approving or vetoing the law. 63
From the moment the law becomes effective, any provision of law that empowers Congress or any of its
members to play any role in the implementation or enforcement of the law violates the principle of
separation of powers and is thus unconstitutional. Under this principle, a provision that requires Congress
or its members to approve the implementing rules of a law after it has already taken effect shall be
unconstitutional, as is a provision that allows Congress or its members to overturn any directive or ruling
made by the members of the executive branch charged with the implementation of the law.
Following this rationale, Section 12 of RA 9335 should be struck down as unconstitutional. While there
may be similar provisions of other laws that may be invalidated for failure to pass this standard, the Court
refrains from invalidating them wholesale but will do so at the proper time when an appropriate case
assailing those provisions is brought before us.64
The next question to be resolved is: what is the effect of the unconstitutionality of Section 12 of RA 9335
on the other provisions of the law? Will it render the entire law unconstitutional? No.
SEC. 13. Separability Clause. – If any provision of this Act is declared invalid by a competent
court, the remainder of this Act or any provision not affected by such declaration of invalidity shall
remain in force and effect.
In Tatad v. Secretary of the Department of Energy,65 the Court laid down the following rules:
The general rule is that where part of a statute is void as repugnant to the Constitution, while
another part is valid, the valid portion, if separable from the invalid, may stand and be enforced.
The presence of a separability clause in a statute creates the presumption that the legislature
intended separability, rather than complete nullity of the statute. To justify this result, the valid
portion must be so far independent of the invalid portion that it is fair to presume that the
legislature would have enacted it by itself if it had supposed that it could not constitutionally enact
the other. Enough must remain to make a complete, intelligible and valid statute, which carries
out the legislative intent. x x x
The exception to the general rule is that when the parts of a statute are so mutually dependent
and connected, as conditions, considerations, inducements, or compensations for each other, as
to warrant a belief that the legislature intended them as a whole, the nullity of one part will vitiate
the rest. In making the parts of the statute dependent, conditional, or connected with one another,
the legislature intended the statute to be carried out as a whole and would not have enacted it if
one part is void, in which case if some parts are unconstitutional, all the other provisions thus
dependent, conditional, or connected must fall with them.
The separability clause of RA 9335 reveals the intention of the legislature to isolate and detach any
invalid provision from the other provisions so that the latter may continue in force and effect. The valid
portions can stand independently of the invalid section. Without Section 12, the remaining provisions still
constitute a complete, intelligible and valid law which carries out the legislative intent to optimize the
revenue-generation capability and collection of the BIR and the BOC by providing for a system of rewards
and sanctions through the Rewards and Incentives Fund and a Revenue Performance Evaluation Board.
To be effective, administrative rules and regulations must be published in full if their purpose is to enforce
or implement existing law pursuant to a valid delegation. The IRR of RA 9335 were published on May 30,
2006 in two newspapers of general circulation66 and became effective 15 days thereafter.67 Until and
unless the contrary is shown, the IRR are presumed valid and effective even without the approval of the
Joint Congressional Oversight Committee.
WHEREFORE, the petition is hereby PARTIALLY GRANTED. Section 12 of RA 9335 creating a Joint

Congressional Oversight Committee to approve the implementing rules and regulations of the law is
declared UNCONSTITUTIONAL and therefore NULL and VOID. The constitutionality of the remaining
provisions of RA 9335 is UPHELD. Pursuant to Section 13 of RA 9335, the rest of the provisions remain
in force and effect.
SO ORDERED.
Tolentino v. Secretary of Finance, 249 SCRA 628 [1995]
G.R. No. 115455 October 30, 1995
ARTURO M. TOLENTINO, petitioner,
vs.
THE SECRETARY OF FINANCE and THE COMMISSIONER OF INTERNAL
REVENUE, respondents.
G.R. No. 115525 October 30, 1995
JUAN T. DAVID, petitioner,
vs.
TEOFISTO T. GUINGONA, JR., as Executive Secretary; ROBERTO DE OCAMPO, as Secretary
of Finance; LIWAYWAY VINZONS-CHATO, as Commissioner of Internal Revenue; and their
AUTHORIZED AGENTS OR REPRESENTATIVES, respondents.
G.R. No. 115543 October 30, 1995
RAUL S. ROCO and the INTEGRATED BAR OF THE PHILIPPINES, petitioners,

vs.
THE SECRETARY OF THE DEPARTMENT OF FINANCE; THE COMMISSIONERS OF THE
BUREAU OF INTERNAL REVENUE AND BUREAU OF CUSTOMS, respondents.
G.R. No. 115544 October 30, 1995
PHILIPPINE PRESS INSTITUTE, INC.; EGP PUBLISHING CO., INC.; KAMAHALAN PUBLISHING
CORPORATION; PHILIPPINE JOURNALISTS, INC.; JOSE L. PAVIA; and OFELIA L.
DIMALANTA, petitioners,
vs.
HON. LIWAYWAY V. CHATO, in her capacity as Commissioner of Internal Revenue; HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary; and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115754 October 30, 1995
CHAMBER OF REAL ESTATE AND BUILDERS ASSOCIATIONS, INC., (CREBA), petitioner,

vs.
THE COMMISSIONER OF INTERNAL REVENUE, respondent.
G.R. No. 115781 October 30, 1995
KILOSBAYAN, INC., JOVITO R. SALONGA, CIRILO A. RIGOS, ERME CAMBA, EMILIO C.

CAPULONG, JR., JOSE T. APOLO, EPHRAIM TENDERO, FERNANDO SANTIAGO, JOSE
ABCEDE, CHRISTINE TAN, FELIPE L. GOZON, RAFAEL G. FERNANDO, RAOUL V.
VICTORINO, JOSE CUNANAN, QUINTIN S. DOROMAL, MOVEMENT OF ATTORNEYS FOR
BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. ("MABINI"), FREEDOM FROM DEBT
COALITION, INC., and PHILIPPINE BIBLE SOCIETY, INC. and WIGBERTO TAÑADA, petitioners,
vs.
THE EXECUTIVE SECRETARY, THE SECRETARY OF FINANCE, THE COMMISSIONER OF
INTERNAL REVENUE and THE COMMISSIONER OF CUSTOMS, respondents.
G.R. No. 115852 October 30, 1995
PHILIPPINE AIRLINES, INC., petitioner,

vs.
THE SECRETARY OF FINANCE and COMMISSIONER OF INTERNAL REVENUE, respondents.
G.R. No. 115873 October 30, 1995
COOPERATIVE UNION OF THE PHILIPPINES, petitioner,

vs.
HON. LIWAYWAY V. CHATO, in her capacity as the Commissioner of Internal Revenue, HON.
TEOFISTO T. GUINGONA, JR., in his capacity as Executive Secretary, and HON. ROBERTO B.
DE OCAMPO, in his capacity as Secretary of Finance, respondents.
G.R. No. 115931 October 30, 1995
PHILIPPINE EDUCATIONAL PUBLISHERS ASSOCIATION, INC. and ASSOCIATION OF

PHILIPPINE BOOK SELLERS, petitioners,
vs.
HON. ROBERTO B. DE OCAMPO, as the Secretary of Finance; HON. LIWAYWAY V. CHATO,
as the Commissioner of Internal Revenue; and HON. GUILLERMO PARAYNO, JR., in his
capacity as the Commissioner of Customs, respondents.
RESOLUTION
MENDOZA, J.:
These are motions seeking reconsideration of our decision dismissing the petitions filed in these
cases for the declaration of unconstitutionality of R.A. No. 7716, otherwise known as the Expanded
Value-Added Tax Law. The motions, of which there are 10 in all, have been filed by the several
petitioners in these cases, with the exception of the Philippine Educational Publishers Association,
Inc. and the Association of Philippine Booksellers, petitioners in G.R. No. 115931.
The Solicitor General, representing the respondents, filed a consolidated comment, to which the
Philippine Airlines, Inc., petitioner in G.R. No. 115852, and the Philippine Press Institute, Inc.,
petitioner in G.R. No. 115544, and Juan T. David, petitioner in G.R. No. 115525, each filed a reply.
In turn the Solicitor General filed on June 1, 1995 a rejoinder to the PPI's reply.
On June 27, 1995 the matter was submitted for resolution.
I. Power of the Senate to propose amendments to revenue bills. Some of the petitioners (Tolentino,
Kilosbayan, Inc., Philippine Airlines (PAL), Roco, and Chamber of Real Estate and Builders
Association (CREBA)) reiterate previous claims made by them that R.A. No. 7716 did not "originate
exclusively" in the House of Representatives as required by Art. VI, §24 of the Constitution. Although
they admit that H. No. 11197 was filed in the House of Representatives where it passed three
readings and that afterward it was sent to the Senate where after first reading it was referred to the
Senate Ways and Means Committee, they complain that the Senate did not pass it on second and
third readings. Instead what the Senate did was to pass its own version (S. No. 1630) which it
approved on May 24, 1994. Petitioner Tolentino adds that what the Senate committee should have
done was to amend H. No. 11197 by striking out the text of the bill and substituting it with the text of
S. No. 1630. That way, it is said, "the bill remains a House bill and the Senate version just becomes
the text (only the text) of the House bill."
The contention has no merit.
The enactment of S. No. 1630 is not the only instance in which the Senate proposed an amendment
to a House revenue bill by enacting its own version of a revenue bill. On at least two occasions
during the Eighth Congress, the Senate passed its own version of revenue bills, which, in
consolidation with House bills earlier passed, became the enrolled bills. These were:
R.A. No. 7369 (AN ACT TO AMEND THE OMNIBUS INVESTMENTS CODE OF 1987 BY
EXTENDING FROM FIVE (5) YEARS TO TEN YEARS THE PERIOD FOR TAX AND DUTY
EXEMPTION AND TAX CREDIT ON CAPITAL EQUIPMENT) which was approved by the President
on April 10, 1992. This Act is actually a consolidation of H. No. 34254, which was approved by the
House on January 29, 1992, and S. No. 1920, which was approved by the Senate on February 3,
1992.
R.A. No. 7549 (AN ACT GRANTING TAX EXEMPTIONS TO WHOEVER SHALL GIVE REWARD
TO ANY FILIPINO ATHLETE WINNING A MEDAL IN OLYMPIC GAMES) which was approved by
the President on May 22, 1992. This Act is a consolidation of H. No. 22232, which was approved by
the House of Representatives on August 2, 1989, and S. No. 807, which was approved by the
Senate on October 21, 1991.
On the other hand, the Ninth Congress passed revenue laws which were also the result of the
consolidation of House and Senate bills. These are the following, with indications of the dates on
which the laws were approved by the President and dates the separate bills of the two chambers of
Congress were respectively passed:
1. R.A. NO. 7642
AN ACT INCREASING THE PENALTIES FOR TAX EVASION, AMENDING FOR

THIS PURPOSE THE PERTINENT SECTIONS OF THE NATIONAL INTERNAL
REVENUE CODE (December 28, 1992).
House Bill No. 2165, October 5, 1992
Senate Bill No. 32, December 7, 1992
2. R.A. NO. 7643
AN ACT TO EMPOWER THE COMMISSIONER OF INTERNAL REVENUE TO

REQUIRE THE PAYMENT OF THE VALUE-ADDED TAX EVERY MONTH AND TO
ALLOW LOCAL GOVERNMENT UNITS TO SHARE IN VAT REVENUE,
AMENDING FOR THIS PURPOSE CERTAIN SECTIONS OF THE NATIONAL
INTERNAL REVENUE CODE (December 28, 1992)
House Bill No. 1503, September 3, 1992

Senate Bill No. 968, December 7, 1992
3. R.A. NO. 7646
AN ACT AUTHORIZING THE COMMISSIONER OF INTERNAL REVENUE TO

PRESCRIBE THE PLACE FOR PAYMENT OF INTERNAL REVENUE TAXES BY
LARGE TAXPAYERS, AMENDING FOR THIS PURPOSE CERTAIN PROVISIONS
OF THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED (February 24,
1993)
House Bill No. 1470, October 20, 1992
Senate Bill No. 35, November 19, 1992
4. R.A. NO. 7649
AN ACT REQUIRING THE GOVERNMENT OR ANY OF ITS POLITICAL

SUBDIVISIONS, INSTRUMENTALITIES OR AGENCIES INCLUDING
GOVERNMENT-OWNED OR CONTROLLED CORPORATIONS (GOCCS) TO
DEDUCT AND WITHHOLD THE VALUE-ADDED TAX DUE AT THE RATE OF
THREE PERCENT (3%) ON GROSS PAYMENT FOR THE PURCHASE OF
GOODS AND SIX PERCENT (6%) ON GROSS RECEIPTS FOR SERVICES
RENDERED BY CONTRACTORS (April 6, 1993)
House Bill No. 5260, January 26, 1993
Senate Bill No. 1141, March 30, 1993
5. R.A. NO. 7656
AN ACT REQUIRING GOVERNMENT-OWNED OR CONTROLLED

CORPORATIONS TO DECLARE DIVIDENDS UNDER CERTAIN CONDITIONS TO
THE NATIONAL GOVERNMENT, AND FOR OTHER PURPOSES (November 9,
1993)
House Bill No. 11024, November 3, 1993
6. R.A. NO. 7660
AN ACT RATIONALIZING FURTHER THE STRUCTURE AND ADMINISTRATION

OF THE DOCUMENTARY STAMP TAX, AMENDING FOR THE PURPOSE
CERTAIN PROVISIONS OF THE NATIONAL INTERNAL REVENUE CODE, AS
AMENDED, ALLOCATING FUNDS FOR SPECIFIC PROGRAMS, AND FOR
OTHER PURPOSES (December 23, 1993)
House Bill No. 7789, May 31, 1993

7. R.A. NO. 7717
AN ACT IMPOSING A TAX ON THE SALE, BARTER OR EXCHANGE OF SHARES

OF STOCK LISTED AND TRADED THROUGH THE LOCAL STOCK EXCHANGE
OR THROUGH INITIAL PUBLIC OFFERING, AMENDING FOR THE PURPOSE
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, BY INSERTING A
NEW SECTION AND REPEALING CERTAIN SUBSECTIONS THEREOF (May 5,
1994)
House Bill No. 9187, November 3, 1993
Senate Bill No. 1127, March 23, 1994
Thus, the enactment of S. No. 1630 is not the only instance in which the Senate, in the exercise of
its power to propose amendments to bills required to originate in the House, passed its own version
of a House revenue measure. It is noteworthy that, in the particular case of S. No. 1630, petitioners
Tolentino and Roco, as members of the Senate, voted to approve it on second and third readings.
On the other hand, amendment by substitution, in the manner urged by petitioner Tolentino,
concerns a mere matter of form. Petitioner has not shown what substantial difference it would make
if, as the Senate actually did in this case, a separate bill like S. No. 1630 is instead enacted as a
substitute measure, "taking into Consideration . . . H.B. 11197."
Indeed, so far as pertinent, the Rules of the Senate only provide:
RULE XXIX
AMENDMENTS
xxx xxx xxx
§68. Not more than one amendment to the original amendment shall be considered.
No amendment by substitution shall be entertained unless the text thereof is

submitted in writing.
Any of said amendments may be withdrawn before a vote is taken thereon.
§69. No amendment which seeks the inclusion of a legislative provision foreign to the
subject matter of a bill (rider) shall be entertained.
xxx xxx xxx
§70-A. A bill or resolution shall not be amended by substituting it with another which
covers a subject distinct from that proposed in the original bill or resolution.
(emphasis added).
Nor is there merit in petitioners' contention that, with regard to revenue bills, the Philippine Senate
possesses less power than the U.S. Senate because of textual differences between constitutional
provisions giving them the power to propose or concur with amendments.
Art. I, §7, cl. 1 of the U.S. Constitution reads:
All Bills for raising Revenue shall originate in the House of Representatives; but the
Senate may propose or concur with amendments as on other Bills.
Art. VI, §24 of our Constitution reads:
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.
The addition of the word "exclusively" in the Philippine Constitution and the decision to drop the
phrase "as on other Bills" in the American version, according to petitioners, shows the intention of
the framers of our Constitution to restrict the Senate's power to propose amendments to revenue
bills. Petitioner Tolentino contends that the word "exclusively" was inserted to modify "originate" and
"the words 'as in any other bills' (sic) were eliminated so as to show that these bills were not to be
like other bills but must be treated as a special kind."
The history of this provision does not support this contention. The supposed indicia of constitutional
intent are nothing but the relics of an unsuccessful attempt to limit the power of the Senate. It will be
recalled that the 1935 Constitution originally provided for a unicameral National Assembly. When it
was decided in 1939 to change to a bicameral legislature, it became necessary to provide for the
procedure for lawmaking by the Senate and the House of Representatives. The work of proposing
amendments to the Constitution was done by the National Assembly, acting as a constituent
assembly, some of whose members, jealous of preserving the Assembly's lawmaking powers,
sought to curtail the powers of the proposed Senate. Accordingly they proposed the following
provision:
All bills appropriating public funds, revenue or tariff bills, bills of local application, and
private bills shall originate exclusively in the Assembly, but the Senate may propose
or concur with amendments. In case of disapproval by the Senate of any such bills,
the Assembly may repass the same by a two-thirds vote of all its members, and
thereupon, the bill so repassed shall be deemed enacted and may be submitted to
the President for corresponding action. In the event that the Senate should fail to
finally act on any such bills, the Assembly may, after thirty days from the opening of
the next regular session of the same legislative term, reapprove the same with a vote
of two-thirds of all the members of the Assembly. And upon such reapproval, the bill
shall be deemed enacted and may be submitted to the President for corresponding
action.
The special committee on the revision of laws of the Second National Assembly vetoed the proposal.
It deleted everything after the first sentence. As rewritten, the proposal was approved by the National
Assembly and embodied in Resolution No. 38, as amended by Resolution No. 73. (J. ARUEGO,
KNOW YOUR CONSTITUTION 65-66 (1950)). The proposed amendment was submitted to the
people and ratified by them in the elections held on June 18, 1940.
This is the history of Art. VI, §18 (2) of the 1935 Constitution, from which Art. VI, §24 of the present
Constitution was derived. It explains why the word "exclusively" was added to the American text from
which the framers of the Philippine Constitution borrowed and why the phrase "as on other Bills" was
not copied. Considering the defeat of the proposal, the power of the Senate to propose amendments
must be understood to be full, plenary and complete "as on other Bills." Thus, because revenue bills
are required to originate exclusively in the House of Representatives, the Senate cannot enact
revenue measures of its own without such bills. After a revenue bill is passed and sent over to it by
the House, however, the Senate certainly can pass its own version on the same subject matter. This
follows from the coequality of the two chambers of Congress.
That this is also the understanding of book authors of the scope of the Senate's power to concur is
clear from the following commentaries:
The power of the Senate to propose or concur with amendments is apparently

without restriction. It would seem that by virtue of this power, the Senate can
practically re-write a bill required to come from the House and leave only a trace of
the original bill. For example, a general revenue bill passed by the lower house of the
United States Congress contained provisions for the imposition of an inheritance tax .
This was changed by the Senate into a corporation tax. The amending authority of
the Senate was declared by the United States Supreme Court to be sufficiently broad
to enable it to make the alteration. [Flint v. Stone Tracy Company, 220 U.S. 107, 55
L. ed. 389].
(L. TAÑADA AND F. CARREON, POLITICAL LAW OF THE PHILIPPINES 247

(1961))
The above-mentioned bills are supposed to be initiated by the House of

Representatives because it is more numerous in membership and therefore also
more representative of the people. Moreover, its members are presumed to be more
familiar with the needs of the country in regard to the enactment of the legislation
involved.
The Senate is, however, allowed much leeway in the exercise of its power to propose
or concur with amendments to the bills initiated by the House of Representatives.
Thus, in one case, a bill introduced in the U.S. House of Representatives was
changed by the Senate to make a proposed inheritance tax a corporation tax. It is
also accepted practice for the Senate to introduce what is known as an amendment
by substitution, which may entirely replace the bill initiated in the House of
Representatives.
(I. CRUZ, PHILIPPINE POLITICAL LAW 144-145 (1993)).
In sum, while Art. VI, §24 provides that all appropriation, revenue or tariff bills, bills authorizing
increase of the public debt, bills of local application, and private bills must "originate exclusively in
the House of Representatives," it also adds, "but the Senate may propose or concur with
amendments." In the exercise of this power, the Senate may propose an entirely new bill as a
substitute measure. As petitioner Tolentino states in a high school text, a committee to which a bill is
referred may do any of the following:
(1) to endorse the bill without changes; (2) to make changes in the bill omitting or
adding sections or altering its language; (3) to make and endorse an entirely new bill
as a substitute, in which case it will be known as a committee bill; or (4) to make no
report at all.
(A. TOLENTINO, THE GOVERNMENT OF THE PHILIPPINES 258 (1950))

To except from this procedure the amendment of bills which are required to originate in the House
by prescribing that the number of the House bill and its other parts up to the enacting clause must be
preserved although the text of the Senate amendment may be incorporated in place of the original
body of the bill is to insist on a mere technicality. At any rate there is no rule prescribing this form. S.
No. 1630, as a substitute measure, is therefore as much an amendment of H. No. 11197 as any
which the Senate could have made.
II. S. No. 1630 a mere amendment of H. No. 11197. Petitioners' basic error is that they assume that
S. No. 1630 is an independent and distinct bill. Hence their repeated references to its certification
that it was passed by the Senate "in substitution of S.B. No. 1129, taking into consideration P.S.
Res. No. 734 and H.B. No. 11197," implying that there is something substantially different between
the reference to S. No. 1129 and the reference to H. No. 11197. From this premise, they conclude
that R.A. No. 7716 originated both in the House and in the Senate and that it is the product of two
"half-baked bills because neither H. No. 11197 nor S. No. 1630 was passed by both houses of
Congress."
In point of fact, in several instances the provisions of S. No. 1630, clearly appear to be mere
amendments of the corresponding provisions of H. No. 11197. The very tabular comparison of the
provisions of H. No. 11197 and S. No. 1630 attached as Supplement A to the basic petition of
petitioner Tolentino, while showing differences between the two bills, at the same time indicates that
the provisions of the Senate bill were precisely intended to be amendments to the House bill.
Without H. No. 11197, the Senate could not have enacted S. No. 1630. Because the Senate bill was
a mere amendment of the House bill, H. No. 11197 in its original form did not have to pass the
Senate on second and three readings. It was enough that after it was passed on first reading it was
referred to the Senate Committee on Ways and Means. Neither was it required that S. No. 1630 be
passed by the House of Representatives before the two bills could be referred to the Conference
Committee.
There is legislative precedent for what was done in the case of H. No. 11197 and S. No. 1630. When
the House bill and Senate bill, which became R.A. No. 1405 (Act prohibiting the disclosure of bank
deposits), were referred to a conference committee, the question was raised whether the two bills
could be the subject of such conference, considering that the bill from one house had not been
passed by the other and vice versa. As Congressman Duran put the question:
MR. DURAN. Therefore, I raise this question of order as to procedure: If a House bill
is passed by the House but not passed by the Senate, and a Senate bill of a similar
nature is passed in the Senate but never passed in the House, can the two bills be
the subject of a conference, and can a law be enacted from these two bills? I
understand that the Senate bill in this particular instance does not refer to
investments in government securities, whereas the bill in the House, which was
introduced by the Speaker, covers two subject matters: not only investigation of
deposits in banks but also investigation of investments in government securities.
Now, since the two bills differ in their subject matter, I believe that no law can be
enacted.
Ruling on the point of order raised, the chair (Speaker Jose B. Laurel, Jr.) said:
THE SPEAKER. The report of the conference committee is in order. It is precisely in

cases like this where a conference should be had. If the House bill had been
approved by the Senate, there would have been no need of a conference; but
precisely because the Senate passed another bill on the same subject matter, the
conference committee had to be created, and we are now considering the report of
that committee.
(2 CONG. REC. NO. 13, July 27, 1955, pp. 3841-42 (emphasis added))
III. The President's certification. The fallacy in thinking that H. No. 11197 and S. No. 1630 are distinct
and unrelated measures also accounts for the petitioners' (Kilosbayan's and PAL's) contention that
because the President separately certified to the need for the immediate enactment of these
measures, his certification was ineffectual and void. The certification had to be made of the version
of the same revenue bill which at the moment was being considered. Otherwise, to follow petitioners'
theory, it would be necessary for the President to certify as many bills as are presented in a house of
Congress even though the bills are merely versions of the bill he has already certified. It is enough
that he certifies the bill which, at the time he makes the certification, is under consideration. Since on
March 22, 1994 the Senate was considering S. No. 1630, it was that bill which had to be certified.
For that matter on June 1, 1993 the President had earlier certified H. No. 9210 for immediate
enactment because it was the one which at that time was being considered by the House. This bill
was later substituted, together with other bills, by H. No. 11197.
As to what Presidential certification can accomplish, we have already explained in the main decision
that the phrase "except when the President certifies to the necessity of its immediate enactment,
etc." in Art. VI, §26 (2) qualifies not only the requirement that "printed copies [of a bill] in its final form
[must be] distributed to the members three days before its passage" but also the requirement that
before a bill can become a law it must have passed "three readings on separate days." There is not
only textual support for such construction but historical basis as well.
Art. VI, §21 (2) of the 1935 Constitution originally provided:
(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.
When the 1973 Constitution was adopted, it was provided in Art. VIII, §19 (2):
(2) No bill shall become a law unless it has passed three readings on separate days,
and printed copies thereof in its final form have been distributed to the Members
three days before its passage, except when the Prime Minister certifies to the
necessity of its immediate enactment to meet a public calamity or emergency. Upon
the last reading of a bill, no amendment thereto shall be allowed, and the vote
thereon shall be taken immediately thereafter, and the yeas and nays entered in the
Journal.
This provision of the 1973 document, with slight modification, was adopted in Art. VI, §26 (2) of the
present Constitution, thus:
(2) No bill passed by either House shall become a law unless it has passed three
readings on separate days, and printed copies thereof in its final form have been
distributed to its Members three days before its passage, except when the President
certifies to the necessity of its immediate enactment to meet a public calamity or
emergency. Upon the last reading of a bill, no amendment thereto shall be allowed,
and the vote thereon shall be taken immediately thereafter, and
the yeas and nays entered in the Journal.
The exception is based on the prudential consideration that if in all cases three readings on separate
days are required and a bill has to be printed in final form before it can be passed, the need for a law
may be rendered academic by the occurrence of the very emergency or public calamity which it is
meant to address.
Petitioners further contend that a "growing budget deficit" is not an emergency, especially in a
country like the Philippines where budget deficit is a chronic condition. Even if this were the case, an
enormous budget deficit does not make the need for R.A. No. 7716 any less urgent or the situation
calling for its enactment any less an emergency.
Apparently, the members of the Senate (including some of the petitioners in these cases) believed
that there was an urgent need for consideration of S. No. 1630, because they responded to the call
of the President by voting on the bill on second and third readings on the same day. While the
judicial department is not bound by the Senate's acceptance of the President's certification, the
respect due coequal departments of the government in matters committed to them by the
Constitution and the absence of a clear showing of grave abuse of discretion caution a stay of the
judicial hand.
At any rate, we are satisfied that S. No. 1630 received thorough consideration in the Senate where it
was discussed for six days. Only its distribution in advance in its final printed form was actually
dispensed with by holding the voting on second and third readings on the same day (March 24,
1994). Otherwise, sufficient time between the submission of the bill on February 8, 1994 on second
reading and its approval on March 24, 1994 elapsed before it was finally voted on by the Senate on
third reading.
The purpose for which three readings on separate days is required is said to be two-fold: (1) to
inform the members of Congress of what they must vote on and (2) to give them notice that a
measure is progressing through the enacting process, thus enabling them and others interested in
the measure to prepare their positions with reference to it. (1 J. G. SUTHERLAND, STATUTES AND
STATUTORY CONSTRUCTION §10.04, p. 282 (1972)). These purposes were substantially
achieved in the case of R.A. No. 7716.
IV. Power of Conference Committee. It is contended (principally by Kilosbayan, Inc. and the

Movement of Attorneys for Brotherhood, Integrity and Nationalism, Inc. (MABINI)) that in violation of
the constitutional policy of full public disclosure and the people's right to know (Art. II, §28 and Art.
III, §7) the Conference Committee met for two days in executive session with only the conferees
present.
As pointed out in our main decision, even in the United States it was customary to hold such
sessions with only the conferees and their staffs in attendance and it was only in 1975 when a new
rule was adopted requiring open sessions. Unlike its American counterpart, the Philippine Congress
has not adopted a rule prescribing open hearings for conference committees.
It is nevertheless claimed that in the United States, before the adoption of the rule in 1975, at least
staff members were present. These were staff members of the Senators and Congressmen,
however, who may be presumed to be their confidential men, not stenographers as in this case who
on the last two days of the conference were excluded. There is no showing that the conferees
themselves did not take notes of their proceedings so as to give petitioner Kilosbayan basis for
claiming that even in secret diplomatic negotiations involving state interests, conferees keep notes of
their meetings. Above all, the public's right to know was fully served because the Conference
Committee in this case submitted a report showing the changes made on the differing versions of
the House and the Senate.
Petitioners cite the rules of both houses which provide that conference committee reports must
contain "a detailed, sufficiently explicit statement of the changes in or other amendments." These
changes are shown in the bill attached to the Conference Committee Report. The members of both
houses could thus ascertain what changes had been made in the original bills without the need of a
statement detailing the changes.
The same question now presented was raised when the bill which became R.A. No. 1400 (Land
Reform Act of 1955) was reported by the Conference Committee. Congressman Bengzon raised a
point of order. He said:
MR. BENGZON. My point of order is that it is out of order to consider the report of
the conference committee regarding House Bill No. 2557 by reason of the provision
of Section 11, Article XII, of the Rules of this House which provides specifically that
the conference report must be accompanied by a detailed statement of the effects of
the amendment on the bill of the House. This conference committee report is not
accompanied by that detailed statement, Mr. Speaker. Therefore it is out of order to
consider it.
Petitioner Tolentino, then the Majority Floor Leader, answered:
MR. TOLENTINO. Mr. Speaker, I should just like to say a few words in connection
with the point of order raised by the gentleman from Pangasinan.
There is no question about the provision of the Rule cited by the gentleman from
Pangasinan, but this provision applies to those cases where only portions of the bill
have been amended. In this case before us an entire bill is presented; therefore, it
can be easily seen from the reading of the bill what the provisions are. Besides, this
procedure has been an established practice.
After some interruption, he continued:
MR. TOLENTINO. As I was saying, Mr. Speaker, we have to look into the reason for
the provisions of the Rules, and the reason for the requirement in the provision cited
by the gentleman from Pangasinan is when there are only certain words or phrases
inserted in or deleted from the provisions of the bill included in the conference report,
and we cannot understand what those words and phrases mean and their relation to
the bill. In that case, it is necessary to make a detailed statement on how those
words and phrases will affect the bill as a whole; but when the entire bill itself is
copied verbatim in the conference report, that is not necessary. So when the reason
for the Rule does not exist, the Rule does not exist.
(2 CONG. REC. NO. 2, p. 4056. (emphasis added))
Congressman Tolentino was sustained by the chair. The record shows that when the ruling was
appealed, it was upheld by viva voce and when a division of the House was called, it was sustained
by a vote of 48 to 5. (Id.,
p. 4058)
Nor is there any doubt about the power of a conference committee to insert new provisions as long
as these are germane to the subject of the conference. As this Court held in Philippine Judges
Association v. Prado, 227 SCRA 703 (1993), in an opinion written by then Justice Cruz, the
jurisdiction of the conference committee is not limited to resolving differences between the Senate
and the House. It may propose an entirely new provision. What is important is that its report is
subsequently approved by the respective houses of Congress. This Court ruled that it would not
entertain allegations that, because new provisions had been added by the conference committee,
there was thereby a violation of the constitutional injunction that "upon the last reading of a bill, no
amendment thereto shall be allowed."
Applying these principles, we shall decline to look into the petitioners' charges that

an amendment was made upon the last reading of the bill that eventually became
R.A. No. 7354 and that copies thereof in its final form were not distributed among the
members of each House. Both the enrolled bill and the legislative journals certify that
the measure was duly enacted i.e., in accordance with Article VI, Sec. 26 (2) of the
Constitution. We are bound by such official assurances from a coordinate
department of the government, to which we owe, at the very least, a becoming
courtesy.
(Id. at 710. (emphasis added))
It is interesting to note the following description of conference committees in the Philippines in a

1979 study:
Conference committees may be of two types: free or instructed. These committees

may be given instructions by their parent bodies or they may be left without
instructions. Normally the conference committees are without instructions, and this is
why they are often critically referred to as "the little legislatures." Once bills have
been sent to them, the conferees have almost unlimited authority to change the
clauses of the bills and in fact sometimes introduce new measures that were not in
the original legislation. No minutes are kept, and members' activities on conference
committees are difficult to determine. One congressman known for his idealism put it
this way: "I killed a bill on export incentives for my interest group [copra] in the
conference committee but I could not have done so anywhere else." The conference
committee submits a report to both houses, and usually it is accepted. If the report is
not accepted, then the committee is discharged and new members are appointed.
(R. Jackson, Committees in the Philippine Congress, in COMMITTEES AND

LEGISLATURES: A COMPARATIVE ANALYSIS 163 (J. D. LEES AND M. SHAW,
eds.)).
In citing this study, we pass no judgment on the methods of conference committees. We cite it only
to say that conference committees here are no different from their counterparts in the United States
whose vast powers we noted in Philippine Judges Association v. Prado, supra. At all events, under
Art. VI, §16(3) each house has the power "to determine the rules of its proceedings," including those
of its committees. Any meaningful change in the method and procedures of Congress or its
committees must therefore be sought in that body itself.
V. The titles of S. No. 1630 and H. No. 11197. PAL maintains that R.A. No. 7716 violates Art. VI, §26
(1) of the Constitution which provides that "Every bill passed by Congress shall embrace only one
subject which shall be expressed in the title thereof." PAL contends that the amendment of its
franchise by the withdrawal of its exemption from the VAT is not expressed in the title of the law.
Pursuant to §13 of P.D. No. 1590, PAL pays a franchise tax of 2% on its gross revenue "in lieu of all
other taxes, duties, royalties, registration, license and other fees and charges of any kind, nature, or
description, imposed, levied, established, assessed or collected by any municipal, city, provincial or
national authority or government agency, now or in the future."
PAL was exempted from the payment of the VAT along with other entities by §103 of the National
Internal Revenue Code, which provides as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added

tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws or international agreements to
which the Philippines is a signatory.
R.A. No. 7716 seeks to withdraw certain exemptions, including that granted to PAL, by amending
§103, as follows:
§103. Exempt transactions. — The following shall be exempt from the value-added

tax:
xxx xxx xxx
(q) Transactions which are exempt under special laws, except those granted under
Presidential Decree Nos. 66, 529, 972, 1491, 1590. . . .
The amendment of §103 is expressed in the title of R.A. No. 7716 which reads:
AN ACT RESTRUCTURING THE VALUE-ADDED TAX (VAT) SYSTEM, WIDENING

ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR THESE
PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF
THE NATIONAL INTERNAL REVENUE CODE, AS AMENDED, AND FOR OTHER
PURPOSES.
By stating that R.A. No. 7716 seeks to "[RESTRUCTURE] THE VALUE-ADDED TAX (VAT)
SYSTEM [BY] WIDENING ITS TAX BASE AND ENHANCING ITS ADMINISTRATION, AND FOR
THESE PURPOSES AMENDING AND REPEALING THE RELEVANT PROVISIONS OF THE
NATIONAL INTERNAL REVENUE CODE, AS AMENDED AND FOR OTHER PURPOSES,"
Congress thereby clearly expresses its intention to amend any provision of the NIRC which stands in
the way of accomplishing the purpose of the law.
PAL asserts that the amendment of its franchise must be reflected in the title of the law by specific
reference to P.D. No. 1590. It is unnecessary to do this in order to comply with the constitutional
requirement, since it is already stated in the title that the law seeks to amend the pertinent provisions
of the NIRC, among which is §103(q), in order to widen the base of the VAT. Actually, it is the bill
which becomes a law that is required to express in its title the subject of legislation. The titles of H.
No. 11197 and S. No. 1630 in fact specifically referred to §103 of the NIRC as among the provisions
sought to be amended. We are satisfied that sufficient notice had been given of the pendency of
these bills in Congress before they were enacted into what is now R.A.
No. 7716.
In Philippine Judges Association v. Prado, supra, a similar argument as that now made by PAL was
rejected. R.A. No. 7354 is entitled AN ACT CREATING THE PHILIPPINE POSTAL CORPORATION,
DEFINING ITS POWERS, FUNCTIONS AND RESPONSIBILITIES, PROVIDING FOR
REGULATION OF THE INDUSTRY AND FOR OTHER PURPOSES CONNECTED THEREWITH. It
contained a provision repealing all franking privileges. It was contended that the withdrawal of
franking privileges was not expressed in the title of the law. In holding that there was sufficient
description of the subject of the law in its title, including the repeal of franking privileges, this Court
held:
To require every end and means necessary for the accomplishment of the general
objectives of the statute to be expressed in its title would not only be unreasonable
but would actually render legislation impossible. [Cooley, Constitutional Limitations,
8th Ed., p. 297] As has been correctly explained:
The details of a legislative act need not be specifically stated in its

title, but matter germane to the subject as expressed in the title, and
adopted to the accomplishment of the object in view, may properly be
included in the act. Thus, it is proper to create in the same act the
machinery by which the act is to be enforced, to prescribe the
penalties for its infraction, and to remove obstacles in the way of its
execution. If such matters are properly connected with the subject as
expressed in the title, it is unnecessary that they should also have
special mention in the title. (Southern Pac. Co. v. Bartine, 170 Fed.
725)
(227 SCRA at 707-708)
VI. Claims of press freedom and religious liberty. We have held that, as a general proposition, the
press is not exempt from the taxing power of the State and that what the constitutional guarantee of
free press prohibits are laws which single out the press or target a group belonging to the press for
special treatment or which in any way discriminate against the press on the basis of the content of
the publication, and R.A. No. 7716 is none of these.
Now it is contended by the PPI that by removing the exemption of the press from the VAT while
maintaining those granted to others, the law discriminates against the press. At any rate, it is
averred, "even nondiscriminatory taxation of constitutionally guaranteed freedom is unconstitutional."
With respect to the first contention, it would suffice to say that since the law granted the press a
privilege, the law could take back the privilege anytime without offense to the Constitution. The
reason is simple: by granting exemptions, the State does not forever waive the exercise of its
sovereign prerogative.
Indeed, in withdrawing the exemption, the law merely subjects the press to the same tax burden to
which other businesses have long ago been subject. It is thus different from the tax involved in the
cases invoked by the PPI. The license tax in Grosjean v. American Press Co., 297 U.S. 233, 80 L.
Ed. 660 (1936) was found to be discriminatory because it was laid on the gross advertising receipts
only of newspapers whose weekly circulation was over 20,000, with the result that the tax applied
only to 13 out of 124 publishers in Louisiana. These large papers were critical of Senator Huey Long
who controlled the state legislature which enacted the license tax. The censorial motivation for the
law was thus evident.
On the other hand, in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S.
575, 75 L. Ed. 2d 295 (1983), the tax was found to be discriminatory because although it could have
been made liable for the sales tax or, in lieu thereof, for the use tax on the privilege of using, storing
or consuming tangible goods, the press was not. Instead, the press was exempted from both taxes.
It was, however, later made to pay a special use tax on the cost of paper and ink which made these
items "the only items subject to the use tax that were component of goods to be sold at retail." The
U.S. Supreme Court held that the differential treatment of the press "suggests that the goal of
regulation is not related to suppression of expression, and such goal is presumptively
unconstitutional." It would therefore appear that even a law that favors the press is constitutionally
suspect. (See the dissent of Rehnquist, J. in that case)
Nor is it true that only two exemptions previously granted by E.O. No. 273 are withdrawn "absolutely
and unqualifiedly" by R.A. No. 7716. Other exemptions from the VAT, such as those previously
granted to PAL, petroleum concessionaires, enterprises registered with the Export Processing Zone
Authority, and many more are likewise totally withdrawn, in addition to exemptions which are partially
withdrawn, in an effort to broaden the base of the tax.
The PPI says that the discriminatory treatment of the press is highlighted by the fact that
transactions, which are profit oriented, continue to enjoy exemption under R.A. No. 7716. An
enumeration of some of these transactions will suffice to show that by and large this is not so and
that the exemptions are granted for a purpose. As the Solicitor General says, such exemptions are
granted, in some cases, to encourage agricultural production and, in other cases, for the personal
benefit of the end-user rather than for profit. The exempt transactions are:
(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn, sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) or for professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-

60)
The PPI asserts that it does not really matter that the law does not discriminate against the press
because "even nondiscriminatory taxation on constitutionally guaranteed freedom is
unconstitutional." PPI cites in support of this assertion the following statement in Murdock
v. Pennsylvania, 319 U.S. 105, 87 L. Ed. 1292 (1943):
The fact that the ordinance is "nondiscriminatory" is immaterial. The protection

afforded by the First Amendment is not so restricted. A license tax certainly does not
acquire constitutional validity because it classifies the privileges protected by the
First Amendment along with the wares and merchandise of hucksters and peddlers
and treats them all alike. Such equality in treatment does not save the ordinance.
Freedom of press, freedom of speech, freedom of religion are in preferred position.
The Court was speaking in that case of a license tax, which, unlike an ordinary tax, is mainly for
regulation. Its imposition on the press is unconstitutional because it lays a prior restraint on the
exercise of its right. Hence, although its application to others, such those selling goods, is valid, its
application to the press or to religious groups, such as the Jehovah's Witnesses, in connection with
the latter's sale of religious books and pamphlets, is unconstitutional. As the U.S. Supreme Court put
it, "it is one thing to impose a tax on income or property of a preacher. It is quite another thing to
exact a tax on him for delivering a sermon."
A similar ruling was made by this Court in American Bible Society v. City of Manila, 101 Phil. 386
(1957) which invalidated a city ordinance requiring a business license fee on those engaged in the
sale of general merchandise. It was held that the tax could not be imposed on the sale of bibles by
the American Bible Society without restraining the free exercise of its right to propagate.
The VAT is, however, different. It is not a license tax. It is not a tax on the exercise of a privilege,
much less a constitutional right. It is imposed on the sale, barter, lease or exchange of goods or
properties or the sale or exchange of services and the lease of properties purely for revenue
purposes. To subject the press to its payment is not to burden the exercise of its right any more than
to make the press pay income tax or subject it to general regulation is not to violate its freedom
under the Constitution.
Additionally, the Philippine Bible Society, Inc. claims that although it sells bibles, the proceeds
derived from the sales are used to subsidize the cost of printing copies which are given free to those
who cannot afford to pay so that to tax the sales would be to increase the price, while reducing the
volume of sale. Granting that to be the case, the resulting burden on the exercise of religious
freedom is so incidental as to make it difficult to differentiate it from any other economic imposition
that might make the right to disseminate religious doctrines costly. Otherwise, to follow the
petitioner's argument, to increase the tax on the sale of vestments would be to lay an impermissible
burden on the right of the preacher to make a sermon.
On the other hand the registration fee of P1,000.00 imposed by §107 of the NIRC, as amended by
§7 of R.A. No. 7716, although fixed in amount, is really just to pay for the expenses of registration
and enforcement of provisions such as those relating to accounting in §108 of the NIRC. That the
PBS distributes free bibles and therefore is not liable to pay the VAT does not excuse it from the
payment of this fee because it also sells some copies. At any rate whether the PBS is liable for the
VAT must be decided in concrete cases, in the event it is assessed this tax by the Commissioner of
Internal Revenue.
VII. Alleged violations of the due process, equal protection and contract clauses and the rule on
taxation. CREBA asserts that R.A. No. 7716 (1) impairs the obligations of contracts, (2) classifies
transactions as covered or exempt without reasonable basis and (3) violates the rule that taxes
should be uniform and equitable and that Congress shall "evolve a progressive system of taxation."
With respect to the first contention, it is claimed that the application of the tax to existing contracts of
the sale of real property by installment or on deferred payment basis would result in substantial
increases in the monthly amortizations to be paid because of the 10% VAT. The additional amount, it
is pointed out, is something that the buyer did not anticipate at the time he entered into the contract.
The short answer to this is the one given by this Court in an early case: "Authorities from numerous
sources are cited by the plaintiffs, but none of them show that a lawful tax on a new subject, or an
increased tax on an old one, interferes with a contract or impairs its obligation, within the meaning of
the Constitution. Even though such taxation may affect particular contracts, as it may increase the
debt of one person and lessen the security of another, or may impose additional burdens upon one
class and release the burdens of another, still the tax must be paid unless prohibited by the
Constitution, nor can it be said that it impairs the obligation of any existing contract in its true legal
sense." (La Insular v. Machuca Go-Tauco and Nubla Co-Siong, 39 Phil. 567, 574 (1919)). Indeed not
only existing laws but also "the reservation of the essential attributes of sovereignty, is . . . read into
contracts as a postulate of the legal order." (Philippine-American Life Ins. Co. v. Auditor General, 22
SCRA 135, 147 (1968)) Contracts must be understood as having been made in reference to the
possible exercise of the rightful authority of the government and no obligation of contract can extend
to the defeat of that authority. (Norman v. Baltimore and Ohio R.R., 79 L. Ed. 885 (1935)).
It is next pointed out that while §4 of R.A. No. 7716 exempts such transactions as the sale of
agricultural products, food items, petroleum, and medical and veterinary services, it grants no
exemption on the sale of real property which is equally essential. The sale of real property for
socialized and low-cost housing is exempted from the tax, but CREBA claims that real estate
transactions of "the less poor," i.e., the middle class, who are equally homeless, should likewise be
exempted.
The sale of food items, petroleum, medical and veterinary services, etc., which are essential goods
and services was already exempt under §103, pars. (b) (d) (1) of the NIRC before the enactment of
R.A. No. 7716. Petitioner is in error in claiming that R.A. No. 7716 granted exemption to these
transactions, while subjecting those of petitioner to the payment of the VAT. Moreover, there is a
difference between the "homeless poor" and the "homeless less poor" in the example given by
petitioner, because the second group or middle class can afford to rent houses in the meantime that
they cannot yet buy their own homes. The two social classes are thus differently situated in life. "It is
inherent in the power to tax that the State be free to select the subjects of taxation, and it has been
repeatedly held that 'inequalities which result from a singling out of one particular class for taxation,
or exemption infringe no constitutional limitation.'" (Lutz v. Araneta, 98 Phil. 148, 153 (1955). Accord,
City of Baguio v. De Leon, 134 Phil. 912 (1968); Sison, Jr. v. Ancheta, 130 SCRA 654, 663 (1984);
Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 371 (1988)).
Finally, it is contended, for the reasons already noted, that R.A. No. 7716 also violates Art. VI, §28(1)
which provides that "The rule of taxation shall be uniform and equitable. The Congress shall evolve a
progressive system of taxation."
Equality and uniformity of taxation means that all taxable articles or kinds of property of the same
class be taxed at the same rate. The taxing power has the authority to make reasonable and natural
classifications for purposes of taxation. To satisfy this requirement it is enough that the statute or
ordinance applies equally to all persons, forms and corporations placed in similar situation. (City of
Baguio v. De Leon, supra; Sison, Jr. v. Ancheta, supra)
Indeed, the VAT was already provided in E.O. No. 273 long before R.A. No. 7716 was enacted. R.A.
No. 7716 merely expands the base of the tax. The validity of the original VAT Law was questioned
in Kapatiran ng Naglilingkod sa Pamahalaan ng Pilipinas, Inc. v. Tan, 163 SCRA 383 (1988) on
grounds similar to those made in these cases, namely, that the law was "oppressive, discriminatory,
unjust and regressive in violation of Art. VI, §28(1) of the Constitution." (At 382) Rejecting the
challenge to the law, this Court held:
As the Court sees it, EO 273 satisfies all the requirements of a valid tax. It is uniform.
...
The sales tax adopted in EO 273 is applied similarly on all goods and services sold
to the public, which are not exempt, at the constant rate of 0% or 10%.
The disputed sales tax is also equitable. It is imposed only on sales of goods or
services by persons engaged in business with an aggregate gross annual sales
exceeding P200,000.00. Small corner sari-sari stores are consequently exempt from
its application. Likewise exempt from the tax are sales of farm and marine products,
so that the costs of basic food and other necessities, spared as they are from the
incidence of the VAT, are expected to be relatively lower and within the reach of the
general public.
(At 382-383)
The CREBA claims that the VAT is regressive. A similar claim is made by the Cooperative Union of
the Philippines, Inc. (CUP), while petitioner Juan T. David argues that the law contravenes the
mandate of Congress to provide for a progressive system of taxation because the law imposes a flat
rate of 10% and thus places the tax burden on all taxpayers without regard to their ability to pay.
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall "evolve a progressive system of taxation."
The constitutional provision has been interpreted to mean simply that "direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized." (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. (1977)). Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
§17(1) of the 1973 Constitution from which the present Art. VI, §28(1) was taken. Sales taxes are
also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not

impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while
granting exemptions to other transactions. (R.A. No. 7716, §4, amending §103 of the NIRC).
Thus, the following transactions involving basic and essential goods and services are exempted from
the VAT:
(a) Goods for consumption or use which are in their original state (agricultural,
marine and forest products, cotton seeds in their original state, fertilizers, seeds,
seedlings, fingerlings, fish, prawn livestock and poultry feeds) and goods or services
to enhance agriculture (milling of palay, corn sugar cane and raw sugar, livestock,
poultry feeds, fertilizer, ingredients used for the manufacture of feeds).
(b) Goods used for personal consumption or use (household and personal effects of
citizens returning to the Philippines) and or professional use, like professional
instruments and implements, by persons coming to the Philippines to settle here.
(c) Goods subject to excise tax such as petroleum products or to be used for
manufacture of petroleum products subject to excise tax and services subject to
percentage tax.
(d) Educational services, medical, dental, hospital and veterinary services, and
services rendered under employer-employee relationship.
(e) Works of art and similar creations sold by the artist himself.
(f) Transactions exempted under special laws, or international agreements.
(g) Export-sales by persons not VAT-registered.
(h) Goods or services with gross annual sale or receipt not exceeding P500,000.00.
(Respondents' Consolidated Comment on the Motions for Reconsideration, pp. 58-

60)
On the other hand, the transactions which are subject to the VAT are those which involve goods and
services which are used or availed of mainly by higher income groups. These include real properties
held primarily for sale to customers or for lease in the ordinary course of trade or business, the right
or privilege to use patent, copyright, and other similar property or right, the right or privilege to use
industrial, commercial or scientific equipment, motion picture films, tapes and discs, radio, television,
satellite transmission and cable television time, hotels, restaurants and similar places, securities,
lending investments, taxicabs, utility cars for rent, tourist buses, and other common carriers, services
of franchise grantees of telephone and telegraph.
The problem with CREBA's petition is that it presents broad claims of constitutional violations by
tendering issues not at retail but at wholesale and in the abstract. There is no fully developed record
which can impart to adjudication the impact of actuality. There is no factual foundation to show in
the concrete the application of the law to actual contracts and exemplify its effect on property rights.
For the fact is that petitioner's members have not even been assessed the VAT. Petitioner's case is
not made concrete by a series of hypothetical questions asked which are no different from those
dealt with in advisory opinions.
The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere

allegation, as here, does not suffice. There must be a factual foundation of such
unconstitutional taint. Considering that petitioner here would condemn such a
provision as void on its face, he has not made out a case. This is merely to adhere to
the authoritative doctrine that where the due process and equal protection clauses
are invoked, considering that they are not fixed rules but rather broad standards,
there is a need for proof of such persuasive character as would lead to such a
conclusion. Absent such a showing, the presumption of validity must prevail.
(Sison, Jr. v. Ancheta, 130 SCRA at 661)

Adjudication of these broad claims must await the development of a concrete case. It may be that
postponement of adjudication would result in a multiplicity of suits. This need not be the case,
however. Enforcement of the law may give rise to such a case. A test case, provided it is an actual
case and not an abstract or hypothetical one, may thus be presented.
Nor is hardship to taxpayers alone an adequate justification for adjudicating abstract issues.
Otherwise, adjudication would be no different from the giving of advisory opinion that does not really
settle legal issues.
We are told that it is our duty under Art. VIII, §1, ¶2 to decide whenever a claim is made that "there
has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any
branch or instrumentality of the government." This duty can only arise if an actual case or
controversy is before us. Under Art . VIII, §5 our jurisdiction is defined in terms of "cases" and all that
Art. VIII, §1, ¶2 can plausibly mean is that in the exercise of that jurisdiction we have the judicial
power to determine questions of grave abuse of discretion by any branch or instrumentality of the
government.
Put in another way, what is granted in Art. VIII, §1, ¶2 is "judicial power," which is "the power of a
court to hear and decide cases pending between parties who have the right to sue and be sued in
the courts of law and equity" (Lamb v. Phipps, 22 Phil. 456, 559 (1912)), as distinguished from
legislative and executive power. This power cannot be directly appropriated until it is apportioned
among several courts either by the Constitution, as in the case of Art. VIII, §5, or by statute, as in the
case of the Judiciary Act of 1948 (R.A. No. 296) and the Judiciary Reorganization Act of 1980 (B.P.
Blg. 129). The power thus apportioned constitutes the court's "jurisdiction," defined as "the power
conferred by law upon a court or judge to take cognizance of a case, to the exclusion of all others."
(United States v. Arceo, 6 Phil. 29 (1906)) Without an actual case coming within its jurisdiction, this
Court cannot inquire into any allegation of grave abuse of discretion by the other departments of the
government.
VIII. Alleged violation of policy towards cooperatives. On the other hand, the Cooperative Union of
the Philippines (CUP), after briefly surveying the course of legislation, argues that it was to adopt a
definite policy of granting tax exemption to cooperatives that the present Constitution embodies
provisions on cooperatives. To subject cooperatives to the VAT would therefore be to infringe a
constitutional policy. Petitioner claims that in 1973, P.D. No. 175 was promulgated exempting
cooperatives from the payment of income taxes and sales taxes but in 1984, because of the crisis
which menaced the national economy, this exemption was withdrawn by P.D. No. 1955; that in 1986,
P.D. No. 2008 again granted cooperatives exemption from income and sales taxes until December
31, 1991, but, in the same year, E.O. No. 93 revoked the exemption; and that finally in 1987 the
framers of the Constitution "repudiated the previous actions of the government adverse to the
interests of the cooperatives, that is, the repeated revocation of the tax exemption to
cooperatives and instead upheld the policy of strengthening the cooperatives by way of the grant of
tax exemptions," by providing the following in Art. XII:
§1. The goals of the national economy are a more equitable distribution of
opportunities, income, and wealth; a sustained increase in the amount of goods and
services produced by the nation for the benefit of the people; and an expanding
productivity as the key to raising the quality of life for all, especially the
underprivileged.
The State shall promote industrialization and full employment based on sound
agricultural development and agrarian reform, through industries that make full and
efficient use of human and natural resources, and which are competitive in both
domestic and foreign markets. However, the State shall protect Filipino enterprises
against unfair foreign competition and trade practices.
In the pursuit of these goals, all sectors of the economy and all regions of the country
shall be given optimum opportunity to develop. Private enterprises, including
corporations, cooperatives, and similar collective organizations, shall be encouraged
to broaden the base of their ownership.
§15. The Congress shall create an agency to promote the viability and growth of
cooperatives as instruments for social justice and economic development.
Petitioner's contention has no merit. In the first place, it is not true that P.D. No. 1955 singled out
cooperatives by withdrawing their exemption from income and sales taxes under P.D. No. 175, §5.
What P.D. No. 1955, §1 did was to withdraw the exemptions and preferential treatments theretofore
granted to private business enterprises in general, in view of the economic crisis which then beset
the nation. It is true that after P.D. No. 2008, §2 had restored the tax exemptions of cooperatives in
1986, the exemption was again repealed by E.O. No. 93, §1, but then again cooperatives were not
the only ones whose exemptions were withdrawn. The withdrawal of tax incentives applied to all,
including government and private entities. In the second place, the Constitution does not really
require that cooperatives be granted tax exemptions in order to promote their growth and viability.
Hence, there is no basis for petitioner's assertion that the government's policy toward cooperatives
had been one of vacillation, as far as the grant of tax privileges was concerned, and that it was to put
an end to this indecision that the constitutional provisions cited were adopted. Perhaps as a matter
of policy cooperatives should be granted tax exemptions, but that is left to the discretion of
Congress. If Congress does not grant exemption and there is no discrimination to cooperatives, no
violation of any constitutional policy can be charged.
Indeed, petitioner's theory amounts to saying that under the Constitution cooperatives are exempt
from taxation. Such theory is contrary to the Constitution under which only the following are exempt
from taxation: charitable institutions, churches and parsonages, by reason of Art. VI, §28 (3), and
non-stock, non-profit educational institutions by reason of Art. XIV, §4 (3).
CUP's further ground for seeking the invalidation of R.A. No. 7716 is that it denies cooperatives the
equal protection of the law because electric cooperatives are exempted from the VAT. The
classification between electric and other cooperatives (farmers cooperatives, producers
cooperatives, marketing cooperatives, etc.) apparently rests on a congressional determination that
there is greater need to provide cheaper electric power to as many people as possible, especially
those living in the rural areas, than there is to provide them with other necessities in life. We cannot
say that such classification is unreasonable.
We have carefully read the various arguments raised against the constitutional validity of R.A. No.
7716. We have in fact taken the extraordinary step of enjoining its enforcement pending resolution of
these cases. We have now come to the conclusion that the law suffers from none of the infirmities
attributed to it by petitioners and that its enactment by the other branches of the government does
not constitute a grave abuse of discretion. Any question as to its necessity, desirability or expediency
must be addressed to Congress as the body which is electorally responsible, remembering that, as
Justice Holmes has said, "legislators are the ultimate guardians of the liberties and welfare of the
people in quite as great a degree as are the courts." (Missouri, Kansas & Texas Ry. Co. v. May, 194
U.S. 267, 270, 48 L. Ed. 971, 973 (1904)). It is not right, as petitioner in G.R. No. 115543 does in
arguing that we should enforce the public accountability of legislators, that those who took part in
passing the law in question by voting for it in Congress should later thrust to the courts the burden of
reviewing measures in the flush of enactment. This Court does not sit as a third branch of the
legislature, much less exercise a veto power over legislation.
WHEREFORE, the motions for reconsideration are denied with finality and the temporary restraining
order previously issued is hereby lifted.
SO ORDERED.
Abakada Guro Party List v. Ermita, 469 SCRA 1 [2005]
G.R. No. 168056 September 1, 2005
ABAKADA GURO PARTY LIST (Formerly AASJAS) OFFICERS SAMSON S. ALCANTARA and
ED VINCENT S. ALBANO, Petitioners,
vs.
THE HONORABLE EXECUTIVE SECRETARY EDUARDO ERMITA; HONORABLE SECRETARY
OF THE DEPARTMENT OF FINANCE CESAR PURISIMA; and HONORABLE COMMISSIONER
OF INTERNAL REVENUE GUILLERMO PARAYNO, JR., Respondent.
x-------------------------x
G.R. No. 168207
AQUILINO Q. PIMENTEL, JR., LUISA P. EJERCITO-ESTRADA, JINGGOY E. ESTRADA, PANFILO

M. LACSON, ALFREDO S. LIM, JAMBY A.S. MADRIGAL, AND SERGIO R. OSMEÑA III,
Petitioners,
vs.
EXECUTIVE SECRETARY EDUARDO R. ERMITA, CESAR V. PURISIMA, SECRETARY OF
FINANCE, GUILLERMO L. PARAYNO, JR., COMMISSIONER OF THE BUREAU OF INTERNAL
REVENUE, Respondent.
x-------------------------x
G.R. No. 168461
ASSOCIATION OF PILIPINAS SHELL DEALERS, INC. represented by its President, ROSARIO

ANTONIO; PETRON DEALERS’ ASSOCIATION represented by its President, RUTH E. BARBIBI;
ASSOCIATION OF CALTEX DEALERS’ OF THE PHILIPPINES represented by its President,
MERCEDITAS A. GARCIA; ROSARIO ANTONIO doing business under the name and style of "ANB
NORTH SHELL SERVICE STATION"; LOURDES MARTINEZ doing business under the name and
style of "SHELL GATE – N. DOMINGO"; BETHZAIDA TAN doing business under the name and style
of "ADVANCE SHELL STATION"; REYNALDO P. MONTOYA doing business under the name and
style of "NEW LAMUAN SHELL SERVICE STATION"; EFREN SOTTO doing business under the
name and style of "RED FIELD SHELL SERVICE STATION"; DONICA CORPORATION
represented by its President, DESI TOMACRUZ; RUTH E. MARBIBI doing business under the name
and style of "R&R PETRON STATION"; PETER M. UNGSON doing business under the name and
style of "CLASSIC STAR GASOLINE SERVICE STATION"; MARIAN SHEILA A. LEE doing
business under the name and style of "NTE GASOLINE & SERVICE STATION"; JULIAN CESAR P.
POSADAS doing business under the name and style of "STARCARGA ENTERPRISES";
ADORACION MAÑEBO doing business under the name and style of "CMA MOTORISTS CENTER";
SUSAN M. ENTRATA doing business under the name and style of "LEONA’S GASOLINE STATION
and SERVICE CENTER"; CARMELITA BALDONADO doing business under the name and style of
"FIRST CHOICE SERVICE CENTER"; MERCEDITAS A. GARCIA doing business under the name
and style of "LORPED SERVICE CENTER"; RHEAMAR A. RAMOS doing business under the name
and style of "RJRAM PTT GAS STATION"; MA. ISABEL VIOLAGO doing business under the name
and style of "VIOLAGO-PTT SERVICE CENTER"; MOTORISTS’ HEART CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; MOTORISTS’
HARVARD CORPORATION represented by its Vice-President for Operations, JOSELITO F.
FLORDELIZA; MOTORISTS’ HERITAGE CORPORATION represented by its Vice-President for
Operations, JOSELITO F. FLORDELIZA; PHILIPPINE STANDARD OIL CORPORATION
represented by its Vice-President for Operations, JOSELITO F. FLORDELIZA; ROMEO MANUEL
doing business under the name and style of "ROMMAN GASOLINE STATION"; ANTHONY ALBERT
CRUZ III doing business under the name and style of "TRUE SERVICE STATION", Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of the Department of Finance and
GUILLERMO L. PARAYNO, JR., in his capacity as Commissioner of Internal
Revenue, Respondent.
x-------------------------x
G.R. No. 168463
FRANCIS JOSEPH G. ESCUDERO, VINCENT CRISOLOGO, EMMANUEL JOEL J. VILLANUEVA,

RODOLFO G. PLAZA, DARLENE ANTONINO-CUSTODIO, OSCAR G. MALAPITAN, BENJAMIN C.
AGARAO, JR. JUAN EDGARDO M. ANGARA, JUSTIN MARC SB. CHIPECO, FLORENCIO G.
NOEL, MUJIV S. HATAMAN, RENATO B. MAGTUBO, JOSEPH A. SANTIAGO, TEOFISTO DL.
GUINGONA III, RUY ELIAS C. LOPEZ, RODOLFO Q. AGBAYANI and TEODORO A. CASIÑO,
Petitioners,
vs.
CESAR V. PURISIMA, in his capacity as Secretary of Finance, GUILLERMO L. PARAYNO, JR.,
in his capacity as Commissioner of Internal Revenue, and EDUARDO R. ERMITA, in his
capacity as Executive Secretary, Respondent.
x-------------------------x
G.R. No. 168730
BATAAN GOVERNOR ENRIQUE T. GARCIA, JR. Petitioner,

vs.
HON. EDUARDO R. ERMITA, in his capacity as the Executive Secretary; HON. MARGARITO
TEVES, in his capacity as Secretary of Finance; HON. JOSE MARIO BUNAG, in his capacity as the
OIC Commissioner of the Bureau of Internal Revenue; and HON. ALEXANDER AREVALO, in his
capacity as the OIC Commissioner of the Bureau of Customs, Respondent.
DECISION
AUSTRIA-MARTINEZ, J.:
The expenses of government, having for their object the interest of all, should be borne by everyone,
and the more man enjoys the advantages of society, the more he ought to hold himself honored in
contributing to those expenses.
-Anne Robert Jacques Turgot (1727-1781)
French statesman and economist
Mounting budget deficit, revenue generation, inadequate fiscal allocation for education, increased
emoluments for health workers, and wider coverage for full value-added tax benefits … these are the
reasons why Republic Act No. 9337 (R.A. No. 9337) 1 was enacted. Reasons, the wisdom of which,
the Court even with its extensive constitutional power of review, cannot probe. The petitioners in
these cases, however, question not only the wisdom of the law, but also perceived constitutional
infirmities in its passage.
Every law enjoys in its favor the presumption of constitutionality. Their arguments notwithstanding,
petitioners failed to justify their call for the invalidity of the law. Hence, R.A. No. 9337 is not
unconstitutional.
LEGISLATIVE HISTORY
R.A. No. 9337 is a consolidation of three legislative bills namely, House Bill Nos. 3555 and 3705,
and Senate Bill No. 1950.
House Bill No. 35552 was introduced on first reading on January 7, 2005. The House Committee on
Ways and Means approved the bill, in substitution of House Bill No. 1468, which Representative
(Rep.) Eric D. Singson introduced on August 8, 2004. The President certified the bill on January 7,
2005 for immediate enactment. On January 27, 2005, the House of Representatives approved the
bill on second and third reading.
House Bill No. 37053 on the other hand, substituted House Bill No. 3105 introduced by Rep.
Salacnib F. Baterina, and House Bill No. 3381 introduced by Rep. Jacinto V. Paras. Its "mother bill"
is House Bill No. 3555. The House Committee on Ways and Means approved the bill on February 2,
2005. The President also certified it as urgent on February 8, 2005. The House of Representatives
approved the bill on second and third reading on February 28, 2005.
Meanwhile, the Senate Committee on Ways and Means approved Senate Bill No. 19504 on March
7, 2005, "in substitution of Senate Bill Nos. 1337, 1838 and 1873, taking into consideration House
Bill Nos. 3555 and 3705." Senator Ralph G. Recto sponsored Senate Bill No. 1337, while Senate Bill
Nos. 1838 and 1873 were both sponsored by Sens. Franklin M. Drilon, Juan M. Flavier and Francis
N. Pangilinan. The President certified the bill on March 11, 2005, and was approved by the Senate
on second and third reading on April 13, 2005.
On the same date, April 13, 2005, the Senate agreed to the request of the House of Representatives
for a committee conference on the disagreeing provisions of the proposed bills.
Before long, the Conference Committee on the Disagreeing Provisions of House Bill No. 3555,
House Bill No. 3705, and Senate Bill No. 1950, "after having met and discussed in full free and
conference," recommended the approval of its report, which the Senate did on May 10, 2005, and
with the House of Representatives agreeing thereto the next day, May 11, 2005.
On May 23, 2005, the enrolled copy of the consolidated House and Senate version was transmitted
to the President, who signed the same into law on May 24, 2005. Thus, came R.A. No. 9337.
July 1, 2005 is the effectivity date of R.A. No. 9337. 5 When said date came, the Court issued a
temporary restraining order, effective immediately and continuing until further orders, enjoining
respondents from enforcing and implementing the law.
Oral arguments were held on July 14, 2005. Significantly, during the hearing, the Court speaking
through Mr. Justice Artemio V. Panganiban, voiced the rationale for its issuance of the temporary
restraining order on July 1, 2005, to wit:
J. PANGANIBAN : . . . But before I go into the details of your presentation, let me just tell you a little
background. You know when the law took effect on July 1, 2005, the Court issued a TRO at about 5
o’clock in the afternoon. But before that, there was a lot of complaints aired on television and on
radio. Some people in a gas station were complaining that the gas prices went up by 10%. Some
people were complaining that their electric bill will go up by 10%. Other times people riding in
domestic air carrier were complaining that the prices that they’ll have to pay would have to go up by
10%. While all that was being aired, per your presentation and per our own understanding of the law,
that’s not true. It’s not true that the e-vat law necessarily increased prices by 10% uniformly isn’t it?
ATTY. BANIQUED : No, Your Honor.
J. PANGANIBAN : It is not?
ATTY. BANIQUED : It’s not, because, Your Honor, there is an Executive Order that granted the
Petroleum companies some subsidy . . . interrupted
J. PANGANIBAN : That’s correct . . .
ATTY. BANIQUED : . . . and therefore that was meant to temper the impact . . . interrupted
J. PANGANIBAN : . . . mitigating measures . . .
ATTY. BANIQUED : Yes, Your Honor.
J. PANGANIBAN : As a matter of fact a part of the mitigating measures would be the elimination of
the Excise Tax and the import duties. That is why, it is not correct to say that the VAT as to
petroleum dealers increased prices by 10%.
J. PANGANIBAN : And therefore, there is no justification for increasing the retail price by 10% to
cover the E-Vat tax. If you consider the excise tax and the import duties, the Net Tax would probably
be in the neighborhood of 7%? We are not going into exact figures I am just trying to deliver a point
that different industries, different products, different services are hit differently. So it’s not correct to
say that all prices must go up by 10%.
ATTY. BANIQUED : You’re right, Your Honor.
J. PANGANIBAN : Now. For instance, Domestic Airline companies, Mr. Counsel, are at present
imposed a Sales Tax of 3%. When this E-Vat law took effect the Sales Tax was also removed as a
mitigating measure. So, therefore, there is no justification to increase the fares by 10% at best 7%,
correct?
ATTY. BANIQUED : I guess so, Your Honor, yes.
J. PANGANIBAN : There are other products that the people were complaining on that first day, were
being increased arbitrarily by 10%. And that’s one reason among many others this Court had to
issue TRO because of the confusion in the implementation. That’s why we added as an issue in this
case, even if it’s tangentially taken up by the pleadings of the parties, the confusion in the
implementation of the E-vat. Our people were subjected to the mercy of that confusion of an across
the board increase of 10%, which you yourself now admit and I think even the Government will admit
is incorrect. In some cases, it should be 3% only, in some cases it should be 6% depending on these
mitigating measures and the location and situation of each product, of each service, of each
company, isn’t it?
J. PANGANIBAN : Alright. So that’s one reason why we had to issue a TRO pending the clarification
of all these and we wish the government will take time to clarify all these by means of a more
detailed implementing rules, in case the law is upheld by this Court. . . . 6
The Court also directed the parties to file their respective Memoranda.
G.R. No. 168056
Before R.A. No. 9337 took effect, petitioners ABAKADA GURO Party List, et al., filed a petition for
prohibition on May 27, 2005. They question the constitutionality of Sections 4, 5 and 6 of R.A. No.
9337, amending Sections 106, 107 and 108, respectively, of the National Internal Revenue Code
(NIRC). Section 4 imposes a 10% VAT on sale of goods and properties, Section 5 imposes a 10%
VAT on importation of goods, and Section 6 imposes a 10% VAT on sale of services and use or
lease of properties. These questioned provisions contain a uniform proviso authorizing the
President, upon recommendation of the Secretary of Finance, to raise the VAT rate to 12%, effective
January 1, 2006, after any of the following conditions have been satisfied, to wit:
. . . That the President, upon the recommendation of the Secretary of Finance, shall, effective
January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following
conditions has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).
Petitioners argue that the law is unconstitutional, as it constitutes abandonment by Congress of its
exclusive authority to fix the rate of taxes under Article VI, Section 28(2) of the 1987 Philippine
Constitution.
G.R. No. 168207
On June 9, 2005, Sen. Aquilino Q. Pimentel, Jr., et al., filed a petition for certiorari likewise assailing
the constitutionality of Sections 4, 5 and 6 of R.A. No. 9337.
Aside from questioning the so-called stand-by authority of the President to increase the VAT rate to
12%, on the ground that it amounts to an undue delegation of legislative power, petitioners also
contend that the increase in the VAT rate to 12% contingent on any of the two conditions being
satisfied violates the due process clause embodied in Article III, Section 1 of the Constitution, as it
imposes an unfair and additional tax burden on the people, in that: (1) the 12% increase is
ambiguous because it does not state if the rate would be returned to the original 10% if the
conditions are no longer satisfied; (2) the rate is unfair and unreasonable, as the people are unsure
of the applicable VAT rate from year to year; and (3) the increase in the VAT rate, which is supposed
to be an incentive to the President to raise the VAT collection to at least 2 4/5 of the GDP of the
previous year, should only be based on fiscal adequacy.
Petitioners further claim that the inclusion of a stand-by authority granted to the President by the
Bicameral Conference Committee is a violation of the "no-amendment rule" upon last reading of a
bill laid down in Article VI, Section 26(2) of the Constitution.
G.R. No. 168461
Thereafter, a petition for prohibition was filed on June 29, 2005, by the Association of Pilipinas Shell
Dealers, Inc., et al., assailing the following provisions of R.A. No. 9337:
1) Section 8, amending Section 110 (A)(2) of the NIRC, requiring that the input tax on depreciable
goods shall be amortized over a 60-month period, if the acquisition, excluding the VAT components,
exceeds One Million Pesos (₱1, 000,000.00);
2) Section 8, amending Section 110 (B) of the NIRC, imposing a 70% limit on the amount of input tax
to be credited against the output tax; and
3) Section 12, amending Section 114 (c) of the NIRC, authorizing the Government or any of its
political subdivisions, instrumentalities or agencies, including GOCCs, to deduct a 5% final
withholding tax on gross payments of goods and services, which are subject to 10% VAT under
Sections 106 (sale of goods and properties) and 108 (sale of services and use or lease of
properties) of the NIRC.
Petitioners contend that these provisions are unconstitutional for being arbitrary, oppressive,
excessive, and confiscatory.
Petitioners’ argument is premised on the constitutional right of non-deprivation of life, liberty or

property without due process of law under Article III, Section 1 of the Constitution. According to
petitioners, the contested sections impose limitations on the amount of input tax that may be
claimed. Petitioners also argue that the input tax partakes the nature of a property that may not be
confiscated, appropriated, or limited without due process of law. Petitioners further contend that like
any other property or property right, the input tax credit may be transferred or disposed of, and that
by limiting the same, the government gets to tax a profit or value-added even if there is no profit or
value-added.
Petitioners also believe that these provisions violate the constitutional guarantee of equal protection
of the law under Article III, Section 1 of the Constitution, as the limitation on the creditable input tax
if: (1) the entity has a high ratio of input tax; or (2) invests in capital equipment; or (3) has several
transactions with the government, is not based on real and substantial differences to meet a valid
classification.
Lastly, petitioners contend that the 70% limit is anything but progressive, violative of Article VI,
Section 28(1) of the Constitution, and that it is the smaller businesses with higher input tax to output
tax ratio that will suffer the consequences thereof for it wipes out whatever meager margins the
petitioners make.
G.R. No. 168463

Several members of the House of Representatives led by Rep. Francis Joseph G. Escudero filed
this petition for certiorari on June 30, 2005. They question the constitutionality of R.A. No. 9337 on
the following grounds:
1) Sections 4, 5, and 6 of R.A. No. 9337 constitute an undue delegation of legislative power, in
violation of Article VI, Section 28(2) of the Constitution;
2) The Bicameral Conference Committee acted without jurisdiction in deleting the no pass
on provisions present in Senate Bill No. 1950 and House Bill No. 3705; and
3) Insertion by the Bicameral Conference Committee of Sections 27, 28, 34, 116, 117, 119, 121,
125,7 148, 151, 236, 237 and 288, which were present in Senate Bill No. 1950, violates Article VI,
Section 24(1) of the Constitution, which provides that all appropriation, revenue or tariff bills shall
originate exclusively in the House of Representatives
G.R. No. 168730
On the eleventh hour, Governor Enrique T. Garcia filed a petition for certiorari and prohibition on July
20, 2005, alleging unconstitutionality of the law on the ground that the limitation on the creditable
input tax in effect allows VAT-registered establishments to retain a portion of the taxes they collect,
thus violating the principle that tax collection and revenue should be solely allocated for public
purposes and expenditures. Petitioner Garcia further claims that allowing these establishments to
pass on the tax to the consumers is inequitable, in violation of Article VI, Section 28(1) of the
Constitution.
RESPONDENTS’ COMMENT
The Office of the Solicitor General (OSG) filed a Comment in behalf of respondents. Preliminarily,
respondents contend that R.A. No. 9337 enjoys the presumption of constitutionality and petitioners
failed to cast doubt on its validity.
Relying on the case of Tolentino vs. Secretary of Finance, 235 SCRA
630 (1994), respondents argue that the procedural issues raised by petitioners, i.e., legality of the
bicameral proceedings, exclusive origination of revenue measures and the power of the Senate
concomitant thereto, have already been settled. With regard to the issue of undue delegation of
legislative power to the President, respondents contend that the law is complete and leaves no
discretion to the President but to increase the rate to 12% once any of the two conditions provided
therein arise.
Respondents also refute petitioners’ argument that the increase to 12%, as well as the 70%
limitation on the creditable input tax, the 60-month amortization on the purchase or importation of
capital goods exceeding ₱1,000,000.00, and the 5% final withholding tax by government agencies,
is arbitrary, oppressive, and confiscatory, and that it violates the constitutional principle on
progressive taxation, among others.
Finally, respondents manifest that R.A. No. 9337 is the anchor of the government’s fiscal reform
agenda. A reform in the value-added system of taxation is the core revenue measure that will tilt the
balance towards a sustainable macroeconomic environment necessary for economic growth.
ISSUES
The Court defined the issues, as follows:
PROCEDURAL ISSUE
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
b. Article VI, Section 26(2)
SUBSTANTIVE ISSUES
1. Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:
a. Article VI, Section 28(1), and
2. Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:
b. Article III, Section 1
RULING OF THE COURT
As a prelude, the Court deems it apt to restate the general principles and concepts of value-added
tax (VAT), as the confusion and inevitably, litigation, breeds from a fallacious notion of its nature.
The VAT is a tax on spending or consumption. It is levied on the sale, barter, exchange or lease of
goods or properties and services.8 Being an indirect tax on expenditure, the seller of goods or
services may pass on the amount of tax paid to the buyer,9 with the seller acting merely as a tax
collector.10 The burden of VAT is intended to fall on the immediate buyers and ultimately, the end-
consumers.
In contrast, a direct tax is a tax for which a taxpayer is directly liable on the transaction or business it
engages in, without transferring the burden to someone else. 11 Examples are individual and
corporate income taxes, transfer taxes, and residence taxes.12
In the Philippines, the value-added system of sales taxation has long been in existence, albeit in a
different mode. Prior to 1978, the system was a single-stage tax computed under the "cost deduction
method" and was payable only by the original sellers. The single-stage system was subsequently
modified, and a mixture of the "cost deduction method" and "tax credit method" was used to
determine the value-added tax payable.13 Under the "tax credit method," an entity can credit against
or subtract from the VAT charged on its sales or outputs the VAT paid on its purchases, inputs and
imports.14
It was only in 1987, when President Corazon C. Aquino issued Executive Order No. 273, that the
VAT system was rationalized by imposing a multi-stage tax rate of 0% or 10% on all sales using the
"tax credit method."15
E.O. No. 273 was followed by R.A. No. 7716 or the Expanded VAT Law, 16 R.A. No. 8241 or the
Improved VAT Law,17 R.A. No. 8424 or the Tax Reform Act of 1997, 18 and finally, the presently
beleaguered R.A. No. 9337, also referred to by respondents as the VAT Reform Act.
The Court will now discuss the issues in logical sequence.
PROCEDURAL ISSUE
I.
Whether R.A. No. 9337 violates the following provisions of the Constitution:
a. Article VI, Section 24, and
A. The Bicameral Conference Committee
Petitioners Escudero, et al., and Pimentel, et al., allege that the Bicameral Conference Committee
exceeded its authority by:
1) Inserting the stand-by authority in favor of the President in Sections 4, 5, and 6 of R.A. No. 9337;
2) Deleting entirely the no pass-on provisions found in both the House and Senate bills;
3) Inserting the provision imposing a 70% limit on the amount of input tax to be credited against the
output tax; and
4) Including the amendments introduced only by Senate Bill No. 1950 regarding other kinds of taxes
in addition to the value-added tax.
Petitioners now beseech the Court to define the powers of the Bicameral Conference Committee.
It should be borne in mind that the power of internal regulation and discipline are intrinsic in any
legislative body for, as unerringly elucidated by Justice Story, "[i]f the power did not exist, it would
be utterly impracticable to transact the business of the nation, either at all, or at least with
decency, deliberation, and order."19 Thus, Article VI, Section 16 (3) of the Constitution provides
that "each House may determine the rules of its proceedings." Pursuant to this inherent
constitutional power to promulgate and implement its own rules of procedure, the respective rules of
each house of Congress provided for the creation of a Bicameral Conference Committee.
Thus, Rule XIV, Sections 88 and 89 of the Rules of House of Representatives provides as follows:
Sec. 88. Conference Committee. – In the event that the House does not agree with the Senate on
the amendment to any bill or joint resolution, the differences may be settled by the conference
committees of both chambers.
In resolving the differences with the Senate, the House panel shall, as much as possible, adhere to
and support the House Bill. If the differences with the Senate are so substantial that they materially
impair the House Bill, the panel shall report such fact to the House for the latter’s appropriate action.
Sec. 89. Conference Committee Reports. – . . . Each report shall contain a detailed, sufficiently
explicit statement of the changes in or amendments to the subject measure.
...
The Chairman of the House panel may be interpellated on the Conference Committee Report prior
to the voting thereon. The House shall vote on the Conference Committee Report in the same
manner and procedure as it votes on a bill on third and final reading.
Rule XII, Section 35 of the Rules of the Senate states:
Sec. 35. In the event that the Senate does not agree with the House of Representatives on the
provision of any bill or joint resolution, the differences shall be settled by a conference committee of
both Houses which shall meet within ten (10) days after their composition. The President shall
designate the members of the Senate Panel in the conference committee with the approval of the
Senate.
Each Conference Committee Report shall contain a detailed and sufficiently explicit statement of the
changes in, or amendments to the subject measure, and shall be signed by a majority of the
members of each House panel, voting separately.
A comparative presentation of the conflicting House and Senate provisions and a reconciled version
thereof with the explanatory statement of the conference committee shall be attached to the report.
...
The creation of such conference committee was apparently in response to a problem, not addressed
by any constitutional provision, where the two houses of Congress find themselves in disagreement
over changes or amendments introduced by the other house in a legislative bill. Given that one of
the most basic powers of the legislative branch is to formulate and implement its own rules of
proceedings and to discipline its members, may the Court then delve into the details of how
Congress complies with its internal rules or how it conducts its business of passing legislation? Note
that in the present petitions, the issue is not whether provisions of the rules of both houses creating
the bicameral conference committee are unconstitutional, but whether the bicameral conference
committee has strictly complied with the rules of both houses, thereby remaining within the
jurisdiction conferred upon it by Congress.
In the recent case of Fariñas vs. The Executive Secretary,20 the Court En

Banc, unanimously reiterated and emphasized its adherence to the "enrolled bill doctrine," thus,
declining therein petitioners’ plea for the Court to go behind the enrolled copy of the bill. Assailed in
said case was Congress’s creation of two sets of bicameral conference committees, the lack of
records of said committees’ proceedings, the alleged violation of said committees of the rules of both
houses, and the disappearance or deletion of one of the provisions in the compromise bill submitted
by the bicameral conference committee. It was argued that such irregularities in the passage of the
law nullified R.A. No. 9006, or the Fair Election Act.
Striking down such argument, the Court held thus:

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 cases 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. 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 vs. De Venecia, 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."21 (Emphasis supplied)
The foregoing declaration is exactly in point with the present cases, where petitioners allege
irregularities committed by the conference committee in introducing changes or deleting provisions in
the House and Senate bills. Akin to the Fariñas case,22 the present petitions also raise an issue
regarding the actions taken by the conference committee on matters regarding Congress’
compliance with its own internal rules. As stated earlier, one of the most basic and inherent power of
the legislature is the power to formulate rules for its proceedings and the discipline of its members.
Congress is the best judge of how it should conduct its own business expeditiously and in the most
orderly manner. It is also the sole
concern of Congress to instill discipline among the members of its conference committee if it
believes that said members violated any of its rules of proceedings. Even the expanded jurisdiction
of this Court cannot apply to questions regarding only the internal operation of Congress, thus, the
Court is wont to deny a review of the internal proceedings of a co-equal branch of government.
Moreover, as far back as 1994 or more than ten years ago, in the case of Tolentino vs. Secretary of
Finance,23 the Court already made the pronouncement that "[i]f a change is desired in the
practice [of the Bicameral Conference Committee] it must be sought in Congress since this
question is not covered by any constitutional provision but is only an internal rule of each
house." 24 To date, Congress has not seen it fit to make such changes adverted to by the Court. It
seems, therefore, that Congress finds the practices of the bicameral conference committee to be
very useful for purposes of prompt and efficient legislative action.
Nevertheless, just to put minds at ease that no blatant irregularities tainted the proceedings of the
bicameral conference committees, the Court deems it necessary to dwell on the issue. The Court
observes that there was a necessity for a conference committee because a comparison of the
provisions of House Bill Nos. 3555 and 3705 on one hand, and Senate Bill No. 1950 on the other,
reveals that there were indeed disagreements. As pointed out in the petitions, said disagreements
were as follows:
House Bill No. 3555 House Bill No.3705 Senate Bill No. 1950
With regard to "Stand-By Authority" in favor of President

Provides for 12% VAT on Provides for 12% VAT in general Provides for a single rate of
every sale of goods or on sales of goods or properties 10% VAT on sale of goods or
properties (amending Sec. and reduced rates for sale of properties (amending Sec.
106 of NIRC); 12% VAT on certain locally manufactured 106 of NIRC), 10% VAT on
importation of goods goods and petroleum products sale of services including sale
(amending Sec. 107 of and raw materials to be used in of electricity by generation
NIRC); and 12% VAT on the manufacture thereof companies, transmission and
sale of services and use or (amending Sec. 106 of NIRC); distribution companies, and
lease of properties 12% VAT on importation of use or lease of properties
(amending Sec. 108 of goods and reduced rates for (amending Sec. 108 of NIRC)
NIRC) certain imported products
including petroleum products
(amending Sec. 107 of NIRC);
and 12% VAT on sale of
services and use or lease of
properties and a reduced rate
for certain services including
power generation (amending
Sec. 108 of NIRC)
With regard to the "no pass-on" provision
No similar provision Provides that the VAT imposed Provides that the VAT
on power generation and on the imposed on sales of
sale of petroleum products shall electricity by generation
be absorbed by generation companies and services of
companies or sellers, transmission companies and
respectively, and shall not be distribution companies, as
passed on to consumers well as those of franchise
grantees of electric utilities
shall not apply to residential
end-users. VAT shall be

absorbed by generation,
transmission, and distribution
companies.
With regard to 70% limit on input tax credit
Provides that the input tax No similar provision Provides that the input tax
credit for capital goods on credit for capital goods on
which a VAT has been paid which a VAT has been paid
shall be equally distributed shall be equally distributed
over 5 years or the over 5 years or the
depreciable life of such depreciable life of such
capital goods; the input tax capital goods; the input tax
credit for goods and credit for goods and services
services other than capital other than capital goods shall
goods shall not exceed 5% not exceed 90% of the output
of the total amount of such VAT.
goods and services; and for
persons engaged in retail
trading of goods, the
allowable input tax credit
shall not exceed 11% of the
total amount of goods
purchased.
With regard to amendments to be made to NIRC provisions regarding income and excise
taxes
No similar provision No similar provision Provided for amendments to
several NIRC provisions
regarding corporate income,
percentage, franchise and
excise taxes
The disagreements between the provisions in the House bills and the Senate bill were with regard to
(1) what rate of VAT is to be imposed; (2) whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers, as proposed in the
Senate bill, or both the VAT imposed on electricity generation, transmission and distribution
companies and the VAT imposed on sale of petroleum products should not be passed on to
consumers, as proposed in the House bill; (3) in what manner input tax credits should be limited; (4)
and whether the NIRC provisions on corporate income taxes, percentage, franchise and excise
taxes should be amended.
There being differences and/or disagreements on the foregoing provisions of the House and Senate
bills, the Bicameral Conference Committee was mandated by the rules of both houses of Congress
to act on the same by settling said differences and/or disagreements. The Bicameral Conference
Committee acted on the disagreeing provisions by making the following changes:
1. With regard to the disagreement on the rate of VAT to be imposed, it would appear from the
Conference Committee Report that the Bicameral Conference Committee tried to bridge the gap in
the difference between the 10% VAT rate proposed by the Senate, and the various rates with 12%
as the highest VAT rate proposed by the House, by striking a compromise whereby the present 10%
VAT rate would be retained until certain conditions arise, i.e., the value-added tax collection as a
percentage of gross domestic product (GDP) of the previous year exceeds 2 4/5%, or National
Government deficit as a percentage of GDP of the previous year exceeds 1½%, when the President,
upon recommendation of the Secretary of Finance shall raise the rate of VAT to 12% effective
January 1, 2006.
2. With regard to the disagreement on whether only the VAT imposed on electricity generation,
transmission and distribution companies should not be passed on to consumers or whether both the
VAT imposed on electricity generation, transmission and distribution companies and the VAT
imposed on sale of petroleum products may be passed on to consumers, the Bicameral Conference
Committee chose to settle such disagreement by altogether deleting from its Report any no pass-
on provision.
3. With regard to the disagreement on whether input tax credits should be limited or not, the
Bicameral Conference Committee decided to adopt the position of the House by putting a limitation
on the amount of input tax that may be credited against the output tax, although it crafted its own
language as to the amount of the limitation on input tax credits and the manner of computing the
same by providing thus:
(A) Creditable Input Tax. – . . .
...
Provided, The input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds one million Pesos
(₱1,000,000.00): PROVIDED, however, that if the estimated useful life of the capital good is less
than five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such
shorter period: . . .
(B) Excess Output or Input Tax. – If at the end of any taxable quarter the output tax exceeds the
input tax, the excess shall be paid by the VAT-registered person. If the input tax exceeds the output
tax, the excess shall be carried over to the succeeding quarter or quarters: PROVIDED that the input
tax inclusive of input VAT carried over from the previous quarter that may be credited in every
quarter shall not exceed seventy percent (70%) of the output VAT: PROVIDED, HOWEVER, THAT
any input tax attributable to zero-rated sales by a VAT-registered person may at his option be
refunded or credited against other internal revenue taxes, . . .
4. With regard to the amendments to other provisions of the NIRC on corporate income tax,
franchise, percentage and excise taxes, the conference committee decided to include such
amendments and basically adopted the provisions found in Senate Bill No. 1950, with some changes
as to the rate of the tax to be imposed.
Under the provisions of both the Rules of the House of Representatives and Senate Rules, the
Bicameral Conference Committee is mandated to settle the differences between the disagreeing
provisions in the House bill and the Senate bill. The term "settle" is synonymous to "reconcile" and
"harmonize."25 To reconcile or harmonize disagreeing provisions, the Bicameral Conference
Committee may then (a) adopt the specific provisions of either the House bill or Senate bill, (b)
decide that neither provisions in the House bill or the provisions in the Senate bill would
be carried into the final form of the bill, and/or (c) try to arrive at a compromise between the
disagreeing provisions.
In the present case, the changes introduced by the Bicameral Conference Committee on
disagreeing provisions were meant only to reconcile and harmonize the disagreeing provisions for it
did not inject any idea or intent that is wholly foreign to the subject embraced by the original
provisions.
The so-called stand-by authority in favor of the President, whereby the rate of 10% VAT wanted by
the Senate is retained until such time that certain conditions arise when the 12% VAT wanted by the
House shall be imposed, appears to be a compromise to try to bridge the difference in the rate of
VAT proposed by the two houses of Congress. Nevertheless, such compromise is still totally within
the subject of what rate of VAT should be imposed on taxpayers.
The no pass-on provision was deleted altogether. In the transcripts of the proceedings of the
Bicameral Conference Committee held on May 10, 2005, Sen. Ralph Recto, Chairman of the Senate
Panel, explained the reason for deleting the no pass-on provision in this wise:
. . . the thinking was just to keep the VAT law or the VAT bill simple. And we were thinking that no
sector should be a beneficiary of legislative grace, neither should any sector be discriminated on.
The VAT is an indirect tax. It is a pass on-tax. And let’s keep it plain and simple. Let’s not confuse
the bill and put a no pass-on provision. Two-thirds of the world have a VAT system and in this two-
thirds of the globe, I have yet to see a VAT with a no pass-though provision. So, the thinking of the
Senate is basically simple, let’s keep the VAT simple.26 (Emphasis supplied)
Rep. Teodoro Locsin further made the manifestation that the no pass-on provision "never really
enjoyed the support of either House."27
With regard to the amount of input tax to be credited against output tax, the Bicameral Conference
Committee came to a compromise on the percentage rate of the limitation or cap on such input tax
credit, but again, the change introduced by the Bicameral Conference Committee was totally within
the intent of both houses to put a cap on input tax that may be
credited against the output tax. From the inception of the subject revenue bill in the House of
Representatives, one of the major objectives was to "plug a glaring loophole in the tax policy and
administration by creating vital restrictions on the claiming of input VAT tax credits . . ." and "[b]y
introducing limitations on the claiming of tax credit, we are capping a major leakage that has placed
our collection efforts at an apparent disadvantage." 28
As to the amendments to NIRC provisions on taxes other than the value-added tax proposed in
Senate Bill No. 1950, since said provisions were among those referred to it, the conference
committee had to act on the same and it basically adopted the version of the Senate.
Thus, all the changes or modifications made by the Bicameral Conference Committee were germane
to subjects of the provisions referred
to it for reconciliation. Such being the case, the Court does not see any grave abuse of discretion
amounting to lack or excess of jurisdiction committed by the Bicameral Conference Committee. In
the earlier cases of Philippine Judges Association vs. Prado29 and Tolentino vs. Secretary of
Finance,30 the Court recognized the long-standing legislative practice of giving said conference
committee ample latitude for compromising differences between the Senate and the House. Thus, in
the Tolentino case, it was held that:
. . . it is within the power of a conference committee to include in its report an entirely new provision
that is not found either in the House bill or in the Senate bill. If the committee can propose an
amendment consisting of one or two provisions, there is no reason why it cannot propose several
provisions, collectively considered as an "amendment in the nature of a substitute," so long as such
amendment is germane to the subject of the bills before the committee. After all, its report was not
final but needed the approval of both houses of Congress to become valid as an act of the legislative
department. The charge that in this case the Conference Committee acted as a third legislative
chamber is thus without any basis.31 (Emphasis supplied)
B. R.A. No. 9337 Does Not Violate Article VI, Section 26(2) of the Constitution on the "No-
Amendment Rule"
Article VI, Sec. 26 (2) of the Constitution, states:
No bill passed by either House shall become a law unless it has passed three readings on separate
days, and printed copies thereof in its final form have been distributed to its Members three days
before its passage, except when the President certifies to the necessity of its immediate enactment
to meet a public calamity or emergency. Upon the last reading of a bill, no amendment thereto shall
be allowed, and the vote thereon shall be taken immediately thereafter, and the yeas and nays
entered in the Journal.
Petitioners’ argument that the practice where a bicameral conference committee is allowed to add or
delete provisions in the House bill and the Senate bill after these had passed three readings is in
effect a circumvention of the "no amendment rule" (Sec. 26 (2), Art. VI of the 1987 Constitution), fails
to convince the Court to deviate from its ruling in the Tolentino case that:
Nor is there any reason for requiring that the Committee’s Report in these cases must have
undergone three readings in each of the two houses. If that be the case, there would be no end to
negotiation since each house may seek modification of the compromise bill. . . .
Art. VI. § 26 (2) must, therefore, be construed as referring only to bills introduced for the first
time in either house of Congress, not to the conference committee report.32 (Emphasis
supplied)
The Court reiterates here that the "no-amendment rule" refers only to the procedure to be
followed by each house of Congress with regard to bills initiated in each of said respective
houses, before said bill is transmitted to the other house for its concurrence or amendment.
Verily, to construe said provision in a way as to proscribe any further changes to a bill after one
house has voted on it would lead to absurdity as this would mean that the other house of Congress
would be deprived of its constitutional power to amend or introduce changes to said bill. Thus, Art.
VI, Sec. 26 (2) of the Constitution cannot be taken to mean that the introduction by the Bicameral
Conference Committee of amendments and modifications to disagreeing provisions in bills that have
been acted upon by both houses of Congress is prohibited.
C. R.A. No. 9337 Does Not Violate Article VI, Section 24 of the Constitution on Exclusive Origination
of Revenue Bills
Coming to the issue of the validity of the amendments made regarding the NIRC provisions on
corporate income taxes and percentage, excise taxes. Petitioners refer to the following provisions, to
wit:
Section 27 Rates of Income Tax on Domestic Corporation

28(A)(1) Tax on Resident Foreign Corporation
28(B)(1) Inter-corporate Dividends
34(B)(1) Inter-corporate Dividends
116 Tax on Persons Exempt from VAT
117 Percentage Tax on domestic carriers and keepers of Garage
119 Tax on franchises
121 Tax on banks and Non-Bank Financial Intermediaries
148 Excise Tax on manufactured oils and other fuels
151 Excise Tax on mineral products
236 Registration requirements
237 Issuance of receipts or sales or commercial invoices
288 Disposition of Incremental Revenue
Petitioners claim that the amendments to these provisions of the NIRC did not at all originate from
the House. They aver that House Bill No. 3555 proposed amendments only regarding Sections 106,
107, 108, 110 and 114 of the NIRC, while House Bill No. 3705 proposed amendments only to
Sections 106, 107,108, 109, 110 and 111 of the NIRC; thus, the other sections of the NIRC which
the Senate amended but which amendments were not found in the House bills are not intended to
be amended by the House of Representatives. Hence, they argue that since the proposed
amendments did not originate from the House, such amendments are a violation of Article VI,
Section 24 of the Constitution.
The argument does not hold water.
Article VI, Section 24 of the Constitution reads:
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.
In the present cases, petitioners admit that it was indeed House Bill Nos. 3555 and 3705 that
initiated the move for amending provisions of the NIRC dealing mainly with the value-added tax.
Upon transmittal of said House bills to the Senate, the Senate came out with Senate Bill No. 1950
proposing amendments not only to NIRC provisions on the value-added tax but also amendments to
NIRC provisions on other kinds of taxes. Is the introduction by the Senate of provisions not dealing
directly with the value- added tax, which is the only kind of tax being amended in the House bills, still
within the purview of the constitutional provision authorizing the Senate to propose or concur with
amendments to a revenue bill that originated from the House?
The foregoing question had been squarely answered in the Tolentino case, wherein the Court held,
thus:
. . . To begin with, it is not the law – but the revenue bill – which is required by the Constitution to
"originate exclusively" in the House of Representatives. It is important to emphasize this, because a
bill originating in the House may undergo such extensive changes in the Senate that the result may
be a rewriting of the whole. . . . At this point, what is important to note is that, as a result of the
Senate action, a distinct bill may be produced. To insist that a revenue statute – and not only the
bill which initiated the legislative process culminating in the enactment of the law – must
substantially be the same as the House bill would be to deny the Senate’s power not only to
"concur with amendments" but also to "propose amendments." It would be to violate the
coequality of legislative power of the two houses of Congress and in fact make the House superior to
the Senate.
…Given, then, the power of the Senate to propose amendments, the Senate can propose its
own version even with respect to bills which are required by the Constitution to originate in
the House.
...
Indeed, what the Constitution simply means is that the initiative for filing revenue, tariff or tax bills,
bills authorizing an increase of the public debt, private bills and bills of local application must come
from the House of Representatives on the theory that, elected as they are from the districts, the
members of the House can be expected to be more sensitive to the local needs and
problems. On the other hand, the senators, who are elected at large, are expected to
approach the same problems from the national perspective. Both views are thereby made to
bear on the enactment of such laws.33 (Emphasis supplied)
Since there is no question that the revenue bill exclusively originated in the House of
Representatives, the Senate was acting within its
constitutional power to introduce amendments to the House bill when it included provisions in
Senate Bill No. 1950 amending corporate income taxes, percentage, excise and franchise taxes.
Verily, Article VI, Section 24 of the Constitution does not contain any prohibition or limitation on the
extent of the amendments that may be introduced by the Senate to the House revenue bill.
Furthermore, the amendments introduced by the Senate to the NIRC provisions that had not been
touched in the House bills are still in furtherance of the intent of the House in initiating the subject
revenue bills. The Explanatory Note of House Bill No. 1468, the very first House bill introduced on
the floor, which was later substituted by House Bill No. 3555, stated:
One of the challenges faced by the present administration is the urgent and daunting task of solving
the country’s serious financial problems. To do this, government expenditures must be strictly
monitored and controlled and revenues must be significantly increased. This may be easier said
than done, but our fiscal authorities are still optimistic the government will be operating on a
balanced budget by the year 2009. In fact, several measures that will result to significant expenditure
savings have been identified by the administration. It is supported with a credible package of
revenue measures that include measures to improve tax administration and control the
leakages in revenues from income taxes and the value-added tax (VAT). (Emphasis supplied)
Rep. Eric D. Singson, in his sponsorship speech for House Bill No. 3555, declared that:
In the budget message of our President in the year 2005, she reiterated that we all acknowledged
that on top of our agenda must be the restoration of the health of our fiscal system.
In order to considerably lower the consolidated public sector deficit and eventually achieve a
balanced budget by the year 2009, we need to seize windows of opportunities which might
seem poignant in the beginning, but in the long run prove effective and beneficial to the
overall status of our economy. One such opportunity is a review of existing tax rates,
evaluating the relevance given our present conditions.34 (Emphasis supplied)
Notably therefore, the main purpose of the bills emanating from the House of Representatives is to
bring in sizeable revenues for the government
to supplement our country’s serious financial problems, and improve tax administration and control
of the leakages in revenues from income taxes and value-added taxes. As these house bills were
transmitted to the Senate, the latter, approaching the measures from the point of national
perspective, can introduce amendments within the purposes of those bills. It can provide for ways
that would soften the impact of the VAT measure on the consumer, i.e., by distributing the burden
across all sectors instead of putting it entirely on the shoulders of the consumers. The sponsorship
speech of Sen. Ralph Recto on why the provisions on income tax on corporation were included is
worth quoting:
All in all, the proposal of the Senate Committee on Ways and Means will raise ₱64.3 billion in
additional revenues annually even while by mitigating prices of power, services and petroleum
products.
However, not all of this will be wrung out of VAT. In fact, only ₱48.7 billion amount is from the VAT
on twelve goods and services. The rest of the tab – ₱10.5 billion- will be picked by corporations.
What we therefore prescribe is a burden sharing between corporate Philippines and the consumer.
Why should the latter bear all the pain? Why should the fiscal salvation be only on the burden of the
consumer?
The corporate world’s equity is in form of the increase in the corporate income tax from 32 to 35
percent, but up to 2008 only. This will raise ₱10.5 billion a year. After that, the rate will slide back,
not to its old rate of 32 percent, but two notches lower, to 30 percent.
Clearly, we are telling those with the capacity to pay, corporations, to bear with this emergency
provision that will be in effect for 1,200 days, while we put our fiscal house in order. This fiscal
medicine will have an expiry date.
For their assistance, a reward of tax reduction awaits them. We intend to keep the length of their
sacrifice brief. We would like to assure them that not because there is a light at the end of the tunnel,
this government will keep on making the tunnel long.
The responsibility will not rest solely on the weary shoulders of the small man. Big business will be
there to share the burden.35
As the Court has said, the Senate can propose amendments and in fact, the amendments made on
provisions in the tax on income of corporations are germane to the purpose of the house bills which
is to raise revenues for the government.
Likewise, the Court finds the sections referring to other percentage and excise taxes germane to the
reforms to the VAT system, as these sections would cushion the effects of VAT on consumers.
Considering that certain goods and services which were subject to percentage tax and excise tax
would no longer be VAT-exempt, the consumer would be burdened more as they would be paying
the VAT in addition to these taxes. Thus, there is a need to amend these sections to soften the
impact of VAT. Again, in his sponsorship speech, Sen. Recto said:
However, for power plants that run on oil, we will reduce to zero the present excise tax on bunker
fuel, to lessen the effect of a VAT on this product.
For electric utilities like Meralco, we will wipe out the franchise tax in exchange for a VAT.
And in the case of petroleum, while we will levy the VAT on oil products, so as not to destroy the
VAT chain, we will however bring down the excise tax on socially sensitive products such as diesel,
bunker, fuel and kerosene.
...
What do all these exercises point to? These are not contortions of giving to the left hand what was
taken from the right. Rather, these sprang from our concern of softening the impact of VAT, so that
the people can cushion the blow of higher prices they will have to pay as a result of VAT. 36
The other sections amended by the Senate pertained to matters of tax administration which are
necessary for the implementation of the changes in the VAT system.
To reiterate, the sections introduced by the Senate are germane to the subject matter and purposes
of the house bills, which is to supplement our country’s fiscal deficit, among others. Thus, the Senate
acted within its power to propose those amendments.
SUBSTANTIVE ISSUES
I.
Whether Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108 of the NIRC,
violate the following provisions of the Constitution:
A. No Undue Delegation of Legislative Power
Petitioners ABAKADA GURO Party List, et al., Pimentel, Jr., et al., and Escudero, et al. contend in
common that Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC giving the President the stand-by authority to raise the VAT rate from 10%
to 12% when a certain condition is met, constitutes undue delegation of the legislative power to tax.
The assailed provisions read as follows:
SEC. 4. Sec. 106 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 106. Value-Added Tax on Sale of Goods or Properties. –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected on every sale, barter or
exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross
selling price or gross value in money of the goods or properties sold, bartered or exchanged, such
tax to be paid by the seller or transferor: provided, that the President, upon the recommendation
of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax
to twelve percent (12%), after any of the following conditions has been satisfied.
(i) value-added tax collection as a percentage of Gross Domestic Product (GDP) of the
previous year exceeds two and four-fifth percent (2 4/5%) or
(ii) national government deficit as a percentage of GDP of the previous year exceeds one and
one-half percent (1 ½%).
SEC. 5. Section 107 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 107. Value-Added Tax on Importation of Goods. –
(A) In General. – There shall be levied, assessed and collected on every importation of goods a
value-added tax equivalent to ten percent (10%) based on the total value used by the Bureau of
Customs in determining tariff and customs duties, plus customs duties, excise taxes, if any, and
other charges, such tax to be paid by the importer prior to the release of such goods from customs
custody: Provided, That where the customs duties are determined on the basis of the quantity or
volume of the goods, the value-added tax shall be based on the landed cost plus excise taxes, if
any: provided, further, that the President, upon the recommendation of the Secretary of
Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent
(12%) after any of the following conditions has been satisfied.
one-half percent (1 ½%).
SEC. 6. Section 108 of the same Code, as amended, is hereby further amended to read as follows:
SEC. 108. Value-added Tax on Sale of Services and Use or Lease of Properties –
(A) Rate and Base of Tax. – There shall be levied, assessed and collected, a value-added tax
equivalent to ten percent (10%) of gross receipts derived from the sale or exchange of
services: provided, that the President, upon the recommendation of the Secretary of Finance,
shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%),
after any of the following conditions has been satisfied.
one-half percent (1 ½%). (Emphasis supplied)
Petitioners allege that the grant of the stand-by authority to the President to increase the VAT rate is
a virtual abdication by Congress of its exclusive power to tax because such delegation is not within
the purview of Section 28 (2), Article VI of the Constitution, which provides:
The Congress may, by law, authorize the President to fix within specified limits, and may impose,
tariff rates, import and export quotas, tonnage and wharfage dues, and other duties or imposts within
the framework of the national development program of the government.
They argue that the VAT is a tax levied on the sale, barter or exchange of goods and properties as
well as on the sale or exchange of services, which cannot be included within the purview of tariffs
under the exempted delegation as the latter refers to customs duties, tolls or tribute payable upon
merchandise to the government and usually imposed on goods or merchandise imported or
exported.
Petitioners ABAKADA GURO Party List, et al., further contend that delegating to the President the
legislative power to tax is contrary to republicanism. They insist that accountability, responsibility and
transparency should dictate the actions of Congress and they should not pass to the President the
decision to impose taxes. They also argue that the law also effectively nullified the President’s power
of control, which includes the authority to set aside and nullify the acts of her subordinates like the
Secretary of Finance, by mandating the fixing of the tax rate by the President upon the
recommendation of the Secretary of Finance.
Petitioners Pimentel, et al. aver that the President has ample powers to cause, influence or create
the conditions provided by the law to bring about either or both the conditions precedent.
On the other hand, petitioners Escudero, et al. find bizarre and revolting the situation that the
imposition of the 12% rate would be subject to the whim of the Secretary of Finance, an unelected
bureaucrat, contrary to the principle of no taxation without representation. They submit that the
Secretary of Finance is not mandated to give a favorable recommendation and he may not even give
his recommendation. Moreover, they allege that no guiding standards are provided in the law on
what basis and as to how he will make his recommendation. They claim, nonetheless, that any
recommendation of the Secretary of Finance can easily be brushed aside by the President since the
former is a mere alter ego of the latter, such that, ultimately, it is the President who decides whether
to impose the increased tax rate or not.
A brief discourse on the principle of non-delegation of powers is instructive.
The principle of separation of powers ordains that each of the three great branches of government
has exclusive cognizance of and is supreme in matters falling within its own constitutionally allocated
sphere.37 A logical
corollary to the doctrine of separation of powers is the principle of non-delegation of powers, as

expressed in the Latin maxim: potestas delegata non delegari potest which means "what has been
delegated, cannot be delegated."38 This doctrine is based on the ethical principle that such as
delegated power constitutes not only a right but a duty to be performed by the delegate through the
instrumentality of his own judgment and not through the intervening mind of another. 39
With respect to the Legislature, Section 1 of Article VI of the Constitution provides that "the
Legislative power shall be vested in the Congress of the Philippines which shall consist of a Senate
and a House of Representatives." The powers which Congress is prohibited from delegating are
those which are strictly, or inherently and exclusively, legislative. Purely legislative power, which can
never be delegated, has been described as the authority to make a complete law – complete as
to the time when it shall take effect and as to whom it shall be applicable – and to determine
the expediency of its enactment.40 Thus, the rule is that in order that a court may be justified in
holding a statute unconstitutional as a delegation of legislative power, it must appear that the power
involved is purely legislative in nature – that is, one appertaining exclusively to the legislative
department. It is the nature of the power, and not the liability of its use or the manner of its exercise,
which determines the validity of its delegation.
Nonetheless, the general rule barring delegation of legislative powers is subject to the following
recognized limitations or exceptions:
(1) Delegation of tariff powers to the President under Section 28 (2) of Article VI of the Constitution;
(2) Delegation of emergency powers to the President under Section 23 (2) of Article VI of the
Constitution;
(3) Delegation to the people at large;
(4) Delegation to local governments; and
(5) Delegation to administrative bodies.
In every case of permissible delegation, there must be a showing that the delegation itself is valid. It
is valid only if the law (a) is complete in itself, setting forth therein the policy to be executed, carried
out, or implemented by the delegate;41 and (b) fixes a standard — the limits of which are sufficiently
determinate and determinable — to which the delegate must conform in the performance of his
functions.42 A sufficient standard is one which defines legislative policy, marks its limits, maps out its
boundaries and specifies the public agency to apply it. It indicates the circumstances under which
the legislative command is to be effected. 43 Both tests are intended to prevent a total transference of
legislative authority to the delegate, who is not allowed to step into the shoes of the legislature and
exercise a power essentially legislative.44
In People vs. Vera,45 the Court, through eminent Justice Jose P. Laurel, expounded on the concept
and extent of delegation of power in this wise:
In testing whether a statute constitutes an undue delegation of legislative power or not, it is usual to
inquire whether the statute was complete in all its terms and provisions when it left the hands of the
legislature so that nothing was left to the judgment of any other appointee or delegate of the
legislature.
...
‘The true distinction’, says Judge Ranney, ‘is between the delegation of power to make the
law, which necessarily involves a discretion as to what it shall be, and conferring an 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.’
...
It is contended, however, that a legislative act may be made to the effect as law after it leaves the
hands of the legislature. It is true that laws may be made effective on certain contingencies, as by
proclamation of the executive or the adoption by the people of a particular community. In Wayman
vs. Southard, the Supreme Court of the United States ruled that the legislature may delegate a
power not legislative which it may itself rightfully exercise. The power to ascertain facts is such a
power which may be delegated. There is nothing essentially legislative in ascertaining the
existence of facts or conditions as the basis of the taking into effect of a law. That is a mental
process common to all branches of the government. Notwithstanding the apparent tendency,
however, to relax the rule prohibiting delegation of legislative authority on account of the complexity
arising from social and economic forces at work in this modern industrial age, the orthodox
pronouncement of Judge Cooley in his work on Constitutional Limitations finds restatement in Prof.
Willoughby's treatise on the Constitution of the United States in the following language — speaking
of declaration of legislative power to administrative agencies: The principle which permits the
legislature to provide that the administrative agent may determine when the circumstances
are such as require the application of a law is defended upon the ground that at the time this
authority is granted, the rule of public policy, which is the essence of the legislative act, is
determined by the legislature. In other words, the legislature, as it is its duty to do,
determines that, under given circumstances, certain executive or administrative action is to
be taken, and that, under other circumstances, different or no action at all is to be taken.
What is thus left to the administrative official is not the legislative determination of what
public policy demands, but simply the ascertainment of what the facts of the case require to
be done according to the terms of the law by which he is governed. The efficiency of an Act
as a declaration of legislative will must, of course, come from Congress, but the
ascertainment of the contingency upon which the Act shall take effect may be left to such
agencies as it may designate. The legislature, then, may provide that a law shall take effect
upon the happening of future specified contingencies leaving to some other person or body
the power to determine when the specified contingency has arisen. (Emphasis supplied).46
In Edu vs. Ericta,47 the Court reiterated:
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 inquiry must be directed to the scope and definiteness of the measure enacted. The
legislative does not abdicate its functions 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 be the only way in
which the legislative process can go forward. A distinction has rightfully been made between
delegation of power to make the laws which necessarily involves a discretion as to what it
shall be, which constitutionally may not be done, and delegation of authority or discretion as
to its execution to be exercised under and in pursuance of the law, to which no valid
objection can be made. The Constitution is thus not to be regarded as denying the legislature the
necessary resources of flexibility and practicability. (Emphasis supplied). 48
Clearly, the legislature may delegate to executive officers or bodies the power to determine certain
facts or conditions, or the happening of contingencies, on which the operation of a statute is, by its
terms, made to depend, but the legislature must prescribe sufficient standards, policies or limitations
on their authority.49 While the power to tax cannot be delegated to executive agencies, details as to
the enforcement and administration of an exercise of such power may be left to them, including the
power to determine the existence of facts on which its operation depends. 50
The rationale for this is that the preliminary ascertainment of facts as basis for the enactment of
legislation is not of itself a legislative function, but is simply ancillary to legislation. Thus, the duty of
correlating information and making recommendations is the kind of subsidiary activity which the
legislature may perform through its members, or which it may delegate to others to perform.
Intelligent legislation on the complicated problems of modern society is impossible in the absence of
accurate information on the part of the legislators, and any reasonable method of securing such
information is proper.51 The Constitution as a continuously operative charter of government does not
require that Congress find for itself
every fact upon which it desires to base legislative action or that it make for itself detailed
determinations which it has declared to be prerequisite to application of legislative policy to particular
facts and circumstances impossible for Congress itself properly to investigate. 52
In the present case, the challenged section of R.A. No. 9337 is the common proviso in Sections 4, 5
and 6 which reads as follows:
That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1,
2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions
has been satisfied:
(i) Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous
year exceeds two and four-fifth percent (2 4/5%); or
(ii) National government deficit as a percentage of GDP of the previous year exceeds one and one-
half percent (1 ½%).
The case before the Court is not a delegation of legislative power. It is simply a delegation of
ascertainment of facts upon which enforcement and administration of the increase rate under the law
is contingent. The legislature has made the operation of the 12% rate effective January 1, 2006,
contingent upon a specified fact or condition. It leaves the entire operation or non-operation of the
12% rate upon factual matters outside of the control of the executive.
No discretion would be exercised by the President. Highlighting the absence of discretion is the fact
that the word shall is used in the common proviso. The use of the word shall connotes a mandatory
order. Its use in a statute denotes an imperative obligation and is inconsistent with the idea of
discretion.53 Where the law is clear and unambiguous, it must be taken to mean exactly what it says,
and courts have no choice but to see to it that the mandate is obeyed. 54
Thus, it is the ministerial duty of the President to immediately impose the 12% rate upon the
existence of any of the conditions specified by Congress. This is a duty which cannot be evaded by
the President. Inasmuch as the law specifically uses the word shall, the exercise of discretion by the
President does not come into play. It is a clear directive to impose the 12% VAT rate when the
specified conditions are present. The time of taking into effect of the 12% VAT rate is based on the
happening of a certain specified contingency, or upon the ascertainment of certain facts or
conditions by a person or body other than the legislature itself.
The Court finds no merit to the contention of petitioners ABAKADA GURO Party List, et al. that the
law effectively nullified the President’s power of control over the Secretary of Finance by mandating
the fixing of the tax rate by the President upon the recommendation of the Secretary of Finance. The
Court cannot also subscribe to the position of petitioners
Pimentel, et al. that the word shall should be interpreted to mean may in view of the phrase "upon
the recommendation of the Secretary of Finance." Neither does the Court find persuasive the
submission of petitioners Escudero, et al. that any recommendation by the Secretary of Finance can
easily be brushed aside by the President since the former is a mere alter ego of the latter.
When one speaks of the Secretary of Finance as the alter ego of the President, it simply means that
as head of the Department of Finance he is the assistant and agent of the Chief Executive. The
multifarious executive and administrative functions of the Chief Executive are performed by and
through the executive departments, and the acts of the secretaries of such departments, such as the
Department of Finance, performed and promulgated in the regular course of business, are, unless
disapproved or reprobated by the Chief Executive, presumptively the acts of the Chief
Executive. The Secretary of Finance, as such, occupies a political position and holds office in an
advisory capacity, and, in the language of Thomas Jefferson, "should be of the President's bosom
confidence" and, in the language of Attorney-General Cushing, is "subject to the direction of the
President."55
In the present case, in making his recommendation to the President on the existence of either of the
two conditions, the Secretary of Finance is not acting as the alter ego of the President or even her
subordinate. In such instance, he is not subject to the power of control and direction of the President.
He is acting as the agent of the legislative department, to determine and declare the event upon
which its expressed will is to take effect.56 The Secretary of Finance becomes the means or tool by
which legislative policy is determined and implemented, considering that he possesses all the
facilities to gather data and information and has a much broader perspective to properly evaluate
them. His function is to gather and collate statistical data and other pertinent information and verify if
any of the two conditions laid out by Congress is present. His personality in such instance is in
reality but a projection of that of Congress. Thus, being the agent of Congress and not of the
President, the President cannot alter or modify or nullify, or set aside the findings of the Secretary of
Finance and to substitute the judgment of the former for that of the latter.
Congress simply granted the Secretary of Finance the authority to ascertain the existence of a fact,
namely, whether by December 31, 2005, the value-added tax collection as a percentage of Gross
Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (2 4/5%) or the
national government deficit as a percentage of GDP of the previous year exceeds one and one-half
percent (1½%). If either of these two instances has occurred, the Secretary of Finance, by legislative
mandate, must submit such information to the President. Then the 12% VAT rate must be imposed
by the President effective January 1, 2006. There is no undue delegation of legislative power but
only of the discretion as to the execution of a law. This is constitutionally
permissible.57 Congress does not abdicate its functions or unduly delegate power when it describes
what job must be done, who must do it, and what is the scope of his authority; in our complex
economy that is frequently the only way in which the legislative process can go forward. 58
As to the argument of petitioners ABAKADA GURO Party List, et al. that delegating to the President

the legislative power to tax is contrary to the principle of republicanism, the same deserves scant
consideration. Congress did not delegate the power to tax but the mere implementation of the law.
The intent and will to increase the VAT rate to 12% came from Congress and the task of the
President is to simply execute the legislative policy. That Congress chose to do so in such a manner
is not within the province of the Court to inquire into, its task being to interpret the law. 59
The insinuation by petitioners Pimentel, et al. that the President has ample powers to cause,
influence or create the conditions to bring about either or both the conditions precedent does not
deserve any merit as this argument is highly speculative. The Court does not rule on allegations
which are manifestly conjectural, as these may not exist at all. The Court deals with facts, not
fancies; on realities, not appearances. When the Court acts on appearances instead of realities,
justice and law will be short-lived.
B. The 12% Increase VAT Rate Does Not Impose an Unfair and Unnecessary Additional Tax Burden
Petitioners Pimentel, et al. argue that the 12% increase in the VAT rate imposes an unfair and
additional tax burden on the people. Petitioners also argue that the 12% increase, dependent on any
of the 2 conditions set forth in the contested provisions, is ambiguous because it does not state if the
VAT rate would be returned to the original 10% if the rates are no longer satisfied. Petitioners also
argue that such rate is unfair and unreasonable, as the people are unsure of the applicable VAT rate
from year to year.
Under the common provisos of Sections 4, 5 and 6 of R.A. No. 9337, if any of the two conditions set
forth therein are satisfied, the President shall increase the VAT rate to 12%. The provisions of the
law are clear. It does not provide for a return to the 10% rate nor does it empower the President to
so revert if, after the rate is increased to 12%, the VAT collection goes below the 2 4/5 of the GDP of
the previous year or that the national government deficit as a percentage of GDP of the previous
year does not exceed 1½%.
Therefore, no statutory construction or interpretation is needed. Neither can conditions or limitations

be introduced where none is provided for. Rewriting the law is a forbidden ground that only
Congress may tread upon.60
Thus, in the absence of any provision providing for a return to the 10% rate, which in this case the
Court finds none, petitioners’ argument is, at best, purely speculative. There is no basis for
petitioners’ fear of a fluctuating VAT rate because the law itself does not provide that the rate should
go back to 10% if the conditions provided in Sections 4, 5 and 6 are no longer present. The rule is
that where the provision of the law is clear and unambiguous, so that there is no occasion for the
court's seeking the legislative intent, the law must be taken as it is, devoid of judicial addition or
subtraction.61
Petitioners also contend that the increase in the VAT rate, which was allegedly an incentive to the
President to raise the VAT collection to at least 2 4/5 of the GDP of the previous year, should be
based on fiscal adequacy.
Petitioners obviously overlooked that increase in VAT collection is not the only condition. There is
another condition, i.e., the national government deficit as a percentage of GDP of the previous year
exceeds one and one-half percent (1 ½%).
Respondents explained the philosophy behind these alternative conditions:
1. VAT/GDP Ratio > 2.8%
The condition set for increasing VAT rate to 12% have economic or fiscal meaning. If VAT/GDP is
less than 2.8%, it means that government has weak or no capability of implementing the VAT or that
VAT is not effective in the function of the tax collection. Therefore, there is no value to increase it to
12% because such action will also be ineffectual.
2. Nat’l Gov’t Deficit/GDP >1.5%
The condition set for increasing VAT when deficit/GDP is 1.5% or less means the fiscal condition of
government has reached a relatively sound position or is towards the direction of a balanced budget
position. Therefore, there is no need to increase the VAT rate since the fiscal house is in a relatively
healthy position. Otherwise stated, if the ratio is more than 1.5%, there is indeed a need to increase
the VAT rate.62
That the first condition amounts to an incentive to the President to increase the VAT collection does
not render it unconstitutional so long as there is a public purpose for which the law was passed,
which in this case, is mainly to raise revenue. In fact, fiscal adequacy dictated the need for a raise in
revenue.
The principle of fiscal adequacy as a characteristic of a sound tax system was originally stated by
Adam Smith in his Canons of Taxation (1776), as:
IV. Every tax ought to be so contrived as both to take out and to keep out of the pockets of the
people as little as possible over and above what it brings into the public treasury of the state. 63
It simply means that sources of revenues must be adequate to meet government expenditures and
their variations.64
The dire need for revenue cannot be ignored. Our country is in a quagmire of financial woe. During
the Bicameral Conference Committee hearing, then Finance Secretary Purisima bluntly depicted the
country’s gloomy state of economic affairs, thus:
First, let me explain the position that the Philippines finds itself in right now. We are in a position
where 90 percent of our revenue is used for debt service. So, for every peso of revenue that we
currently raise, 90 goes to debt service. That’s interest plus amortization of our debt. So clearly, this
is not a sustainable situation. That’s the first fact.
The second fact is that our debt to GDP level is way out of line compared to other peer countries that
borrow money from that international financial markets. Our debt to GDP is approximately equal to
our GDP. Again, that shows you that this is not a sustainable situation.
The third thing that I’d like to point out is the environment that we are presently operating in is not as
benign as what it used to be the past five years.
What do I mean by that?
In the past five years, we’ve been lucky because we were operating in a period of basically global
growth and low interest rates. The past few months, we have seen an inching up, in fact, a rapid
increase in the interest rates in the leading economies of the world. And, therefore, our ability to
borrow at reasonable prices is going to be challenged. In fact, ultimately, the question is our ability to
access the financial markets.
When the President made her speech in July last year, the environment was not as bad as it is now,
at least based on the forecast of most financial institutions. So, we were assuming that raising 80
billion would put us in a position where we can then convince them to improve our ability to borrow at
lower rates. But conditions have changed on us because the interest rates have gone up. In fact, just
within this room, we tried to access the market for a billion dollars because for this year alone, the
Philippines will have to borrow 4 billion dollars. Of that amount, we have borrowed 1.5 billion. We
issued last January a 25-year bond at 9.7 percent cost. We were trying to access last week and the
market was not as favorable and up to now we have not accessed and we might pull back because
the conditions are not very good.
So given this situation, we at the Department of Finance believe that we really need to front-end our
deficit reduction. Because it is deficit that is causing the increase of the debt and we are in what we
call a debt spiral. The more debt you have, the more deficit you have because interest and debt
service eats and eats more of your revenue. We need to get out of this debt spiral. And the only way,
I think, we can get out of this debt spiral is really have a front-end adjustment in our revenue base. 65
The image portrayed is chilling. Congress passed the law hoping for rescue from an inevitable
catastrophe. Whether the law is indeed sufficient to answer the state’s economic dilemma is not for
the Court to judge. In the Fariñas case, the Court refused to consider the various arguments raised
therein that dwelt on the wisdom of Section 14 of R.A. No. 9006 (The Fair Election Act), pronouncing
that:
. . . 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. 66
In the same vein, the Court in this case will not dawdle on the purpose of Congress or the executive
policy, given that it is not for the judiciary to "pass upon questions of wisdom, justice or expediency
of legislation."67
II.
Whether Section 8 of R.A. No. 9337, amending Sections 110(A)(2) and 110(B) of the NIRC; and
Section 12 of R.A. No. 9337, amending Section 114(C) of the NIRC, violate the following provisions
of the Constitution:
b. Article III, Section 1

A. Due Process and Equal Protection Clauses
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. argue that Section 8 of R.A. No. 9337,
amending Sections 110 (A)(2), 110 (B), and Section 12 of R.A. No. 9337, amending Section 114 (C)
of the NIRC are arbitrary, oppressive, excessive and confiscatory. Their argument is premised on
the constitutional right against deprivation of life, liberty of property without due process of law, as
embodied in Article III, Section 1 of the Constitution.
Petitioners also contend that these provisions violate the constitutional guarantee of equal protection
of the law.
The doctrine is that where the due process and equal protection clauses are invoked, considering
that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive
character as would lead to such a conclusion. Absent such a showing, the presumption of validity
must prevail.68
Section 8 of R.A. No. 9337, amending Section 110(B) of the NIRC imposes a limitation on the
amount of input tax that may be credited against the output tax. It states, in part: "[P]rovided, that the
input tax inclusive of the input VAT carried over from the previous quarter that may be credited in
every quarter shall not exceed seventy percent (70%) of the output VAT: …"
Input Tax is defined under Section 110(A) of the NIRC, as amended, as the value-added tax
due from or paid by a VAT-registered person on the importation of goods or local purchase of good
and services, including lease or use of property, in the course of trade or business, from a VAT-
registered person, and Output Tax is the value-added tax due on the sale or lease of taxable goods
or properties or services by any person registered or required to register under the law.
Petitioners claim that the contested sections impose limitations on the amount of input tax that may
be claimed. In effect, a portion of the input tax that has already been paid cannot now be credited
against the output tax.
Petitioners’ argument is not absolute. It assumes that the input tax exceeds 70% of the output tax,
and therefore, the input tax in excess of 70% remains uncredited. However, to the extent that the
input tax is less than 70% of the output tax, then 100% of such input tax is still creditable.
More importantly, the excess input tax, if any, is retained in a business’s books of accounts and
remains creditable in the succeeding quarter/s. This is explicitly allowed by Section 110(B), which
provides that "if the input tax exceeds the output tax, the excess shall be carried over to the
succeeding quarter or quarters." In addition, Section 112(B) allows a VAT-registered person to apply
for the issuance of a tax credit certificate or refund for any unused input taxes, to the extent that
such input taxes have not been applied against the output taxes. Such unused input tax may be
used in payment of his other internal revenue taxes.
The non-application of the unutilized input tax in a given quarter is not ad infinitum, as petitioners
exaggeratedly contend. Their analysis of the effect of the 70% limitation is incomplete and one-
sided. It ends at the net effect that there will be unapplied/unutilized inputs VAT for a given quarter. It
does not proceed further to the fact that such unapplied/unutilized input tax may be credited in the
subsequent periods as allowed by the carry-over provision of Section 110(B) or that it may later on
be refunded through a tax credit certificate under Section 112(B).
Therefore, petitioners’ argument must be rejected.

On the other hand, it appears that petitioner Garcia failed to comprehend the operation of the 70%
limitation on the input tax. According to petitioner, the limitation on the creditable input tax in effect
allows VAT-registered establishments to retain a portion of the taxes they collect, which violates the
principle that tax collection and revenue should be for public purposes and expenditures
As earlier stated, the input tax is the tax paid by a person, passed on to him by the seller, when he
buys goods. Output tax meanwhile is the tax due to the person when he sells goods. In computing
the VAT payable, three possible scenarios may arise:
First, if at the end of a taxable quarter the output taxes charged by the seller are equal to the input
taxes that he paid and passed on by the suppliers, then no payment is required;
Second, when the output taxes exceed the input taxes, the person shall be liable for the excess,
which has to be paid to the Bureau of Internal Revenue (BIR);69 and
Third, if the input taxes exceed the output taxes, the excess shall be carried over to the succeeding
quarter or quarters. Should the input taxes result from zero-rated or effectively zero-rated
transactions, any excess over the output taxes shall instead be refunded to the taxpayer or credited
against other internal revenue taxes, at the taxpayer’s option. 70
Section 8 of R.A. No. 9337 however, imposed a 70% limitation on the input tax. Thus, a person can
credit his input tax only up to the extent of 70% of the output tax. In layman’s term, the value-added
taxes that a person/taxpayer paid and passed on to him by a seller can only be credited up to 70%
of the value-added taxes that is due to him on a taxable transaction. There is no retention of any tax
collection because the person/taxpayer has already previously paid the input tax to a seller, and the
seller will subsequently remit such input tax to the BIR. The party directly liable for the payment of
the tax is the seller.71 What only needs to be done is for the person/taxpayer to apply or credit these
input taxes, as evidenced by receipts, against his output taxes.
Petitioners Association of Pilipinas Shell Dealers, Inc., et al. also argue that the input tax partakes
the nature of a property that may not be confiscated, appropriated, or limited without due process of
law.
The input tax is not a property or a property right within the constitutional purview of the due process
clause. A VAT-registered person’s entitlement to the creditable input tax is a mere statutory
privilege.
The distinction between statutory privileges and vested rights must be borne in mind for persons
have no vested rights in statutory privileges. The state may change or take away rights, which were
created by the law of the state, although it may not take away property, which was vested by virtue
of such rights.72
Under the previous system of single-stage taxation, taxes paid at every level of distribution are not
recoverable from the taxes payable, although it becomes part of the cost, which is deductible from
the gross revenue. When Pres. Aquino issued E.O. No. 273 imposing a 10% multi-stage tax on all
sales, it was then that the crediting of the input tax paid on purchase or importation of goods and
services by VAT-registered persons against the output tax was introduced. 73 This was adopted by
the Expanded VAT Law (R.A. No. 7716), 74 and The Tax Reform Act of 1997 (R.A. No. 8424).75 The
right to credit input tax as against the output tax is clearly a privilege created by law, a privilege that
also the law can remove, or in this case, limit.
Petitioners also contest as arbitrary, oppressive, excessive and confiscatory, Section 8 of R.A. No.
9337, amending Section 110(A) of the NIRC, which provides:
SEC. 110. Tax Credits. –
(A) Creditable Input Tax. – …
Provided, That the input tax on goods purchased or imported in a calendar month for use in trade or
business for which deduction for depreciation is allowed under this Code, shall be spread evenly
over the month of acquisition and the fifty-nine (59) succeeding months if the aggregate acquisition
cost for such goods, excluding the VAT component thereof, exceeds One million pesos
(₱1,000,000.00): Provided, however, That if the estimated useful life of the capital goods is less than
five (5) years, as used for depreciation purposes, then the input VAT shall be spread over such a
shorter period: Provided, finally, That in the case of purchase of services, lease or use of properties,
the input tax shall be creditable to the purchaser, lessee or license upon payment of the
compensation, rental, royalty or fee.
The foregoing section imposes a 60-month period within which to amortize the creditable input tax
on purchase or importation of capital goods with acquisition cost of ₱1 Million pesos, exclusive of the
VAT component. Such spread out only poses a delay in the crediting of the input tax. Petitioners’
argument is without basis because the taxpayer is not permanently deprived of his privilege to credit
the input tax.
It is worth mentioning that Congress admitted that the spread-out of the creditable input tax in this
case amounts to a 4-year interest-free loan to the government. 76 In the same breath, Congress also
justified its move by saying that the provision was designed to raise an annual revenue of 22.6
billion.77 The legislature also dispelled the fear that the provision will fend off foreign investments,
saying that foreign investors have other tax incentives provided by law, and citing the case of China,
where despite a 17.5% non-creditable VAT, foreign investments were not deterred. 78 Again, for
whatever is the purpose of the 60-month amortization, this involves executive economic policy and
legislative wisdom in which the Court cannot intervene.
With regard to the 5% creditable withholding tax imposed on payments made by the government for
taxable transactions, Section 12 of R.A. No. 9337, which amended Section 114 of the NIRC, reads:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Value-added Tax. – The Government or any of its political subdivisions,
instrumentalities or agencies, including government-owned or controlled corporations (GOCCs)
shall, before making payment on account of each purchase of goods and services which are subject
to the value-added tax imposed in Sections 106 and 108 of this Code, deduct and withhold a final
value-added tax at the rate of five percent (5%) of the gross payment thereof: Provided, That the
payment for lease or use of properties or property rights to nonresident owners shall be subject to
ten percent (10%) withholding tax at the time of payment. For purposes of this Section, the payor or
person in control of the payment shall be considered as the withholding agent.
The value-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made.
Section 114(C) merely provides a method of collection, or as stated by respondents, a more
simplified VAT withholding system. The government in this case is constituted as a withholding
agent with respect to their payments for goods and services.
Prior to its amendment, Section 114(C) provided for different rates of value-added taxes to be
withheld -- 3% on gross payments for purchases of goods; 6% on gross payments for services
supplied by contractors other than by public works contractors; 8.5% on gross payments for services
supplied by public work contractors; or 10% on payment for the lease or use of properties or
property rights to nonresident owners. Under the present Section 114(C), these different rates,
except for the 10% on lease or property rights payment to nonresidents, were deleted, and a uniform
rate of 5% is applied.
The Court observes, however, that the law the used the word final. In tax usage, final, as opposed to
creditable, means full. Thus, it is provided in Section 114(C): "final value-added tax at the rate of five
percent (5%)."
In Revenue Regulations No. 02-98, implementing R.A. No. 8424 (The Tax Reform Act of 1997), the
concept of final withholding tax on income was explained, to wit:
SECTION 2.57. Withholding of Tax at Source
(A) Final Withholding Tax. – Under the final withholding tax system the amount of income tax
withheld by the withholding agent is constituted as full and final payment of the income tax due
from the payee on the said income. The liability for payment of the tax rests primarily on the payor as
a withholding agent. Thus, in case of his failure to withhold the tax or in case of underwithholding,
the deficiency tax shall be collected from the payor/withholding agent. …
(B) Creditable Withholding Tax. – Under the creditable withholding tax system, taxes withheld on
certain income payments are intended to equal or at least approximate the tax due of the payee on
said income. … Taxes withheld on income payments covered by the expanded withholding tax
(referred to in Sec. 2.57.2 of these regulations) and compensation income (referred to in Sec. 2.78
also of these regulations) are creditable in nature.
As applied to value-added tax, this means that taxable transactions with the government are subject
to a 5% rate, which constitutes as full payment of the tax payable on the transaction. This represents
the net VAT payable of the seller. The other 5% effectively accounts for the standard input VAT
(deemed input VAT), in lieu of the actual input VAT directly or attributable to the taxable
transaction.79
The Court need not explore the rationale behind the provision. It is clear that Congress intended to
treat differently taxable transactions with the government. 80 This is supported by the fact that under
the old provision, the 5% tax withheld by the government remains creditable against the tax liability
of the seller or contractor, to wit:
SEC. 114. Return and Payment of Value-added Tax. –
(C) Withholding of Creditable Value-added Tax. – The Government or any of its political

subdivisions, instrumentalities or agencies, including government-owned or controlled corporations
(GOCCs) shall, before making payment on account of each purchase of goods from sellers and
services rendered by contractors which are subject to the value-added tax imposed in Sections 106
and 108 of this Code, deduct and withhold the value-added tax due at the rate of three percent (3%)
of the gross payment for the purchase of goods and six percent (6%) on gross receipts for services
rendered by contractors on every sale or installment payment which shall be creditable against the
value-added tax liability of the seller or contractor: Provided, however, That in the case of
government public works contractors, the withholding rate shall be eight and one-half percent
(8.5%): Provided, further, That the payment for lease or use of properties or property rights to
nonresident owners shall be subject to ten percent (10%) withholding tax at the time of payment. For
this purpose, the payor or person in control of the payment shall be considered as the withholding
agent.
The valued-added tax withheld under this Section shall be remitted within ten (10) days following the
end of the month the withholding was made. (Emphasis supplied)
As amended, the use of the word final and the deletion of the word creditable exhibits Congress’s
intention to treat transactions with the government differently. Since it has not been shown that the
class subject to the 5% final withholding tax has been unreasonably narrowed, there is no reason to
invalidate the provision. Petitioners, as petroleum dealers, are not the only ones subjected to the 5%
final withholding tax. It applies to all those who deal with the government.
Moreover, the actual input tax is not totally lost or uncreditable, as petitioners believe. Revenue
Regulations No. 14-2005 or the Consolidated Value-Added Tax Regulations 2005 issued by the BIR,
provides that should the actual input tax exceed 5% of gross payments, the excess may form part of
the cost. Equally, should the actual input tax be less than 5%, the difference is treated as income. 81
Petitioners also argue that by imposing a limitation on the creditable input tax, the government gets
to tax a profit or value-added even if there is no profit or value-added.
Petitioners’ stance is purely hypothetical, argumentative, and again, one-sided. The Court will not
engage in a legal joust where premises are what ifs, arguments, theoretical and facts, uncertain. Any
disquisition by the Court on this point will only be, as Shakespeare describes life in Macbeth,82 "full of
sound and fury, signifying nothing."
What’s more, petitioners’ contention assumes the proposition that there is no profit or value-added. It
need not take an astute businessman to know that it is a matter of exception that a business will sell
goods or services without profit or value-added. It cannot be overstressed that a business is created
precisely for profit.
The equal protection clause under the Constitution means that "no person or class of persons shall
be deprived of the same protection of laws which is enjoyed by other persons or other classes in the
same place and in like circumstances."83
The power of the State to make reasonable and natural classifications for the purposes of taxation
has long been established. Whether it relates to the subject of taxation, the kind of property, the
rates to be levied, or the amounts to be raised, the methods of assessment, valuation and collection,
the State’s power is entitled to presumption of validity. As a rule, the judiciary will not interfere with
such power absent a clear showing of unreasonableness, discrimination, or arbitrariness. 84
Petitioners point out that the limitation on the creditable input tax if the entity has a high ratio of input
tax, or invests in capital equipment, or has several transactions with the government, is not based on
real and substantial differences to meet a valid classification.
The argument is pedantic, if not outright baseless. The law does not make any classification in the
subject of taxation, the kind of property, the rates to be levied or the amounts to be raised, the
methods of assessment, valuation and collection. Petitioners’ alleged distinctions are based on
variables that bear different consequences. While the implementation of the law may yield varying
end results depending on one’s profit margin and value-added, the Court cannot go beyond what the
legislature has laid down and interfere with the affairs of business.
The equal protection clause does not require the universal application of the laws on all persons or
things without distinction. This might in fact sometimes result in unequal protection. What the clause
requires is equality among equals as determined according to a valid classification. By classification
is meant the grouping of persons or things similar to each other in certain particulars and different
from all others in these same particulars. 85
Petitioners brought to the Court’s attention the introduction of Senate Bill No. 2038 by Sens. S.R.
Osmeña III and Ma. Ana Consuelo A.S. – Madrigal on June 6, 2005, and House Bill No. 4493 by
Rep. Eric D. Singson. The proposed legislation seeks to amend the 70% limitation by increasing the
same to 90%. This, according to petitioners, supports their stance that the 70% limitation is arbitrary
and confiscatory. On this score, suffice it to say that these are still proposed legislations. Until
Congress amends the law, and absent any unequivocal basis for its unconstitutionality, the 70%
limitation stays.
B. Uniformity and Equitability of Taxation
Article VI, Section 28(1) of the Constitution reads:
The rule of taxation shall be uniform and equitable. The Congress shall evolve a progressive system
of taxation.
Uniformity in taxation means that all taxable articles or kinds of property of the same class shall be
taxed at the same rate. Different articles may be taxed at different amounts provided that the rate is
uniform on the same class everywhere with all people at all times. 86
In this case, the tax law is uniform as it provides a standard rate of 0% or 10% (or 12%) on all goods
and services. Sections 4, 5 and 6 of R.A. No. 9337, amending Sections 106, 107 and 108,
respectively, of the NIRC, provide for a rate of 10% (or 12%) on sale of goods and properties,
importation of goods, and sale of services and use or lease of properties. These same sections also
provide for a 0% rate on certain sales and transaction.
Neither does the law make any distinction as to the type of industry or trade that will bear the 70%
limitation on the creditable input tax, 5-year amortization of input tax paid on purchase of capital
goods or the 5% final withholding tax by the government. It must be stressed that the rule of uniform
taxation does not deprive Congress of the power to classify subjects of taxation, and only demands
uniformity within the particular class.87
R.A. No. 9337 is also equitable. The law is equipped with a threshold margin. The VAT rate of 0% or
10% (or 12%) does not apply to sales of goods or services with gross annual sales or receipts not
exceeding ₱1,500,000.00.88 Also, basic marine and agricultural food products in their original state
are still not subject to the tax,89 thus ensuring that prices at the grassroots level will remain
accessible. As was stated in Kapatiran ng mga Naglilingkod sa Pamahalaan ng Pilipinas, Inc. vs.
Tan:90
The disputed sales tax is also equitable. It is imposed only on sales of goods or services by persons
engaged in business with an aggregate gross annual sales exceeding ₱200,000.00. Small
corner sari-sari stores are consequently exempt from its application. Likewise exempt from the tax
are sales of farm and marine products, so that the costs of basic food and other necessities, spared
as they are from the incidence of the VAT, are expected to be relatively lower and within the reach of
the general public.
It is admitted that R.A. No. 9337 puts a premium on businesses with low profit margins, and unduly
favors those with high profit margins. Congress was not oblivious to this. Thus, to equalize the
weighty burden the law entails, the law, under Section 116, imposed a 3% percentage tax on VAT-
exempt persons under Section 109(v), i.e., transactions with gross annual sales and/or receipts not
exceeding ₱1.5 Million. This acts as a equalizer because in effect, bigger businesses that qualify for
VAT coverage and VAT-exempt taxpayers stand on equal-footing.
Moreover, Congress provided mitigating measures to cushion the impact of the imposition of the tax
on those previously exempt. Excise taxes on petroleum products 91 and natural gas92 were reduced.
Percentage tax on domestic carriers was removed.93 Power producers are now exempt from paying
franchise tax.94
Aside from these, Congress also increased the income tax rates of corporations, in order to
distribute the burden of taxation. Domestic, foreign, and non-resident corporations are now subject
to a 35% income tax rate, from a previous 32%. 95 Intercorporate dividends of non-resident foreign
corporations are still subject to 15% final withholding tax but the tax credit allowed on the
corporation’s domicile was increased to 20%. 96 The Philippine Amusement and Gaming Corporation
(PAGCOR) is not exempt from income taxes anymore. 97 Even the sale by an artist of his works or
services performed for the production of such works was not spared.
All these were designed to ease, as well as spread out, the burden of taxation, which would
otherwise rest largely on the consumers. It cannot therefore be gainsaid that R.A. No. 9337 is
equitable.
C. Progressivity of Taxation
Lastly, petitioners contend that the limitation on the creditable input tax is anything but regressive. It
is the smaller business with higher input tax-output tax ratio that will suffer the consequences.
Progressive taxation is built on the principle of the taxpayer’s ability to pay. This principle was also
lifted from Adam Smith’s Canons of Taxation, and it states:
I. The subjects of every state ought to contribute towards the support of the government, as nearly
as possible, in proportion to their respective abilities; that is, in proportion to the revenue which they
respectively enjoy under the protection of the state.
Taxation is progressive when its rate goes up depending on the resources of the person affected. 98
The VAT is an antithesis of progressive taxation. By its very nature, it is regressive. The principle of
progressive taxation has no relation with the VAT system inasmuch as the VAT paid by the
consumer or business for every goods bought or services enjoyed is the same regardless of income.
In
other words, the VAT paid eats the same portion of an income, whether big or small. The disparity
lies in the income earned by a person or profit margin marked by a business, such that the higher
the income or profit margin, the smaller the portion of the income or profit that is eaten by VAT. A
converso, the lower the income or profit margin, the bigger the part that the VAT eats away. At the
end of the day, it is really the lower income group or businesses with low-profit margins that is
always hardest hit.
Nevertheless, the Constitution does not really prohibit the imposition of indirect taxes, like the VAT.
What it simply provides is that Congress shall "evolve a progressive system of taxation." The Court
stated in the Tolentino case, thus:
The Constitution does not really prohibit the imposition of indirect taxes which, like the VAT, are
regressive. What it simply provides is that Congress shall ‘evolve a progressive system of taxation.’
The constitutional provision has been interpreted to mean simply that ‘direct taxes are . . . to be
preferred [and] as much as possible, indirect taxes should be minimized.’ (E. FERNANDO, THE
CONSTITUTION OF THE PHILIPPINES 221 (Second ed. 1977)) Indeed, the mandate to Congress
is not to prescribe, but to evolve, a progressive tax system. Otherwise, sales taxes, which perhaps
are the oldest form of indirect taxes, would have been prohibited with the proclamation of Art. VIII,
§17 (1) of the 1973 Constitution from which the present Art. VI, §28 (1) was taken. Sales taxes are
also regressive.
Resort to indirect taxes should be minimized but not avoided entirely because it is difficult, if not
impossible, to avoid them by imposing such taxes according to the taxpayers' ability to pay. In the
case of the VAT, the law minimizes the regressive effects of this imposition by providing for zero
rating of certain transactions (R.A. No. 7716, §3, amending §102 (b) of the NIRC), while granting
exemptions to other transactions. (R.A. No. 7716, §4 amending §103 of the NIRC) 99
CONCLUSION
It has been said that taxes are the lifeblood of the government. In this case, it is just an enema, a
first-aid measure to resuscitate an economy in distress. The Court is neither blind nor is it turning a
deaf ear on the plight of the masses. But it does not have the panacea for the malady that the law
seeks to remedy. As in other cases, the Court cannot strike down a law as unconstitutional simply
because of its yokes.
Let us not be overly influenced by the plea that for every wrong there is a remedy, and that the
judiciary should stand ready to afford relief. There are undoubtedly many wrongs the judicature may
not correct, for instance, those involving political questions. . . .
Let us likewise disabuse our minds from the notion that the judiciary is the repository of remedies for
all political or social ills; We should not forget that the Constitution has judiciously allocated the
powers of government to three distinct and separate compartments; and that judicial interpretation
has tended to the preservation of the independence of the three, and a zealous regard of the
prerogatives of each, knowing full well that one is not the guardian of the others and that, for official
wrong-doing, each may be brought to account, either by impeachment, trial or by the ballot box. 100
The words of the Court in Vera vs. Avelino101 holds true then, as it still holds true now. All things
considered, there is no raison d'être for the unconstitutionality of R.A. No. 9337.
WHEREFORE, Republic Act No. 9337 not being unconstitutional, the petitions in G.R. Nos. 168056,
168207, 168461, 168463, and 168730, are hereby DISMISSED.
There being no constitutional impediment to the full enforcement and implementation of R.A. No.
9337, the temporary restraining order issued by the Court on July 1, 2005 is LIFTED upon finality of
herein decision.
SO ORDERED.
Gonzales v. Macaraig, Jr., 191 SCRA452 [1990]
[G.R. No. 87636. November 19, 1990.]
NEPTALI A. GONZALES, ERNESTO M. MACEDA, ALBERTO G. ROMULO,

HEHERSON T. ALVAREZ, EDGARDO J. ANGARA, AGAPITO A. AQUINO, TEOFISTO
T. GUINGONA, JR., ERNESTO F. HERRERA, JOSE D. LINA, JR., JOHN OSMEÑA,
VICENTE T. PATERNO, RENE A. SAGUISAG, LETICIA RAMOS-SHAHANI,
MAMINTAL ABDUL J. TAMANO, WIGBERTO E. TAÑADA, JOVITO R. SALONGA,
ORLANDO S. MERCADO, JUAN PONCE ENRILE, JOSEPH ESTRADA, SOTERO
LAUREL, AQUILINO PIMENTEL, JR., SANTANINA RASUL, VICTOR
ZIGA, Petitioners, v. HON. CATALINO MACARAIG, JR., HON. VICENTE JAYME,
HON. CARLOS DOMINGUEZ, HON. FULGENCIO FACTORAN, HON. FIORELLO
ESTUAR, HON. LOURDES QUISUMBING, HON. RAUL MANGLAPUS, HON.
ALFREDO BENGSON, HON. JOSE CONCEPCION, HON. LUIS SANTOS, HON. MITA
PARDO DE TAVERA, HON. RAINERIO REYES, HON. GUILLERMO CARAGUE, HON.
ROSALINA CAJUCOM and HON. EUFEMIO C. DOMINGO, Respondents.
Gonzales, Batiller, Bilog & Associates for petitioners.
DECISION
MELENCIO-HERRERA, J.:
This constitutional controversy between the legislative and executive departments of

government stemmed from Senate Resolution No. 381, adopted on 2 February 1989,
"Authorizing and Directing the Committee on Finance to Bring in the Name of the
Senate of the Philippines the Proper Suit with the Supreme Court of the Philippines
contesting the Constitutionality of the Veto by the President of Special and General
Provisions, particularly Section 55, of the General Appropriation Bill of 1989 (H.B. No.
19186) and For Other Purposes." cralaw virtua1aw library
Petitioners are thus before us as members and ex-officio members of the Committee on
Finance of the Senate and as "substantial taxpayers whose vital interests may be
affected by this case."cralaw virtua1aw library
Respondents are members of the Cabinet tasked with the implementation of the
General Appropriations Act of 1989 and 1990, some of them incumbents, while others
have already been replaced, and include the National Treasurer and the Commission on
Audit Chairman, all of whom are being sued in their official capacities. chanrobles.com:cralaw:red
The Background Facts
On 16 December 1988, Congress passed House Bill No. 19186, or the General
Appropriations Bill for the Fiscal Year 1989. As passed, it eliminated or decreased
certain items included in the proposed budget submitted by the President.
Pursuant to the constitutional provision on the passage of bills, Congress presented the
said Bill to the President for consideration and approval.
On 29 December 1988, the President signed the Bill into law, and declared the same to
have become Rep. Act No. 6688. In the process, seven (7) Special Provisions and
Section 55, a "General Provision," were vetoed.
On 2 February 1989, the Senate, in the same Resolution No. 381 mentioned at the
outset, further expressed: jgc:chanrobles.com.ph
"WHEREAS, Be it Resolved, as it is hereby Resolved, That the Senate express its sense
that the veto by the President of Section 55 of the GENERAL PROVISIONS of the
General Appropriation Bill of 1989 (H.B. No. 19186) is unconstitutional and, therefore,
void and without any force and effect; hence, the aforesaid Section 55 remains;
"x x x"
Thus it is that, on 11 April 1989, this Petition for Prohibition/ Mandamus was filed, with
a prayer for the issuance of a Writ of Preliminary Injunction and Restraining Order,
assailing mainly the constitutionality or legality of the Presidential veto of Section 55,
and seeking to enjoin respondents from implementing Rep. Act No. 6688. No
Restraining Order was issued by the Court.
The Comment, submitted by the Solicitor General on 25 August 1989 (after several
extensions granted), was considered as the Answer to the Petition and, on 7 September
1989, the Court Resolved to give due course to the Petition and to require the parties to
submit their respective Memoranda. Petitioners filed their Memorandum on 12
December 1989. But, on 19 January 1990, they filed a Motion for Leave to File and to
Admit Supplemental Petition, which was granted, basically raising the same issue as in
the original Petition, this time questioning the President’s veto of certain provisions,
particularly Section 16, of House Bill 26934, or the General Appropriations Bill for Fiscal
Year 1990, which the President declared to have become Rep. Act No. 6831. chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph
The Solicitor General’s Comment on the Supplemental Petition, on behalf of respondent

public officials, was submitted on 24 April 1990. On 15 May 1990, the Court required
the parties to file simultaneously their consolidated memoranda, to include the
Supplemental Petition, within an inextendible period of thirty (30) days from notice.
However, because the original Resolution of 15 May 1990 merely required the filing of a
memorandum on the Supplemental Petition, a revised Resolution requiring consolidated
memoranda, within thirty (30) days from notice, was released on 28 June 1990.
The Consolidated Memoranda were respectively filed on 26 June 1990 by petitioners,

and on 1 August 1990 by respondents. On 14 August 1990, both Memoranda were
Noted and the case was deemed submitted for deliberation.
On 11 September 1990, the Court heard the case on oral argument and required the
submittal of supplemental Memoranda, the last of which was filed on 26 September
1990.
The Vetoed Provisions and Reasons Therefor
Section 55 of the Appropriations Act of 1989 (Section 55 [FY ‘89] hereinafter), which
was vetoed by the President, reads: jgc:chanrobles.com.ph
"SEC. 55. Prohibition Against the Restoration or Increase of Recommended

Appropriations Disapproved and/or Reduced by Congress: No item of appropriation
recommended by the President in the Budget submitted to Congress pursuant to Article
VII, Section 22 of the Constitution which has been disapproved or reduced in this Act
shall be restored or increased by the use of appropriations authorized for other
purposes by augmentation. An item of appropriation for any purpose recommended by
the President in the Budget shall be deemed to have been disapproved by Congress if
no corresponding appropriation for the specific purpose is provided in this Act." cralaw virtua1aw library
We quote below the reason for the Presidential veto: jgc:chanrobles.com.ph
"The provision violates Section 25 (5) of Article VI of the Constitution. If allowed, this
Section would nullify not only the constitutional and statutory authority of the
President, but also that of the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and Heads of Constitutional
Commissions, to augment any item in the general appropriations law for their
respective offices from savings in other items of their respective appropriations. A
careful review of the legislative action on the budget as submitted shows that in almost
all cases, the budgets of agencies as recommended by the President, as well as those
of the Senate, the House of Representatives, and the Constitutional Commissions, have
been reduced. An unwanted consequence of this provision is the inability of the
President, the President of the Senate, Speaker of the House of Representatives, the
Chief Justice of the Supreme Court, and the heads of Constitutional Commissions to
augment any item of appropriation of their respective offices from savings in other
items of their respective appropriations even in cases of calamity or in the event of
urgent need to accelerate the implementation of essential public services and
infrastructure projects.
"Furthermore, this provision is inconsistent with Section 12 and other similar provisions
of this General Appropriations Act."cralaw virtua1aw library
A substantially similar provision as the vetoed Section 55 appears in the Appropriations

Act of 1990, this time crafted as follows: jgc:chanrobles.com.ph
"B. GENERAL PROVISIONS
"Sec. 16. Use of Savings. — The President of the Philippines, the President of the
Senate, the Speaker of the House of Representatives, the Chief Justice of the Supreme
Court, the Heads of Constitutional Commissions under Article IX of the Constitution and
the Ombudsman are hereby authorized to augment any item in this Act for their
respective offices from savings in other items of their appropriations: PROVIDED, THAT
NO ITEM OF APPROPRIATION RECOMMENDED BY THE PRESIDENT IN THE BUDGET
SUBMITTED TO CONGRESS PURSUANT TO ARTICLE VII, SECTION 22 OF THE
CONSTITUTION WHICH HAS BEEN DISAPPROVED OR REDUCED BY CONGRESS SHALL
BE RESTORED OR INCREASED BY THE USE OF APPROPRIATIONS AUTHORIZED FOR
OTHER PURPOSES IN THIS ACT BY AUGMENTATION. AN ITEM OF APPROPRIATION FOR
ANY PURPOSE RECOMMENDED BY THE PRESIDENT IN THE BUDGET SHALL BE DEEMED
TO HAVE BEEN DISAPPROVED BY CONGRESS IF NO CORRESPONDING APPROPRIATION
FOR THE SPECIFIC PURPOSE IS PROVIDED IN THIS ACT." cralaw virtua1aw library
It should be noted that in the 1989 Appropriations Act, the "Use of Savings" appears in
Section 12, separate and apart from Section 55; whereas in the 1990 Appropriations
Act, the "Use of Savings" and the vetoed provision have been commingled in Section 16
only, with the vetoed provision made to appear as a condition or restriction.
Essentially the same reason was given for the veto of Section 16 (FY ‘90), thus: jgc:chanrobles.com.ph
"I am vetoing this provision for the reason that it violates Section 25 (5) of Article VI of
the Constitution in relation to Sections 44 and 45 of P.D. No. 1177 as amended by R.A.
No. 6670 which authorizes the President to use savings to augment any item of
appropriations in the Executive Branch of the Government.
"Parenthetically, there is a case pending in the Supreme Court relative to the validity of
the President’s veto on Section 55 of the General Provisions of Republic Act No. 6688
upon which the amendment on this Section was based. Inclusion, therefore, of the
proviso in the last sentence of this section might prejudice the Executive Branch’s
position in the case.
"Moreover, if allowed, this Section would nullify not only the constitutional and
statutory authority of the President, but also that of the officials enumerated under
Section 25 (5) of Article VI of the Constitution, to augment any item in the general
appropriations law for their respective appropriations.
"An unwanted consequence of this provision would be the inability of the President, the
President of the Senate, Speaker of the House of Representatives, the Chief Justice of
the Supreme Court, and heads of Constitutional Commissions to augment any item of
appropriation of their respective offices from savings in other items of their respective
appropriations even in cases of national emergency or in the event of urgent need to
accelerate the implementation of essential public services and infrastructure projects."
library
cralaw virtua1aw
The fundamental issue raised is whether or not the veto by the President of Section 55
of the 1989 Appropriations Bill (Section 55 FY ‘89), and subsequently of its counterpart
Section 16 of the 1990 Appropriations Bill (Section 16 FY ‘90), is unconstitutional and
without effect.chanrobles.com:cralaw:red
The Contending Views
In essence, petitioners’ cause is anchored on the following grounds: (1) the President’s
line-veto power as regards appropriation bills is limited to item/s and does not cover
provision/s; therefore, she exceeded her authority when she vetoed Section 55 (FY ‘89)
and Section 16 (FY ‘90) which are provisions; (2) when the President objects to a
provision of an appropriation bill, she cannot exercise the item-veto power but should
veto the entire bill; (3) the item-veto power does not carry with it the power to strike
out conditions or restrictions for that would be legislation, in violation of the doctrine of
separation of powers; and (4) the power of augmentation in Article VI, Section 25 [5]
of the 1987 Constitution, has to be provided for by law and, therefore, Congress is also
vested with the prerogative to impose restrictions on the exercise of that power.
The Solicitor General, as counsel for public respondents, counters that the issue at bar
is a political question beyond the power of this Court to determine; that petitioners had
a political remedy, which was to override the veto; that Section 55 is a "rider" because
it is extraneous to the Appropriations Act and, therefore, merits the President’s veto;
that the power of the President to augment items in the appropriations for the
executive branches had already been provided for in the Budget Law, specifically
Sections 44 and 45 of Pres. Decree No. 1177, as amended by Rep. Act No. 6670 (4
August 1988); and that the President is empowered by the Constitution to veto
provisions or other "distinct and severable parts" of an Appropriations Bill.
Judicial Determination
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.
"Indeed, where the legislature or the executive branch is acting within the limits of its
authority, the judiciary cannot and ought not to interfere with the former. But where
the legislature or the executive acts beyond the scope of its constitutional powers, it
becomes the duty of the judiciary to declare what the other branches of the
government had assumed to do as void. This is the essence of judicial power conferred
by the Constitution ‘in one Supreme Court and in such lower courts as may be
established by law’ [Art. VIII, Section 1 of the 1935 Constitution; Art. X, Section 1 of
the 1973 Constitution and which was adopted as part of the Freedom Constitution, and
Art. VIII, Section 1 of the 1987 Constitution] and which power this Court has exercised
in many instances" (Demetria v. Alba, G.R. No. 71977, 27 February 1987, 148 SCRA
209).
We take note as well of what petitioners stress as the "imperative need for a definitive
ruling by this Court as to the exact parameters of the exercise of the item-veto power
of the President as regards appropriation bills . . . in order to obviate the recurrence of
a similar problem whenever a general appropriations bill is passed by Congress."
Indeed, the contextual reiteration of Section 55 (FY 89) in Section 16 (FY ‘90) and
again, its veto by the President, underscore the need for judicial arbitrament. The Court
does not thereby assert its superiority over or exhibit lack of respect due the other co-
ordinate departments but discharges a solemn and sacred duty to determine essentially
the scope of intersecting powers in regard which the Executive and the Senate are in
dispute.chanrobles.com : virtual law library
Petitioners have also brought this suit as taxpayers. As ruled in Sanidad v. COMELEC
(No. L-44640, 12 October 1976, 73 SCRA 333), this Court enjoys the open discretion to
entertain taxpayers suits or not. In Tolentino v. COMELEC (No. L-34150, 16 October
1961, 41 SCRA 702), it was also held that a member of the Senate has the requisite
personality to bring a suit where a constitutional issue is raised.
cralawnad
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.
"SECTION 1. The judicial power shall be vested in one Supreme Court and in such lower
courts as may be established by law.
Judicial power includes the duty of the courts of justice to settle actual controversies
involving rights which are legally demandable and enforceable, and to determine
whether or not there has been a grave abuse of discretion amounting to lack or excess
of jurisdiction on the part of any branch or instrumentality of the Government." cralaw virtua1aw library
Nor is this the first time that the constitutionality of a Presidential veto is raised to the
Court. The two oft-cited cases are Bengson v. Secretary of Justice (62 Phil. 912
[1936]), penned by Justice George A. Malcolm, which upheld the veto questioned
before it, but which decision was reversed by the U.S. Supreme Court in the same
entitled case in 292 U.S. 410, infra, essentially on the ground that an Appropriations
Bill was not involved. The second case is Bolinao Electronics v. Valencia (G.R. No. L-
20740, 30 June 1964, 11 SCRA 486), infra, which rejected the President’s veto of a
condition or restriction in an Appropriations Bill.
The Extent of the President’s Item-veto Power
The focal issue for resolution is whether or not the President exceeded the item-veto
power accorded by the Constitution. Or differently put, has the President the power to
veto "provisions" of an Appropriations Bill?
Petitioners contend that Section 55 (FY ‘89) and Section 16 (FY ‘90) are provisions and
not items and are, therefore, outside the scope of the item-veto power of the
President.chanrobles lawlibrary : rednad
The veto power of the President is expressed in Article VI, Section 27 of the 1987
Constitution reading, in full, as follows: jgc:chanrobles.com.ph
"Sec. 27. (1) Every bill passed by the Congress shall, before it becomes a law, be
presented to the President. If he approves the same, he shall sign it; otherwise, he
shall veto it and return the same with his objections to the House where it originated,
which shall enter the objections at large in its Journal and proceed to reconsider it. If,
after such reconsideration, two-thirds of all the Members of such House shall agree to
pass the bill, it shall be sent, together with the objections, to the other House by which
it shall likewise be reconsidered, and if approved by two-thirds of all the Members of
that House, it shall become a law. In all such cases, the votes of each House shall be
determined by yeas or nays, and the names of the Members voting for or against shall
be entered in its Journal. The President shall communicate his veto of any bill to the
House where it originated within thirty days after the date of receipt thereof; otherwise,
it shall become a law as if he had signed it.
"(2) The President shall have the power to veto any particular item or items in an
appropriation, revenue, or tariff bill, but the veto shall not affect the item or items to
which he does not object." cralaw virtua1aw library
Paragraph (1) refers to the general veto power of the President and if exercised would
result in the veto of the entire bill, as a general rule. Paragraph (2) is what is referred
to as the item-veto power or the line-veto power. It allows the exercise of the veto over
a particular item or items in an appropriation, revenue, or tariff bill. As specified, the
President may not veto less than all of an item of an Appropriations Bill. In other words,
the power given the executive to disapprove any item or items in an Appropriations Bill
does not grant the authority to veto a part of an item and to approve the remaining
portion of the same item.
Originally, item veto exclusively referred to veto of items of appropriation bills and first
came into being in the former Organic Act, the Act of Congress of 29 August 1916. This
was followed by the 1935 Constitution, which contained a similar provision in its Section
11(2), Article VI, except that the veto power was made more expansive by the inclusion
of this sentence: jgc:chanrobles.com.ph
". . . When a provision of an appropriation bill affects one or more items of the same,
the President can not veto the provision without at the same time vetoing the particular
item or items to which it relates . . ." cralaw virtua1aw library
The 1935 Constitution further broadened the President’s veto power to include the veto
of item or items of revenue and tariff bills.
With the advent of the 1973 Constitution, the section took a more simple and compact
form, thus: jgc:chanrobles.com.ph
"Section 20 (2). The Prime Minister shall have the power to veto any particular item or
items in an appropriation, revenue, or tariff bill, but the veto shall not affect the item or
items to which he does not object." cralaw virtua1aw library
It is to be noted that the counterpart provision in the 1987 Constitution (Article VI,
Section 27 [2], supra), is a verbatim reproduction except for the public official
concerned. In other words, also eliminated has been any reference to the veto of a
provision. The vital question is: should this exclusion be interpreted to mean as a
disallowance of the power to veto a provision, as petitioners urge?
The terms item and provision in budgetary legislation and practice are concededly
different. An item in a bill refers to the particulars, the details, the distinct and
severable parts . . . of the bill (Bengzon, supra, at 916). It is an indivisible sum of
money dedicated to a stated purpose (Commonwealth v. Dodson, 11 S.E., 2d 120, 124,
125, etc., 176 Va. 281). The United States Supreme Court, in the case of Bengzon v.
Secretary of Justice (299 U.S. 410, 414, 57 S.Ct 252, 81 L. Ed., 312) declared "that an
‘item’ of an appropriation bill obviously means an item which in itself is a specific
appropriation of money, not some general provision of law, which happens to be put
into an appropriation bill." cralaw virtua1aw library
It is our considered opinion that, notwithstanding the elimination in Article VI, Section
27 (2) of the 1987 Constitution of any reference to the veto of a provision, the extent
of the President’s veto power as previously defined by the 1935 Constitution has not
changed. This is because the eliminated proviso merely pronounces the basic principle
that a distinct and severable part of a bill may be the subject of a separate veto
(Bengzon v. Secretary of Justice, 62 Phil., 912, 916 (1926); 2 BERNAS, Joaquin, S.J.,
The Constitution of the Republic of the Philippines, 1st ed., 154-155, [1988]).
The restrictive interpretation urged by petitioners that the President may not veto a
provision without vetoing the entire bill not only disregards the basic principle that a
distinct and severable part of a bill may be the subject of a separate veto but also
overlooks the Constitutional mandate that any provision in the general appropriations
bill shall relate specifically to some particular appropriation therein and that any such
provision shall be limited in its operation to the appropriation to which it relates (1987
Constitution, Article VI, Section 25 [2]). In other words, in the true sense of the term, a
provision in an Appropriations Bill is limited in its operation to some particular
appropriation to which it relates, and does not relate to the entire bill. chanrobles law library
Petitioners’ further submission that, since the exercise of the veto power by the
President partakes of the nature of legislative powers it should be strictly construed, is
negative by the following dictum in Bengzon, supra, reading: jgc:chanrobles.com.ph
"The Constitution is a limitation upon the power of the legislative department of the
government, but in this respect it is a grant of power to the executive department. The
Legislature has the affirmative power to enact laws; the Chief Executive has the
negative power by the constitutional exercise of which he may defeat the will of the
Legislature. It follows that the Chief Executive must find his authority in the
Constitution. But in exercising that authority he may not be confined to rules of strict
construction or hampered by the unwise interference of the judiciary. The courts will
indulge every intendment in favor of the constitutionality of a veto the same as they
will presume the constitutionality of an act as originally passed by the Legislature"
(Commonwealth v. Barnett [1901], 199 Pa., 161; 55 L.R.A., 882; People v. Board of
Councilmen [1892], 20 N.Y.S., 52; Fulmore v. Lane [1911], 104 Tex., 499; Texas Co.
v. State [1927], 53 A.L.R., 258 [at 917]).
Inappropriateness of the so-called "Provisions"
But even assuming arguendo that provisions are beyond the executive power to veto,
we are of the opinion that Section 55 (FY ‘89) and Section 16 (FY ‘90) are not
provisions in the budgetary sense of the term. Article VI, Section 25 (2) of the 1987
Constitution provides: jgc:chanrobles.com.ph
"Sec. 25 (2) No provision or enactment shall be embraced in the general appropriations

bill unless it relates specifically to some particular appropriation therein. Any such
provision or enactment shall be limited in its operation to the appropriation to which it
relates."
Explicit is the requirement that a provision in the Appropriations Bill should relate
specifically to some" particular appropriation" therein. The challenged "provisions" fall
short of this requirement. Firstly, the vetoed "provisions" do not relate to any particular
or distinctive appropriation. They apply generally to all items disapproved or reduced by
Congress in the Appropriations Bill. Secondly, the disapproved or reduced items are
nowhere to be found on the face of the Bill. To discover them, resort will have to be
made to the original recommendations made by the President and to the source
indicated by petitioners themselves, i.e., the "Legislative Budget Research and
Monitoring Office" (Annex B-1 and B-2, Petition). Thirdly, the vetoed Sections are more
of an expression of Congressional policy in respect of augmentation from savings rather
than a budgetary appropriation. Consequently, Section 55 (FY ‘89) and Section 16 (FY
‘90) although labelled as "provisions," are actually inappropriate provisions that should
be treated as items for the purpose of the President’s veto power. (Henry v. Edwards
[1977] 346 S Rep. 2d, 157-158)
"Just as the President may not use his item-veto to usurp constitutional powers
conferred on the legislature, neither can the legislature deprive the Governor of the
constitutional powers conferred on him as chief executive officer of the state by
including in a general appropriation bill matters more properly enacted in separate
legislation. The Governor’s constitutional power to veto bills of general legislation . . .
cannot be abridged by the careful placement of such measures in a general
appropriation bill, thereby forcing the Governor to choose between approving
unacceptable substantive legislation or vetoing ‘items’ of expenditure essential to the
operation of government. The legislature cannot by location of a bill give it immunity
from executive veto. Nor can it circumvent the Governor’s veto power over substantive
legislation by artfully drafting general law measures so that they appear to be true
conditions or limitations on an item of appropriation. Otherwise, the legislature would
be permitted to impair the constitutional responsibilities and functions of a co-equal
branch of government in contravention of the separation of powers doctrine . . . We are
no more willing to allow the legislature to use its appropriation power to infringe on the
Governor’s constitutional right to veto matters of substantive legislation than we are to
allow the Governor to encroach on the constitutional powers of the legislature. In order
to avoid this result, we hold that, when the legislature inserts inappropriate provisions
in a general appropriation bill, such provisions must be treated as ‘items’ for purposes
of the Governor’s item veto power over general appropriation bills.
x x x
". . . Legislative control cannot be exercised in such a manner as to encumber the

general appropriation bill with veto-proof ‘logrolling measure,’ special interest
provisions which could not succeed if separately enacted, or ‘riders,’ substantive pieces
of legislation incorporated in a bill to insure passage without veto. . . ." (Emphasis
supplied)
Inappropriateness of the so-called "Conditions/Restrictions"
Petitioners maintain, however, that Congress is free to impose conditions in an

Appropriations Bill and where conditions are attached, the veto power does not carry
with it the power to strike them out, citing Commonwealth v. Dodson (11 SE, 2d 130,
supra) and Bolinao Electronics Corporation v. Valencia (No. L-20740, June 30, 1964, 11
SCRA 486). In other words, their theory is that Section 55 (FY ‘89) and Section 16 (FY
‘90) are such conditions/restrictions and thus beyond the veto power. chanrobles virtual lawlibrary
There can be no denying that inherent in the power of appropriation is the power to
specify how money shall be spent; and that in addition to distinct "items" of
appropriation, the Legislature may include in Appropriation Bills qualifications,
conditions, limitations or restrictions on expenditure of funds. Settled also is the rule
that the Executive is not allowed to veto a condition or proviso of an appropriation while
allowing the appropriation itself to stand (Fairfield v. Foster, supra, at 320). That was
also the ruling in Bolinao, supra, which held that the veto of a condition in an
Appropriations Bill which did not include a veto of the items to which the condition
related was deemed invalid and without effect whatsoever.
However, for the rule to apply, restrictions should be such in the real sense of the term,
not some matters which are more properly dealt with in a separate legislation (Henry v.
Edwards, La, 346, So 2d 153). Restrictions or conditions in an Appropriations Bill must
exhibit a connection with money items in a budgetary sense in the schedule of
expenditures. Again, the test is appropriateness.
"It is not enough that a provision be related to the institution or agency to which funds
are appropriated. Conditions and limitations properly included in an appropriation bill
must exhibit such a connexity with money items of appropriation that they logically
belong in a schedule of expenditures . . . the ultimate test is one of appropriateness"
(Henry v. Edwards, supra, at 158).
Tested by these criteria, Section 55 (FY ‘89) and Section 16 (FY ‘90) must also be held
to be inappropriate "conditions." While they, particularly, Section 16 (FY ‘90), have
been "artfully drafted" to appear as true conditions or limitations, they are actually
general law measures more appropriate for substantive and, therefore, separate
legislation.
Further, neither of them shows the necessary connection with a schedule of

expenditures. The reason, as explained earlier, is that items reduced or disapproved by
Congress would not appear on the face of the enrolled bill or Appropriations Act itself.
They can only be detected when compared with the original budgetary submittals of the
President. In fact, Sections 55 (FY ‘89) and 16 (FY ‘90) themselves provide that an item
"shall be deemed to have been disapproved by Congress if no corresponding
appropriation for the specific purpose is provided in this Act."
Considering that the vetoed provisions are not, in the budgetary sense of the term,
conditions or restrictions, the case of Bolinao Electronics Corporation v. Valencia
(supra), invoked by petitioners, becomes inapplicable. In that case, a public works bill
contained an item appropriating a certain sum for assistance to television stations,
subject to the condition that the amount would not be available to places where there
were commercial television stations. Then President Macapagal approved the
appropriation but vetoed the condition. When challenged before this Court, it was held
that the veto was ineffectual and that the approval of the item carried with it the
approval of the condition attached to it. In contrast with the case at bar, there is no
condition, in the budgetary sense of the term, attached to an appropriation or item in
the appropriation bill which was struck out. For obviously, Sections 55 (FY ‘89) and 16
(FY ‘90) partake more of a curtailment on the power to augment from savings; in other
words, "a general provision of law, which happens to be put in an appropriation bill"
(Bengzon v. Secretary of Justice, supra).
The Power of Augmentation and The Validity of the Veto
The President promptly vetoed Section 55 (FY ‘89) and Section 16 (FY ‘90) because
they nullify the authority of the Chief Executive and heads of different branches of
government to augment any item in the General Appropriations Law for their respective
offices from savings in other items of their respective appropriations, as guaranteed by
Article VI, Section 25 (5) of the Constitution. Said provision reads:
jgc:chanrobles.com.ph
"Sec. 25. (5) No law shall be passed authorizing any transfer of appropriations;
however, the President, the President of the Senate, the Speaker of the House of
Representatives, the Chief Justice of the Supreme Court, and the heads of
Constitutional Commissions may, by law, be authorized to augment any item in the
general appropriations law for their respective offices from savings in other items of
their respective appropriations" (Emphasis ours).
Noteworthy is the fact that the power to augment from savings lies dormant until
authorized by law.
This Court upheld the validity of the power of augmentation from savings in Demetria v.
Alba, which ruled:jgc:chanrobles.com.ph
". . . to afford the heads of the different branches of the government and those of the
constitutional commissions considerable flexibility in the use of public funds and
resources, the constitution allowed the enactment of a law authorizing the transfer of
funds for the purpose of augmenting an item from savings in another item in the
appropriation of the government branch or constitutional body concerned. The leeway
granted was thus limited. The purpose and conditions for which funds may be
transferred were specified, i.e., transfer may be allowed for the purpose of augmenting
an item and such transfer may be made only if there are savings from another item in
the appropriation of the government branch or constitutional body" (G.R. No. 71977, 27
February 1987, 148 SCRA 214).
The 1973 Constitution contained an identical authority to augment from savings in its
Article VIII, Section 16 (5), except for mention of the Prime Minister among the officials
vested with that power. 1
In 1977, the statutory authority of the President to augment any appropriation of the
executive department in the General Appropriations Act from savings was specifically
provided for in Section 44 of Presidential Decree No. 1177, as amended (RA 6670, 4
August 1988), otherwise known as the "Budget Reform Decree of 1977." It reads: jgc:chanrobles.com.ph
"Sec. 44. . . .
"The President shall, likewise, have the authority to augment any appropriation of the
Executive Department in the General Appropriations Act, from savings in the
appropriations of another department, bureau, office or agency within the Executive
Branch, pursuant to the provisions of Art. VIII, Sec. 16 (5) of the Constitution (now
Sec. 25 (5), Art. VI)" (Emphasis ours), (N.B.: The first paragraph declared void in
Demetria v. Alba, supra, has been deleted).
Similarly, the use by the President of savings to cover deficits is specifically authorized
in the same Decree. Thus: jgc:chanrobles.com.ph
"Sec. 45. Authority to Use Savings in Appropriations to Cover Deficits. Except as

otherwise provided in the General Appropriations Act, any savings in the regular
appropriations authorized in the General Appropriations Act for programs and projects
of any department, office or agency, may, with the approval of the President be used to
cover a deficit in any other item of the regular appropriations: ". . .
A more recent grant is found in Section 12 of the General Appropriations Act of 1989,
the text of which is repeated in the first paragraph of Section 16 (FY ‘90). Section 12
reads:chanrobles virtual lawlibrary
"Sec. 12. Use of Savings. — The President, the President of the Senate, the Speaker of
the House of Representatives, the Chief Justice of the Supreme Court, the heads of the
Constitutional Commissions, and the Ombudsman are hereby authorized to augment
any item in this Act for their respective offices from savings in other items of their
respective appropriations." cralaw virtua1aw library
There should be no question, therefore, that statutory authority has, in fact, been
granted. And once given, the heads of the different branches of the Government and
those of the Constitutional Commissions are afforded considerable flexibility in the use
of public funds and resources (Demetria v. Alba, supra). The doctrine of separation of
powers is in no way endangered because the transfer is made within a department (or
branch of government) and not from one department (branch) to another (CRUZ,
Isagani A., Philippine Political Law [1989] p. 155).
When Sections 55 (FY ‘89) and 16 (FY ‘90), therefore, prohibit the restoration or
increase by augmentation of appropriations disapproved or reduced by Congress, they
impair the constitutional and statutory authority of the President and other key officials
to augment any item or any appropriation from savings in the interest of expediency
and efficiency. The exercise of such authority in respect of disapproved or reduced
items by no means vests in the Executive the power to rewrite the entire budget, as
petitioners contend, the leeway granted being delimited to transfers within the
department or branch concerned, the sourcing to come only from savings.
More importantly, it strikes us, too, that for such a special power as that of
augmentation from savings, the same is merely incorporated in the General
Appropriations Bill. An Appropriations Bill is "one the primary and specific aim of which
is to make appropriation of money from the public treasury" (Bengzon v. Secretary of
Justice, 292 U.S., 410, 57 S.Ct. 252). It is a legislative authorization of receipts and
expenditures. The power of augmentation from savings, on the other hand, can by no
means be considered a specific appropriation of money. It is a non-appropriation item
inserted in an appropriation measure. chanrobles law library : red
The same thing must be said of Section 55 (FY ‘89), taken in conjunction with Section
12, and Section 16 (FY ‘90), which prohibit the restoration or increase by augmentation
of appropriations disapproved and/or reduced by Congress. They are non-appropriation
items, an appropriation being a setting apart by law of a certain sum from the public
revenue for a specific purpose (Bengzon v. Secretary of Justice, 62 Phil. 912, 916
[1936]). It bears repeating that they are more of a substantive expression of a
legislative objective to restrict the power of augmentation granted to the President and
other key officials. They are actually matters of general law and more properly the
subject of a separate legislation that will embody, define and delimit the scope of the
special power of augmentation from savings instead of being inappropriately
incorporated annually in the Appropriation Act. To sanction this practice would be to
give the Legislature the freedom to grant or withhold the power from the Executive and
other officials, and thus put in yearly jeopardy the exercise of that power.
If, indeed, by the later enactments of Section 55 (FY ‘89) and Section 16 (FY ‘90),
Congress, as petitioners argue, intended to amend or repeal Pres. Decree No. 1177,
with all the more reason should it have so provided in a separate enactment, it being
basic that implied repeals are not favored. For the same reason, we cannot subscribe to
petitioners’ allegation that Pres. Decree No. 1177 has been revoked by the 1987
Constitution. The 1987 Constitution itself provides for the continuance of laws, decrees,
executive orders, proclamations, letters of instructions, and other executive issuances
not inconsistent with the Constitution until amended, repealed, or revoked (1987
Constitution, Article XVIII, Section 3).
If, indeed, the legislature believed that the exercise of the veto powers by the executive
were unconstitutional, the remedy laid down by the Constitution is crystal clear. A
Presidential veto may be overriden by the votes of two-thirds of members of Congress
(1987 Constitution, Article VI, Section 27[1], supra). But Congress made no attempt to
override the Presidential veto. Petitioners’ argument that the veto is ineffectual so that
there is "nothing to override" (citing Bolinao) has lost force and effect with the
executive veto having been herein upheld.
As we see it, there need be no future conflict if the legislative and executive branches
of government adhere to the spirit of the Constitution, each exercising its respective
powers with due deference to the constitutional responsibilities and functions of the
other. Thereby, the delicate equilibrium of governmental powers remains on even keel.
WHEREFORE, the constitutionality of the assailed Presidential veto is UPHELD and this
Petition is hereby DISMISSED.
No costs.
SO ORDERED.
Tañada v. Tuvera, 220 Phil. 422 [1985]
G.R. No. L-63915 April 24, 1985
LORENZO M. TAÑADA, ABRAHAM F. SARMIENTO, and MOVEMENT OF ATTORNEYS FOR

BROTHERHOOD, INTEGRITY AND NATIONALISM, INC. [MABINI], petitioners,
vs.
HON. JUAN C. TUVERA, in his capacity as Executive Assistant to the President, HON.
JOAQUIN VENUS, in his capacity as Deputy Executive Assistant to the President ,
MELQUIADES P. DE LA CRUZ, in his capacity as Director, Malacañang Records Office, and
FLORENDO S. PABLO, in his capacity as Director, Bureau of Printing, respondents.
ESCOLIN, J.:
Invoking the people's right to be informed on matters of public concern, a right recognized in Section
6, Article IV of the 1973 Philippine Constitution, as well as the principle that laws to be valid and
1
enforceable must be published in the Official Gazette or otherwise effectively promulgated,

petitioners seek a writ of mandamus to compel respondent public officials to publish, and/or cause
the publication in the Official Gazette of various presidential decrees, letters of instructions, general
orders, proclamations, executive orders, letter of implementation and administrative orders.
Specifically, the publication of the following presidential issuances is sought:
a] Presidential Decrees Nos. 12, 22, 37, 38, 59, 64, 103, 171, 179, 184, 197, 200,
234, 265, 286, 298, 303, 312, 324, 325, 326, 337, 355, 358, 359, 360, 361, 368, 404,
406, 415, 427, 429, 445, 447, 473, 486, 491, 503, 504, 521, 528, 551, 566, 573, 574,
594, 599, 644, 658, 661, 718, 731, 733, 793, 800, 802, 835, 836, 923, 935, 961,
1017-1030, 1050, 1060-1061, 1085, 1143, 1165, 1166, 1242, 1246, 1250, 1278,
1279, 1300, 1644, 1772, 1808, 1810, 1813-1817, 1819-1826, 1829-1840, 1842-
1847.
b] Letter of Instructions Nos.: 10, 39, 49, 72, 107, 108, 116, 130, 136, 141, 150, 153,
155, 161, 173, 180, 187, 188, 192, 193, 199, 202, 204, 205, 209, 211-213, 215-224,
226-228, 231-239, 241-245, 248, 251, 253-261, 263-269, 271-273, 275-283, 285-
289, 291, 293, 297-299, 301-303, 309, 312-315, 325, 327, 343, 346, 349, 357, 358,
362, 367, 370, 382, 385, 386, 396-397, 405, 438-440, 444- 445, 473, 486, 488, 498,
501, 399, 527, 561, 576, 587, 594, 599, 600, 602, 609, 610, 611, 612, 615, 641, 642,
665, 702, 712-713, 726, 837-839, 878-879, 881, 882, 939-940, 964,997,1149-
1178,1180-1278.
c] General Orders Nos.: 14, 52, 58, 59, 60, 62, 63, 64 & 65.
d] Proclamation Nos.: 1126, 1144, 1147, 1151, 1196, 1270, 1281, 1319-1526, 1529,
1532, 1535, 1538, 1540-1547, 1550-1558, 1561-1588, 1590-1595, 1594-1600, 1606-
1609, 1612-1628, 1630-1649, 1694-1695, 1697-1701, 1705-1723, 1731-1734, 1737-
1742, 1744, 1746-1751, 1752, 1754, 1762, 1764-1787, 1789-1795, 1797, 1800,
1802-1804, 1806-1807, 1812-1814, 1816, 1825-1826, 1829, 1831-1832, 1835-1836,
1839-1840, 1843-1844, 1846-1847, 1849, 1853-1858, 1860, 1866, 1868, 1870,
1876-1889, 1892, 1900, 1918, 1923, 1933, 1952, 1963, 1965-1966, 1968-1984,
1986-2028, 2030-2044, 2046-2145, 2147-2161, 2163-2244.
e] Executive Orders Nos.: 411, 413, 414, 427, 429-454, 457- 471, 474-492, 494-507,
509-510, 522, 524-528, 531-532, 536, 538, 543-544, 549, 551-553, 560, 563, 567-
568, 570, 574, 593, 594, 598-604, 609, 611- 647, 649-677, 679-703, 705-707, 712-
786, 788-852, 854-857.
f] Letters of Implementation Nos.: 7, 8, 9, 10, 11-22, 25-27, 39, 50, 51, 59, 76, 80-81,
92, 94, 95, 107, 120, 122, 123.
g] Administrative Orders Nos.: 347, 348, 352-354, 360- 378, 380-433, 436-439.
The respondents, through the Solicitor General, would have this case dismissed outright on the
ground that petitioners have no legal personality or standing to bring the instant petition. The view is
submitted that in the absence of any showing that petitioners are personally and directly affected or
prejudiced by the alleged non-publication of the presidential issuances in question said petitioners
2
are without the requisite legal personality to institute this mandamus proceeding, they are not being
"aggrieved parties" within the meaning of Section 3, Rule 65 of the Rules of Court, which we quote:
SEC. 3. Petition for Mandamus.—When any tribunal, corporation, board 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 a rd 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 defendant,
immediately or at some other specified time, 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 defendant.
Upon the other hand, petitioners maintain that since the subject of the petition concerns a public
right and its object is to compel the performance of a public duty, they need not show any specific
interest for their petition to be given due course.
The issue posed is not one of first impression. As early as the 1910 case of Severino vs. Governor
General, this Court held that while the general rule is that "a writ of mandamus would be granted to
3
a private individual only in those cases where he has some private or particular interest to be
subserved, or some particular right to be protected, independent of that which he holds with the
public at large," and "it is for the public officers exclusively to apply for the writ when public rights are
to be subserved [Mithchell vs. Boardmen, 79 M.e., 469]," nevertheless, "when the question is one of
public right and the object of the mandamus is to procure the enforcement of a public duty, the
people are regarded as the real party in interest and the relator at whose instigation the proceedings
are instituted need not show that he has any legal or special interest in the result, it being sufficient
to show that he is a citizen and as such interested in the execution of the laws [High, Extraordinary
Legal Remedies, 3rd ed., sec. 431].
Thus, in said case, this Court recognized the relator Lope Severino, a private individual, as a proper
party to the mandamus proceedings brought to compel the Governor General to call a special
election for the position of municipal president in the town of Silay, Negros Occidental. Speaking for
this Court, Mr. Justice Grant T. Trent said:
We are therefore of the opinion that the weight of authority supports the proposition
that the relator is a proper party to proceedings of this character when a public right
is sought to be enforced. If the general rule in America were otherwise, we think that
it would not be applicable to the case at bar for the reason 'that it is always
dangerous to apply a general rule to a particular case without keeping in mind the
reason for the rule, because, if under the particular circumstances the reason for the
rule does not exist, the rule itself is not applicable and reliance upon the rule may
well lead to error'
No reason exists in the case at bar for applying the general rule insisted upon by
counsel for the respondent. The circumstances which surround this case are different
from those in the United States, inasmuch as if the relator is not a proper party to
these proceedings no other person could be, as we have seen that it is not the duty
of the law officer of the Government to appear and represent the people in cases of
this character.
The reasons given by the Court in recognizing a private citizen's legal personality in the
aforementioned case apply squarely to the present petition. Clearly, the right sought to be enforced
by petitioners herein is a public right recognized by no less than the fundamental law of the land. If
petitioners were not allowed to institute this proceeding, it would indeed be difficult to conceive of
any other person to initiate the same, considering that the Solicitor General, the government officer
generally empowered to represent the people, has entered his appearance for respondents in this
case.
Respondents further contend that publication in the Official Gazette is not a sine qua non
requirement for the effectivity of laws where the laws themselves provide for their own effectivity
dates. It is thus submitted that since the presidential issuances in question contain special provisions
as to the date they are to take effect, publication in the Official Gazette is not indispensable for their
effectivity. The point stressed is anchored on Article 2 of the Civil Code:
Art. 2. Laws shall take effect after fifteen days following the completion of their
publication in the Official Gazette, unless it is otherwise provided, ...
The interpretation given by respondent is in accord with this Court's construction of said article. In a
long line of decisions, this Court has ruled that publication in the Official Gazette is necessary in
4
those cases where the legislation itself does not provide for its effectivity date-for then the date of
publication is material for determining its date of effectivity, which is the fifteenth day following its
publication-but not when the law itself provides for the date when it goes into effect.
Respondents' argument, however, is logically correct only insofar as it equates the effectivity of laws
with the fact of publication. Considered in the light of other statutes applicable to the issue at hand,
the conclusion is easily reached that said Article 2 does not preclude the requirement of publication
in the Official Gazette, even if the law itself provides for the date of its effectivity. Thus, Section 1 of
Commonwealth Act 638 provides as follows:
Section 1. There shall be published in the Official Gazette [1] all important legisiative
acts and resolutions of a public nature of the, Congress of the Philippines; [2] all
executive and administrative orders and proclamations, except such as have no
general applicability; [3] decisions or abstracts of decisions of the Supreme Court
and the Court of Appeals as may be deemed by said courts of sufficient importance
to be so published; [4] such documents or classes of documents as may be required
so to be published by law; and [5] such documents or classes of documents as the
President of the Philippines shall determine from time to time to have general
applicability and legal effect, or which he may authorize so to be published. ...
The clear object of the above-quoted provision is to give the general public adequate notice of the
various laws which are to regulate their actions and conduct as citizens. Without such notice and
publication, there would be no basis for the application of the maxim "ignorantia legis non excusat."
It would be the height of injustice to punish or otherwise burden a citizen for the transgression of a
law of which he had no notice whatsoever, not even a constructive one.
Perhaps at no time since the establishment of the Philippine Republic has the publication of laws
taken so vital significance that at this time when the people have bestowed upon the President a
power heretofore enjoyed solely by the legislature. While the people are kept abreast by the mass
media of the debates and deliberations in the Batasan Pambansa—and for the diligent ones, ready
access to the legislative records—no such publicity accompanies the law-making process of the
President. Thus, without publication, the people have no means of knowing what presidential
decrees have actually been promulgated, much less a definite way of informing themselves of the
specific contents and texts of such decrees. As the Supreme Court of Spain ruled: "Bajo la
denominacion generica de leyes, se comprenden tambien los reglamentos, Reales decretos,
Instrucciones, Circulares y Reales ordines dictadas de conformidad con las mismas por el Gobierno
en uso de su potestad. 5
The very first clause of Section I of Commonwealth Act 638 reads: "There shall be published in the
Official Gazette ... ." The word "shall" used therein imposes upon respondent officials an imperative
duty. That duty must be enforced if the Constitutional right of the people to be informed on matters of
public concern is to be given substance and reality. The law itself makes a list of what should be
published in the Official Gazette. Such listing, to our mind, leaves respondents with no discretion
whatsoever as to what must be included or excluded from such publication.
The publication of all presidential issuances "of a public nature" or "of general applicability" is
mandated by law. Obviously, presidential decrees that provide for fines, forfeitures or penalties for
their violation or otherwise impose a burden or. the people, such as tax and revenue measures, fall
within this category. Other presidential issuances which apply only to particular persons or class of
persons such as administrative and executive orders need not be published on the assumption that
they have been circularized to all concerned. 6
It is needless to add that the publication of presidential issuances "of a public nature" or "of general
applicability" is a requirement of due process. It is a rule of law that before a person may be bound
by law, he must first be officially and specifically informed of its contents. As Justice Claudio
Teehankee said in Peralta vs. COMELEC : 7
In a time of proliferating decrees, orders and letters of instructions which all form part
of the law of the land, the requirement of due process and the Rule of Law demand
that the Official Gazette as the official government repository promulgate and publish
the texts of all such decrees, orders and instructions so that the people may know
where to obtain their official and specific contents.
The Court therefore declares that presidential issuances of general application, which have not been
published, shall have no force and effect. Some members of the Court, quite apprehensive about the
possible unsettling effect this decision might have on acts done in reliance of the validity of those
presidential decrees which were published only during the pendency of this petition, have put the
question as to whether the Court's declaration of invalidity apply to P.D.s which had been enforced
or implemented prior to their publication. The answer is all too familiar. In similar situations in the
past this Court had taken the pragmatic and realistic course set forth in Chicot County Drainage
District vs. Baxter Bank to wit:
8
The courts below have proceeded on the theory that the Act of Congress, having
been found to be unconstitutional, was not a law; that it was inoperative, conferring
no rights and imposing no duties, and hence affording no basis for the challenged
decree. Norton v. Shelby County, 118 U.S. 425, 442; Chicago, 1. & L. Ry. Co. v.
Hackett, 228 U.S. 559, 566. It is quite clear, however, that such broad statements as
to the effect of a determination of unconstitutionality must be taken with
qualifications. The actual existence of a statute, prior to such a determination, is an
operative fact and may have consequences which cannot justly be ignored. The past
cannot always be erased by a new judicial declaration. The effect of the subsequent
ruling as to invalidity may have to be considered in various aspects-with respect to
particular conduct, private and official. Questions of rights claimed to have become
vested, of status, of prior determinations deemed to have finality and acted upon
accordingly, of public policy in the light of the nature both of the statute and of its
previous application, demand examination. These questions are among the most
difficult of those which have engaged the attention of courts, state and federal and it
is manifest from numerous decisions that an all-inclusive statement of a principle of
absolute retroactive invalidity cannot be justified.
Consistently with the above principle, this Court in Rutter vs. Esteban sustained the right of a party
9
under the Moratorium Law, albeit said right had accrued in his favor before said law was declared
unconstitutional by this Court.
Similarly, the implementation/enforcement of presidential decrees prior to their publication in the

Official Gazette is "an operative fact which may have consequences which cannot be justly ignored.
The past cannot always be erased by a new judicial declaration ... that an all-inclusive statement of a
principle of absolute retroactive invalidity cannot be justified."
From the report submitted to the Court by the Clerk of Court, it appears that of the presidential
decrees sought by petitioners to be published in the Official Gazette, only Presidential Decrees Nos.
1019 to 1030, inclusive, 1278, and 1937 to 1939, inclusive, have not been so published. Neither
10
the subject matters nor the texts of these PDs can be ascertained since no copies thereof are
available. But whatever their subject matter may be, it is undisputed that none of these unpublished
PDs has ever been implemented or enforced by the government. In Pesigan vs. Angeles, the 11
Court, through Justice Ramon Aquino, ruled that "publication is necessary to apprise the public of
the contents of [penal] regulations and make the said penalties binding on the persons affected
thereby. " The cogency of this holding is apparently recognized by respondent officials considering
the manifestation in their comment that "the government, as a matter of policy, refrains from
prosecuting violations of criminal laws until the same shall have been published in the Official
Gazette or in some other publication, even though some criminal laws provide that they shall take
effect immediately.
WHEREFORE, the Court hereby orders respondents to publish in the Official Gazette all
unpublished presidential issuances which are of general application, and unless so published, they
shall have no binding force and effect.
SO ORDERED.
Garcillano v. House of Representatives, December 23, 2008
G.R. No. 170338 December 23, 2008
VIRGILIO O. GARCILLANO, petitioner,
vs.
THE HOUSE OF REPRESENTATIVES COMMITTEES ON PUBLIC INFORMATION, PUBLIC
ORDER AND SAFETY, NATIONAL DEFENSE AND SECURITY, INFORMATION AND
COMMUNICATIONS TECHNOLOGY, and SUFFRAGE AND ELECTORAL
REFORMS, respondents.
x----------------------x
G.R. No. 179275 December 23, 2008
SANTIAGO JAVIER RANADA and OSWALDO D. AGCAOILI, petitioners,

vs.
THE SENATE OF THE REPUBLIC OF THE PHILIPPINES, REPRESENTED BY THE SENATE
PRESIDENT THE HONORABLE MANUEL VILLAR, respondents.
x----------------------x
MAJ. LINDSAY REX SAGGE, petitioner-in-intervention
x----------------------x
AQUILINO Q. PIMENTEL, JR., BENIGNO NOYNOY C. AQUINO, RODOLFO G. BIAZON,

PANFILO M. LACSON, LOREN B. LEGARDA, M.A. JAMBY A.S. MADRIGAL, and ANTONIO F.
TRILLANES, respondents-intervenors
DECISION
NACHURA, J.:
More than three years ago, tapes ostensibly containing a wiretapped conversation purportedly
between the President of the Philippines and a high-ranking official of the Commission on Elections
(COMELEC) surfaced. They captured unprecedented public attention and thrust the country into a
controversy that placed the legitimacy of the present administration on the line, and resulted in the
near-collapse of the Arroyo government. The tapes, notoriously referred to as the "Hello Garci"
tapes, allegedly contained the President’s instructions to COMELEC Commissioner Virgilio
Garcillano to manipulate in her favor results of the 2004 presidential elections. These recordings
were to become the subject of heated legislative hearings conducted separately by committees of
both Houses of Congress.1
In the House of Representatives (House), on June 8, 2005, then Minority Floor Leader Francis G.
Escudero delivered a privilege speech, "Tale of Two Tapes," and set in motion a congressional
investigation jointly conducted by the Committees on Public Information, Public Order and Safety,
National Defense and Security, Information and Communications Technology, and Suffrage and
Electoral Reforms (respondent House Committees). During the inquiry, several versions of the
wiretapped conversation emerged. But on July 5, 2005, National Bureau of Investigation (NBI)
Director Reynaldo Wycoco, Atty. Alan Paguia and the lawyer of former NBI Deputy Director Samuel
Ong submitted to the respondent House Committees seven alleged "original" tape recordings of the
supposed three-hour taped conversation. After prolonged and impassioned debate by the committee
members on the admissibility and authenticity of the recordings, the tapes were eventually played in
the chambers of the House.2
On August 3, 2005, the respondent House Committees decided to suspend the hearings indefinitely.
Nevertheless, they decided to prepare committee reports based on the said recordings and the
testimonies of the resource persons.3
Alarmed by these developments, petitioner Virgilio O. Garcillano (Garcillano) filed with this Court a
Petition for Prohibition and Injunction, with Prayer for Temporary Restraining Order and/or Writ of
Preliminary Injunction4 docketed as G.R. No. 170338. He prayed that the respondent House
Committees be restrained from using these tape recordings of the "illegally obtained" wiretapped
conversations in their committee reports and for any other purpose. He further implored that the said
recordings and any reference thereto be ordered stricken off the records of the inquiry, and the
respondent House Committees directed to desist from further using the recordings in any of the
House proceedings.5
Without reaching its denouement, the House discussion and debates on the "Garci tapes" abruptly
stopped.
After more than two years of quiescence, Senator Panfilo Lacson roused the slumbering issue with a
privilege speech, "The Lighthouse That Brought Darkness." In his discourse, Senator Lacson
promised to provide the public "the whole unvarnished truth – the what’s, when’s, where’s, who’s
and why’s" of the alleged wiretap, and sought an inquiry into the perceived willingness of
telecommunications providers to participate in nefarious wiretapping activities.
On motion of Senator Francis Pangilinan, Senator Lacson’s speech was referred to the Senate
Committee on National Defense and Security, chaired by Senator Rodolfo Biazon, who had
previously filed two bills6 seeking to regulate the sale, purchase and use of wiretapping equipment
and to prohibit the Armed Forces of the Philippines (AFP) from performing electoral duties.7
In the Senate’s plenary session the following day, a lengthy debate ensued when Senator Richard
Gordon aired his concern on the possible transgression of Republic Act (R.A.) No. 4200 8 if the body
were to conduct a legislative inquiry on the matter. On August 28, 2007, Senator Miriam Defensor-
Santiago delivered a privilege speech, articulating her considered view that the Constitution
absolutely bans the use, possession, replay or communication of the contents of the "Hello Garci"
tapes. However, she recommended a legislative investigation into the role of the Intelligence Service
of the AFP (ISAFP), the Philippine National Police or other government entities in the alleged illegal
wiretapping of public officials.9
On September 6, 2007, petitioners Santiago Ranada and Oswaldo Agcaoili, retired justices of the
Court of Appeals, filed before this Court a Petition for Prohibition with Prayer for the Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, 10 docketed as G.R. No. 179275,
seeking to bar the Senate from conducting its scheduled legislative inquiry. They argued in the main
that the intended legislative inquiry violates R.A. No. 4200 and Section 3, Article III of the
Constitution.11
As the Court did not issue an injunctive writ, the Senate proceeded with its public hearings on the
"Hello Garci" tapes on September 7,12 1713 and October 1,14 2007.
Intervening as respondents,15 Senators Aquilino Q. Pimentel, Jr., Benigno Noynoy C. Aquino,
Rodolfo G. Biazon, Panfilo M. Lacson, Loren B. Legarda, M.A. Jamby A.S. Madrigal and Antonio F.
Trillanes filed their Comment16 on the petition on September 25, 2007.
The Court subsequently heard the case on oral argument. 17
On October 26, 2007, Maj. Lindsay Rex Sagge, a member of the ISAFP and one of the resource
persons summoned by the Senate to appear and testify at its hearings, moved to intervene as
petitioner in G.R. No. 179275.18
On November 20, 2007, the Court resolved to consolidate G.R. Nos. 170338 and 179275. 19
It may be noted that while both petitions involve the "Hello Garci" recordings, they have different
objectives–the first is poised at preventing the playing of the tapes in the House and their
subsequent inclusion in the committee reports, and the second seeks to prohibit and stop the
conduct of the Senate inquiry on the wiretapped conversation.
The Court dismisses the first petition, G.R. No. 170338, and grants the second, G.R. No. 179275.
-I-
Before delving into the merits of the case, the Court shall first resolve the issue on the parties’
standing, argued at length in their pleadings.
In Tolentino v. COMELEC,20 we explained that "‘[l]egal standing’ or locus standi refers to a personal

and substantial interest in a case such that the party has sustained or will sustain direct injury
because of the challenged governmental act x x x," thus,
generally, a party will be allowed to litigate only when (1) he can show that he has personally
suffered some actual or threatened injury because of the allegedly illegal conduct of the
government; (2) the injury is fairly traceable to the challenged action; and (3) the injury is
likely to be redressed by a favorable action.21
The gist of the question of standing is whether a party has "alleged such a personal stake in the
of issues upon which the court so largely depends for illumination of difficult constitutional
questions."22
However, considering that locus standi is a mere procedural technicality, the Court, in recent cases,
has relaxed the stringent direct injury test. David v. Macapagal-Arroyo23 articulates that a "liberal
policy has been observed, allowing ordinary citizens, members of Congress, and civic organizations
to prosecute actions involving the constitutionality or validity of laws, regulations and rulings." 24 The
fairly recent Chavez v. Gonzales25 even permitted a non-member of the broadcast media, who failed
to allege a personal stake in the outcome of the controversy, to challenge the acts of the Secretary
of Justice and the National Telecommunications Commission. The majority, in the said case, echoed
the current policy that "this Court has repeatedly and consistently refused to wield procedural
barriers as impediments to its addressing and resolving serious legal questions that greatly impact
on public interest, in keeping with the Court’s duty under the 1987 Constitution to determine whether
or not other branches of government have kept themselves within the limits of the Constitution and
the laws, and that they have not abused the discretion given to them."26
In G.R. No. 170338, petitioner Garcillano justifies his standing to initiate the petition by alleging that
he is the person alluded to in the "Hello Garci" tapes. Further, his was publicly identified by the
members of the respondent committees as one of the voices in the recordings. 27 Obviously,
therefore, petitioner Garcillano stands to be directly injured by the House committees’ actions and
charges of electoral fraud. The Court recognizes his standing to institute the petition for prohibition.
In G.R. No. 179275, petitioners Ranada and Agcaoili justify their standing by alleging that they are
concerned citizens, taxpayers, and members of the IBP. They are of the firm conviction that any
attempt to use the "Hello Garci" tapes will further divide the country. They wish to see the legal and
proper use of public funds that will necessarily be defrayed in the ensuing public hearings. They are
worried by the continuous violation of the laws and individual rights, and the blatant attempt to abuse
constitutional processes through the conduct of legislative inquiries purportedly in aid of legislation. 28
Intervenor Sagge alleges violation of his right to due process considering that he is summoned to
attend the Senate hearings without being apprised not only of his rights therein through the
publication of the Senate Rules of Procedure Governing Inquiries in Aid of Legislation, but also of
the intended legislation which underpins the investigation. He further intervenes as a taxpayer
bewailing the useless and wasteful expenditure of public funds involved in the conduct of the
questioned hearings.29
Given that petitioners Ranada and Agcaoili allege an interest in the execution of the laws and that
intervenor Sagge asserts his constitutional right to due process,30 they satisfy the requisite personal
stake in the outcome of the controversy by merely being citizens of the Republic.
Following the Court’s ruling in Francisco, Jr. v. The House of Representatives,31 we find sufficient
petitioners Ranada’s and Agcaoili’s and intervenor Sagge’s allegation that the continuous conduct by
the Senate of the questioned legislative inquiry will necessarily involve the expenditure of public
funds.32 It should be noted that in Francisco, rights personal to then Chief Justice Hilario G. Davide,
Jr. had been injured by the alleged unconstitutional acts of the House of Representatives, yet the
Court granted standing to the petitioners therein for, as in this case, they invariably invoked the
vindication of their own rights–as taxpayers, members of Congress, citizens, individually or in a class
suit, and members of the bar and of the legal profession–which were also supposedly violated by the
therein assailed unconstitutional acts.33
Likewise, a reading of the petition in G.R. No. 179275 shows that the petitioners and intervenor
Sagge advance constitutional issues which deserve the attention of this Court in view of their
seriousness, novelty and weight as precedents. The issues are of transcendental and paramount
importance not only to the public but also to the Bench and the Bar, and should be resolved for the
guidance of all.34
Thus, in the exercise of its sound discretion and given the liberal attitude it has shown in prior cases
climaxing in the more recent case of Chavez, the Court recognizes the legal standing of petitioners
Ranada and Agcaoili and intervenor Sagge.
- II -
The Court, however, dismisses G.R. No. 170338 for being moot and academic. Repeatedly stressed
in our prior decisions is the principle that the exercise by this Court of judicial power is limited to the
determination and resolution of actual cases and controversies. 35 By actual cases, we mean existing
conflicts appropriate or ripe for judicial determination, not conjectural or anticipatory, for otherwise
the decision of the Court will amount to an advisory opinion. The power of judicial inquiry does not
extend to hypothetical questions because any attempt at abstraction could only lead to dialectics and
barren legal questions and to sterile conclusions unrelated to actualities. 36 Neither will the Court
determine a moot question in a case in which no practical relief can be granted. A case becomes
moot when its purpose has become stale.37 It is unnecessary to indulge in academic discussion of a
case presenting a moot question as a judgment thereon cannot have any practical legal effect or, in
the nature of things, cannot be enforced.38
In G.R. No. 170338, petitioner Garcillano implores from the Court, as aforementioned, the issuance
of an injunctive writ to prohibit the respondent House Committees from playing the tape recordings
and from including the same in their committee report. He likewise prays that the said tapes be
stricken off the records of the House proceedings. But the Court notes that the recordings were
already played in the House and heard by its members.39 There is also the widely publicized fact that
the committee reports on the "Hello Garci" inquiry were completed and submitted to the House in
plenary by the respondent committees.40 Having been overtaken by these events, the Garcillano
petition has to be dismissed for being moot and academic. After all, prohibition is a preventive
remedy to restrain the doing of an act about to be done, and not intended to provide a remedy for an
act already accomplished.41
- III -
As to the petition in G.R. No. 179275, the Court grants the same. The Senate cannot be allowed to
continue with the conduct of the questioned legislative inquiry without duly published rules of
procedure, in clear derogation of the constitutional requirement.
Section 21, Article VI of the 1987 Constitution explicitly provides that "[t]he 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 requisite of publication of the rules is
intended to satisfy the basic requirements of due process.42 Publication is indeed imperative, for it
will be the height of injustice to punish or otherwise burden a citizen for the transgression of a law or
rule of which he had no notice whatsoever, not even a constructive one.43 What constitutes
publication is set forth in Article 2 of the Civil Code, which provides that "[l]aws shall take effect after
15 days following the completion of their publication either in the Official Gazette, or in a newspaper
of general circulation in the Philippines."44
The respondents in G.R. No. 179275 admit in their pleadings and even on oral argument that the
Senate Rules of Procedure Governing Inquiries in Aid of Legislation had been published in
newspapers of general circulation only in 1995 and in 2006.45 With respect to the present Senate of
the 14th Congress, however, of which the term of half of its members commenced on June 30, 2007,
no effort was undertaken for the publication of these rules when they first opened their session.
Recently, the Court had occasion to rule on this very same question. In Neri v. Senate Committee on
Accountability of Public Officers and Investigations,46 we said:
Fourth, we find merit in the argument of the OSG that respondent Committees likewise
violated Section 21 of Article VI of the Constitution, requiring that the inquiry be in
accordance with the "duly published rules of procedure." We quote the OSG’s
explanation:
The phrase "duly published rules of procedure" requires the Senate of every
Congress to publish its rules of procedure governing inquiries in aid of legislation
because every Senate is distinct from the one before it or after it. Since Senatorial
elections are held every three (3) years for one-half of the Senate’s membership, the
composition of the Senate also changes by the end of each term. Each Senate may
thus enact a different set of rules as it may deem fit. Not having published
its Rules of Procedure, the subject hearings in aid of legislation conducted by
the 14th Senate, are therefore, procedurally infirm.
Justice Antonio T. Carpio, in his Dissenting and Concurring Opinion, reinforces this ruling with the
following rationalization:
The present Senate under the 1987 Constitution is no longer a continuing legislative body.
The present Senate has twenty-four members, twelve of whom are elected every three years
for a term of six years each. Thus, the term of twelve Senators expires every three years,
leaving less than a majority of Senators to continue into the next Congress. The 1987
Constitution, like the 1935 Constitution, requires a majority of Senators to "constitute a
quorum to do business." Applying the same reasoning in Arnault v. Nazareno, the Senate
under the 1987 Constitution is not a continuing body because less than majority of the
Senators continue into the next Congress. The consequence is that the Rules of
Procedure must be republished by the Senate after every expiry of the term of twelve
Senators.47
The subject was explained with greater lucidity in our Resolution48 (On the Motion for
Reconsideration) in the same case, viz.:
On the nature of the Senate as a "continuing body," this Court sees fit to issue a clarification.
Certainly, there is no debate that the Senate as an institution is "continuing," as it is not
dissolved as an entity with each national election or change in the composition of its
members. However, in the conduct of its day-to-day business the Senate of each Congress
acts separately and independently of the Senate of the Congress before it. The Rules of the
Senate itself confirms this when it states:
RULE XLIV
UNFINISHED BUSINESS
SEC. 123. Unfinished business at the end of the session shall be taken up at the
next session in the same status.
All pending matters and proceedings shall terminate upon the expiration of
one (1) Congress, but may be taken by the succeeding Congress as if present for
the first time.
Undeniably from the foregoing, all pending matters and proceedings, i.e., unpassed bills and
even legislative investigations, of the Senate of a particular Congress are
considered terminated upon the expiration of that Congress and it is merely optional on the
Senate of the succeeding Congress to take up such unfinished matters, not in the same
status, but as if presented for the first time. The logic and practicality of such a rule is
readily apparent considering that the Senate of the succeeding Congress (which will typically
have a different composition as that of the previous Congress) should not be bound by the
acts and deliberations of the Senate of which they had no part. If the Senate is a continuing
body even with respect to the conduct of its business, then pending matters will not be
deemed terminated with the expiration of one Congress but will, as a matter of course,
continue into the next Congress with the same status.
This dichotomy of the continuity of the Senate as an institution and of the opposite nature of
the conduct of its business is reflected in its Rules. The Rules of the Senate (i.e. the
Senate’s main rules of procedure) states:
RULE LI
SEC. 136. At the start of each session in which the Senators elected in the preceding
elections shall begin their term of office, the President may endorse the Rules to the
appropriate committee for amendment or revision.
The Rules may also be amended by means of a motion which should be presented
at least one day before its consideration, and the vote of the majority of the Senators
present in the session shall be required for its approval.
RULE LII
SEC. 137. These Rules shall take effect on the date of their adoption and shall
remain in force until they are amended or repealed.
Section 136 of the Senate Rules quoted above takes into account the new composition of
the Senate after an election and the possibility of the amendment or revision of the Rules at
the start of each session in which the newly elected Senators shall begin their term.
However, it is evident that the Senate has determined that its main rules are intended to be
valid from the date of their adoption until they are amended or repealed. Such language is
conspicuously absent from the Rules. The Rules simply state "(t)hese Rules shall take effect
seven (7) days after publication in two (2) newspapers of general circulation." The latter does
not explicitly provide for the continued effectivity of such rules until they are amended or
repealed. In view of the difference in the language of the two sets of Senate rules, it cannot
be presumed that the Rules (on legislative inquiries) would continue into the next Congress.
The Senate of the next Congress may easily adopt different rules for its legislative inquiries
which come within the rule on unfinished business.
The language of Section 21, Article VI of the Constitution requiring that the inquiry be
conducted in accordance with the duly published rules of procedure is categorical. It is
incumbent upon the Senate to publish the rules for its legislative inquiries in each Congress
or otherwise make the published rules clearly state that the same shall be effective in
subsequent Congresses or until they are amended or repealed to sufficiently put public on
notice.
If it was the intention of the Senate for its present rules on legislative inquiries to be effective
even in the next Congress, it could have easily adopted the same language it had used in its
main rules regarding effectivity.
Respondents justify their non-observance of the constitutionally mandated publication by arguing

that the rules have never been amended since 1995 and, despite that, they are published in booklet
form available to anyone for free, and accessible to the public at the Senate’s internet web page.49
The Court does not agree. The absence of any amendment to the rules cannot justify the Senate’s
defiance of the clear and unambiguous language of Section 21, Article VI of the Constitution. The
organic law instructs, without more, that the Senate or its committees may conduct inquiries in aid of
legislation only in accordance with duly published rules of procedure, and does not make any
distinction whether or not these rules have undergone amendments or revision. The constitutional
mandate to publish the said rules prevails over any custom, practice or tradition followed by the
Senate.
Justice Carpio’s response to the same argument raised by the respondents is illuminating:
The publication of the Rules of Procedure in the website of the Senate, or in pamphlet form
available at the Senate, is not sufficient under the Tañada v. Tuvera ruling which requires
publication either in the Official Gazette or in a newspaper of general circulation. The Rules
of Procedure even provide that the rules "shall take effect seven (7) days after publication in
two (2) newspapers of general circulation," precluding any other form of publication.
Publication in accordance with Tañada is mandatory to comply with the due process
requirement because the Rules of Procedure put a person’s liberty at risk. A person who
violates the Rules of Procedure could be arrested and detained by the Senate.
The invocation by the respondents of the provisions of R.A. No. 8792, 50 otherwise known as the
Electronic Commerce Act of 2000, to support their claim of valid publication through the internet is all
the more incorrect. R.A. 8792 considers an electronic data message or an electronic document as
the functional equivalent of a written document only for evidentiary purposes.51 In other words, the
law merely recognizes the admissibility in evidence (for their being the original) of electronic data
messages and/or electronic documents.52 It does not make the internet a medium for publishing
laws, rules and regulations.
Given this discussion, the respondent Senate Committees, therefore, could not, in violation of the
Constitution, use its unpublished rules in the legislative inquiry subject of these consolidated cases.
The conduct of inquiries in aid of legislation by the Senate has to be deferred until it shall have
caused the publication of the rules, because it can do so only "in accordance with its duly published
rules of procedure."
Very recently, the Senate caused the publication of the Senate Rules of Procedure Governing
Inquiries in Aid of Legislation in the October 31, 2008 issues of Manila Bulletin and Malaya. While we
take judicial notice of this fact, the recent publication does not cure the infirmity of the inquiry sought
to be prohibited by the instant petitions. Insofar as the consolidated cases are concerned, the
legislative investigation subject thereof still could not be undertaken by the respondent Senate
Committees, because no published rules governed it, in clear contravention of the Constitution.
With the foregoing disquisition, the Court finds it unnecessary to discuss the other issues raised in
the consolidated petitions.
WHEREFORE, the petition in G.R. No. 170338 is DISMISSED, and the petition in G.R. No. 179275
is GRANTED. Let a writ of prohibition be issued enjoining the Senate of the Republic of the
Philippines and/or any of its committees from conducting any inquiry in aid of legislation centered on
the "Hello Garci" tapes.
SO ORDERED.

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Presidential Ad Hoc Fact-Finding Committee on Behest Loans, et. al. v.

Desierto, G.R. No. 130140, Oct. 25, 1999

PRESIDENTIAL AD HOC FACT-FINDING COMMITTEE ON BEHEST LOANS

In its Manifestation (In Lieu of Comment), 2 the Development Bank of the

On 9 November 1992, President Ramos issued Memorandum Order No. 61 directing

b. The borrower corporation is undercapitalized.

c. Direct or indirect endorsement by high government officials like presence of

d. Stockholders, officers or agents of the borrower corporation are identified as

e. Deviation of use of loan proceeds from the purpose intended.

f. Use of corporate layering.

g. Non-feasibility of the project for which financing is being sought.

h. Extraordinary speed in which the loan release was made.

In its FOURTEENTH (14TH) REPORT ON BEHEST LOANS to President Ramos, dated

In his instructions handwritten on the cover of the aforementioned Report,

On 2 March 1996, the COMMITTEE through Orlando O. Salvador, the PCGG

SECTION 3. Corrupt Practices of Public Officers. — In addition to acts or omissions

g. Entering, on behalf of the Government, into any contract or transaction

4. The evidence submitted to us show that: chanrob1es virtual 1aw library

b) Subsequent loans/guarantees were extended by DBP for the benefit and/or

(c) DBP to assume PSI loans with commercial banks.

(e) DDBP to suspend foreclosure for 10 months.

(a) P1.9 million to liquidate PSI’s obligation with other creditors.

WHETHER OR NOT THE PUBLIC RESPONDENT OMBUDSMAN GRAVELY ABUSED HIS

Also, in People v. Duque, 12 which involved a prosecution for illegal recruitment

Even if it be assumed arguendo that ordinary prudence required that a person

We agree with the OMBUDSMAN that Section 15 of Article XI of the Constitution

What is now Section 15 of Article XI of the Constitution was originally Section 13 of

At the plenary session, Commissioner Hilario G. Davide, Jr., succeeded in having

Would the proponent accept some amendments?

Is it accepted by the Committee?

However, on motion for reconsideration by Commissioner Christian Monsod, who

THE PRESIDING OFFICER. (Mr. de los Reyes).

We circulated to the Commissioners a memorandum that was unanimously

THE PRESIDING OFFICER (Mr. de los Reyes).

On what article is that, Commissioner Monsod?

It is on the Article on Accountability of Public Officers which was circulated a couple

THE PRESIDING OFFICER (Mr. de los Reyes).

Commissioner Monsod, what is the phrase sought to be deleted?

May we ask Commissioner Davide, the proponent of some of these amendments,

THE PRESIDING OFFICER (Mr. de los Reyes).

Commissioner Davide is recognized.

Thank you, Mr. Presiding Officer.

After deeper reflection on the consequences of the amendments which I introduced

THE PRESIDING OFFICER (Mr. de los Reyes).

Commissioner Regalado is recognized.

Thank you, Mr. Presiding Officer.

I move for the deletion of the phrase "co-principals, accomplices or accessories,"

THE PRESIDING OFFICER (Mr. de los Reyes).

So, how will the section now read?

THE PRESIDING OFFICER (Mr. de los Reyes).

THE PRESIDING OFFICER (Mr. de los Reyes).

So, in effect, the Commissioner is asking for a reconsideration.

OF PROPOSED RESOLUTION NO. 456

(Article on the Accountability of Public Officers)

THE PRESIDING OFFICER (Mr. de los Reyes).

Commissioner Monsod is again recognized.

I propose that we delete the phrases: "or their co-principals, accomplices or

THE PRESIDING OFFICER (Mr. de los Reyes).

Is there any objection to the amendment of Commissioner Monsod?

Commissioner Azcuna is recognized.

What does Commissioner Monsod say? chanroblesvirtuallawlibrary

We have no objection to that, but I understand there is a comment on this matter.

THE PRESIDING OFFICER (Mr. de los Reyes).